Rules of Evidence

Thursday, June 25, 2009

11:14 AM

The Lawphil Project - Arellano Law Foundation

Rules 128-134
REVISED RULES ON EVIDENCE

REVISED RULES ON EVIDENCE

(Rules 128-134, Rules of Court)

AS AMENDED PER RESOLUTION

ADOPTED ON MARCH 14, 1989

PART IV
RULES OF EVIDENCE

RULE 128
General Provisions
Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a
judicial proceeding the truth respecting a matter of fact. (1)
Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings,
except as otherwise provided by law or these rules. (2a)
Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not
excluded by the law of these rules. (3a)
Section 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue as to
induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue. (4a)

RULE 129
What Need Not Be Proved
Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction
of evidence, of the existence and territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (1a)
Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of
public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges
because of their judicial functions. (1a)
Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or
on request of a party, may announce its intention to take judicial notice of any matter and allow the
parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of
a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter
is decisive of a material issue in the case. (n)
Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made. (2a)

RULE 130
Rules of Admissibility
A. OBJECT (REAL) EVIDENCE

Evidence Page 1
Rules of Admissibility
A. OBJECT (REAL) EVIDENCE
Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
(1a)
B. DOCUMENTARY EVIDENCE
Section 2. Documentary evidence. — Documents as evidence consist of writing or any material
containing letters, words, numbers, figures, symbols or other modes of written expression offered as
proof of their contents. (n)
1. Best Evidence Rule
Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself, except
in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general
result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
(2a)
Section 4. Original of document. —
(a) The original of the document is one the contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another at or
near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)
2. Secondary Evidence
Section 5. When original document is unavailable. — When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a)
Section 6. When original document is in adverse party's custody or control. — If the document is in the
custody or under the control of adverse party, he must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss. (5a)
Section 7. Evidence admissible when original document is a public record. — When the original of
document is in the custody of public officer or is recorded in a public office, its contents may be proved
by a certified copy issued by the public officer in custody thereof. (2a)
Section 8. Party who calls for document not bound to offer it. — A party who calls for the production of a
document and inspects the same is not obliged to offer it as evidence. (6a)
3. Parol Evidence Rule
Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon and there can be, between the parties
and their successors in interest, no evidence of such terms other than the contents of the written
agreement.
However, a party may present evidence to modify, explain or add to the terms of written agreement if
he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills. (7a)
4. Interpretation Of Documents

Evidence Page 2
The term "agreement" includes wills. (7a)
4. Interpretation Of Documents
Section 10. Interpretation of a writing according to its legal meaning. — The language of a writing is to
be interpreted according to the legal meaning it bears in the place of its execution, unless the parties
intended otherwise. (8)
Section 11. Instrument construed so as to give effect to all provisions. — In the construction of an
instrument, where there are several provisions or particulars, such a construction is, if possible, to be
adopted as will give effect to all. (9)
Section 12. Interpretation according to intention; general and particular provisions. — In the
construction of an instrument, the intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the former. So a particular intent will
control a general one that is inconsistent with it. (10)
Section 13. Interpretation according to circumstances. — For the proper construction of an instrument,
the circumstances under which it was made, including the situation of the subject thereof and of the
parties to it, may be shown, so that the judge may be placed in the position of those who language he is
to interpret. (11)
Section 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in
their primary and general acceptation, but evidence is admissible to show that they have a local,
technical, or otherwise peculiar signification, and were so used and understood in the particular
instance, in which case the agreement must be construed accordingly. (12)
Section 15. Written words control printed. — When an instrument consists partly of written words and
partly of a printed form, and the two are inconsistent, the former controls the latter. (13)
Section 16. Experts and interpreters to be used in explaining certain writings. — When the characters in
which an instrument is written are difficult to be deciphered, or the language is not understood by the
court, the evidence of persons skilled in deciphering the characters, or who understand the language, is
admissible to declare the characters or the meaning of the language. (14)
Section 17. Of Two constructions, which preferred. — When the terms of an agreement have been
intended in a different sense by the different parties to it, that sense is to prevail against either party in
which he supposed the other understood it, and when different constructions of a provision are
otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the
provision was made. (15)
Section 18. Construction in favor of natural right. — When an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16)
Section 19. Interpretation according to usage. — An instrument may be construed according to usage, in
order to determine its true character. (17)
C. TESTIMONIAL EVIDENCE
1. Qualification of Witnesses
Section 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make their known perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be ground for disqualification. (18a)
Section 21. Disqualification by reason of mental incapacity or immaturity. — The following persons
cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such that they are
incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and of relating them truthfully. (19a)
Section 22. Disqualification by reason of marriage. — During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the affected spouse, except in a civil
case by one against the other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants. (20a)
Section 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of
parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator
or other representative of a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person of unsound mind, cannot

Evidence Page 3
demand against the estate of such deceased person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of such deceased person or before such
person became of unsound mind. (20a)
Section 24. Disqualification by reason of privileged communication. — The following persons cannot
testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of
the other as to any communication received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for a crime committed by one against
the other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent
of the client and his employer, concerning any fact the knowledge of which has been acquired in such
capacity;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined
as to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. (21a)
2. Testimonial Privilege
Section 25. Parental and filial privilege. — No person may be compelled to testify against his parents,
other direct ascendants, children or other direct descendants. (20a)
3. Admissions and Confessions
Section 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may
be given in evidence against him. (22)
Section 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to
be compromised, an offer of compromised by the accused may be received in evidence as an implied
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury. (24a)
Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter provided. (25a)
Section 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party
within the scope of his authority and during the existence of the partnership or agency, may be given in
evidence against such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (26a)
Section 30. Admission by conspirator. — The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act of declaration. (27)
Section 31. Admission by privies. — Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to the property, is evidence
against the former. (28)
Section 32. Admission by silence. — An act or declaration made in the presence and within the hearing
or observation of a party who does or says nothing when the act or declaration is such as naturally to
call for action or comment if not true, and when proper and possible for him to do so, may be given in

Evidence Page 4
call for action or comment if not true, and when proper and possible for him to do so, may be given in
evidence against him. (23a)
Section 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein, may be given in evidence against him. (29a)
4. Previous Conduct as Evidence
Section 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or similar thing at another time; but it may be
received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage,
and the like. (48a)
Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a
written instrument or specific personal property is, if rejected without valid cause, equivalent to the
actual production and tender of the money, instrument, or property. (49a)
5. Testimonial Knowledge
Section 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can
testify only to those facts which he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules. (30a)
6. Exceptions To The Hearsay Rule
Section 37. Dying declaration. — The declaration of a dying person, made under
the consciousness of an impending death, may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)
Section 38. Declaration against interest. — The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it
was made so far contrary to declarant's own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received in evidence against himself
or his successors in interest and against third persons. (32a)
Section 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast
occurred, and the names of the relatives. It embraces also facts of family history intimately connected
with pedigree. (33a)
Section 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 one 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. Entries in family bibles or other family books or charts, engravings on rings,
family portraits and the like, may be received as evidence of pedigree. (34a)
Section 41. Common reputation. — Common reputation existing previous to the controversy, respecting
facts of public or general interest more than thirty years old, or respecting marriage or moral character,
may be given in evidence. Monuments and inscriptions in public places may be received as evidence of
common reputation. (35)
Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to
the issue, and giving it a legal significance, may be received as part of the res gestae. (36a)
Section 43. Entries in the course of business. — Entries made at, or near the time of 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. (37a)
Section 44. Entries in official records. — 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. (38)
Section 45. Commercial lists and the like. — Evidence of statements of matters of interest to persons
engaged in an occupation contained in a list, register, periodical, or other published compilation is

Evidence Page 5
engaged in an occupation contained in a list, register, periodical, or other published compilation is
admissible as tending to prove the truth of any relevant matter so stated if that compilation is published
for use by persons engaged in that occupation and is generally used and relied upon by them therein.
(39)
Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history,
law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the
treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)
Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness
deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving
the same parties and subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him. (41a)
7. Opinion Rule
Section 48. General rule. — The opinion of witness is not admissible, except as indicated in the following
sections. (42)
Section 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a)
Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given,
may be received in evidence regarding —
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person. (44a)
8. Character Evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the
offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the
moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)
Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted,
but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;

Evidence Page 6
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it;
and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid
before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at
the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been
heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In
case of disappearance, where there is a danger of death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.

Evidence Page 7
marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other
and who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,
if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the same time. (5a)
Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a
child born after three hundred days following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)

RULE 132
Presentation of Evidence
A. EXAMINATION OF WITNESSES
Section 1. Examination to be done in open court. — The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated
to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given
orally. (1a)
Section 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the
questions propounded to a witness and his answers thereto, the statements made by the judge or any
of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder
and certified as correct by him shall be deemed prima facie a correct statement of such proceedings.
(2a)

Evidence Page 8
(2a)
Section 3. Rights and obligations of a witness. — A witness must answer questions, although his answer
may tend to establish a claim against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense. (3a, 19a)
Section 4. Order in the examination of an individual witness. — The order in which the individual witness
may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)
Section 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the
party presenting him on the facts relevant to the issue. (5a)
Section 6. Cross-examination; its purpose and extent. — Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to many matters stated in the
direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue. (8a)
Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness
has been concluded, he may be re-examined by the party calling him, to explain or supplement his
answers given during the cross-examination. On re-direct-examination, questions on matters not dealt
with during the cross-examination, may be allowed by the court in its discretion. (12)
Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party
may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other
matters as may be allowed by the court in its discretion. (13)
Section 9. Recalling witness. — After the examination of a witness by both sides has been concluded,
the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require. (14)
Section 10. Leading and misleading questions. — A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or
a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary
to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)
Section 11. Impeachment of adverse party's witness. — A witness may be impeached by the party
against whom he was called, by contradictory evidence, by evidence that his general reputation for
truth, honestly, or integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it
may be shown by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense. (15)
Section 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.

Evidence Page 9
credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached
by the party presenting him in all respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but
such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a)
Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such statements, and if so, allowed to
explain them. If the statements be in writing they must be shown to the witness before any question is
put to him concerning them. (16)
Section 14. Evidence of good character of witness. — Evidence of the good character of a witness is not
admissible until such character has been impeached. (17)
Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude
from the court any witness not at the time under examination, so that he may not hear the testimony of
other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been examined. (18)
Section 16. When witness may refer to memorandum. — A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded 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 knew that the same was correctly written or recorded; but in such case the writing or
record 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
writing or record, though he retain no recollection of the particular facts, if he is able to swear that the
writing or record correctly stated the transaction when made; but such evidence must be received with
caution. (10a)
Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder
admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by
one party, the whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence. (11a)
Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it
may be inspected by the adverse party. (9a)
B. AUTHENTICATION AND PROOF OF DOCUMENTS
Section 19. Classes of Documents. — For the purpose of their presentation evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to the entered therein.
All other writings are private. (20a)
Section 20. Proof of private document. — Before any private document offered as authentic is received
in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be. (21a)
Section 21. When evidence of authenticity of private document not necessary. — Where a private
document is more than thirty years old, is produced from the custody in which it would naturally be
found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence
of its authenticity need be given. (22a)
Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by

Evidence Page 10
of its authenticity need be given. (22a)
Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction
of the judge. (23a)
Section 23. Public documents as evidence. — Documents consisting of entries in public records made in
the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All
other public documents are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter. (24a)
Section 24. Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office
in which the record is kept is in foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (25a)
Section 25. What attestation of copy must state. — Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court. (26a)
Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except upon order of a court where
the inspection of the record is essential to the just determination of a pending case. (27a)
Section 27. Public record of a private document. — An authorized public record of a private document
may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody. (28a)
Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an
official record or by his deputy that after diligent search no record or entry of a specified tenor is found
to exist in the records of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry. (29)
Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a)
want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the
party offering the record, in respect to the proceedings. (30a)
Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified
as provided by law, may be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the instrument or document involved.
(31a)
Section 31. Alteration in document, how to explain. — The party producing a document as genuine
which has been altered and appears to have been altered after its execution, in a part material to the
question in dispute, must account for the alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the consent of the parties affected by it, or was
otherwise properly or innocent made, or that the alteration did not change the meaning or language of
the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a)
Section 32. Seal. — There shall be no difference between sealed and unsealed private documents
insofar as their admissibility as evidence is concerned. (33a)
Section 33. Documentary evidence in an unofficial language. — Documents written in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such
translation prepared before trial. (34a)
C. OFFER AND OBJECTION
Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally

Evidence Page 11
C. OFFER AND OBJECTION
Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified. (35)
Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the
time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n)
Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer
is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a
different period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)
Section 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the
course of the examination of a witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was sustained or overruled, it shall not
be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing
objection to such class of questions. (37a)
Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question presented; but the
ruling shall always be made during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the objection is
based on two or more grounds, a ruling sustaining the objection on one or some of them must specify
the ground or grounds relied upon. (38a)
Section 39. Striking out answer. — Should a witness answer the question before the adverse party had
the opportunity to voice fully its objection to the same, and such objection is found to be meritorious,
the court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent,
irrelevant, or otherwise improper. (n)
Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony. (n)

RULE 133
Weight and Sufficiency of Evidence
Section 1. Preponderance of evidence, how determined. — In civil cases, the party having burden of
proof must establish his case by a preponderance of evidence. In determining where the preponderance
or superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance is not necessarily with the greater
number. (1a)
Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal,
unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such
a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is
required, or that degree of proof which produces conviction in an unprejudiced mind. (2a)
Section 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession
made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of
corpus delicti. (3)
Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for
conviction if:

Evidence Page 12
conviction if:
(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. (5)
Section 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)
Section 6. Power of the court to stop further evidence. — The court may stop the introduction of further
testimony upon any particular point when the evidence upon it is already so full that more witnesses to
the same point cannot be reasonably expected to be additionally persuasive. But this power should be
exercised with caution. (6)
Section 7. Evidence on motion. — When a motion is based on facts not appearing of record the court
may hear the matter on affidavits or depositions presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral testimony or depositions. (7)

RULE 134 1
Perpetuation of Testimony
Section 1. Petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, any file a verified petition in the court of the province of the residence of any expected adverse
party.
Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to
be a party to an action in a court of the Philippines by is presently unable to bring it or cause it to be brought; (b) the subject matter of the
expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it; (d) the names of a description of the persons he expects will be adverse parties and their addresses so far as known; and (e)
the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.
Section 3. Notice and service. — The petitioner shall thereafter serve a notice upon each person named in the petition as an expected
adverse party, together with a copy of a petition, stating that the petitioner will apply to the court, at a time and place named therein, for the
order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for
service of summons.
Section 4. Order of examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the
examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken
in accordance with Rule 24 before the hearing.
Section 5. Reference to court. — For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to
the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be
admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the
provisions of Sections 4 and 5 of Rule 24.
Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an
appeal if the time therefor has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to
perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and
service thereof as if the action was pending therein. The motion shall show (a) the name and the addresses of the persons to be examined
and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony.If the court finds
that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be
taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these
rules for depositions taken in actions pending in the Regional Trial Court. (7a)
Footnote
This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery.

Evidence Page 13
 First Meeting: Preliminaries and Rule 128

June 16, 2009

Grading System:
10% Attendance
10% Recit
30% Midterms
50% Finals

Though Pro Reyo - in favor of the Accused

6 Film Showings! "Litigation is 90% research, and 10% Tiyaga"

Textbooks: Regalado/Herrera

Evidence
Rule 128
Section 1. Definition of Evidence
Evidence is the means
…sanctioned by these rules
…of ascertaining in a judicial proceeding
…the truth
…of a matter of fact

Elements of Evidence
1. Means: a method, a procedure, a guide
2. ROC: "sanctioned by these rules"
3. Judicial Proceeding: Under Judiciary branch (3 branches of government essential)
4. Truth: Not moral truth but legal truth: what is proven by the evidence presented by the parties, not
what really happened
5. Matter of fact

Means...
…it is the means used in judicial proceedings…
…for fairness

Rules of Court
…the rules of evidence may be found in other laws or used in other proceedings BUT the RULES OF
EVIDENCE under the RULES OF COURT are only used in Judicial Proceedings

Does the rules of Evidence apply in all proceedings in our LEGAL SYSTEM?
Yes, if rules of evidece in general. The rules of evidence may be found in other laws and applied in other
proceedings.
e.g. In the Constitution (Bill of rights, Sections 2,3, 12, 17…)

No if Rules of Evidence under Rules of Court as Rule 128.1 specifically says that it only applies to Judicial
Proceedings

Can the ROC be modified by the Congress?

Yes. Primarily, the ROC is created and can be modified by the Supreme Court BUT its law -making power
is limited to the preservation of substantive rights. Only Congress could alter, modify, or revise (?) rules
on substantive rights.

Are Evidentiary Rules just procedural?

(Hanging question. Was asked because law making powers of the SC and Congress were differentiated,
in that SC can only make procedural laws governing the operation of the courts and other activities in
line with their judiciary powers while Congress makes substantive laws)

Judicial Proceedings
Differentiate the 3 branches of government

When did the Philippines had its first Republic (with 3 branches of Government)?
The Filipino-Spanish war was for 2 years (1896 to 1898) and in 1898, Aguinaldo declared Philippine
Independence and established the Malolos Congress. But the Filipino -American War ensued (3 years,
not sure though from when til when). The Philippines only had its own republic when it finally achieved
independence in 1945.

Branches of Government
1. Executive: it implements/enforces/execute laws. Does not make laws
Administrative proceedings: under the executive.
A Quasi-Judicial Agency is under the Executive but it performs quasi -judicial functions. Its proceedings

Evidence Page 14
 are "quasi-judicial proceedings" and not Judicial proceedings, as specified under R128.1
Constitutional Commissions are NOT under the executive (they are independent bodies) but they also
perform "quasi-judicial proceedings" and not judicial proceedings.

2. Legislative: they make laws; they can either make you sad or happy
who the legislature?
Congress: Both houses
But are local legislative bodies considered part of the legislature? They do make laws in the form of
ordinances but they are not part of Congress...
YES, local legislative bodies are part of the legislative branch of government BUT they have only local
jurisdiction. The Congress has national jurisdiction to make laws, i.e. the laws they make apply to the
whole State.

3. Judicial: Adjudicate. They decide rights and obligations of parties.

Judicial Power (As defined in Article VIII, Section 1 of the 1987 Constitution):
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

What are Judicial Proceedings?

are these the ones performed by the Courts?
NO. It is inaccurate to say that judicial proceedings are those performed by the courts, as opposed to
those performed by other branches of government as the Courts are vested also with executive powers
to supervise and administer the members of the court (Article VIII, Section 6 of the Constitution:
Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. )

Do these involve solving of conflicts?

Yes, but still inaccurate. Other agencies of the government, other branches of the government as earlier
mentioned, also solve controversies but their proceedings are not considered "judicial proceedings"

Answer: Judicial proceedings, as governed by the ROC, are these when the Court of law is exercising its
judicial power/function
Courts of law are those whose jurisdiction is conferred by law
UNLESS: A special law requires otherwise

Example ni ma'am:
What if a judge saw and heard a man being beaten to death by his wife. Then the case for homicide
was raffled to his sala. Could he use what he had seen and heard in deciding the case?

NO. The judge should only use the EVIDENCE which was presented to him and the law governing the
case in deciding the case. Aspects of the lady justice with blindfold applies here. The judge should not let
his prejudices hinder his judgment and should decide only on the basis of evidence and law.

Truth
Not moral truth. Only legal truth, as established by the evidence presented by the parties.

Matter of Fact
Look for truths in respect to facts

2 Kinds of Facts:
1. Factum Probandum (UF) - the proposition which is sought to be proven. Usually an element of the
offense that is needed to establish the injury
2. Factum Probans (EF) - the facts that would support or establish the factum probandum
How to answer? Answer the 5Ws and 1H of journalists

Proof
- the effect of evidence
-it is when the evidence presented is sufficient to establish the QUANTUM of EVIDENCE required of the
situation

Example: A case for Quasi-Delict. A car bumps the vehicle.

UF: There was negligence on the part of the offender.
EF: The car was bumped.
*Negligence is a CONCLUSION OF LAW so should not state in pleading (as only UF should be stated in
the pleadings) that the offender is negligent. Should show how offender was negligent

Example: When Hubert Webb presented as defense an Alibi that he was in the US, skiing at Lake Ohayo,
when the crime was committed
UF (for defense): He did not kill the Vizcondes
Intermediate Fact (which is both a EF and a UF): He has an Alibi that he was in the US
EF: Photos taken of him skiing (Object Evidence)
Testimony that he was in US (Testimonial Evidence)
His passport showing that he was in the US (Documentary Evidence)

*There are many intermediate facts that are needed to be proven to arrive at UF. It, itself, is a factum
probans.

Evidence Page 15
 June 18 Meeting
Wednesday, June 24, 2009
11:49 PM

12 Angry Men
-film showing and exercises on Tuesday

Types of Evidence
Form
a. Object
b. Documentary
c. Testimonial

Relevance
-logical
-does the rule give a criterion for relevance? YES
WON the evidence would induce belief in the existence or non-existence of the fact in issue
Someone is killed - homicide
Fact in issue: WON the person is dead
Evidence: Body of the victim
*but Death is a Conclusion, not UF (there is presumptive death)
ULIT: if someone wants to claim as a successor of a person who dies, what should he show?
- Death Certificate from Register of Deeds

Existence/nonexistence: What does it mean? WON it happened? Is it true or false? How do ou know if
evidence would induce belief?
Common sense: Practice and experience

Nicole Case (rape)

-she was drunk
-she was dancing sexily
-she had to be piggy-backed ride
…these facts were presented by the defense to constitute CONSENT TO Sex
Are the said circumstances, taken together, relevant?
Relevant for the defense: shows consent, therefore, when there's consent, there is no rape

Induce belief…not completely convince you to believe but would INDUCE you to believe
…if more than 50%, Relevant

So if show picture of Nicole sexy dancing, relevant/irrelevant?

Relevant. May induce belief that Nicole consented to the sexual act
Vs.
Irrelevant. Doesn't mean that if she danced sexily, she consented to being raped

If the picture is merely circumstantial, it requires other evidences to make an inference on what
happened. But ma'am A said that each evidence should be relevant on its own.

ADMISSIBILITY vs. CREDIBILITY

Admissibility: WON the evidence is relevant and competent
Credibility: concerned with the weight each evidence is given
*look first if relevant before looking if competent

FINAL ANSWER Re: Sexy Dancing Picture of Nicole: IRRELEVANT!!!! For defense
-would not induce belief that Nicole consented to sex just because she danced sexily

Evidence Page 16
-would not induce belief that Nicole consented to sex just because she danced sexily

Circumstantial evidence ≠Collateral Evidence

For Prosecution: Picture of Nicole dancing sexily is RELEVANT

-may show that Nicole was dead drunk at the time she was raped that she was not able to discern what
happened to her

A lady confessed to a priest and left her bag with diamonds in the confession booth. Since the said bag
was not found, the lady accused the priest of stealing the bag with diamonds. Priest presents evidence
that he had not committed a single crime in his life; he had been a sacristan when he was young and
even then, he showed signs that he would become a priest…
Are the evidence presented by the Accused Relevant?
YES. R130.4 As character evidence: it is relevant to prove MORAL CHARACTER
RELEVANT: Induce belief to existence/nonexistence of a fact in issue: WON he stole the diamonds

RELEVANCE
-degree
-reasonability
So if irrelevant, unreasonable + less than 50% degree of certainty

*if IRRELEVANT, not admissible - so relevance is still a rule of competence

Collateral facts: not so much in issue

Circumstantial vs. Direct Evidence

There was a robbery. A guy emerged from inside the bank after the robbery. He has a bag with an
unlicensed gun inside. The police saw the guy and went after the guy. The guy threw his bag. The police
went to see the bag first before going after the guy, and upon inspection, he saw the unlicensed gun.
Is the unlicensed gun a circumstantial evidence of illegal possession of firearms?
No. It is a direct evidence of illegal possession. The gun itself, without a license, would constitute
evidence to prove such. As to the element of possession, the policeman saw the guy possessing the bag
and the guy only let go of the bag when he was already being chased.

Instead of a gun, the policeman saw a driver's license upon inspection of the bag. The policeman did not
see the face of the man who was running from inside the bank.
Is the driver's license circumstantial evidence?
It is not even relevant! It is relevant to the police to establish leads of who the suspects are but this
alone could not be admissible before the court

TO CHECK RELEVANCE, ALWAYS LOOK AT THE FACTUM PROBANDUM (THE FACT IN ISSUE) and check if
the evidence would induce belief as to the existence or nonexistence of the factum probandum

Evidence Page 17
 12 Angry Men
Thursday, June 25, 2009
7:51 AM

Facts of the case:

At around7pm, the accused and his father had a fight
At around 8pm, the boy was hit twice by his father (and his father has hit him almost everyday)
At around 8:45, the boy met with his friends
At around 9:45, the boy left
At around 10, the boy went home
At around 11, he allegedly watched a movie but cannot remember the names of the actors nor the film
he watched
At around 12, the victim father was killed
Around 15 seconds after being killed, the man downstairs heard the killer rushing downstairs. The man
downstairs allegedly saw the boy
At around 3 am, he went back home and saw his father dead. He was arrested by the police in the
hallway and was questioned in the kitchen near the body of his father

Evidence of the prosecution

Testimonial evidence
Old man downstairs - allegedly heard the accused and his father fighting then heard the accused say, "I
will kill you!" then heard a thud. He allegedly rushed to his door, 43 feet from his bedroom, and saw the
accused pass by his door rushing downstairs.

There was the lady from across the street (and in between their buildings were the El Train) who
allegedly saw the accused stabbing his father right when the last two trains of the El Train passed by.

Shopkeeper of the Knife store - said that at the night of the murder, the accused bought from him a
switchblade which is unique. The said switchblade was the same one left on the body of the victim.

There was also the fact that the kid was an expert in handling knives.

Object Evidence
The switchblade:
-the switchblade was allegedly brought by the accused at the night of the crime from a neighborhood
shop. The man at the shop said that it was a unique knife, and that the murder weapon (the
switchblade) was the same one the kid bought from him.
DEFENSE: the switchblade fell from his pocket before he went home
Another fact: Jury member #11 (James Fonda) bought another switchblade which is the same as the
murder weapon, showing that the switchblade is not the only one existing and thus, could show that the
accused did not own the knife, and thus, could not have been the person who killed his father
*note: there was no one who could positively identify the killer. The accused was linked to the murder
weapon because the shop owner said it was a unique knife and the accused was the one who bought it
from him at the night of the crime

Evidence
Exercise on 12 Angry M en (last year)
Exercises:
Group members:
(sagot ng group)
Bauza, Brian Ashley
Group 3
Cantre, Recolito Ferdinand
Azura, Jonas Julius Caesar (3A)
Capones, Joanna Eileen
Miura, Kiyoharu (3A)
Capul, Christopher
Tabamo, Jose Jat (3A)
Arcilla, Juan Antonio (4E) Estoy, Mary Grace
Mendoza, Charisse Mae (4E) Mendoza, Charisse Mae
Pineda, Giulia Francesca (4E) Po, Glaisa Christine
Villanueva, Aida Rose (4E) Sicat, Melissa

Relev State whether the following are relevant:

1. That the accused is an 18-year-old man who was “kicked and
1. Childhood background of the accused – Relevant
slapped around” since he was 5 whose father was jailed for
It is relevant to the PROSECUTION to
forgery, was abandoned by his mother at age 12, and then was
establish the accused's character and
committed to an orphanage where he grew up.
history of violence. It reasonably induces
-The following statements tend to establish the motive of the
one to believe that the accused has the
accused for killing his father, as he was “kicked and slapped
capacity/tendency to be violent.
around”.
Relevant: Motive would be useful for the prosecution to prove
2. School delinquency – Irrelevant
who would most likely kill the victim when the identity of the
It is irrelevant as evidence because a person
accused is in doubt. If the testimony of the witness who alleged
who is deliquent in school does not
that she saw the accused stab his father would be discredited
necessarily mean that he/she could murder
someone. This, on its own, does not induce on the grounds that it was not certain whether or not she
belief as to the probability or improbability of correctly identified the attacker as the accused as she does not
the accused committing the murder. have 20/20 vision, then the identity of the real killer is in doubt.
Therefore, the said statements would be relevant for the

Evidence Page 18

3. Frequent quarrels of the accused with his father –
Relevant
Relevant to the PROSECUTION because it
would induce belief that the son has
tumultuous relationship with his father and
could possibly have committed the crime
of murdering his father.
4. Identical knife produced – Relevant
It is relevant to the DEFENSE because the
prosecution relied on the uniqueness of the
knife to link the murder weapon to the
accused. In addition having an identical
knife presented in court would reasonably
induce belief that the murder weapon is not
unique as claimed by the prosecution and
that at the time of the murder, some other
person could have possessed the knife and
committed the crime.
5. Height or direction of the stab wound – Relevant
It is relevant to the DEFENSE because it
would induce belief that the accused could
not have committed the crime because a
person who is used to handling a
switchblade knife, like the accused, would
most likely plunge the knife from below with
an upward motion.
It is relevant to the PROSECUTION
because it would establish the position of
the accused relative to the victim when
the latter was stabbed.
6. Impressed marks on the ridge of the nose –
Relevant
It is relevant to the DEFENSE because the
witness, whose testimony was being relied
on in identifying the accused as the killer,
could not have clearly seen the accused in
the act of committing the crime.
7. Limp of the old man – Relevant
It is relevant to the DEFENSE because it
tends to show that the old man could not
have made it to the door in time to see the
accused rushing down the stairs.
8. Personal and emotional history of the witness –
Irrelevant
This is irrelevant because the witness'
personal and emotional history does not
erase the fact that he/she did not see or
hear something.
9. Time and motion demonstration – Irrelevant
This is irrelevant because the demonstration
could not accurately depict the speed and
manner of the old man walking down the
hallway.
10. Location of the scene of the crime beside the El
Train – Relevant
This is relevant to the DEFENSE because
the presence of the El Train obscures sight
and sound and could thus affect the
accuracy of the perception of the witness.
11. That the accused left in a hurry – Relevant
It is relevant to the PROSECUTION since
flight refutes the alibi by pointing out that the
person was at home instead of being at the
movies.
12. That the accused couldn't remember the titles
and names of the actors in the movie – It is
relevant to the PROSECUTION because it is a
way of disproving the alibi offered by the
accused.
Evidence Page 19
prosecution to bolster their allegation that indeed it was the
accused who killed the victim.
Irrelevant: The accused was positively identified by a witness
as the one who stabbed the victim so there is no doubt as to the
identity of the accused; therefore, statements as to the existence
of a motive is not relevant to the fact in issue of whether or not
the accused did kill the victim. The statements do not have a
relation to the fact in issue as to induce belief in the existence of
the fact that the accused killed his father. Further, it does not
necessarily follow that when a child is “kicked and slapped
around”, he would kill his father.
*Group’s decision: Irrelevant
2. The witness’ testimony that he heard the accused shout, “I’ll
kill you!” during a fight with his father.
Relevant: For the prosecution, the statement is relevant as it
tends to establish the fact that the accused was so angry that he
even threatened to kill the victim.
Irrelevant: The statement does not induce belief that the
accused indeed killed the victim. First, they were fighting and
during a fight, one could get emotional to the point that he may
hurl threats to the other. The statement made by the accused
could just be an expression of anger towards his father and is
not really a threat on the latter’s life. Second, there is no
indication that the said fight happened right before the victim
was stabbed as to lead one to believe that the accused stabbed
his father out of anger. The witness may have heard the accused
shout the said statement in another time, not particularly before
the victim was killed.
*Group’s decision: Irrelevant
3. That the murder weapon found by the police beside the body
of the victim was identified as the same knife earlier bought by
the accused from a neighborhood junkshop
Relevant: The statement tends to induce belief that the accused
did kill the victim as the knife he bought was identified as the
same knife found by the police beside the body of the victim
which was used as the murder weapon. He bought the knife,
more likely he keeps it with him, and unlikely that he would let
other persons borrow it (as who would want to borrow a
knife???).
*Group’s decision: Relevant
4. That the accused “lied” about being in the theater at the time
of the murder because upon questioning, he could not even
remember the titles of the movies he viewed, let alone the actors
who played in them
Relevant: The statement could weaken the alibi of the accused
that he was at the theater as it tends to establish the
improbability of the fact that he was indeed at the said place.
After having established that it was impossible for the accused
to be at the theater when the victim was killed, then it could
induce one to believe that he was at their house and that he
indeed killed his father.
Irrelevant: It does not mean that when the accused cannot
remember the titles of the movies he viewed nor the actors who
played in them, he did not watch the film and was not in the
theater as to lead one to believe that he was at the scene of the
crime and was the one who killed the victim. If he was indeed
lying, i.e. he was not really at the theater, it does not
automatically mean that he killed his father. He might even be a
pathological liar.
*Group’s decision: Irrelevant
*5. That a juryman (a witness) once lived through the L-line and
said the sound of the passing train was “almost unbearable”,
belying the witness’ claim of hearing something as to have
prompted her to look out and thus saw the stabbing through the
last two cars of the passing train
Relevant: The statement of the jury-witness bolsters the
testimony of the witness who said that she heard something
which prompted her to look out. The said witness claims that
she saw the stabbing right after looking out which strengthens
her credibility as a witness, therefore, would lead one to believe
that the witness positively saw the accused stabbing the victim.
Irrelevant: The sound of the passing train being “almost
unbearable” does not have any relation to the fact being
established, i.e., that the witness indeed saw the accused
stabbing the victim. Whatever she did or did not hear does not
determine whether or not the son killed the father.
*Group’s decision: Irrelevant
6. The compression marks on the ridge of the witness’ nose
Relevant: Compression marks could be seen on someone who
wears glasses often. People who wear glasses do not have 20/20
 wears glasses often. People who wear glasses do not have 20/20
vision. The witness in the movie testified that she was already in
bed but could not fall asleep when she saw the stabbing. People
who wear glasses do not usually wear them to bed. Therefore, if
the witness did not have 20/20 vision and she probably did not
have her glasses on at that time, then she testified that she saw
the accused stab the victim, there is doubt if she was certain of
the identity of the accused. As the compression marks tend to
induce one to believe that the accused did not kill his father
(although indirectly), then it is relevant.
Irrelevant: The statement alone would not be relevant to the
case, as the compression marks would not prove anything.
Granted that the said marks could be seen on someone who
wears glasses and that the witness’ eyesight was not 20/20, still
there was no showing that the witness was not wearing her
glasses when she saw the stabbing. The witness could have
been wearing her glasses at that time so that she clearly saw the
accused stab the victim.
*Group’s decision: Relevant

7. Jury Number 8 confessed to his colleagues (a witness

testified) that he’d bought a switchblade from a pawnshop in the
neighborhood of the accused, brought it out and everyone saw it
looked just like the “murder weapon” even as another member
of the jury earlier emphasized that it was “a most unusual
looking knife.”
Relevant: The fact that there is another knife which looked just
like the “murder weapon” leads one to conclude that the knife
which was used in the murder was not unique so that there
may be other persons who owns similar-looking knives. If there
are other persons who own a knife similar to the murder
weapon then the said fact would induce one to believe that the
accused may not be the killer, and there may be other persons
who could have killed the victim.
*Group’s decision: Relevant

8. Testimony re downward direction of the wound not consistent

with the fact that father was taller at six feet two inches than
the accused (five feet seven inches in height)
Relevant: The direction of the wound would tend to establish
the height of the attacker relative to the height of the victim. The
downward direction of the wound would mean that the attacker
is taller than the victim. As the victim was taller than the
accused, the said fact would induce one to believe that the
accused did not kill the victim. The direction of the wound may
also show the positions of the victim and the accused relative to
each other, more particularly if the angle of the wound would be
shown.
Irrelevant: Standing alone, the said statement could not prove
anything. The accused could have jumped at his father so that
he stabbed his father in a downward direction. The accused
could also have stabbed his father while the latter was in a
sitting position. As one of the witnesses testified that he heard a
“thud,” it is possible that the accused hit his father first, and
the father fell to the floor, then the accused stabbed his father
while the latter was on the floor. There was also a statement
with regard to users of switchblades to the effect that users of
switchblades stab in an upward direction. The said fact would
induce one to believe several circumstances but would not
establish the existence or non-existence of the fact that the
accused killed his father.
*Group’s decision: Relevant

9. Diagram/layout of the witness’ apartment and his testimony

as bases
Relevant: The diagram, taken together with the testimony of the
witness regarding the stabbing, would tend one to believe that
the accused did stab his father, or would cast doubt on the
truth and accuracy of the testimony of the witness which
imputes upon the accused the crime of killing his own father.
*Group’s decision: Relevant

10. The reenactment

Relevant: The reenactment would tend to establish the
accuracy of the testimony of the witness who imputes the crime
upon the accused. If, through the reenactment, it is established
that the witness could not have reached the door in time to be
able to see the accused darting out of the scene of the crime,
then one may be induced to believe that the accused was not at
the scene of the crime and that he did not kill his father. If, on
the other hand, the reenactment establishes the fact that the
witness would be able to reach the door in time and would be
able to see the accused rushing away from the scene of the
crime, then one may be induced to believe that the accused
killed his father, and probably ran away because of guilt. Flight

Evidence Page 20
 killed his father, and probably ran away because of guilt. Flight
is an indication of guilt.
Irrelevant: The reenactment is inherently subjective, i.e., the
result of the scene would depend on the actors who act out the
scene. The reenactment may not be accurate as to bolster the
testimony of the witness. Further, the witness may have been
driven by adrenalin rush after hearing the threat of the accused
to kill the victim. The “thud” that he heard could have induced
him to believe that something bad happened. With adrenalin
rush, the witness could have walked faster than how he did
during the trial.
*Group’s decision: Relevant

11. When asked by other members of the jury, one of them who
personally knew the witness said his motive for coming forward
with a false testimony could possibly be to get much-needed
attention, for the witness was a largely ignored old man in the
community
Relevant: The statement could cast doubt on the credibility of
the witness and would therefore induce one to believe that the
accused did not kill his father, as testified by the said witness.
Irrelevant: Even if a man is old, largely ignored in the
community, and just wanted attention, these would not mean
that he is a liar and not telling the truth. Further, there is no
showing that the old man has a motive against the accused to
impute to the accused a crime which he did not commit just to
get attention.
*Group’s decision: Irrelevant

Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%20SCHOOL%

20FILES\3y1s\Evidence_Avena\Exercise%20on%20the%2012%20angry%20men.doc>

Evidence Page 21
 Air France vs. Carrascoso
Thursday, July 02, 2009
8:45 AM

AIR FRANCE vs. CARRASCOSO Air France v Carrascoso

18 SCRA 155 BER dsnt apply bec subj if inquiry wasn’t the contents of the notebook, but the subj of inquiry was WON the ousting of Mr
SANCHEZ; Sep 28, 1966 Carrascoso actually happened
(athe)
Witness said he left his seat bec the space w as confining
NATURE: Review on certiorari o This is w hen he saw the purser
FACTS
o Who said “I noted the incident in my notebook,” shld him the note, etc
Carrascoso, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on o This entire testimony of this incident w the purser – w as told to prov e that the ousting happened? This is
March 30, 1958. w hy its relevant? NO
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to o the contents of the ntbk is relev ant to prov e the ouster?
plaintiff a 'first class' round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff trav eled in
'first class', but at Bangkok, the Manager of the defendant airline forced plaintiff to v acate the 'first class' seat
o The ntbk became relevant bec the entry said a 1st class passenger was forced to transfer to 2nd class – wo
this, it w ld be irrelev ant
that he w as occupying because, in the w ords of the w itness Ernesto G. Cuento, there was a 'w hite man', who,
the Manager alleged, had a 'better right to the seat. When asked to v acate his 'first class' seat, the plaintiff, as When the v ictim w as telling his story, he include this anecdote, why is this relevant? That the purser talked to him, etc
w as to be ex pected, refused, and told defendant's Manager that his seat would be taken over his dead body; a o Its relev ant bec it tends to prov e his was wrongfully
commotion ensued; plaintiff reluctantly gave his 'first class' seat in the plane.
After transferring to the tourist class seat, one flight attendant approached him and requested from him his ticket o Purser w ho‟s the EE wont say anything detrimental to his boss unless its true
and said that she w ill note of his transfer. He refused because for him it is tantamount to accepting his transfer. So w hen the entry was made, it really records the ouster
Later, he w ent to the pantry that w as next to him and the purser was there. He told him that he recorded the
incident in his notebook. He read it and translated to him – because it w as recorded in French. – "First class It‟s the entry w c makes the purser say so impt & relevant
passenger w as forced to go to the tourist class against his will, and that the captain refused to interv ene." So if the other party objects, if try ing to prov e E of the ouster thru the ntbk, y ou shld present the ntbk/the entry!
Carrascoso, during trial, included this incident in his testimony.
Carrascoso said:
ISSUES o I w ent to the purser.
1. WON Carrascoso was entitled to the first class seat he claims  He w as in full possession of his capacity, was in full possession of his senses
2. WON the CA erred in finding that the purser madean entry in his notebooks reading "First class passenger was  Thus, hes not disqualified from being a witness
forced to go to the tourist class against his w ill, and that the captain refused to interv ene" is predicated upon  *S20: y ou can perceiv e only thru 5 senses (hear, see, taste, feel, smell)
ev idence which is incompetent, therefore not admissible (because the defendant was saying that the best
evidence in this case is the entry and not the testimony) Any person who can perceive, senses aren‟t disabled – can relate it to the Ct correctly
 competent
HELD o The purser talked to me.
1. YES. The testimony of the defendant‟s w itnesses that the issuance of first class ticket w as no guarantee that
the passenger w ould have a first class ride, but such would depend upon the availability of first class seat cannot  Competent
hold w ater. Oral evidence cannot prevail over written evidence, in this case, the first class tickets of the plaintiff o The purser said ______.
w ithout any reservation whatever and even marked with OK, meaning confirmed.
2. NO. The subject of inquiry is not the entry , but the ouster incident. Testimony of the entry does not come
 If testify ing that the person talked – can be = competent
w ithin the proscription of the best ev idence rule. Such testimony is admissible.  But if presented to offer the truth of w hat the purser said = hearsay
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling o The purser showed his note, saying he alrdy noted the incident in the ntbk & translated it.
occurrence was still fresh and continued to be felt. The ex citement had not as yet died down. Statements then,
in this env ironment, are admissible as part of the res gestae. For, they grow "out of the nerv ous excitement and
 Translated: competent – he heard it
mental and phy sical condition of the declarant". The utterance of the purser regarding his entry in the notebook  Content of the note – subj to BER? Therefore, the note is the crux of the testimony ! He wldnt
w as spontaneous, and related to the circumstances of the ouster incident. Its trustw orthiness has been hav e relayed this story if not for this note
guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res gestae.  Can he talk abt the contents of the note?
Moreov er, if it w ere really true that no such entry was made, the deposition of the purser could have cleared up
the matter. Air france‟s argument: when you begin quoting the contents, don‟t relay the story but show the note itself
SC: said the testimony was only abt the ouster, the issue wsnt the contents of the ntbks per se, but the ouster
DISPOSITION: Decision of CA affirmed.
COA of Carrascoso: tort for damages (not just for breach of contract but also bec there w as BF)
o His story abt the purser is merely factum probans
Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%
20SCHOOL%20FILES\4y1s\Evidence%20take%202\LAW%20126%20evidence\DIGEST Pt of Carrascoso‟s testimony: Whether its really in the ntbk or not, fact that the purser said it to Carrascoso – its alrdy against
\EVIDENCE%20DIGESTS%20PART%202.doc> the airline
o The ntbk w ld only corroborate this fact

Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%20SCHOOL%20FILES\4y1s

\Ev idence%20take%202\LAW%20126%20evidence\REVIEWERS\notes%20from%20the%20future.doc>

Evidence Page 22
Hernaez vs. McGrath
Thursday, July 02, 2009
8:48 AM
HERNAEZ v McGRATH Hernaez v McGrath
TUASON; July 9, 1952
Do you agree w the ruling of the Ct?
G.R. No. L-4044
(jojo) BER dsnt apply bec the issue is the existence of a docum & not its contents
C t admitted the PE presented by the Jap Co to prove the existence of a deed of sale
NATURE
executed by Hernaez
- On action of ejectment and for damages commenced in the CFI of Manila by Pedro C. Hernaez and Asuncion de la Rama
Vda. de Alunan, in her ow n behalf and as an administratix of the estate of her deceased husband, Rafael R. Alunan, against Ruling of the C t: when its not the contents of a docum (a writing, matl containing a
the Philippine Alien Property Administration (PAPA). writing) that is the subj of inquiry, BER dsnt apply
Subj of inquiry was the existence of a deed of sale – was claiming that he ddnt sell
FACTS
his props
- Rafael Alunan and Pedro Hernaez formerly were registered owners in equal share of a land, 8 contiguous parcels with a
combined area of 4,533.34 sqm covered by TCT Nos. 46872-46880 and situated in the corner of Cortabitarte and Dew ey o But they did execute a sale
Boulev ard, Manila. 8 residential houses were built on these lots but they were destroyed by war operations in the early partof C ontents of the deed of sale weren’t in inquiry – so BER dsnt apply
1945.
In Feb. 1943, a deed of sale, on w hich Alunan's and Hernaez names were signed as sellers and the Hakodate Dock Co., Ltd., a C t didn’t consider it as the contents as in issue but the existence of the deed of sale
Japanese commercial firm, as buyer, in consideration of P170,000, was presented for registration in the office of register of If the Q is WON there was a sale, aren’t you asking abt the contents of the deed of
deeds, and on March 3, TCT Nos. 66832-66839 in the name of the purchaser were issued in lieu of the old CT Nos. sale?
53930-53938, w hic h were totally cancelled. On the strength of this registration,the lots and all improvements still existing
thereon w ere v ested as property of an enemy national by the PAPA, a US Government instrumentality, In April 1947, under the o Seems like you should
authority of the US Trading w ith the Enemy Act, as amended, the Philippine Property Act of 1946, and Ex ecutiv e Order No. o Bec how wld you know if there was a sale if you don’t examine if there
9818. was a sig or not – wc is part of the contents
- The RP as the transferee of the property in litigation came into the case as interv enor on the side of the defendant. Dr. If someone is claiming there was a deed of sale, isn’t he in effect talking abt the
Nicanor Jacinto also filed a complaint in intervention but in opposition to the defendant as w ell as the plaintiffs. The questioned
contents bec he’s telling you who the subjs are, what the subj of the sale was, etc?
property has been mortgaged to Jacinto before the outbreak of the w ar to secure a promissory note for P160,000, and although
the mortgage had been paid and cancelled in 1943, Dr. Jacinto alleged that he had accepted the pay ment and agreed to the Was saying it was a forgery, was being forced by the Jap to sell – he claimed the
cancellation in fear of Japanese reprisal. deed of sale was fake bec he ddnt sign
- The issue w as complicated by the theft after liberation from the office of the register of deeds, of the deed of sale, the transfer Why ds/dsnt BER apply?
certificates of title by v irtue thereof, and other papers pertaining to the last registration. The plaitiff‟s representation made
determined and repeated efforts to block the attempts of appellants any oral ev idence touching on the alleged contents of the Ruling of the C t is correct but 2 misleading sentences in the case –
documents supposedly executed by Alunan and Hernaez in fav or of the Hakodate, w hich efforts were futile. o Proofs of the execution aren’t dependent on the existence/non -
- As maters stand, only one unsigned copy of the aforesaid deed, which had been secured from the file of the Hakodate home existence of the docum
office in Hokaido, Japan, was introduced. Hakodate's signed copy is said to have been lost or destroyed in the bombing of
Toky o in 1945 along with the company's office in that city . And the copy or the copies which had been kept by the notary public
 If its non-existent then why need proof for execution?!?!
before w hom the document w as acknowledged had also been burned with his other papers during the fight for liberation of  To prove the existence of a docum, you have to prove its due
Manila. As a result, defendant's proofs on the controverted execution of the lost deed are only the entries thereof in the execution
registrar's office, collateral documents, and parol testimony, some direct, some circumstantial, but none precise or unequiv ocal  J. Tuason shldve said: proofs of the execution aren’t dependent
in term. on the existence/non-existence of the ORIG of the docum
- Hernaez w as the lone w itness on his behalf and for his co-plaintiff. The gist of Hernaez' testimony is that if any document w as
presented the register of deeds' office purporting to hav e been ex ecuted by him and his co-owner, that document was a forgery. Bec even if the orig no longer exists, bec destroyed/lost,
Hernaez in part declared: "We w ere forced by the Japanese to vacate the houses. They told me they needed the property and I you can still prove its execution thru 2ndary E
had to cooperate, collaborate w ith them and I had no other alternativ e but to sell my property. They detained at the Port Area Bec when talking abt execution, you aren’t talking abt the
until midnight; it w as midnight when they sent me back to my house but they retained the titles. I think there w ere eight titles. contents w/in the meaning of the BER
They told me that I had to sign the deed of sale. I had been ex pecting that they w ill appear there to make me sign the deed of
sale in my house or in the office of the Nav y at Legaspi Landing, but what happened is that they did not appear in my house, C ant talk abt execution if it really didn’t exist
and afterw ards I found out that Captain Tanabe (Watanabe, Hakodate's manager) was sent back to Tokyo." You’re talking abt execution so that 2ndary E may be
- The principal w itness for the defendant on the dispute sale w ere Satoru Watanabe, Napoleon Garcia and Jose Ma. Recto. applied
- Watanabe: testifies that he w as in the Philippines in the early part of the w ar as acting manager of the Manila Branch of the
When want to prove execution, you’re talking abt the
Hakodate Dock. Co., Ltd; that he knew Hernaez and Alunan. He recalls the transaction between the Hackodate Dock Co., Ltd.,
on the one hand and Hernaez and Alunan on the other, concerning the sale of the land and buildings located at the corner of contents (vendor, vendee, when it tk place, etc) but if
Cortabitarte and Cav ite (Dew ey) Boulevard. He says that the deed of sale w as prepared in Doctor Recto's office but he w as not you’re proving the contents wrt to the terms of the
present hav ing gone to that office only after he had been informed that the document w as ready; that after he had been agreement, but to its execution, then BER dsnt apply
assured that the document w as complete, he affixed his signature thereto; that according to his memory he was asked to sign o Be that as it may the C t below was wrong in holding that PE of the
the document after the v endors, Alunan and Hernaez, had signed it; that as he left Manila for Japan shortly after he had signed execution was barred, the Ct confused/confounded the execution &
the deed of sale, he does not know what happened to the copy of said document which was deliv ered to Hakodate Dock. Ltd., contents of the docum…wc in this case aren’t in dispute …it’s the
that after he had returned to Toky o, the document was forw arded to the Tokyo office, at the beginning of the follow ing y ear; that contents wc cant be proved by 2ndary E when the inst itself is
the duplicate original and the unsigned copies thereof w ere kept in the Tokyo office; that the duplicate original w as burned accessible….due execution must be shown…
w hen the Tokyo office was bombed by the United States Airforce in 1945, but that a copy (made by the Hakodate Manila office)
of the duplicate original w hich was kept by the Manila Branch office was not destroyed and he brought it along w hen he came
 (underlined) is wrong – bec whats in dispute that there was no
to the Philippines to testify ; that he saw that copy of the first time in the Hokaido office of the Hakodate Dock Co. w hen hew ent sale
there before coming to the Philippines.  All they’re claiming is that they ddnt sign
- Garcia, an assistant in the office of Atty . Recto, declares that he w as a notary public and recall that, as such, he ratifieda C t said the argument was wrong bec he was confusing execution w content
document in w hich Alunan and Hernaez and the Hakodate Dock. Ltd., were the parties; and all the notarial copies were lost or
destroy ed; that he made at least fiv e copies of which he retained tw o and handed over the rest and the original to the parties;
that Hakodate at least receiv ed one copy. He says he did not remember to w hom he deliv ered the original. On cross- Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%
ex amination by the attorney for Dr. Jacinto, Garcia says that he does not know who engaged his firm; he only knows that Recto 20SCHOOL%20FILES\4y1s\Evidence%20take%202\LAW%20126%20evidence\REVIEWERS
requested him to notarize the document. Nevertheless he recalls that the v endors were Hernaez and Alunan and the vendee \notes%20from%20the%20future.doc>
the Hakodate Dock. Ltd, He say s that the documents were signed in his presence and that he must have giv en Alunan or
Hernaez a copy . He further says he cannot exactly tell where the document was ratified but that it must hav e been either in his
office or in the office of the parties w hether he w ent w ith his notarial equipment. He thinks he says, that he w ent to the office of
Secretary Alunan in the old legislative building.
- Recto: testifies that during the Japanese occupation his law office was on the 3rd floor of the Soriano Building. He recalls a
transaction betw een Alunan and hernaez on the one hand and the Hakodate Dock. Ltd., on the other. He thinks that he drew a
deed of sale and that the document w as signed in his office; that he w as in the same room. He was asked if he w as one of the
w itnesses to the document but the question w as objected to and the objection w as sustained. He further declares that he took
charge of registering the deeds of sale and that after the registration he succeeded in getting the certificates of title in the name
of the v endee and deliv ered them to the latter. He say s he did not remember if his firm was the retained the counsel for the
Hakodate Dock Co., nor is he sure where the transaction took place. He would not be able to identify the document if only a
copy thereof w as shown to him. He states that he does not remember if the transaction w as a sale; all he remembers is that it
w as a transaction between Hernaez and Alunan and the Hakodate Doc Ltd., and the papers were signed at his office at the
Soriano Building by alunan and Hernaez, as afar as he can recall. He recalls another transaction of Hakode in which the
preparation of the document w as more or less entrusted to him by the Hakodate Dock Co. He says that he w as informed by
Messrs. Hernaez and Alunan regarding the transaction that there had been an argument betw een them.
The trial Judge did not make ex press findings on Watanabe's credibility , and referring to Garcia's and Recto's testimony, noting
that the same are beclouded w ith the phrases "it could have been", "it must have been signed, in his presence". Moreover, the
judge insinuated that Hakodate's signed copy existed at the time of the trial and had been suppressed, and acting on this belief,
disregarded all parol ev idence by which the defendant had attempted to establish the genuineness of the deal. Said the court:
There is no sufficient ev idence on record to show the loss of all the signed copies of the questioned document. Loss of the
original and the signed copies must be satisfactorily established before secondary evidence can be admitted. Specially when
the signatures on the document is claimed to have been forged, it becomes absolutely necessary and indispensable the
production on original or a signed copy of the document. Thus, no secondary evidence can be entertained to prov e the
document of the lost document, especially if the supposed document is contested to be falsified of forged.
RTC ruled in fav or of the plaintiffs and dismissed the complaints in intervention.

ISSUE
WON the signatures of Alunan and Hernaez on the deed of sale are authentic

HELD
YES
- No v alid ground can be perceiv ed for the insinuation that the defendant or the Hakodate Dock Co. concealed any of the
signed copies of the disputed deed. It is highly inconceivable that the United States Gov ernment or the Philippine Government
representativ es would be capable or resorting to such dishonorable and shyster tactics in order to w in the case and dispossess
legitimate ow ners of their property . Much less can it be imagined that those representatives had a hand in the loss of pertinent
papers in the register of deeds' office. It w ould hav e been nonsensical on their part to steal the v ery documents on which they
based their action in v esting the property.
As for Hakodate Dock Company, his firm had no interest in the result of the suit. It could not hav e entertained any hope of
getting the property under any circumstances. Furthermore, Watanabe has no longer connected with Hakodate when he
testified at the trial.
Be that as it may , the court below was entirely mis taken in holding that parol ev idence of the ex ecution of the instrument was
barred. The court confounded the execution and the contents of the document. It is the contents, w hich in this case are not in
dispute, w hich may not be proved by secondary evidence when the instrument itself is accessible. Proofs of the ex ecution are
not dependent on the ex istence or non-existence of the document, and as a matter of fact, such proofs of the contents: due
ex ecution, besides the loss, has to be shown as foundation for the introduction of secondary evidence of the contents.
Section 46 ROC:
There can be no evidence of a writing other than the writing itself the contents of which is the subject of inquiry, except in the
following cases:
xxx xxx xxx
Section 51 ROC:

Evidence Page 23
Section 51 ROC:
When the original writing has been lost or destroyed upon proof of its execution and loss or destruction, its contents may be
proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.
- Ev idence of the ex ecution of a document is, in the last analy sis, necessarily collateral or primary. It generally consists ofparol
testimony or extrinsic papers. Even when the document is actually produced, its authenticity is not necessarily, if at all,
determined from its face or recital of its contents but by parol ev idence. At the most, failure to produce the document, when
av ailable to establish its execution may affect the w eight of the ev idence presented out not the admissibility of such evidence.
In spite of the defects w hich the trial court noted in Garcia's and Recto's testimony, the same and Watanabe's leave little or no
room for doubt that Alunan and her Hernaez did affix their signatures to the deed of sale. Hernaez' testimony which the trial
court say s "it finds no reason to doubt" actually has to many serious flaws to justify the court's faith. The testimony is highly
improbable in many important respects and is directly or indirectly contradicted by evidence more trustworthy and by well-
established facts. Without going to minute detail, the follow ing considerations should suffice to illustrate the point.
- The ev asive answers Hernaez in his cross-examination cast serious reflection on the truth of the protestations that the stolen
document w as forged. Hernaez did not hav e to be shown the deed to be able to tell that he had not signed it if that had been
the case. The point sought by the questions was very specific and must have been uppermost in the w itness‟ mind. It w as the
thesis of his complaint and had been the subject of a prolonged inv estigation before the suit w as filed. “Dates and years and
figures" "difficult to remember" had nothing to do w ith, and could not hav e obscured the right answer to the simple question
w hether Hernaez and Alunan had disposed of their property which they were trying to recover. In fact prev iously Hernaez and
v ehemently affirmed. "I nev er signed a deed of sale to any body, much less to Hakodate Dock Co."
- One other notable feature of Hernaez' testimony is the absence therefrom of any reference to Alunan in connection with the
alleged seizure of their houses and certificates of title. Although there is no proof on the record relativ e to Alunan's offic ial
position at the time other than that he had an office in the legislativ e building, the court may take judicial notice of the fact that
Alunan w as a member of the Ex ecutive Commission and later cabinet minister in the Japanese sponsored Government of the
Philippines. The point is that if w hat Hernaez says were correct, it does not seem probable that Alunan w ould not have known
the occurrence, and knowing it, taken steps to recover the seized titles or compensation for the property . It does not seem likely
that he w ould not hav e at least complained to the Japanese higher authorities and secured some information about what we
became of their certificates.
- Yet Hernaez w ould hav e the court believe, as we gather from his testimony, that neither he nor his partner learned of the
w hereabouts of their titles until after the Japanese had been driv en away from the Philippines and that for the tw o y ears they
allow ed themselv es to be deprived of the use of their property w ithout protest. Let it be remembered that the property had not
been taken by the armed forces for war purposes but by a private concern if attached to and operating under the superv ision of
the Japanese Navy. Contrary to Hernaez' assertions, Watanabe did not hold any military rank or status, and the houses and
lots w ere used as quarters for the firm's civ ilian employees and acquired in the firm's name with its own money.
The charge suggested by the line of plaintiff's ev idence that the Hakodate Dock Co. resorted to frauds and coercion so as notto
pay for the plaintiffs' land and houses is discredited by the fact that it settled the mortgage, pay ing an amount w hic h was only
P10,000 short of the purchase price. This payment bears witness to Hakodate's good faith and w illingness to spend for w hat it
got. At the same time, and this is more important to the immediate issue, it is mute testimony to the due ex ecution of the sale by
Alunan and Hernaez; for it is not logical to suppose that the Hakodate w ould hav e parted with a huge amount of cash, huge at
the time, if the ow ners had not ex ecuted a valid deed of conveyance.
Another idea that suggests itself is that the officers of the Hakodate, of the Hahodate, if they had a mind to commit frauds,
w ould not hav e been chosen Doctor Jacinto for the v ictim of its felony in preference to a senator-elect, which Mr. Hernaez was,
and a member of the Cabinet. To forge a deed of cancellation held by a private citizen who wielded no official influence would
hav e been undoubtedly the easier and the risks of failure, not to say punishment, the lesser.
- The premise of his ratiocination is wrong in that Hernaez testified that he and no the Hakodate Dock Co. paid off the
mortgage. How ever, the clear weight of the ev idence both as to quality and the number of witnesses is against the plaintiffs.
- Against the plaintiffs' ev idence there is the testimony of Watanabe and Jacinto who said the payment was affected by the
former, and of Recto and Garcia w ho said that the cancellation was arranged and perfected in their law office at the instanceof
the Hakodate representativ es.
- In contract, Hernaez said he did "not know who handled the cancellation," a matter which seemed too important not to be
remembered, contenting himself w ith the statement that "The thing is that w hen he paid him (Jacinto) he gave us the release."
And as to the place of cancellation, he said that it w as somewhere on the Escolta, in the office of the law firm of Duran, Lim &
Bausa, w hen, it is conclusiv ely established, Attuy. Lim, who was Jacinto's attorney, and whom Hernaez apparently had in mind,
separated from that firm as early as the beginning of the Japanese occupation in 1942, and, as a matter of fact, the cancellation
w as executed, as above, seen, in the Recto Law Office and not in the law office of Duran, Lim & Bausa. Note that the attesting
w itnesses to the cancellation were Napoleon Garcia and Jose Ma. Recto and the document was acknowledge before Garcia
w as notary public.
- The fact that the deed of cancellation w as made in the name of Alunan and Hernaez cannot be any means be taken as
ev idence of plaintiff's theory . The payment was in reality made in their name although the money came was received by the
pay ee from Watanabe. For the purpose of registration, the deed of cancellation had to be deframed the w ay it w as drawn.
- The ov erwhelming preponderance of the ev idence likewise discredits Hernaez' declaration that his and Alunan's certificates of
title w ere in his possession. Jacinto said he had them, and it could not hav e been otherwise. It is the inv ariable and sensible
practice of mortgagees to keep the title to the property mortgaged as a necessary measure of protection. In the testimony
before the court (he had lenghtly testified before the claim committee of the PAPA Hernaez admitted that Doctor Jacinto did not
depart from this practice. In answ er to the court's question whether he turned over to Doctor Jacinto the said certificates when
he ex ecuted the mortgage, he answered in the affirmativ e. How then could Hernaez have those certificates when he was
allegedly carried to the Legaspi Landing where, he said, they were taken away from him?
The deed of sale and the deed of cancellation w ere executed on the same date, February 20, and the genuineness of the latter
deed is admitted. This being so, Hernaez could not have had the certificates of title and these could not hav e been taken away
from him before that date. If it be asserted that the certificates might hav e been handed ov er to the Japanese on the same date
the mortgage w as cancelled and the cancellation was registered, the assertion would contradict Hernaez' testimony from which
the clear inference is that he had the titles in his home for day s or w eeks before the Legaspi Landing incident. Besides,
Watanabe and his attorney s and notary could not by any possibility have drawn or registered the deed of sale on the same date
the certificates w ere returned to Hernaez to Doctor Jacinto.
- One of the arguments adv anced to drive home the point that the questioned sale w as fake is that, it is said, Alunan and
Hernaez did not hav e any need to sell this property. Moreover, it is alleged purchase price was far below its actual value.
- Jacinto testified that hav ing heard that the property in question w as being sold to the Japanese, he immediately gave
instructions to his then attorney , Manuel Lim, to see Alunan and Hernaez and offer in his behalf to buy it. And Atty . Lim, who
w as SolGen when he testified corroborated his former client, stating that about the end of 1942 or the early part of 1943, he
requested Alunan to let Doctor Jacinto buy the said property, and proposed easy terms. He said that he called on Alunan tw ice
or three times in the latter's office in the Legislativ e Building; that in the first v isit Alunan said that he w ould consultw ith his
partner, Senator Hernaez, and in the second, that he and his partner w ere still undecided, but remarked that he had received
an offer from a Japanese firm and that he (Alunan) and Hernaez w ould prefer to make the sale of the Japanese. We have no
reason to suspect the v eracity at these witnesses.
That Alunan and Hernaez w ere not averse to selling the property in question may be inferred from the plaintiffs' ow n evidence.
Hernaez testified that he had sold to a Chinese in 1944 the land on Dew ey Boulevard where the Riviera is now located, for
P360,000 or P375,000 and a parcel, location not revealed, to Toyo Menka Kaisha for P40,000 "nearly the same time, March
1943," a lot by w hich the w ay, according to Hernaez he was also claiming from the PAPA. He also disclosed that he had "sold
many jewelries, watches and other things," which goes to show that they were not oversupplied with cash. Of equal significance
is the statement indicating that Hernaez and Alunan w ere engaged in real estate business. Hernaez stated, "We used to hav e
here some properties that w e sold on ten years installment before the w ar and after the w ar."
- In the matter of the v alue of the houses and lots registered by the Hakodate Dock Co., the trial court believ ed that the price
stated in the deed w as highly inadequate and regarded this alleged inadequate as supporting the contention that the sale w as
forged. The court seems to have overlooked the fact that the property sold to Hakodate Dock Co., was only eight parcels
containing a total area of 4,533,34 square meters, whereas the property which the plaintiff had bought from Chuan & Sons for
P185,000 and of w hich the property in questioned formed a part, measured 8,027.72 square meters. So that by selling the
abov e portion of P170,000, they were able to recoup nearly all their investment, without counting the rents they had theretofore
realized on the houses, and keep nearly one-half of their original acquisition as a clear profit. That was not a bad bargain. It is a
matter of common knowledge that in February 1943 Japanese war notes were still about at par w ith the Commonwealth peso.
The sale of the plaintiff's other land in Dew ey Boulevard for a much higher price in proportion to its size took place in 1944, or in
the latter part of 1943 at the earliest, w hen the Japanese war notes had been shipping down fast. At any rate, the proceeds of
the sale w ere more than enough to liquidate their mortgage debt, the pay ment of w hich the purchaser took charge of attending
to. As Hernaez said, "the thing is that w hen w e paid him (Jacinto) he gave us the release."
- For another thing, it is a mistake to take the alleged inadequacy of the price stated in the deed of ev idence of forgery, for
figures are easy to fabricate and a forger w ould endeavor to fix an amount in accord with the prevailing rates of real estate
v alue precisely to forestall such suspicion as is put forward in this case.
- The appealed decision says "another issue raised by the plaintiffs is the illegality of the alleged acquisition by the Hakodate
Dock Co. Ltd., of the property under litigation, assuming that a contract w as duly executed by Messrs. Alunan and Hernaez in
fav or of the said company," And citing Krivenco vs. Register of Deeds, the court concluded that the sale w ould be null and void
any w ay.
- As the appellants hav e noted, nowhere in the pleadings did the plaintiffs impeach the validity of the sale to Hakodate Dock
Co., on constitutional grounds. And even if they had, the present case would not be controlled by the doctrine laid down in the
Kriv enko case. The Philippine Constitution was not in force during the Japanese occupation of the Philippines. The constitution
w as inoperative at least with reference to Japanese citizens. Military Ordinance No. 2, promulgated on March 14, 1942,
ex pressly excluded "Japanese subjects from the operation of prohibition and limitations on civil rights, benefits and privileges,
w hich by reason, of their nationality are denied them by laws, statutes, administrative orders or regulations of the Philippines."
There is no doubt about the rights under the international law of the belligerent occupants to issue this decree.
- The court w ould also invalidate the sale on the theory "that the Hakodate Dock Co. Ltd., a purely Japanese concern, was
nev er registered as such in the Philippines nor was it authorized to transact business in accordance with existing Philippine
Corporation Law ." This question, like the just discussed, has not been raised in the pleadings. What is more, we know of no law
or prov ision of the Corporation Law which prohibits a business concern not authorized to transact business from buying or
ow ning real property. As to counsel's observation that "there w as no proof that Satoru Watanabe, w ho was then merely an
acting Manila manager of the company, was duly authorized to represent said company," the defect if there w as a defect was
one w hich the only principal or the party for whom Watanabe purported to act could use to rescind the sale.
- The probabilities of forgery are v ery remote and the direct ev idence for the defendant has abundantly and convincingly

Evidence Page 24
one w hich the only principal or the party for whom Watanabe purported to act could use to rescind the sale.
- The probabilities of forgery are v ery remote and the direct ev idence for the defendant has abundantly and convincingly
established that the property w as sold by its former owners for valuable consideration. The loss of the pertinent records in the
office of the register of deeds cannot be av ailed of to bolster the plaintiffs' case or w eaken the defense. If the loss is toproduce
any effect, the effect should be rev erse, considering all circumstances surrounding the theft.
Doctor Jacinto's case: Doctor Jacinto testified: He w as paid the amount of the mortgage by a Japanese, who said that he
represented the Hakodate Dock Co., at the beginning of 1943, and deposited the check, signed by a Japanese, in the
Philippine Bank of Commerce. He executed a release of the mortgage because he was told by the Japanese, accompanied by
a Filipino from the law firm of Mr. Recto that the document of cancellation was already prepared. He was informed that they had
purchased the property for the Hakodate Dock Co. He w as reluctant to sign the deed of cancellation because, in the first place,
the amount did not cov er the w hole balance, and in the second place, it w as not the money which he had loaned. When they
noticed his reluctance they told him that he could be grateful because they could have taken the property without anything for it.
The court can sy mpathize with the mortgagee and believe that at heart he w as opposed to the pay ment of his credit in
Japanese money and would not have rejected or protested against the payment if it had been tendered by the debtor directly .
Under the applicable law and uniform decisions of this Court, however, the payment w as enforceable irrespectiv e of the attitude
of the creditor. The debtor or his successor-in-interest had the right to pay the mortgage in Japanese war notes, which were the
authorized currency in circulation, not to say the only currency available. In other w ords, the pay ment would have released the
mortgage ev en if it had been tendered by the mortgagor personally and had been turned down by the mortgagee. That was the
unfortunate situation into w hich thousands of prewar creditors were thrust by the war, most of them being forced to accept
Japanese military notes when these were little better than useless.
- The disparity in value, if any , between Japanese war notes and the Philippine peso in February 1943 was not great, however.
According to the Ballanty ne conversion table, the exchange ratio between the tw o currencies in February 1943 was P1 to
P1.10. It is to be kept in mind that the scale did not pretend to be ex act. The ratio could hav e been still even. The beliefis,
perhaps, confirmed by the price of the absolute sale which was only P10,000 more than the mortgage debt.
In any ev ent, the mortgagee, whatever his feelings, did accept the payment, deposit the cash in the bank in current account,
and could hav e made use of it. At the then prev ailing value of Japanese war notes, the amount could have been invested
profitably in other real estate or business transactions. Under the circumstances, the principle of estoppel is not to be ruled out.

DISPOSITION:
Upon the foregoing considerations, the judgment as to interv enor Dr. Jacinto is affirmed and as to the defendant rev ersed the
defendant being hereby absolved, with costs of both instances against the plaintiffs and appellees.

Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%20SCHOOL%

20FILES\4y1s\Evidence%20take%202\LAW%20126%20evidence\DIGEST\EVIDENCE%20DIGESTS%
20PART%202.doc>

Evidence Page 25
Alvarez vs. Ramirez
Saturday, July 18, 2009
9:49 PM

ALVAREZ V. RAMIREZ
GR No. 143439;
Sandov al-Gutierrez; 14 October 2005
(ice)

NATURE
Petition for rev iew on certiorari

FACTS
Susan Ramirez (respondent) is the complaining witness in the criminal case for arson pending before the RTC. The accused is Maximo Alv arez (petitioner). He is
the husband of Esperanza G. Alvarez, sis ter of respondent. Priv ate prosecutor called Esperanza Alvarez to the w itness stand as the first witness against
petitioner, her husband. Petitioner and his counsel raised no objection.Petitioner, through counsel, filed a motion to disqualify Esperanza from testifying against
him pursuant to Rule 130 of the Rev ised Rules of Court on marital disqualification.
Trial court issued an Order disqualify ing Esperanza Alvarez from further testify ing and deleting her testimony from the records.CA reversed the RTC decision.

ISSUE
WON Esperanza Alvarez can testify against her husband

HELD/ RATIO
Yes. Section 22, Rule 130 of the Revised Rules of Court has an exception, where the marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of
priv ate life, w hich the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a voidin the unhappy home. This is in lieu of
the justification for the rule w hich are
1. There is identity of interests betw een husband and wife;
2. If one w ere to testify for or against the other, there is consequent danger of perjury ;
3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is w ant of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.
In Ordoño v s. Daquigan, this Court held: „The rule that the injury must amount to a phy sical wrong upon the person is too narrow; and the rule that any offense
remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and
v itally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a w itness against the other ex cept in a criminal prosecution
for a crime committee (by ) one against the other.‟”
Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as
embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by
which virtues the conjugal relationship survives and flourishes.
“The act of priv ate respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his w ife was there, and in fact with the alleged
intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect.
The criminal act complained of had the effect of directly and vitally impairing the conjugal relation.It underscored the fact that the marital and domestic
relations betw een her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life w hich the law aims to protect are
nothing but ideals w hich through their absence, merely leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504).Thus, there is no longer any
reason to apply the Marital Disqualification Rule.”
It should be stressed that as show n by the records, prior to the commission of the offense, the relationship betw een petitioner and his wife was already strained.
In fact, they w ere separated de facto almost six months before the incident. Indeed, the ev idence and facts presented reveal that the preservation of the marriage
betw een petitioner and Esperanza is no longer an interest the State aims to protect.

DISPOSITION
AFFIRMED

Pasted from <file:///C:\Documents%20and%20Settings\Cha\My%20Documents\LAW%20SCHOOL%20FILES\4y1s\Evidence%

20take%202\LAW%20126%20evidence\DIGEST\EVIDENCE%20DIGESTS%20PART%202.doc>

Evidence Page 26
 Res Gestae to Public records from Reviewer
Tuesday, September 15, 2009
6:08 PM
Res Gestae

Section 42 – 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 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 part of the res gestae

• Res gestae (“things done”) refers to:

1. Spontaneous statements in connection with a startling occurrence relating to that fact
and in effect forming part thereof
2. Statements accompanying an equivocal act (verbal act) on the theory that they are the
verbal parts of the act to be explained
• Requirements:
1. The principal act (res gestae) is a startling occurrence
2. The statements forming a part thereof were made before the declarant had the
opportunity to contrive
3. Statements refer to the occurrence in question and its attending circumstances
» Only such statements as appear to have been involuntarily wrung from the witness by
the impact of the occurrence are admissible
• Interval of time between the startling occurrence and the statement depends upon the
circumstances
» But statement must have been made while the declarant was under the immediate
influence of the startling occurrence
▪ If declarant rendered unconscious after the startling occurrence, his statement
relative to thereto upon regaining consciousness still forms part of re gestae
regardless of the time that intervened between

People vs. Berame (1976)

If the statement was made under the influence of a startling event and the declarant did
not have time to concoct or contrive a story, even if made 9 hours after the killing, the
statement is admissible as part of res gestae
• Statements or outcries as part of res gestae had been admitted to establish the identity of
assailant, prove the complicity of another person to the crime, establish admission of liability
on part of the accused
• Requirements for verbal acts to be admissible:
1. Res gestae be characterized as equivocal
2. Such act must be material to the issue
3. Statements must accompany the equivocal act
4. Statements give a legal significance to the equivocal act
» “Verbal act” – used to denote that such statements are the verbal parts of the equivocal
act of which such statements are explanatory

Borromeo vs. CA (1976)

Notes taken regarding a transaction by a person who is not a party thereto and who has
not been requested to take down such notes are not part of the res gestae

Res Gestae (re a homicidal act) Dying Declaration

Statement may also be made by the killer
himself or by a third person
Statement may precede, accompany, or be
made after the homicidal act was committed
Has its justification in the spontaneity of the
statement
Declaration can only be made by the victim
Declaration made only after the homicidal
attack was committed
Trustworthiness is based upon its being given
under the awareness of impending death

• Statement may not be a dying declaration because it was not made under the consciousness of
an impending death, but may be admissible as part of res gestae if made immediately after the
incident

Evidence Page 27
 incident
• Where the elements of both are present, may be admitted as both

Res Gestae

Sec. 42 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 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 part of the res gestae

• Res gestae: “things done”

- refers to:
1. Spontaneous statements in connection with a startling occurrence relating to that fact and in
effect forming part thereof
2. Statements accompanying an equivocal act (verbal act) on the theory that they are the
verbal parts of the act to be explained

• Basis: under external circumstances of physical shock, a stress of nervous excitement may be
produced which stills the reflective faculties and removes their control, so that the utterance
which then occurs is spontaneous and sincere response to the actual sensations and
perceptions already produced by the external shock.
• Since this utterance is made during the brief period when considerations of self -interest could
not have been brought fully to bear by reasoned reflection, the utterance may be taken as
particularly trustworthy

• Requisites of the 1st Type:

1. The principal act (res gestae) is a startling occurrence
2. The statements forming a part thereof were made before the declarant had the opportunity
to contrive
3. Statements refer to the occurrence in question and its attending circumstances
- Only such statements as appear to have been involuntarily wrung from the witness by the
impact of the occurrence are admissible

• To be admissible, the statement must:

1. be spontaneous
2. be made while the startling occurrence is taking place or immediately prior or subsequent
thereto
3. relate to the circumstances of the startling occurrence

• Interval of time between the startling occurrence and the statement depends upon the
circumstances
• But statement must have been made while the declarant was under the immediate influence of
the startling occurrence
• If declarant rendered unconscious after the startling occurrence, his statement relative to
thereto upon regaining consciousness still forms part of re gestae regardless of the time that
intervened between
• If the statement was made under the influence of a startling event and the declarant did not
have time to concoct or contrive a story, even if made 9 hours after the killing, the statement
is admissible as part of res gestae

• Statements or outcries as part of res gestae had been admitted to:

1. establish the identity of assailant
2. prove the complicity of another person to the crime
3. establish admission of liability on part of the accused

Res Gestae (re a homicidal act) Dying Declaration

Statement may also be made by the killer
himself or by a third person
Statement may precede, accompany, or be
made after the homicidal act was committed
Has its justification in the spontaneity of the
statement
Declaration can only be made by the victim
Declaration made only after the homicidal
attack was committed
Trustworthiness is based upon its being given
under the awareness of impending death

• Statement may not be a dying declaration because it was not made under the consciousness of
an impending death, but may be admissible as part of res gestae if made immediately after the

Evidence Page 28
 incident
• Where the elements of both are present, may be admitted as both
• Notes taken regarding a transaction by a person who is not a party thereto and who has not
been requested to take down such notes are not part of the res gestae

• Requisites of the 2nd Type – Verbal Acts:

1. Res gestae or principal act be characterized as equivocal
2. Such act must be material to the issue
3. Statements must accompany the equivocal act
4. Statements give a legal significance to the equivocal act

• Presupposes that there is an act, relevant in some way under the issue, which needs for its full
support to be construed together with the words of the actor.
• The conduct has intrinsically no definite significance, or only an ambiguous one and its whole
legal purport or tenor is to be more precisely ascertained by considering the words
accompanying it.

• Verbal acts must have been made at the time and NOT after the equivocal act was being
performed, unlike spontaneous exclamations which may have been made before, during or
immediately subsequent to the startling occurrence.
• “Verbal act” – used to denote that such statements are the verbal parts of the equivocal act of
which such statements are explanatory

• Examples: cases involving statements accompanying

- delivery of money or property
- act of entering a land
- tearing up a document

 DELA CRUZ v CA
FACTS
Father Garabato shot to death by de la C ruz.
SPO3 Patriarca testified on the spontaneous exclamations he heard from the spectators who
witnessed the crime. Per his investigation conducted shortly after the shooting incident, he
inquired from several spectators whom he found hovering at the locus criminis, as to who shot
the victim and the spontaneous response he got was “Yun hong pulis na nakatira sa tapat.”
The people confided to him the name “Pablo de la Cruz”. It turned out that indeed, the
informants were referring to the house of the accused, who was later determined and identified
as the assailant.
HELD
The statements of the spectators are admissible.
Their statement was part of res gestae. Although the people who gave this information were
not presented on the witness stand, this C ourt still resolved to admit and consider this
spontaneous exclamation from the spectators competent as “PART OF RES GESTAE”.
―RES GESTAE‖ refers to those exclamations and statements made by either the participants,
the victim(s) or spectators to a crime immediately before, during or immediately after the
commission of the crime, when the circumstances are such that the statements were made as
a spontaneous reaction or utterance inspired by excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false statement.
As borne by evidence on record, all the elements of res gestae are sufficiently
established, insofar as the aforequoted spontaneous utterance is concerned:
a) the principal act (res gestae) – the killing of Fr. Garabato in broad daylight – is a startling
occurrence;
b) the statements were made before the declarants had time to contrive or devise – that is,
within several minutes after the victim was shot; and
c) that the statements must concern the occurrence in question and its immediately attending
circumstances – the identity of the assailant is a material and vital information that concerns
the aforementioned startling occurrence.
PEOPLE v CARIQUEZ
FACT
Ethel, 2 ½ years old; Ava her mother;Leezel her stepdad. When Lilia visited Ethel, she
was shocked to see Ethel's appearance; her hair was shaven, her face was full of
contusions, her neck had faded cigarette burns while her arms and legs had traces of
pinching and maltreatment. When Lilia asked the little girl to identify who inflicted the
injuries on her body, Ethel tearfully pointed to Ava and Leezel.
Neighbors asked what happened, Ethel replied: "pinaso po ako." When Michelle further
asked who burned her and caused her bruises, Ethel said, "Papa ko po," referring to
Leezel.
HELD
Ethel’s statements are admissible.
The declarations of Lilia and neighbors as to what they observed on ETHEL were not hearsay.
They saw her and personally noticed the injuries and telltale marks of torture.
- While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay

Evidence Page 29
 They saw her and personally noticed the injuries and telltale marks of torture.
- While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay
because ETHEL could not be confronted on that, yet it was part of the res gestae and,
therefore, an exception to the hearsay rule.
- There are three requisites to the admission of evidence as constituting part of the res gestae.
1) that the principal act, the res gestae, be a startling occurrence;
2) the statements were made before the declarant had time to contrive or devise; and
3) that the statements must concern the occurrence in question and its immediately attending
circumstances.
- In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked
who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed
between the infliction of the injuries and the disclosure, it must however, be pointed out that
there has been no uniformity as to the interval of time that should separate the occurrence of
the startling event from the making of the declarations.

 PEOPLE v VELASQUEZ
FACTS
Halang ang kaluluwa, mahalay at nakakatakot na lolo!
While his daughter Regail was folding clothes, Aira walked into the room crying. Aira
complained that her grandfather did something to her, which she demonstrated by
opening her right leg and moving one of her right fingers toward her vagina.
The trial court based its conviction of accused-appellant for acts of lasciviousness
against Aira Velasquez on the testimony of Regail Velasquez, Aira’s mother, who
testified on what her daughter had told her. Aira herself was not presented in court,
being a mere child of two and a half years old.
HELD
The testimony of Regail Velasquez is admissible. Aira’s acts and statements constitute
exceptions to the hearsay rule because they were part of the res gestae.
Aira’s statements and acts constitute res gestae, as it was made immediately
subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity,
without prior opportunity to contrive the same.
Regail’s account of Aira’s words and, more importantly, Aira’s gestures, constitutes
independently relevant statements distinct from hearsay and admissible not as to the veracity
thereof but to the fact that they had been thus uttered.

 ABALLE v PEOPLE

It is well to note that even before the taking of the extrajudicial confession, the accused, upon
being picked up in the morning of November 8, 1980 as he was coming out of the communal
bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his
hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie
Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to
positively link the accused to the aforesaid killing.
- The declaration of an accused expressly acknowledging his guilt of the offenses charged may
be given in evidence against him.
- The rule is that any person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood all of it.
An oral confession need not be repeated verbatim, but in such case it must be given in its
substance.

 PEOPLE v TAMPUS

Tampus and Avila stabbed Saminado, a co-prisoner in the national penitentiary. Immediately
after the stabbing, they surrendered to a prison guard with their knives. They told the guard:
"Surrender po kami, sir. Gumanti lang po kami."

HELD
Res gestae applies. The spontaneous statement elicited without any interrogation, was
part of the res gestae and at the same time was a voluntary confession of guilt.

 PEOPLE V REYES

Pedro Reyes turned state evidence, testified that when he ran to the rice field and there he
met Oliveros and Gatchalian talking, the former declaring he was sure the MP he had shot will
die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn.
Enough, however, may be gathered from his testimony in open court to identify Gatchalian as
one of the assailants, the conversation he overheard in the rice field being admissibile as an
admission and as part of the res gestæ.

 PEOPLE v TULAGAN
FACTS
C atungal allegedly killed by the accused.
- TC : the testimony of the prosecution witness Natalia Macaraeg is clear that when she asked
de Guzman, Tulagan and Mendoza what they did to her neighbor who is working with the PNR,

Evidence Page 30
 de Guzman, Tulagan and Mendoza what they did to her neighbor who is working with the PNR,
accused Vicente de Guzman, while standing side by side with Tulagan and Mendoza told her
that they killed atungal, her neighbor, an employee of the PNR.
HELD
The statement of the accused is not admissible as part of the res gestae. There is no evidence
whatsoever that the statement attributed to de Guzman was made by him "immediately
subsequent" to the startling occurrence which the TC obviously had in mind: the slaying of
C atungal.
Not every statement made on the occasion of a startling occurrence is admissible as
part of the res gestae; only such are admissible as appear to have been involuntarily
and spontaneously wrung from an observer by the shock or impact of the occurrence
such that, as has aptly been said, it is the event speaking through the witness, not the
witness speaking of the event.
The startling occurrence must produce so powerful an effect or influence on the observer
as to extract from his lips some description of the event practically without being
conscious of his utterance. There is no indication in the record that de Guzman was so
affected when he made the statement in question under the circumstances related by
Macaraeg.
- Indeed, it may reasonably be inferred from Natalia's testimony that he was in nowise
agitated, stunned or shocked but was, on the contrary, calm, composed, in full possession of
his faculties and fully aware of what he was doing and saying.

 AIR FRANCE v CARRASCOSO

Purser made an entry in his notebooks reading "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."
- Testimony of the entry does not come within the proscription of the best evidence rule. Such
testimony is admissible.
- Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The excitement had
not as yet died down. Statements then, in this environment, are admissible as part of the res
gestae.
- For, they grow "out of the nervous excitement and mental and physical condition of the
declarant".
- The utterance of the purser regarding his entry in the notebook was spontaneous, and
related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed.
- It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

 BORROMEO v CA
FACTS-
Deed of absolute sale alleged to be eqitable mortgages. Crispina claimed to have been
present when the transactions took place. She presented notes and memoranda which,
according to her, were her notations allegedly representing the deductions made by the
vendor Aznar for advance interest, attorney's fees and miscellaneous expenses, are
corroborative of her testimony that the transactions in controversy were really loans
with mortgages.
HELD
We cannot see how the disputed notes and memoranda can be considered in any sense
as part of the res gestae as this matter is known in the law of evidence.
- It must be borne in mind, in this connection, that C rispina was not a party to the transaction
in question.
The record does not reveal why Crispina was with her father at the time, hence, there can be
no basis for holding that she actually took part in the transaction. That she allegedly took notes
thereof while there present made her at best only a witness not a party.
- It cannot be said, therefore, that her taking down of her alleged notes, absent any showing
that she was requested or directed by the parties to do so or that the parties, more particularly
the Aznars, who are being sought to be bound by them, knew what she was doing, constitute
part of the transaction, the res gestae itself.
- If such alleged taking of notes by Crispina has to be given any legal significance at all, the
most that it can be is that it is one circumstance relevant to the main fact in dispute. It other
words it could be at the most be only circumstantial evidence.
- The trouble however is that the admission of said notes and memoranda suffers from a fatal
defect. No witness other than Crispina has testified as to the veracity of her testimony relative
to her alleged notes and memoranda.
- Not even her husband who, according to her, was present on one of the occasions in issue,
was called to testify. It cannot be denied that C rispina is interested in the outcome of this case.
- In the words of the C ourt of Appeals itself in its original decision, "her testimony cannot be
considered as absolutely unbiased or impartial", hence "unreliable and insufficient to justify the
reformation of the instruments in question." Such being the case, how can the notes and
memoranda in dispute and any weight to her testimony, when she herself created them?
Surely, they cannot have anymore credibility than her own declarations given under oath in
open court.
- The extensive and repeated arguments of the parties relative to the issue of whether or not
self-serving statements may be admitted in evidence as parts of the res gestae are very

Evidence Page 31
 self-serving statements may be admitted in evidence as parts of the res gestae are very
interesting and illuminating, but We feel they are rather off tangent. The notes supposedly
prepared by witness Alcantara during the transaction between her father and the Aznars do not
partake at all of the nature of hearsay evidence.
- If anything they constitute memoranda contemplated in Section 10 of Rule 132.
- As may be observed, this provision applies only when it is shown beforehand that there is
need to refresh the memory of the witness, which is not the case here.
- Nowhere in the record is there any indication that Alcantara needed during her testimony the
aid of any memorandum in respect to the matters contained in the notes in dispute.
- Besides, under the above provision, 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, which is exactly
the case of C rispina.

 DBP POOL v RADIO MINDANAO NETWORK

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements
made by either the participants, victims, or spectators to a crime immediately before, during,
or after the commission of the crime, when the circumstances are such that the statements
were made as a spontaneous reaction or utterance inspired by the excitement of the occasion
and there was no opportunity for the declarant to deliberate and to fabricate a false statement.
- The rule in res gestae applies when the declarant himself did not testify and provided that the
testimony of the witness who heard the declarant complies with the following requisites:
1. that the principal act, the res gestae, be a startling occurrence
2. the statements were made before the declarant had the time to contrive or devise a
falsehood
3. that the statements must concern the occurrence in question and its immediate attending
circumstances.
- The C ourt is not convinced to accept the declarations as part of res gestae. While it may
concede that these statements were made by the bystanders during a startling occurrence, it
cannot be said however, that these utterances were made spontaneously by the bystanders
and before they had the time to contrive or devise a falsehood.
- Both SFO III Rochar and Lt. C ol. Torres received the bystanders’ statements while they were
making their investigations during and after the fire. It is reasonable to assume that when
these statements were noted down, the bystanders already had enough time and opportunity
to mill around, talk to one another and exchange information, not to mention theories and
speculations, as is the usual experience in disquieting situations where hysteria is likely to take
place. It cannot therefore be ascertained whether these utterances were the products of truth.
That the utterances may be mere idle talk is not remote.
- At best, the testimonies of SFO III Rochar and Lt. C ol. Torres that these statements were
made may be considered as independently relevant statements gathered in the course of their
investigation, and are admissible not as to the veracity thereof but to the fact that they had
been thus uttered.
- Furthermore, admissibility of evidence should not be equated with its weight and sufficiency.
Admissibility of evidence depends on its relevance and competence, while the weight of
evidence pertains to evidence already admitted and its tendency to convince and persuade.
Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA
who caused the fire may be admitted as evidence, it does not follow that such declarations are
sufficient proof. These declarations should be calibrated vis-à-vis the other evidence on record.

 MARTURILLAS v PEOPLE

- The fact that the victim’s statement constituted a dying declaration does not preclude it from
being admitted as part of the res gestae, if the elements of both are present.
- Res gestae refers to statements made by the participants or the victims of, or the spectators
to, a crime immediately before, during, or after its commission. These statements are a
spontaneous reaction or utterance inspired by the excitement of the occasion, without any
opportunity for the declarant to fabricate a false statement.
- An important consideration is whether there intervened, between the occurrence and the
statement, any circumstance calculated to divert the mind and thus restore the mental balance
of the declarant; and afford an opportunity for deliberation.
- A declaration is deemed part of the res gestae and admissible in evidence as an exception to
the hearsay rule, when the following requisites concur:

Evidence Page 32
 the hearsay rule, when the following requisites concur:
1) the principal act, the res gestae, is a startling occurrence;
2) the statements were made before the declarant had time to contrive or devise; and
3) the statements concerned the occurrence in question and its immediately attending
circumstances.
- All these requisites are present in this case. The principal act, the shooting, was a startling
occurrence.
- Immediately after, while he was still under the exciting influence of the startling occurrence,
the victim made the declaration without any prior opportunity to contrive a story implicating
petitioner.
- Also, the declaration concerned the one who shot the victim.
- Aside from the victim’s statement, which is part of the res gestae, that of Ernita -- “Kapitan,
ngano nimo gipatay ang akong bana?” (“Captain, why did you shoot my husband?”) -- may be
considered to be in the same category.
- Her statement was about the same startling occurrence; it was uttered spontaneously, right
after the shooting, while she had no opportunity to concoct a story against petitioner; and it
related to the circumstances of the shooting.

 CAPILA v PEOPLE
FACTS
Robbery of P1.3M from Pilipinas Bank. Guard on duty told employee and police that the
accused was one of the robbers.
HELD
Part of res geatae.
- Res gestae is a Latin phrase which literally means “things done.” As an exception to the
hearsay rule, it refers to those exclamations and statements by either the participants, victims,
or spectators to a crime immediately before, during or immediately after the commission of the
crime, when the circumstances are such that the statements were made as spontaneous
reactions or utterances inspired by the excitement of the occasion, and there was no
opportunity for the declarant to deliberate and fabricate a false statement.
- The reason for the rule is human experience. It has been shown that under certain external
circumstances of physical or mental shock, the state of nervous excitement which occurs in a
spectator may produce a spontaneous and sincere response to the actual sensations and
perceptions produced by the external shock. As the statements or utterances are made under
the immediate and uncontrolled domination of the senses, rather than reason and reflection,
such statements or utterances may be taken as expressing the real belief of the speaker as to
the facts he just observed. The spontaneity of the declaration is such that the declaration itself
may be regarded as the event speaking through the declarant rather than the declarant
speaking for himself.
- For the admission of the res gestae in evidence, the following requisites must be met:
1) that the principal act or the res gestae be a startling occurrence;
2) the statement is spontaneous or was made before the declarant had time to contrive or
devise, and the statement is made during the occurrence or immediately or subsequent
thereto; and
3) the statement made must concern the occurrence in question and its immediately attending
circumstances.

Entries in the Course of Business

Section 43 – ENTRIES IN THE COURSE OF BUSINESS

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

• Requisites:
1. The person who made the entry must be dead or unable to testify
2. The entries were made at or near the time of the transaction 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
5. The entries were made in the ordinary or regular course of business or duty

• Basis
- admissible on the ground that they were made in the due course of business as part of the
res gestae; and this is deemed to afford sufficient probability that the facts are as stated in the
memorandum.
- based on necessity; they are the best available evidence
- A learned judge: “what a man has actually done and committed to writing under obligation to

Evidence Page 33
 - A learned judge: “what a man has actually done and committed to writing under obligation to
do the act, it being in the course of business he has undertaken, and he being dead, there
seems to be no danger in submitting to the consideration of the jury.”
• Terms “business” and “record” must be construed in the broadest sense.
• Business activity: can encompass schools, churches, hospitals, and every kind of business,
profession, occupation, and institution, WON carried on for profit.
• Based on the American counterpart provision: “record” may be any form of memorandum,
report, record or data compilation, including electronic computer storage.

• Language and form of entry are of no importance provided that the words are fairly intelligible
and distinctly communicate the facts which is sought to be proved.
• Declaration or entry may be in a public or a private writing or a book.

• The proponent should call the custodian or other qualified person who generally should be able
to testify about how the record was prepared, who prepared, where the record was kept and
the purpose of the record.

• 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
• In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or EEs who
individually made the entries in a long account. It is sufficient that the person who supervises
the work of the clerks or other EEs making the entries testify that the account was prepared
under his supervision and that the entries were regularly entered in the ordinary course of
business (Yek Tong Fire v Gutierrez). – kala ko ba entrant dead or unable to testify? =)

Rule 132, Sec. 16 – When Witness May Refer To Memorandum

A witness may be allowed to refresh his memory respecting a fact, by anything written or
recorded 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 written or recorded; but in such case the writing or record 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 or record, though he retain no recollection of the particular facts, if he is able to swear
that the writing or record correctly stated the transaction when made; but such evidence must
be received with caution.

• This provision applies only when it is shown beforehand that there is a need to refresh the
memory of the witness.

• 1st sentence: rule on “Revival of Present Memory”

- applies if the witness remembers the facts regarding his entries and is entitled to greater
weight.
• 2nd sentence: rule on “Revival of Past Recollection”
- applies where the witness does not recall the facts involved and is entitled to lesser weight.

• Memorandum use 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.

Cang Yui vs. Gardner (34 Phil 376)

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

Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122):
In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or employees who
individually made the entries in a long account. It is sufficient that the person who supervises
the work of the clerks or other employees making the entries testify that the account was
prepared under his supervision and that the entries were regularly entered in the ordinary
course of business.

CANQUE v CA (1999)
FACTS
RDC had construction contracts with the govt. it hired SOCOR as subcontractor. RDC
refused to pay SOCOR the amount claimed, alleging that the latter failed to submit the
delivery receipts showing the actual weight in metric tons of the items delivered and the
acceptance thereof by the government.

Evidence Page 34
 acceptance thereof by the government.
SOC OR presented its VP and its bookkeeper;
Book of C ollectible Accounts containing a detailed account of SOCOR’s commercial transactions
with RDC which were entered therein in the course of business held to be admissible.
HELD
The entries in the Book of Collectible Accounts do NOT constitute competent evidence to show
delivery.
- 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.

Basis of Admissibility
- Necessity is given as a ground for admitting entries, in that they are the best available
evidence.
- 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.
“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 business entries in question do not meet the first and third requisites.
As to the 1st Requisite
- Bookkeeper presented in court. 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.
As to the 3rd Requisite
- Bookkeeper 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.” 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.
- 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.

AZNAR V CITIBANK (2007)

FACTS
Aznar filed suit for damages vs Citibank, claiming that Citibank fraudulently or with
gross negligence blacklisted his Mastercard. To prove his claim, he presented “Exh. G” a
computer print-out [On-Line Authorizations Foreign Account Activity Report] issued to
him by Ingtan Agency w/ the signature of one Nubi which shows that his card in
question was declared over the limit.
To prove that they did not blacklist Aznar’s card, Citibank’s Credit C ard Dept Head
Flores, presented Warning Cancellation Bulletins which contained the list of its canceled
cards covering the period of Aznar’s trip.
HELD
C itibank not liable. Aznar puts much weight on computer print-out handed to him by
Ingtan Agency, to prove that his Mastercard was dishonored for being blacklisted. But
such exhibit cannot be considered admissible as its authenticity and due execution were
not sufficiently established by petitioner.
-R132.20 provides that whenever a private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either by (a) anyone who saw the
document executed or written; or (b) by evidence of the genuineness of the signature or
handwriting of the maker. This was not complied with.
-Even if examined under the Rules on Electronic Evidence, the authentication of Exh. G would
still be found wanting. Aznar failed to demonstrate how the information reflected on the print-
out was generated and how the said information could be relied upon as true.
The computer print out is not admissible as entries in the course of business.
Under Rule 130.43, the following conditions are required: [SBTC v Gan, 2006]
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a duty, whether
legal, contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or duty.
-It is not clear if it was Nubi who encoded the information and printed the document. The
handwritten annotation “Sorry for the delay since the records had to be retrieved. Regards.
Darryl Mario.” even suggests that it was Mario who printed the same and only handed the

Evidence Page 35
Darryl Mario.” even suggests that it was Mario who printed the same and only handed the
print-out to Nubi. The identity of the entrant was not established. Neither did Aznar establish in
what professional capacity did Mario or Nubi make the entries, or whether entries were made
in the performance of their duty in the ordinary or regular course of business or duty.
Due execution and authentication of the Warning Cancellation Bulletins have been duly
established and identified by Citibank’s Dennis Flores, head of credit card department, and,
therefore, competent to testify on the said bulletins as having been issued by the defendant
bank showing that Aznar’s preferred master credit card was never blacklisted or placed in the
Bank’s “hot list”.

LLEMOS v LLEMOS (2007)

FACTS
Deed of Sale allegedly fraudulently executed because vendor was already dead at the
time of sale.
HELD
The certificate of death issued by the church is not admissible under the rule on entries in the
course of business or entries in official record.
Respondents rely principally on the Certificate of Death issued by Rev. Fr. Natividad,
attesting that “Salvatin Salvatin”, widow of Andres Llemos died on the 12th day of
March 1938 and was buried in the Roman C atholic Cemetery of the parish of St. John
Metropolitan Cathedral, Dagupan City. The Certificate further attests that it is a true
copy of the original records as it appears in the Register of Dead of said Parish, Book
No. 20, Folio No. 91.

Inadmissible Under Rule on Entries in Official Records

- It is well-settled that C hurch registries of births, marriages, and deaths made subsequent to
the promulgation of General Orders No. 68 and the passage of Act No. 190 are no longer public
writings, nor are they kept by duly authorized public officials.
- They are private writings and their authenticity must therefore be proved as are all other
private writings in accordance with the rules of evidence.
- Respondents failed to establish the due execution and authenticity of the Certificate of Death
in accordance with Section 20, Rule 132 of the Rules of Court: Before any private document
offered as authentic is received in evidence, its due execution and authenticity must be proved
either:
a) By anyone who saw the document executed or written; or
b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.

- Respondents failed to present a witness to prove the due execution and authenticity of the
C ertificate of Death.

Inadmissible Under the Rule on Entries in the C ourse of Official Business

- Respondents did not submit as evidence the Register of Dead, Book No. 20 of St. John
Metropolitan Cathedral and they failed to comply with the provisions of Section 5, Rule 130,
when original document is
- None of the exceptions are attendant in the present case
- The Register of Dead is in the custody of St. John Metropolitan Cathedral but respondents
failed to show that it presented the Certificate of Death because the Register of Dead cannot
be produced in court.
- There is no showing that the Register of Dead consists of numerous documents which cannot
be examined in court without great loss of time and the fact sought to be established from it is
only the general result of the whole.
- Further, respondents failed to present an authentic document that recites the contents of the
Register of Dead.
- As earlier held, the Certificate of Death is a private document and not a public document; and
respondents failed to prove its authenticity by their failure to present any witness to testify on
the due execution and genuineness of the signature of Fr. Natividad, pursuant to Section 20,
Rule 132.

NESTLE PHILIPPINES. v FY SONS, INC. (2006)

FACTS
Distributorship agreement between Nestle and FY. FY filed a complaint for damages
against petitioner, alleging that petitioner breached the distributorship agreement by
committing various acts of bad faith wrote petitioner to complain about the latter’s
breaches of their agreement and the various acts of bad faith committed by Nestle
against FY.
In turn, Nestle interposed a counterclaim for the balance of respondent’s overdue
accounts. It presented its Credit and C ollection Mgr Rayos, who prepared the statement
of account on the basis of the invoices and delivery orders corresponding to the alleged
overdue accounts of respondent.
HELD
The testimony of Rayos is not admissible. Rule 130. 43 does not apply to this case because it
does not involve entries made in the course of business.
- Rayos testified on a statement of account she prepared on the basis of invoices and delivery
orders which she, however, knew nothing about. She had no personal knowledge of the facts

Evidence Page 36
orders which she, however, knew nothing about. She had no personal knowledge of the facts
on which the accounts were based since, admittedly, she was not involved in the delivery of
goods and was merely in charge of the records and documents of all accounts receivable as
part of her duties as credit and collection manager.
- She thus knew nothing of the truth or falsity of the facts stated in the invoices and delivery
orders, i.e., whether such deliveries were in fact made in the amounts and on the dates stated,
or whether they were actually received by respondent.
- She was not even the credit and collection manager during the period the agreement was in
effect.This can only mean that she merely obtained these documents from another without any
personal knowledge of their contents.
- The foregoing shows that Rayos was incompetent to testify on whether or not the invoices
and delivery orders turned over to her correctly reflected the details of the deliveries made.
Thus, the C A correctly disregarded her testimony.
- Furthermore, the invoices and delivery orders presented by petitioner were self-serving.
Having generated these documents, petitioner could have easily fabricated them. Petitioner’s
failure to present any competent witness to identify the signatures and other information in
those invoices and delivery orders cast doubt on their veracity.

SECURITY BANK v GAN (2006)

FACTS
Gan opened a current account with petitioner. Petitioner, thru its branch mngr, alleged
that it had a special arrangement with Gan, wherein the latter was allowed to transfer
funds from his account to another person’s account also within the same branch.
Gan purportedly incurred an overdraft or negative balance in his account. As Gan
allegedly refused to heed petitioner’s demand for payment, the latter filed a complaint
for sum of money. Gan denied liability to petitioner and alleged overdraft resulted from
transactions done without his knowledge and consent.
Petitioner presented Mercado who was the bookkeeper who handled the account of
respondent and recorded his transactions in a ledger. Based on this ledger, Gan had a
negative balance which resulted from transfers of funds from his current account to
another person’s account. These transfers were made under the authority of the branch
mngr.
HELD
The ledger cards and the testimony of Mr. Patricio Mercado are inadmissible. The entries
in the ledger, as testified to by Mercado, were not competent evidence to prove that
Gan consented to the transfers of funds. These entries merely showed that the transfers
were indeed made and that Qui approved them.
Admittedly, Mercado had no personal knowledge of this arrangement. In fact, when
asked about the details of the alleged consent given by respondent to the transfers, he
stated that he could not remember because respondent talked to Qui and not to him.
Petitioner could have presented Qui whom they alleged allowed the special arrangement
with respondent. But it did not.
Neither can we accept petitioner’s argument that the entries made by Mercado in the
ledger were competent evidence to prove how and when the negative balance was
incurred. Petitioner invokes Section 43 of Rule 130 - Entries in the course of business.
- Under this exception to the hearsay rule, the admission in evidence of entries in corporate
books required the satisfaction of the following conditions:
1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a duty, whether
legal, contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or duty.[15]
- The ledger entries did not meet the first and third requisites.

On the 1st Requisite

- Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the
transactions pertaining to the account of respondent. It was in the course of his testimony that
the ledger entries were presented. There was, therefore, neither justification nor necessity for
the presentation of the entries as the person who made them was available to testify in court.
On the 3rd Requisite
- Mercado had no personal knowledge of the facts constituting the entries, particularly those
entries which resulted in the negative balance. He had no knowledge of the truth or falsity of
these entries.
- C A: there is no question that the entries in the ledgers were made by one whose duty it was
to record transactions in the ordinary or regular course of the business. But for the entries to
be prima facie evidence of the facts recorded, the Rule interposes a very important condition,
one which we think is truly indispensable to the probative worth of the entries as an exception
to the hearsay rule, and that is that the entrant must be “in a position to know the facts
therein stated.” Undeniably, Mr. Mercado was in a position to know the facts of the check
deposits and withdrawals. But the transfers of funds through the debit memos in question?

Debit Memos
- They are, at bottom, credit accommodations said to have been granted by the bank’s branch
manager Mr. Qui to the defendant, and they are, therefore loans, to prove which competent

Evidence Page 37
 manager Mr. Qui to the defendant, and they are, therefore loans, to prove which competent
testimonial or documentary evidence must be presented.
- In the face of the denial by the defendant of the existence of any such agreement, and the
absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. Qui,
or of any witness to the same, would be necessary.
- The plaintiff failed to explain why it did not or could not present any party or witness to the
transactions, but even if it had a reason why it could not, it is clear that the existence of the
agreements cannot be established through the testimony of Mr. Mercado, for he was not in a
position to know those facts.
- As a subordinate, he could not have done more than record what was reported to him by his
superior the branch manager, and unless he was allowed to be privy to the latter’s dealings
with the defendant, the information that he received and entered in the ledgers was incapable
of being confirmed by him.
- There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business
records which spring from the duty of other employees to communicate facts occurring in the
ordinary course of business are prima facie admissible, the duty to communicate being itself a
badge of trustworthiness of the entries, but not when they purport to record what were
independent agreements arrived at by some bank officials and a client.
- In this case, the entries become mere casual or voluntary reports of the official concerned. To
permit the ledgers, prepared by the bank at its own instance, to substitute the contract as
proof of the agreements with third parties, is to set a dangerous precedent.
- Business entries are allowed as an exception to the hearsay rule only under certain conditions
specified in Section 43, which must be scrupulously observed to prevent them from being used
as a source of undue advantage for the party preparing them.

Rule 132, Section 16 – WHEN WITNESS MAY REFER TO MEMORANDUM

A witness may be allowed to refresh his memory respecting a fact, by anything
written or recorded 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 written or recorded; but in
such case the writing or record 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 or record,
though he retain no recollection of the particular facts, if he is able to swear that the
writing or record correctly stated the transaction when made; but such evidence
must be received with caution.

Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122)
In the presentation and admission as evidence of entries made in the regular course of
business, there is no overriding necessity to bring into court all the clerks or employees
who individually made the entries in a long account. It is sufficient that the person who
supervises the work of the clerks or other employees making the entries testify that the
account was prepared under his supervision and that the entries were regularly entered
in the ordinary course of business

Entries in Official Records

Section 44 – ENTRIES IN OFFICIAL RECORDS

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

• Merely prima facie evidence of the facts therein stated

• Requisites:
1. Entries were made by a public officer in the performance of his duties or by a person in
the performance of a duty specially enjoined by law
2. The entrant had personal knowledge of the facts stated by him or such facts were
acquired by him from reports made by persons under a legal duty to submit the same
3. Such entries were duly entered in a regular manner in the official records
• Motor vehicle accident report made at about the time of the accident by a police officer in the
performance of his duties
» Admissible if based upon information given by the drivers who figured in the accident
» Prima facie evidence of facts therein stated
• Sheriff’s return – exception to hearsay
» Sheriff need not testify in court
• Entrant must have been competent

• Merely prima facie evidence of the facts therein stated

Evidence Page 38
• Requisites
1. Entries were made by:
a) a public officer in the performance of his duties or
b) by a person in the performance of a duty specially enjoined by law

2. The entrant had personal knowledge of the facts stated by him or such facts were acquired
by him from reports made by persons under a legal duty to submit the same

3. Such entries were duly entered in a regular manner in the official records

• Basis
- Disputable presumption that official duty has been performed
- To expect the presence of a public officer before the court will be taxing to the servant of the
people and time spent in the courtroom will be prejudicial to public service.

• Examples
1. Motor vehicle accident report made at about the time of the accident by a police officer in
the performance of his duties if given by the drivers who figured in and had personal
knowledge of the accident
2. Report submitted by a police officer in the performance of his duties and on the basis of his
own personal observation of the facts reported
3. Sheriff’s return is an official statement by a public official in the performance of a duty
specially enjoined by law
4. Tax records made by a tax officer
5. Official cash book kept by the disbursing officer
6. Records of the Register of Deeds
7. TSN

Entries in the C ourse of Entries in Official Records

Business
Sufficient that entrant made If the entrant is a private individual, he must have acted
the entries pursuant to a duty pursuant to a specific legal duty
either
- legal
- contractual
- moral
- religious
Entrant must be dead or Entrant need not be dead or unable to testify
unable to testify
Entries made at or near the Entries were duly entered in a regular manner in the official
time of the transaction to records
which they refer
Entries made in the ordinary
or regular course of business
or duty
Entrant was in a position to Entrant had personal knowledge of the facts stated by him or
know the facts stated in the such facts were acquired by him from reports made by
entries persons under a legal duty to submit the same

• Entrant must have been competent with respect to the facts stated in his entries.

• While a priest who officiates at a baptism acts pursuant to a legal duty in recording the facts of
such baptism in a register, such entries in the register are not admissible to prove the date of
birth of the child or its relation to particular persons as the entrant priest is not competent to
testify with respect to the truth of these latter facts

• Baptismal certificates or parochial records of baptism are not public or official records and are
not proof of relationship or filiation of the chills baptized.

• C hurch registries – no longer public writings pursuant to GO No. 58 and Act No. 190
- But still admissible as evidence of the facts stated therein with respect to marriages
solemnized by the priest w/o the necessity of calling him.
- But necessary to be authenticated as private writings
- A copy of the certificate transmitted to the public officer as required by law becomes a public
document and sdmissible without prior authentication

• Entries in official records may be proved and evidenced in the manner provided by Rule 132

Evidence Page 39
• Entries in official records may be proved and evidenced in the manner provided by Rule 132
Sections 24 and 25

LAO v STANDARD INSURANCE CO., INC. (2003)

FACTS
Lao owns a Fuso truck which was insured with Standard Insurance to cover any
damages that might be caused to his goods. While the policy was in effect, the insured
truck bumped another truck, also owned by Lao. Lao’s claim was denied by Standard
Insurance on the ground that when its adjuster went to investigate the matter, it was
found that the driver of the insured truck, Anit, did not possess a proper driver’s license
at the time of the accident. It cited the excerpts from the police blotter of the Iloilo INP.
Lao claims that at the time of the accident, it was in fact another driver named Giddie
Boy (who possessed the proper license) who was driving the insured truck. As evidence,
he presented the Motor Vehicle Accident Report wherein the Investigating Officer
Villahermosa. The said report was made three days after the accident.
HELD
The police blotter is admissible. The report was made 3days after the accident and did
not form part of the official police records.
- Under 130.44, the following are the requisites for its admissibility:
(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;
(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.
Entries in police records made by a police officer in the performance of the duty
especially enjoined by law are prima facie evidence of the fact therein stated, and their
probative value may be either substantiated or nullified by other competent evidence.
Although police blotters are of little probative value, they are nevertheless admitted and
considered in the absence of competent evidence to refute the facts stated therein.
Furthermore, in this case the police blotter was identified and formally offered as
evidence. The person who made the entries was likewise presented in court; he
identified and certified as correct the entries he made on the blotter. The information
was supplied to the entrant by the investigating officer who did not protest about any
inaccuracy when the blotter was presented to him. No explanation was likewise given by
the investigating officer for the alleged interchange of names.

HERCE, JR. v MUNICIPALITY OF CABUYAO, LAGUNA (1966)

FACTS
Petitioner claims ownership over the subject property, having purchased the same from
a certain Jose Carpena in 1975. TC issued an order directing the LRA to issue a decree
of registration in the name of petitioner Vicente Herce.
Municipality of Cabuyao filed a petition for the reopening of the decree of registration
issued in favor of petitioner, arguing among others that it was issued a decree of
registration over the said property as early as 1911. Petitioner asserts that there is no
record of Decree No. 4244 that was purportedly issued in favor of the municipality on
March 3, 1911 other than the entry in the Ordinary Registration Book of the LRA. He
argues that since there is no record of the alleged Decree No. 4244, there is no way of
determining which of the 6 lots applied for registration is/are covered by the decree.
Petitioner insists that the lack of documentary proof and the fact that respondent
municipality never had possession of the subject property prove that it never owned the
disputed property.
Respondent claims that Decree No. 4244 was issued in its favor although pertinent
records evidencing said decree of registration were lost or destroyed during the war. It
points out that the entries in the approved survey plan for the Municipality of Cabuyao
show that Decree No. 4244 was issued in 1911 under Cadastral C ase No. 6763, as
confirmed by the report submitted by the LRA to then C FI, Branch 1, Biñan, Laguna in
LRA C adastral Case No. N-B-1, LRA Rec. No. N-651 dated December 2, 1980, where it
was stated that Lot 1 Plan II-2719-A was one of the six parcels of land previously
applied by respondent municipality for registration in LRC (GLRO) Rec. No. 6763, and
that according to their Ordinary Decree Book, LRC (CLR) Rec. No. 6763, Decree No.
4244 was issued on March 3, 1911 over Lot 1 Plan II-2719-A.
HELD
The entry in the Ordinary Decree Book, LRC is admissible.
The purpose of the legislature in creating the C ourt of Land Registration was to bring the
land titles of the Philippine under one comprehensive and harmonious system, the
cardinal features of which are indefeasibility of title and the intervention of the State as
a prerequisite to the creation and transfer of titles and interest, with the resultant
increase in the use of land as a business asset by reason of the greater certainty and
security of title.
- The C ourt of Land Registration does not create or vest a title. It simply confirms a title
already created and already vested, rendering it forever indefeasible.
- The Land Registration Act as well as the Cadastral Act protects only the holders of a title in
good faith and cannot be used as a shield for frauds or that one should enrich himself at the
expense of another. One cannot conceal under the cloak of its provisions to perpetrate fraud

Evidence Page 40
expense of another. One cannot conceal under the cloak of its provisions to perpetrate fraud
and obtain a better title than what he really and lawfully owns. Thus, if he secures a certificate
of title by mistake or obtain more land than what he really owns, the certificate of title should
be cancelled or corrected.

- It is clear that Decree No. 4244 issued in favor of the respondent municipality in 1911 has
become indefeasible; as such, petitioner is now barred from claiming the subject land.
- Although the municipality’s claim of ownership is based on the entry in the Ordinary Decree
Book, LRC (CLR) Rec. No. 6763, showing that Decree No. 4244 was issued on March 3, 1911
and that Lot 1 Plan II-2719 was one of the six parcels of land previously applied for
registration by the Municipality of Cabuyao in LRC (GLRO) Record No. 6763, being a public
document, the Ordinary Decree Book is prima facie proof of the entries appearing therein.
- Section 44, Rule 130, of the Rules of Court provides….
- The trustworthiness of public documents and the value given to the entries made
therein could be grounded on
(1) the sense of official duty in the preparation of the statement made
(2) the penalty which is usually affixed to a breach of that duty,
(3) the routine and disinterested origin of most such statements, and
(4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.

- Besides, these incidents were attested to by Acting Chief, Division of Ordinary Registration,
Silverio G. Perez, in the report dated December 2, 1980.
- In the absence of evidence to the contrary, the Ordinary Decree Book, LRC (CLR) Rec. No.
6763, showing that Decree No. 4244 was issued on March 3, 1911, is presumed to have been
regularly issued by the accountable public officers who enjoy the legal presumption of
regularity in the performance of their functions.

FERNANDEZ, ET AL. v CA (1994)

FACTS
VIOLETA claims that C arlito is the father of her 2 kids. They presented the following
documentary evidence
1. their certificates of live birth, identifying respondent Carlito as their father
2. the baptismal certificate of petitioner Claro which also states that his father is respondent
C arlito
3. photographs of C arlito taken during the baptism of petitioner Claro
4. pictures of respondent Carlito and Claro taken at the home of Violeta Esguerra.
HELD
On the Photographs
- Petitioners cannot rely on the photographs showing the presence of the private respondent in
the baptism of petitioner Claro. These photographs are far from proofs that private respondent
is the father of petitioner C laro. As explained by the private respondent, he was in the baptism
as one of the sponsors of petitioner Claro. His testimony was corroborated by Pagtakhan.
- The pictures taken in the house of Violeta showing private respondent showering affection to
C laro fall short of the evidence required to prove paternity.
On the Baptismal Certificates
The baptismal certificates of petitioner Claro naming private respondent as his father
has scant evidentiary value. There is no showing that private respondent participated in
its preparation.
The rule is that although the baptismal record of a natural child describes her as a child
of the decedent, yet, if it in the preparation of record the decedent had no intervention,
the baptismal record cannot be held to be a voluntary recognition of parentage.The
reason for this rule that canonical records do not constitute the authentic document
prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such
canonical record is simply proof of the only act to which the priest may certify by reason
of his personal knowledge, an act done by himself or in his presence, like the
administration of the sacrament upon a day stated; it is no proof of the declarations in
the record with respect to the parentage of the child baptized, or of prior and distinct
facts which require separate and concrete evidence.
While baptismal certificates may be considered public documents, they can only serve as
evidence of the administration of the sacraments on the dates so specified. They are not
necessarily competent evidence of the veracity of entries therein with respect to the
child's paternity.
On the C ertificates of Live Birth
The certificates of live birth of the petitioners identifying private respondent as their
father are not also competent evidence on the issue of their paternity. Again, the
records do no show that private respondent had a hand in the preparation of said
certificates. In rejecting these certificates.
Section 5 of Act No. 3793 and Article 280 of the Civil C ode of the Philippines explicity
prohibited, not only the naming of the father or the child born outside wedlock, when
the birth certificates, or the recognition, is not filed or made by him, but, also, the
statement of any information or circumstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or record the paternity of
an illegitimate child upon the information of a third person and the certificate of birth of
an illegitimate child, when signed only by the mother of the latter, is incompetent

Evidence Page 41
 an illegitimate child, when signed only by the mother of the latter, is incompetent
evidence of fathership of said child. A birth certificate not signed by the alleged father
therein indicated is not competent evidence of paternity.

 MANALO v ROBLES TRANSPORT (1956)

FACTS
Driver found guilty of homicide through reckless imprudence, sentenced and ordered to
indemnify the heirs of the deceased. 2 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.
- Plaintiffs filed an action against the taxi company to enforce its subsidiary liability.Plaintiffs’
Evidence:
1. a copy of the decision in the criminal case convicting Hernandez
2. the writs of execution to enforce the civil liability
3. 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.
HELD
- Sheriff's return: 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.
- The sheriff making the return need not testify in court as to the facts stated in his entry.
- 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."
- "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."

SOLINAP v LOCSIN, JR
FACTS
To support his claim that he is an acknowledged natural child of the deceased, Juan
Locsin, Jr. submitted a machine copy of his Certificate of Live Birth No. 477 (Exhibit D)
found in the bound volume of birth records in the Office of the Local Civil Registrar of
Iloilo C ity. Exhibit "D" contains the information that respondent's father is Juan C.
Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by
his signatures. To prove the existence and authenticity of Certificate of Live Birth No.
477 from which Exhibit "D" was machine copied, he presented Vencer, the Local Civil
Registrar of Iloilo C ity. She produced and identified in court the bound volume of 1957
records of birth where the alleged original of C ertificate of Live Birth No. 477 is included.
- Petitioners claimed that C ertificate of Live Birth No. 477 (Exhibit "D") is spurious. They
submitted a certified true copy of Certificate of Live Birth No. 477 found in the Civil Registrar
General, Metro Manila, marked as Exhibit "8", indicating that the birth of respondent was
reported by his mother, Amparo Escamilla, and that the same does not contain the signature of
the late Juan C . Locsin.
- They observed as anomalous the fact that while respondent was born on October 22, 1956
and his birth was recorded on January 30, 1957, however, his Certificate of Live Birth No. 447
(Exhibit "D") was recorded on a December 1, 1958 revised form.
HELD
Exhibit D is not admissible. Section 12 of Act 3753 (An Act to Establish a C ivil Register): the
records of births from all cities and municipalities in the Philippines are officially and regularly
forwarded to the C ivil Registrar General in Metro Manila by the Local C ivil Registrars.
- Since the records of births cover several decades and come from all parts of the country, to
merely access them in the C ivil Registry General requires expertise. To locate one single birth
record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely
that any of these employees in Metro Manila would have reason to falsify a particular 1957
birth record originating from the Local Civil Registry of Iloilo City.
- With respect to Local C ivil Registries, access thereto by interested parties is obviously easier.
Thus, in proving the authenticity of Exhibit "D," more convincing evidence than those
considered by the trial court should have been presented by respondent.
- The event about which Vercer testified in 1994 was the record of respondent's birth which
took place in a956, or 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that time
was Emilio G. Tomesa. Necessarily, Vencer's knowledge of respondent's birth record allegedly
made and entered in the Local Civil Registry in January, 1957 was based merely on her general

Evidence Page 42
 made and entered in the Local Civil Registry in January, 1957 was based merely on her general
impressions of the existing records in that Office.
- When entries in the C ertificate of Live Birth recorded in the Local Civil Registry vary from
those appearing in the copy transmitted to the C ivil Registry General, pursuant to the C ivil
Registry Law, the variance has to be clarified in more persuasive and rational manner. In this
regard, we find Vencer's explanation not convincing.
- Exhibit "8" of the petitioners found in the C ivil Registrar General in Metro Manila is on
Municipal Form No. 102, revised in July, 1956. We find no irregularity here. Indeed, it is logical
to assume that the 1956 forms would continue to be used several years thereafter. But for a
1958 form to be used in 1957 is unlikely.
- There are other indications of irregularity relative to Exhibit "D." The back cover of the 1957
bound volume in the Local Civil Registry of Iloilo is torn. Exhibit "D" is merely pasted with the
bound volume, not sewn like the other entries.
- The documents bound into one volume are original copies. Exhibit "D" is a carbon copy of the
alleged original and sticks out like a sore thumb because the entries therein are typewritten,
while the records of all other certificates are handwritten. Unlike the contents of those other
certificates, Exhibit "D" does not indicate important particulars, such as the alleged father's
religion, race, occupation, address and business. The space which calls for an entry of the
legitimacy of the child is blank. On the back page of Exhibit "D", there is a purported signature
of the alleged father, but the blanks calling for the date and other details of his Residence
C ertificate were not filled up.
- When asked to explain the torn back cover of the bound volume, Vencer had no answer
except to state, "I am not aware of this because I am not a bookbinder."
- There is no explanation why out of so many certificates, this vital document, Exhibit "D", was
merely pasted with the volume.
- The C ivil Registry Law requires, inter alia, the Local C ivil Registrar to send copies of
registrable certificates and documents presented to them for entry to the Civil Registrar
General. In light of the above provisions, a copy of the document sent by the Local Civil
Registrar to the Civil Registrar General should be identical in form and in substance with the
copy being kept by the latter. In the instant case, Exhibit "8", as transmitted to the Civil
Registrar General is not identical with Exhibit "D" as appearing in the records of the Local Civil
Registrar of Iloilo C ity. Such circumstance should have aroused the suspicion of both the trial
court and the C ourt of Appeals and should have impelled them to declare Exhibit "D" a
spurious document.

Exhibit "8" shows that respondent's record of birth was made by his mother. In the same
Exhibit "8", the signature and name of Juan C . Locsin listed as respondent's father and the
entry that he and Amparo Escamilla were married in Oton, Iloilo on November 28, 1954 do not
appear.

Roces vs. Local Civil Registrart: Section 5 of Act No. 3753 and Article 280 of the C ivil Code of
the Philippines explicitly prohibit, not only the naming of the father of the child born out of
wedlock, when the birth certificate, or the recognition, is not filed or made by him, but also,
the statement of any information or circumstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an
illegitimate child upon the information of a third person and the certificate of birth of an
illegitimate child, when signed only by the mother of the latter, is incompetent evidence of
fathership of said child.
- A birth certificate is a formidable piece of evidence prescribed by both the Civil C ode and
Article 172 of the Family Code for purposes of recognition and filiation. However, birth
certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence.
Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive
proof of its falsity or nullity.
- At this point, it bears stressing the provision of Section 23, Rule 132 of the Revised Rules of
C ourt that "(d)ocuments consisting of entries in public records made in the performance of a
duty by a public officer are prima facie evidence of the facts therein stated." In this case, the
glaring discrepancies between the two C ertificates of Live Birth (Exhibits "D" and "8") have
overturned the genuineness of Exhibit "D" entered in the Local Civil Registry. What is authentic
is Exhibit "8" recorded in the C ivil Registry General.

Remigio vs. Ortiga (33 Phil 614)

While a priest who officiates at a baptism acts pursuant to a legal duty in recording the
facts of such baptism in a register, such entries in the register are not admissible to
prove the date of birth of the child or €its relation to particular persons as the entrant
priest is not competent to testify with respect to the truth of these latter facts
• C hurch registries – no longer public writings pursuant to GO No. 58 and Act No. 190
» But still admissible as evidence of the facts stated therein
» But necessary to be authenticated as private writings
» A copy of the certificate transmitted to the public officer as required by law becomes a
public document
▪ Admissible without prior authentication
• Entries in official records may be proved and evidenced in the manner provided by Rule 132

Evidence Page 43
• Entries in official records may be proved and evidenced in the manner provided by Rule 132
Sections 24 and 25

AFRICA V CALTEX (1966)

FACTS
Spouses Africa and heirs of Dominga Ong [owners of houses neighboring the Caltex service
station gutted by fire], filed actions for damages against Caltex Phils, Inc. and Mateo Boquiren,
owner and agent-in-charge-of-operation. The plaintiffs alleged that negligence on the part of
both defendants was the cause of the fire. TC & C A held that plaintiffs failed to prove
negligence and that defendants exercised due care in the premises and with respect to the
supervision of their EEs.
HELD
The reports on the fire prepared by the Manila Police Dept, by the Manila Fire Dept, and by a
certain Capt. Tinio of the AFP are not admissible.
-Although C apacillo did take the witness stand, he did not testify as to facts mentioned in his
alleged police report (signed by Zapanta). All he said was that he was one of those who
investigated. There was nothing 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.
-Requisites for admissibility as entries made in the course of business: [Moran]
(a) entry was made by public officer, or by a 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) 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 info.
-The reports do not constitute an exception to the hearsay rule. Material facts recited in the
reports as to cause and circumstances of the fire were not within the personal knowledge of
the officers who conducted the investigation. Neither was knowledge of such facts acquired by
them through official information, not having been given by the informants pursuant to any
duty to do so. 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.
-Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to
him by the corresponding priest is admissible. The justice of the peace has no personal
knowledge of the marriage, but it was reported to him by a priest whose duty it was, under the
law, to make the report for record purposes. Similarly, the tax records of provincial assessor
are admissible even if the assessments were made by subordinates. So also, are entries of
marriages made by a municipal treasurer in his official record, because he acquires knowledge
thereof by virtue of a statutory duty on the part of those authorized to solemnize marriages to
send a copy of each marriage contract solemnized them to the local civil registrar. [Moran]
WON respondents were negligent. YES.

SALMON, DEXTER & CO V WIJANGCO (1924)

FACTS
-Wijangco bought from SDC a tractor and threshing machine payable in installments. For SDC’s
failure to meet the threshing capacity it guaranteed, Wijangco offered to return the machine,
and asked that its previous payments be returned. SDC did not respond to such notice. Later,
it filed this case for collection. Wijangco filed cross-complaint for rescission of the instrument.
TC ruled in favor of SDC based on the testimonies of six farmers, and SDC’s Exhibit L, a
certificate of the Director of the Bureau of Agriculture as to the average crop of palay produced
in the municipality of Magalang in the 1920-1921 agricultural year
HELD
Exhibit L is admissible.
-The statistics prepared by the Bureau of Agriculture is chiefly based on the quarterly reports
of the municipal presidents made pursuant to Sec. 2202 of Admin C ode. Under such
circumstances, the certificate issued by the Director of Agriculture is admissible in evidence as
an official document issued by a public officer authorized by law.
-Wigmore: “Every officer has an implied duty or authority to prepare and deliver out to an
applicant a certificate stating anything which has been done or observed by him or exists in his
office by virtue of some authority or duty, and the certificate is admissible."

DBP POOL V RMN (2006)

While the documentary evidence presented by DBP, i.e., (1) the police blotter; (2) the
certification from the Bacolod Police Station; and (3) the Fire Investigation Report may
be considered exceptions to the hearsay rule, being entries in official records,
nevertheless, as noted by the C A, none of these documents categorically stated that the
perpetrators were members of the CPP/NPA. All these documents show that indeed, the
“suspected” executors of the fire were believed to be members of the CPP/NPA. But
suspicion alone is not sufficient, preponderance of evidence being the quantum of proof.

Evidence Page 44
WALLEM MARITIME V NLRC (1996)
FACTS
Macatuno was hired by Wallem as seaman on board the M/T Fortuna. While the vessel
was berthed at the port in Japan, Macatuno & Gurimbao had an altercation with an
apprentice of the same nationality as the captain of the vessel. The master entered the
incident in the tanker's logbook. As a consequence, Macatuno & Gurimbao were
repatriated to the Philippines. They won the cae for illegal dismissal filed with the POEA.
NLRC affirmed.
POEA & NLRC refused to give weight and credence to the CTC of the official logbook
“because the alleged entries therein were only handpicked and copied from the official
logbook” and there is no way of verifying the truth of these entries and whether they
actually appear in the log entries for the specific dates mentioned. The pages in the
official logbook where these entries appear should have been the ones reproduced to
give the same a taint of credence. Moreover, no documentary evidence was submitted
to support the alleged official logbook, like the Master's report and the police report or
any report by the Japanese authorities by reason of their arrest. Finally, the copy of the
alleged official logbook was not properly authenticated. The authentication is necessary
specially so since this document is the only piece of evidence submitted by respondents.
HELD
The official logbook is not admissible. The ship captain's logbook is a vital evidence as
Article 612 of the C ode of C ommerce requires him to keep a record of the decisions he
had adopted as the vessel's head. A copy of an official entry in the logbook is legally
binding and serves as an exception to the hearsay rule.
-BUT in this case, because no investigation was conducted by the ship captain before
repatriating Macatuno, the contents of the logbook have to be duly identified and authenticated
lest an injustice result from a blind adoption of such contents which merely serve as prima
facie evidence of the incident in question.
- Petitioners did not submit as evidence to the POEA the logbook itself, or even authenticated
copies of pertinent pages thereof, which could have been easily xeroxed or photocopied
considering the present technology on reproduction of documents. What was offered in
evidence was merely a typewritten collation of excerpts from what could be the logbook
because by their format, they could have been lifted from other records kept in the vessel in
accordance with Article 612 of the Code of Commerce.
-Also the entry in the logbook is so sketchy that, unsupported by other evidence, it leaves so
many questions unanswered. In the absence of a more detailed narration in the logbook entry
of the circumstances surrounding an alleged assault, the same cannot constitute a valid
justification to terminate a seaman’s employment.

ESCOBAR V LUNA (2007)

FACTS
C lodualdo Luna filed complaint seeking to nullify Adelaida/Lolita Escobar’s TCTs over
Tagaytay property. Luna claimed he had been in actual, public, adverse, continuous,
and notorious physical possession of the parcels of land since 1941. He alleged that
Escobars illegally and fraudulently titled the same by the use of fictitious and simulated
documents and court records. He presented documents, among others were
(1) certification of the Chief of the Ordinary and Cadastral Decree Division of LRA, (2)
certification dated Aug 6, 1993 issued by the Chief of the Records Management Division, Lands
Management Bureau, DENR.
HELD
The documents presented by Luna are admissible to prove nullity of TCTs. Luna’s evidence are
competent evidence, having been issued by government offices, certified to by authorized
personnel who were clothed with authority and duty to issue such certifications.
-People v. Lazaro, 1999: The certification, without testimony of the person giving the
certification, is sufficient and competent evidence which is an exception to the hearsay rule as
provided in R130.44. This section [entries in official records] should be read in conjunction with
Rule132.28 which allows the admission of the said document.
-Rule132.28: Proof of lack of record. -- A written statement signed by an officer having the
custody of an official record or by his deputy that after diligent search no record or entry of a
specified tenor is found to exist in the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the records of his office contain no such record
or entry.
-Applying Ppl v Lazaro, the certification dated June 11, 1990 issued by Atty. Cainza-Valenton,
who was duly authorized to issue the certification, stating that OCT No. 5483 was not existing
in the files of the Registry of Deeds of the Province of Batangas and which confirmed that OCT
No. 5483 was fictitious, making the titles derived from it spurious, is sufficient evidence for the
stated purpose. The Register of Deeds of the Province of Batangas is the repository of all
records regarding OCTs issued in that province, and the certification is therefore competent
and admissible evidence to prove that the titles of the Escobars derived from it are from a
fictitious source.
-The documents presented, which constitute certifications from government officials who are
responsible for safeguarding the TCTs and OCTs in their possession because of their official
capacity, have not been controverted as to their existence and due execution. Their existence
was also never denied under oath.

Evidence Page 45
 was also never denied under oath.

BARCELON, ROXAS SECURITIES V CIR (2006)

FACTS
-After BIR audit investigation, CIR issued deficiency income tax assessments against Barcelon.
Formal Assessment Notice dated 1 Feb 1991, was allegedly sent to Barcelon through registered
mail on 6 Feb 1991. Barcelon denies receiving the same.
HELD
The BIR record book is not admissible. Barcelon denies receiving the assessment notice, and
C IR was unable to present substantial evidence that such notice was, indeed, mailed or sent
before BIR’s right to assess had prescribed and that said notice was received by Barcelon. CIR
presented the BIR record book where the name of the taxpayer, the kind of tax assessed, the
registry receipt number & the date of mailing were noted. The BIR records custodian, Ingrid
Versola, testified that she made the entries therein. C IR offered the entry in the BIR record
book and the testimony of its record custodian as entries in official records.
-Rule130.44, however, must be read in accordance with this Court’s pronouncement in Africa
v. C altex, where it has been held that an entrant must have personal knowledge of the facts
stated by him or such facts were acquired by him from reports made by persons under a legal
duty to submit the same.
-In this case, the entries made by Versola were not based on her personal knowledge as she
did not attest to the fact that she personally prepared and mailed the assessment notice. Nor
was it stated in the TSN how and from whom she obtained the pertinent information.
Moreover, she did not attest to the fact that she acquired the reports from persons under a
legal duty to submit the same. R130.44 is inapplicable.
-Independent evidence [registry receipt of the assessment notice, or certification from the
Bureau of Posts] could have easily been obtained. Yet C IR failed to present such.
TF: Evidence offered by CIR fails to convince SC that Formal Assessment Notice was released,
mailed, or sent before the lapse of the period of limitation upon assessment and collection
prescribed by Sec. 203 of the NIRC. Such CIR evidence, therefore, is insufficient to give rise to
the presumption that the assessment notice was received in the regular course of mail
[Rule131.3(v), Nava v CIR]. Consequently, the right of the government to assess and collect
the alleged deficiency tax is barred by prescription.

Commercial Lists

Section 45 - COMMERCIAL LISTS AND THE LIKE

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

• Examples: Carlisle or Wigglesworth Tables and accepted actuarial and annuity tables

Learned Treatises

Section 46 - LEARNED TREATISES

A published treatise, periodical or pamphlet on a subject of history, law, science, or
art is admissible as tending to prove the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the subject testifies, that the writer of
the statement in the treatise, periodical or pamphlet is recognized in his profession
or calling as expert in the subject.

• Requisites:
1. The court takes judicial notice thereof
2. The same is testified to by a witness expert in the subject
• C A took judicial notice of the Ballantyne Scale of Values [1]
• Legal treatises also included

Testimony or Deposition at a Former Proceeding

Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

The testimony or deposition of a witness deceased or unable to testify, given in a
former case or proceeding, judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him.

• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or

Evidence Page 46
 2. His testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on
different causes of action
4. The issues testified to by the witness in the former trial is the same issue involved in the
present case
5. The adverse party had an opportunity to cross-examine the witness in the former case
• Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the
first trial ≠ inability to testify
» Inability should proceed from a grave cause almost amounting to death

Aldecoa vs. Jugo (61 Phil 374) [2]

Testimony given by a witness in a civil case is not admissible in a subsequent criminal
case, even if said witness had died in the interim

• Requisites:
6. Witness [or deponent] is dead or unable to testify
7. His testimony or deposition was given in a former case or proceeding, judicial or
administrative, btwn the same parties or those representing the same interests
8. The former case involved the same subject as that in the present case,
although on different causes of action
9. The issues testified to by the witness in the former trial is the same issue involved in the
present case
10. Adverse party had opportunity to cross-examine the witness in the former case

• INABILITY TO TESTIFY
» Subsequent failure or refusal to appear at the second trial not enough
» Hostility since testifying at the first trial not enough
» Inability should proceed from a grave cause, almost amounting to death
» e.g., witness is old and has lost the power of speech

• Admissibility of a prior judgment is governed by different rules.

Judgment in a criminal [or administrative] proceeding
» may not be admitted to prove palintiff’s cause of action or defendant’s defense.
» cannot be read in evidence in a civil action against a person not a party thereto to
establish any fact therein determined
even though both actions involve the same act or omission
WHY?
The matter is res inter alios, not res judicata [Chantangco v Abaroa, 1920]
The parties are not the same. Different rules of evidence apply.

» may only be admitted in evidence in a civil case by way of inducement, or

to show a collateral fact relevant to the issue in the civil action
[Keller & C o. v Ellerman, 1918]
» OR to prove that a certain defendant has been convicted of a crime and sentenced to
the penalty therein imposed [Arambulo v MERALCO, 55 Phil. 75, 1931].
BUT in later cases:
Miranda v Malate Garage, 99 Phil 670 (1956): A judgment of conviction, in the absence of
collusion between the accused and the offended party, is binding and conclusive upon the
person subsidiary liable not only with regard to his subsidiary liability but with regard to the
amount thereof.
AND said judgment is admissible in evidence in the civil action brought to enforce said
subsidiary liability.

TAN V CA (1967)
FACTS
C ase#1: Action for acknowledgment & support by Carmelita & Rodolfo (thru mother Celestina)
vs Francisco. After presentation of evidence in chief, upon motion of Celestina, on the ground
that the parties have come to amicable settlement, case was dismissed with prejudice.
C elestina submitted an affidavit categorically declaring that Francisco is not the father of her
children.
C ase #2, filed 1yr & 8mos after dismissal of Case#1: Carmelita & Rodolfo [thru Grandma) vs
Francisco Tan. Action for acknowledgment & support: same parties, COA, and subject matter.
RTC dismissed the case [res judicata], and said that, even on the merits, plaintiffs have not
made out their case with sufficient evidence. CA affirmed.

Evidence Page 47
made out their case with sufficient evidence. CA affirmed.
HELD
Exhibit. H and I, testimony of the minor’s witnesses in case#1 are NOT admissible.
These witnesses are not dead. They are not outside of the Philippines. They were
available. Only they refused to testify. No other person that prevented them from
testifying is cited. Certainly, they cannot be categorized as witnesses unable to testify.
-“Unable to testify” does not cover the case of witnesses who were subpoenaed but did not
appear. Subsequent failure or refusal to appear at the second trial or hostility since testifying
at the first does not amount to inability to testify, but such inability proceeding from a grave
cause, almost amounting to death, as when the witness is old and has lost the power of
speech.
-In the situation here presented, petitioners are not all bereft of remedy. They could have
urged the court to have said witnesses arrested, punished for contempt. After all these
remedies are in the statute books to help litigants in the persecution of their cases.
Obiter: The danger of tampering with witnesses is a problem that attends trials in many a time
and in number of imaginable situations. Witnesses at the former trial can be bought not to
testify at the second trial, in just the same way that they could have been bought to give their
original testimony. Solution of this problem lies elsewhere, not in the non-enforcement of the
Rules of C ourt.

MANLICLIC v CALAUNAN (2007)

FACTS
C ollision of Phil Rabbit bus, driven by Manliclic, and Calaunan’s owner -type jeep driven
byMendoza in NLEX results in damage to the jeep + hospitalization of Calaunan.
-C ase#1: RTC Malolos. C riminal case charging Manliclic with RI resulting in damage to property
w/ physical injuries
-C ase#2: RTC Dagupan City. Complaint for damages by Calaunan against Manliclic and PRBLI.
-At the trial, TSNs of the testimonies of C alaunan, Mendoza and Fernando Ramos in the crim
case were received in evidence in as much as these witnesses are not available to testify:
C alaunan and Ramos are now working abroad; Mendoza left the residence to look for a job. For
the defendants, Manliclic and bus conductor Oscar Buan testified. TSN of the testimony of
PRBLI investigator Donato Ganiban in case#1 was also marked and allowed to be adopted in
the civil case on the ground that he was already dead. RTC Dagupan ruled in favor of
C alaunan. CA affirmed.
HELD
The TSNs of testimonies of Calaunan, Mendoza and Ramos are admissible.
-Requisites for R130.47 to apply:
-C alaunan failed to show the concurrence of all the requisites set forth by the Rules for a
testimony given in a former case or proceeding to be admissible as an exception to the
hearsay rule. PRBLI, not being a party in the criminal case, had no opportunity to cross-
examine the three witnesses. The criminal case was filed exclusively against Manliclic. BUT
testimonies of the three witnesses are still admissible on the ground that PRBLI failed to object
on their admissibility.
-Moreover, PRBLI even offered in evidence the TSN containing testimony of Ganiban in the
criminal case. To disallow admission in evidence of the TSNs of the testimonies of C alaunan,
Mendoza and Ramos in the criminal case and admit the TSN of the testimony of Ganiban would
be unfair.
-Though R130.47 speaks only of testimony and deposition, documents from a former case or
proceeding can also be admitted they being part of testimonies of witnesses that have been
admitted. Accordingly, they shall be given the same weight as that to which the testimony may
be entitled.
Note: C A decision in crim case acquitted Manliclic, not on reasonable doubt, but on the ground
that he is not the author of the act complained of [R111.2(b)]. This section applies only to a
civil action arising from crime or ex delicto and not to a civil action arising from quasi-delict or
culpa aquiliana.
*SC ruled that it was Manliclic’s negligence that caused the smash up. PRBLI is presumed
negligent. PRBLI failed to rebut this presumption; there was no proof that it exercised the
diligence of a GFOF in the supervision of its employees [presence of ready investigators after
accident is not enough; there is only one set of manual being lent to all the drivers].

[1] E s trada vs . N oble (C A, 4 9 O G 1 39)

[2] A ls o in P eople vs . V illaluz (1 983)

Evidence Page 48
 Evidence September 15
Tuesday, September 15, 2009
6:32 PM

On current events:
Super Ferry Case
4am
Captain: winds were strong
But passengers: no wind, waters were calm
They didn't want to jump because it was 4am but it's too dark.
If there were others that would testify that they heard many said that there was no wind, would it be
admissible? Granting there were already two passengers already who have said that paalis pa lang ng pier,
the ferry was listing (leaning?) already…
VAA: the ship would probably lean to a single direction because of negligent arrangement of cargo.
ADMISSIBLE?
Aida: YES. Under Section 42.

E.g. Ultra Incident "WOWowee"

e.g. What if the people there were shouting stuff…
"Hoy, yung bata naapakan!"
"Wag magtulakan!"
"Hoy, may naapakan na!"
If a person is presented in court to testify on the sights and sounds during the incident, and the person was
there, ADMISSIBLE?
Claimant: the parent of a boy who died in the incident
Prove: death of the boy + negligence/lack of foresight of the organizers of the event
*don't say ADMISSIBLE because it was derived from his personal experience: by saying this, you're saying
that it is admissible as evidence of IRS
*ADMISSIBLE UNDER RES GESTAE: elements:
1. Startling occurrence: Stampede
HEARSAY: yes, the witness (parent of the boy who died) heard someone (out of court declarant) shout
"Hoy, yung bata naapakan!"
2. Statements made during, immediately prior or subsequent
-statements (out of court statement) was made during
3. Statements made were about the circumstances of the startling occurrence
-not "Ang gwapo ni Piolo!" - which is irrelevant to the startling occurrence
4. Made before the declarant had opportunity to contrive
-the out of court declarant, who said statement DURING OCCURRENCE, would not have time to contrive a
falsity

WHY RES GESTAE ADMISSIBLE?

Human nature that when there's a startling occurrence…the statements made during or immediately prior
or subsequent thereto are true!
-people tend to echo the statements, by its very nature, when there's a startling occurrence, it may be
echoed when there's many people.
(by very nature, multiple hearsay because many people would probably have heard the statements and
then may have heard it from someone else)

Vs. Pedigree
(single hearsay): declarant (who's making statement regarding the pedigree of a relative) would make an
act or declaration to the witness.

Vs. Family Tradition

(multiple hearsay)
-tradition: passed on from one generation to another…

Evidence Page 49
 -tradition: passed on from one generation to another…
e.g. Engraving in the ring, e.g. name of the original owner, then it was passed on from generation to
generation…the last tagapagmana wouldn't have personal knowledge of who the owner is but there's a
family tradition that there was such a family member in the
ON AGE: it's hearsay!
-you don’t have personal knowledge when you were born because when you were born, you were unable
to perceive what happened.

Vs. Common reputation

(multiple hearsay)
-there's a consensus + not really controverted
Pag current events, not common reputation (since it is controverted)
VAA:…"unless when you're talking about corruption"
-it refers to moral character
-monuments and inscriptions in public places
e.g. there's a marker in somewhere stating that an event happened in that place. You don't have personal
knowledge that the said event happened but it is admissible

So in the Super Ferry Case, even if you don't personally know WON the ship is indeed sinking, when you
hear it from panicking people, you'll probably jump! (you'll never know if the person from whom you've
heard it knows it personally also!)

REVIEW on common reputation

VAA: why require 30 years for facts of public or general knowledge then when it comes to marriage or
moral character, no need for 30 years?
AIDA: the latter two would spark more interest to people in the community
VAA: when morals, you don't only refer to the bible

Section 42 (part 2) - verbal acts

"So, also, statements accompanying an equivocal act, material to the issue, and giving it a legal
significance, may be received as part of the res gestae."
-Single or multiple hearsay?
On par1: it's the event talking through the declarant, not the declarant only
On par2: admissible,

e.g. If A gave the property to B

(mere act of giving the property to B) - equivocal, unclear, could have many interpretations

But if A says, "B sa'yo na!", the statement gives it legal significance, i.e. ownership
WHY Admissible:

E.g. If a train is about to collide with another train, there are persons who already exlaimed, "Babangga!",
ADMISSIBLE AS PART OF RES GESTAE?
SPONTANEOUS. Part of res gestae. Under the influence of the startling event.

People vs. Tampus

H: The spontaneous statement made by the 2 prisoners right after they got out of the bathroom where the
crime happened was held to be RES GESTAE

Do you agree with the ruling? Ma'am disagrees!

3 statements:
1. Right after the crime
2. Right before the crime
3. During the PI?

But only concerned on the statement right after the crime was committed:

Evidence Page 50
 But only concerned on the statement right after the crime was committed:
*NOT RES GESTAE: It was premeditated!
Why premeditated:
1. There was a gang war between the gangs of the victim and accused
2. They knew where the victim was
3. They brought a knife with them
4. When they saw the policeman, they said the statement and handed the knife (with blood!), and it is not
startling to see a prison guard inside a prisoner.
-and they were willing to surrender!

Aida: "When there's a gang war, it's not a pretty sight."

R130.42: Res Gestae = the things done + statements made

1st par 2nd par
Immediately before, during, or after During
Kelangan magulat! Di kelangan magulat

e.g. there's a rape. The law enforcers went inside the house in hot pursuit w/o search warrant. A kid,
hiding covered with a curtain, heard someone say, while pointing to a spot on the house with bejeweled
finger, "Dali, dun mo ilagay!"
Owner charged with possession. The owner counter-sued. Kid presented in court. ADMISSIBLE?
UF: WON there was illegality?
ADMISSIBLE under paragraph 2
Equivocal act: pointing
Statement: "Dali, dun mo ilagay!"
ISSUE: WON there was illegality

Section 43 – ENTRIES IN THE COURSE OF BUSINESS

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

• Requisites:
1. The person who made the entry must be dead or unable to testify
2. The entries were made at or near the time of the transaction 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
5. The entries were made in the ordinary or regular course of business or duty

Verbal or written?
Written: Entries eh! Business documents!
Documents [R130.2]: evidence offered as proof of their contents
One who made: ENTRANT
One presented in court: WITNESS
EVIDENCE: out of court entry
OUT OF COURT: yes. Dead or unable to testify nga eh!
*Dapat, at the time he wrote it, he knew personally what it contains = COMPETENT! Kahit anong exception
sa hearsay rule, dapat competent!
IS THE DECLARANT=ENTRANT? Yes. Just written.
SO hearsay does not apply only to testimony.

Canque vs. CA
F: Entries in the Book of Collectible Accounts were made by the bookkeeper but had no personal
knowledge because it was the engineer who made the receipts.
H: Not admissible under R130.43

Evidence Page 51
 knowledge because it was the engineer who made the receipts.
H: Not admissible under R130.43
-entrant still alive
-entrant had no personal knowledge
*BUT other evidences presented sufficiently showed that CANQUE previously paid SOCCOR w/o contesting
billings made

VAA: But wasn't it made in the ordinary or regular course of business?

Still,
1. Engineer, who had personal knowledge, was not the one who made the entry
2. The book keeper, who had NO personal knowledge, i.e. INCOMPETENT, was the one who made it
3. The entrant, book keeper is still alive!

Cf: Rules on Electronic evidence

*in here, it is single hearsay

"In the ordinary or regular course of business or duty"

VAA: Commercial business dapat?
Regalado:
Legal
Contractual
moral
Religious
- Basta may formal duty! Para maging regular and ordinary …duty
e.g. business: the cashier would make entries on the receipts whenever someone would buy from the
store. If the owner of the store would present such receipt in court, admissible?
YES, under R130.43, provided ALL THE ELEMENTS WERE COMPLIED WITH
e.g. one who makes inventories
security guards

"at or near the time of transaction"

-the regularity and the promptness of the act makes it trustworthy!
-so if receipt was made 5 days after the purchase, it is irregular and doubtful…

e.g. Is employment relation required? What if Anton borrows a book from the library and entered into his
library card that he rented this book on this date and he died. Library wanted to claim damages for the lost
book, and presented the library card as evidence.
UF: Anton stole it!
IF: that Anton was the last person who borrowed it
*it is documentary evidence: it is presented as proof of its contents
---presented the original borrower's card of Anton

BUT IS IT HEARSAY?
No, the library card is not hearsay. The document per se would be shown to prove the fact in issue, i.e.
WON Anton borrowed the book, no more need for showing another person to testify on the library card as
the library card is already in the court and itself is a good evidence

Section 44 – ENTRIES IN OFFICIAL RECORDS

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

• Merely prima facie evidence of the facts therein stated

• Requisites:
1. Entries were made by a public officer in the performance of his duties or by a person in the performance of a
duty specially enjoined by law
2. The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports
made by persons under a legal duty to submit the same

Evidence Page 52
 2.
made by persons under a legal duty to submit the same
3. Such entries were duly entered in a regular manner in the official records

There are duties which are not enjoined by law

e.g. entries in religious documents: enjoined by the Church
-but would only show who attended, but not the relationship (would not be evidence of the truth of the
contents)
-If government kasi, there's probative value.

e.g. of official documents

1. Records of birth in NSO
2. Transcript of records in UP
3. All government documents filled up and executed (duly processed).
R132, Section 23: on prima facie but same!
R130, Section 24: dapat on admissibility lang! So don't be confused!
*admissibility: because official records:
*probative value: prima facie
-pero dito, pinaghalo!

*prima facie evidence of the facts stated therein: burden of proof is on the other party to disprove
it…(putol)
e.g. Birth Certificate:
-person born
-has a name
-date of birth
-name of parents…
*These are entries in an official record
*these entries are evidence that these entries are TRUE, unless rebutted

BUT ADMISSIBILITY DIFFERENT: Even if not prima facie evidence, may be admissible. Admissibility is based
on reliability and trust worthiness.

Lao vs. Standard

F: Lao owns two trucks, one of the trucks hit another truck which was insured. Lao claims that the insured
truck was driven by a qualified driver, as shown by the MOTOR VEHICLE ACCIDENT REPORT (made 3 days
after the incident). The police blotter, however says that the driver of the bumped truck was driven by an
unqualified driver so the insurance company refused to give the proceeds.
H: For Standard Insurance
*blotter vs. Motor vehicle accident report
-but the MVAR was made 3 days after!!!!

e.g. there was a 2 year-old child beated by the persons who took care of her. Everytime she was tortured,
she made sumbong to the neighbor. Neighbor presented neighbor to prove identity of assailant. [P v
Cariquez] ADMISSIBLE?
Hearsay. But under Res Gestae so admissible
-immediately after the startling occurrence

e.g. What if the grandfather who sexually molested a 2 1/2 year old child. The child made sumbong to her
mom. ADMISSIBLE.
Yes. Pv Velasquez

e.g. Street in San Juan not very wide. There's a Jeep who belongs to a policeman, then a Fierra owned by a
priest, they were neighbors. There was an altercation, policeman killed. Neighbors said, "Ay si father
pinatay nung police!" then the policemen arrived later, the witnesses-neighbors were interviewed and said
that the policeman shot the priest. Naturally, the neighbors won't want to testify (kilala sila ni policeman
eh), so the investigators would
Admissible under Res Gestae [P v. Dela cruz]

Evidence Page 53
Admissible under Res Gestae [P v. Dela cruz]

But what about

DBP vs. CA?
Not a res gestae evidence: there was time between time when statements made and the time when the
statement was given to the police. No spontaneity.
VAA: plus the identification had no factual basis! Can't surely say that the ones who burned the station
were NPA's. But in P vs. Dela Cruz, they were sure of the identity of the assailant.
Plus focus on SPONTANEITY: no gap between the hours when startling occurrence

On deck at the end of the meeting:

Aida
Odena
Simon
(Ms. Salazar)

Evidence Page 54
 Evidence September 17
Thursday, September 17, 2009
6:13 PM

Manalo vs. Robles

F: Taxi hit a boy. 2 writs of execution issued on the driver who was found liable, sheriff was not able to
enforce the writ of execution because of the insolvency of the driver. Went after Manalo, the owner of
the taxi and employer of the driver who was subsidiarily liable.
-presented the writs of execution and the return of the sheriff.
*relevance of the sheriff's return: the subsidiary liability of the employer would arise only if the
judgment would not be satisfied on the person primarily liable
What does the sheriff do? Sheriff would look for the properties of the convicted/liable property - here,
the sheriff found no such property!
RETURN: Is that a public document/ official record?
YES. Issued by a public officer of the Philippines in the performance of his duty.
VAA: This is actually Rule 132.19

Issue on hearsay: Did not present the sheriff, just presented the contents of the sheriff's return

H: Section 44 applies, admissible under the exception

-entry in an official record
-made by a publc officer of the Philippines
-in the performance of his duties

(2nd part: prima facie - refers to weight)

Wallem Maritime Services vs. NLRC

F: Wallem dismissed two Filipino sea man for allegedly assaulting a crew member (who was just an
"intern"). The said altercation was recorded in the Tanker's Logbook.
-the alleged Logbook was presented before the court in a typewritten excerpt (not the whole logbook)

H:
-The typewritten excerpt not a copy: a copy should be executed at or about the same time with identical
contents
Issues in this case (possible objections):
1. hearsay: did not present the captain himself but the excerpts of the logbook
2. BER? Are the contents of the logbook in issue?
WALLEM vs. NLRC
UF: WON dismissal is illegal - question of law or fact
-how to prove? Support evidence?
INTERIM FP: Altercation (question of fact)
-basis: evidence
FP: excerpts from the logbook
---basta ung excerpts sa logbook is based on the logbook which contains the personal knowledge of the
captain
Why the contents of the logbook in issue?
Because the logbook contains the account of the alleged altercation
---BER applies but it is under the exception of the BER: Lost, destroyed, or cannot be produced in court:
The logbook of the ship cannot be taken out of the ship!
-NOT A COPY: if a copy, should contain all the contents of the logbook
-RECITAL IN SOME AUTHENTIC DOCUMENT: not the same: it was made during the litigation - NOT
AUTHENTIC BECAUSE IT WAS NOT MADE ANTE LITE MOTAM
e.g. of a recital in some authentic document: records in a maritime disaster case, records of the
employee (presented for promotion case)

Evidence Page 55
employee (presented for promotion case)

Back on Hearsay:
What if present an affidavit containing the said altercation? Would it be an exception to hearsay?
Not under R130.43?
Elements:
a. The person who made the entry must be dead or unable to testify
b. The entries were made at or near the time of the transaction to which they refer
c. The entrant was in a position to know the facts stated in the entries
d. The entries were made in his professional capacity or in the performance of a duty, whether legal,
contractual, moral or religious
e. The entries were made in the ordinary or regular course of business or duty
Were the elements complied with?
-the affidavit is NOT AN ENTRY in the course of business!
WHY?
-the maritime proceeding is not an entry in the regular course of maritime business
e.g. of entries in the regular course of a maritime business
>logbook!

Will it fall under R130.44? PEDE

-Ms. Rios: 2nd paragraph: Private individual specially enjoined by law to perform a duty!
*Section 44: not required that the declarant should have personal knowledge
-Under the Code of Commerce: Captain of the Ship enjoined to record the events happening in the ship

*the Logbook (entries of the captain): however, the captain (sabi ni ma'am) had no personal knowledge
of the events which happened - VAA: The statement in the facts of the case was taken from the
excerpts!

VAA: pede ba un? BER tapos may hearsay?

Example of Private persons specially enjoined by law to perform a duty?

PRIEST: enjoined by law to record the fact of marriage then submit the records to the civil registrar
VAA: the hearsay which falls under R130.44 (1st part) is the copy in the civil registrar. If the copy with
the priest is to be presented, it falls under R130.44 (2nd part)

Air France vs. Carrascoso

-relevant: notebook of the purser
-entry in the course of business? NO
>personal note of the purser
>official course of business? No, it was not the duty of the purser
-RES GESTAE?
>the startling occurrence is the altercation between Carrascoso and the racist flight attendant

People vs. Tampus

-res gestae? Sabi ng court oo but sabi ni Ma'am, not startling because the accused/declarants would not
have been surprised.

People vs. Tulagan

-res gestae? Court said there was none (1.5 hours between the "startling" occurrence and the
statement)
Comment: is it really res gestae?
ANTON: Time should not be the sole basis of res gestae
MS Salazar: Demeanor of the declarant - being calm, etc… - should not be also basis

VAA: but does it really fall under 1st part of the Res Gestae rule
-VAA: as to the time part, this is a correct rule
-VAA: there is no res gestae here, they planned it! (obvious naman…)

Evidence Page 56
 -VAA: there is no res gestae here, they planned it! (obvious naman…)

e.g. ng res gestae, even if premeditated

A, B and C planned to hog-tie D. C deviated from the plan, killed D. Afterwards, A exclaimed, "Bakit mo
naman pinatay?" - res gestae
Not A, B and C planned to kill D, magugulat ba sila pag sinabi, "Bakit ka naman sumunod sa plano natin,
nagulat naman ako"

Aballe vs. People

-Tulagan not applied: here, a night already passed after the STARTLING occurrence?
VAA: startling occurrence: nung nahimasmasan na sha, nagulat sya na nakapatay na sha!

"Don't forget the gulat factor!"

Borromeo vs. CA
F: Aznar allegedly lent Rallos money, who allegedly mortgaged the property, but document allegedly
show that it was a sale. Borromeo (administrator of Rallos' estate) wanted to reform the documents.
-Notes were made by Borromeo (4 daw na exhibits) allegedly containing the excerpts
TC: sale, no reformation
CA1: Sale, no reformation
CA2: Equitable mortgage
-testimony of Crispina + notes: notes she made were res gestae
SC: NO RES GESTAE
-not explained…
…why she was there
..why she took notes
…WON she was authorized to take down notes
NOTES not hearsay so can't be res gestae: it was a memorandum!

Class discussion (sorry, was not able to follow…)

-2nd part of res gestae?
Elements:
1. Res gestae or principal act be characterized as equivocal
2. Such act must be material to the issue
3. Statements must accompany the equivocal act
4. Statements give a legal significance to the equivocal act

-but was there any equivocal act???

VAA: If the alleged equivocal act is the transaction, the deed of sale which evidenced the alleged
transaction is clear on its face SO THERE IS NO EQUIVOCAL ACT HERE! NO RES GESTAE!!!!

Canque vs. CA

Africa vs. Caltex

-Police report + Fire Department Report
…the persons who made report had no personal knowledge of the facts stated in the report
H: but allowed under res ipsa + responsibility of gas station - dangerous
-Not under R130.44: even if public officer, the public officer has no
1. Personal knowledge
or
2. Official information
[Moran, Comments on the ROC]
-sabi ng court: "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."
…so PERSONAL KNOWLEDGE + DUTY TO DO SO
VAA: this is what makes it confusing: it is already enough that it be from one with personal

Evidence Page 57
 VAA: this is what makes it confusing: it is already enough that it be from one with personal
knowledge, but here, you must also have a duty to do so…Di sinabi why court gave this
parameters… too strict criterion
-but court considered Leandro Flores' statement before a police investigator later: Flores had personal
knowledge but no duty to do so! So pano un, point ni Odena, the court did not use its own strict
criterion!

Salmon Dexter vs. Wijangco

-Certificate of Director of bureau of agriculture on the average crop of palay produced in 1920-21 in
Magalang, Pampanga presented by the defense to show that it was not the fault of the machine why the
output of palay was lower than what they claimed the machine could produce. The palay harvest was
low! So lower palay harvested, the lower palay threshed!
UF: WON Salmon Dexter breached their warranty
Immediate F: WON the thresing capacity was not reached because of the fault of Salmon Dexter

H: Under R130.44, admissible?

YES
Admissible. Based on the quarterly reports mandated by the Administrative Code to be made by
MUNICIPAL PRESIDENTS WITH APPROVAL OF THE MUNICIPAL COUNCILS

-do the municipal presidents have personal knowledge?

NO. Probably, they only get their information from interviews from hacienderos and tenants, farmers-
owners
--but does the farmers/owners/hacienderos have a duty to report?
NO - so questionable talaga ung Caltex vs. Africa!!!

VAA: only 1 law which provide for mandatory disclosure - so there's duty to inform - or else liable (data
for data's sake): Human Security Act of 2007: supposed to report or else considered a co-conspirator, a
terrorist!!!
-a person really has no duty to report, only under specific laws

*if the officer has personal knowledge, you don't need R130.44! Dapat nga it's not required. But Caltex
case clarifies it!
---public officials are presumed to have performed their official duties

Evidence Page 58
Evidence: September 22, 2009
Tuesday, September 22, 2009
6:16 PM
Review

Falls under R130.44

Lao: blotter vs. police report
Wallem: collation of entries vs. logbook (which is under specific duty of captain to record)
Manalo: Sheriff's return

2 lang case sa R130.43

Canque
Aznar

Aznar vs. Citibank

F: Aznar presented a printout given by the Ingtan Traveling Agency wherein it was indicated that the credit card of Aznar wasdeclared over limit.
-It is a COMPUTER PRINTOUT
-as to the source of printout

*Is this a hearsay situation or a RIAA situation?

Elements of RIAA
(a) Act/declaration/omission
(b) there's an admission
(c) the admission is against the rights of a party

Here: Is there an admission which will prejudice the rights of another party?
Sabi ni Ma'am Oo.

Could Aznar have sued Ingtan instead?

Yes. Pero mahal so sa Manila sha nag-sue

If it was not Citibank who declared that Aznar was declared overlimit, why is he suing Citibank?
Ingtan could have only known (and could have gotten the COMPUTER PRINTOUT) only from Citibank. (from inference). In essence,it was CITIBANK who said that
Aznar was already overlimit.

VAA: ONLINE transaction so kahit gaano kalayo ang Indonesia, instantaneous agad ung result.
The statement was from Ingtan but Aznar was saying that it was really Citibank's. RIAA!

How does a credit card work?

Aznar goes to Ingtan, wanting to make utang, for a plane ticket. If Ingtan honors the request, Ingtan would use its own fundsto buy the ticket. Ingtan would then
ask Citibank to reimburse. Citibank would then pay Ingtan (with interest) then collect with interest from Aznar. SO NOT JOINTLY INTERESTED.

DOES NOT FALL INTO ANY EXEMPTION UNDER RIAA! So inadmissibe under RIAA.

WHAT ABOUT HEARSAY EVIDENCE? IS IT ADMISSIBLE UNDER HEARSAY EVIDENCE RULE?

When the document was alleged to be hearsay: Aznar was presenting a COMPUTER PRINTOUT. CITIBANK objected, hearsay! Nubi, whogave the printout, is not
in the court and the contents are only showing the contents.

How do you make a computer document?

DIGITIZE: convert it from what to a digital file…
SCAN: you get
RECORDING
EMAILING

"it doesn't follow that the one who printed the printout was the one who made it."

How did the printout became questionable under hearsay?

Aznar presumed that Nubi given the document because Nubi signed it. However, as the paper had two signatures, it is doubtful who really made the computer
printout. BUT IRRELEVANT RE: HEARSAY BECAUSE WHOEVER SIGNED IT, HE OR SHE IS OUT OF COURT!!!

VAA: "Don't ever say 'Official course of business'. Nakakalito un!"

-Not under R130.43

1. the person who made the entry must be dead, or unable to testify;
2. the entries were made at or near the time of the transactions to which they refer;
3. the entrant was in a position to know the facts stated in the entries;
4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and
5. the entries were made in the ordinary or regular course of business or duty.
--the entrant was not identified . So how would the SC know if 3-5 were complied with

E.g. OLD BUSINESS DOCUMENTS OF A COMPANY. You want to trace it, and there's an official of the company to testify that these documents were kept by the
custodian, and the custodian would be describe…and he performs it in the regular course of business. But the witness FORGOT THE CUSTODIAN'S NAME.
Would it be admissible under rule 130.43?
YES. IDENTITY not a requisite for R130.43 as long as it was established that the entrant was in the position, made the entries in the regular course of business or
duty

VAA: IT IS DANGEROUS FOR THE SC TO RULE THAT THE IDENTITY OF THE ENTRANT MUST BE ESTABLISHED. DO NOT TAKE IT LITERALLY. BASTAAS LONG AS IT IS
ESTABLISHED THAT THE ENTRANT MADE THE ENTRIES IN THE REGULAR COURSE OF BUSINESS AND THAT THE ENTRANT WAS IN THE POSITION TO KNOW THE
FACTS STATED THEREIN, PEDE R130.43.

So if nasa ibang lugar ka, how would you acquire an entry which may be admissible under 43 and 44?

Evidence Page 59
 So if nasa ibang lugar ka, how would you acquire an entry which may be admissible under 43 and 44?
Dapat yung 4 requisites hindi hearsay…
*Deposition OR
*let the entrant go to court in RP to witness

What other COA should have Aznar adopted here?

*NEGLIGENCE OF CITIBANK: It doesn't necessarily follow that if you're not listed in the black list you're not necessarily declared under limit
*SUE INGTAN

*The Black List bulletin is not conclusive as to the fact of WON Aznar was blacklisted

SO AS THE LAWYER OF AZNAR, how would you go about it?

Establish that declared overlimit = blacklisted: BUT THIS IS NOT THE ISSUE, the issue is WON CITIBANK ordered Ingtan not to pay for Aznar!!!! Aznar should show
that being blacklisted is not a defense by citibank because it is IRRELEVANT! IF blacklisted, it may mean Aznar did not pay premiums etc.

HERCE vs. MUNICIPALITY OF CABUYAO, LAGUNA

F: Ordinary registry book shows that Cabuyao was given the DECREE 4244 over lot in 1911, map, ….

Solinap vs. LOCSIN

F: On the certificate of live birth (two presented: one from the local civil registrar vs. central registry)
H:
Local (Exhibit D) General (Exhibit 8)
*In a form printed in 1958 (NPO *No signature of the late Juan C. Locsin
prints it) but the entries made in it
were allegedly made in 1957
*The entry was merely pasted on
the book, when the rest were sawn
*No important particulars
*The space which call for an entry of
the legitimacy of the child is blank
*photocopy
*back of volume torn

"From Batanes, to Aparri…(*pause*)di ba pareho yun?"

Fernandez vs. CA
H: Canonical documents not prima facie, not official records…
On the Baptismal Certificates
The baptismal certificates of petitioner Claro naming private respondent as his father has scant evidentiary value. There is no showing that private respondent participated
in its preparation.
The rule is that although the baptismal record of a natural child describes her as a child of the decedent, yet, if it in the preparation of record the decedent had no
intervention, the baptismal record cannot be held to be a voluntary recognition of parentage.The reason for this rule that ca nonical records do not constitute the authentic
document prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such canonical record is simply proof of the only act to which the priest may
certify by reason of his personal knowledge, an act done by himself or in his presence, like the administration of the sacram ent upon a day stated; it is no proof of the
declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which require separate and concrete evidence.
While baptismal certificates may be considered public documents, they can only serve as evidence of the administration of the sacraments on the dates so specified. They
are not necessarily competent evidence of the veracity of entries therein with respect to the child's paternity.
On the C ertificates of Live Birth
The certificates of live birth of the petitioners identifying private respondent as their father are not also competent evide nce on the issue of their paternity. Again, the
records do no show that private respondent had a hand in the preparation of said certificates. In rejecting these certificate s.
Section 5 of Act No. 3793 and Article 280 of the Civil C ode of the Philippines explicity prohibited, not only the naming of t he father or the child born outside wedlock, when
the birth certificates, or the recognition, is not filed or made by him, but, also, the statement of any information or circu mstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an illegitimate child upon the inf ormation of a third person and the certificate of
birth of an illegitimate child, when signed only by the mother of the latter, is incompetent evidence of fathership of said c hild. A birth certificate not signed by the alleged
father therein indicated is not competent evidence of paternity.

Rule 130.47
Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING
The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on different causes of action
4. The issues testified to by the witness in the former trial is the same issue involved in the present case
5. The adverse party had an opportunity to cross -examine the witness in the former case

does it refer to res judicata?

NO. Not to COA

A vs. B. Witness is C. C was cross-examed. Case was still pending. C went abroad, can no longer be located. Subsequent case between A and B but different COA.
Admissible? KELANGAN BA TAPOS NA YUNG UNANG CASE?
VAA (and ANTON :) ): NO. The rationale for this rule is that the witness is not available anymore and the previous parties over the same subject matter would
want to use the testimony.

If one case labor, yung isa civil case: ADMISSIBLE?

- Administrative…

What about impeachment, then used in a subsequent criminal case?

INADMISSIBLE. Impeachment is not administrative in character - it's political!

Evidence Page 60
 COMELEC CASE?
?

Commercial Lists

Section 45 - COMMERCIAL LISTS AND THE LIKE

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

• Examples: Carlisle or Wigglesworth Tables and accepted actuarial and annuity tables
"Therein" - in the occupation
Who publishes these publication? Persons engaged in the occupation
ESTRADA v. NOBLE: Ballantyne Scale of Values
Sabungeros present a magazine of their kristos etch… ?
List of cargoes allowable etc…? Is it rellied upon by them? YES.
Mining Prospectus
Trade Circulars...
Learned Treatises

Section 46 - LEARNED TREATISES

A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth ofa matter stated therein if
the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized
in his profession or calling as expert in the subject.

• Requisites:
1. The court takes judicial notice thereof
2. The same is testified to by a witness expert in the subject

*ON PUBLICATION: BOTH ARE PUBLISHED! SO MULTIPLE HEARSAY!!!

The Verdict: Code Blue, referred to the book of the expert doctor, it was a published book. Any statement in that book admissible?
YES. Provided
I. The court takes judicial notice
Under Section 1/2/3? SECTION 3
Of what? VAA: of the fact stated therein...

Evidence Page 61
 Evidence Lecture: September 24
Thursday, September 24, 2009
6:07 PM
Section 45 and 46: Review
*both published
*both Multiple hearsay
*should include industries, trades

Are journals included under Section 45?

-Section 46:
*it's treatise
*plus subject includes SCIENCE (scholarly: plus only History, law, science or art)
-Sectuib 45: commercial
*very volatile because it is used in trade

*What about electronic data banks shared by banks:

VAA: it is used by the industry of banking, but is it published under section 45?
VAA ulit: REE should not apply to Section 45, as REE specially applies to certain sections.

Testimony or Deposition at a Former Proceeding

Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

The testimony or deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-examine him.

• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the
same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on different causes of
action
4. The issues testified to by the witness in the former trial is the same issue involved in the present case
5. The adverse party had an opportunity to cross-examine the witness in the former case
• Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial ≠ inability to
testify
» Inability should proceed from a grave cause almost amounting to death

Formerly presented: idea of separateness, no requirement that the previous proceeding already ended
On appeal: continuing

Is R23 (deposition in perpetuam): separate or same proceeding?

Separate!

C ontempt: separate: special civil action!

Opinion Rule

GR: opinion of a witness not admissible

--why: R128.1: only matters of fact are admissible!

X:
1. Expert witness
2. Ordinary witness, under exceptional circumstances (4)
*identity of a person
*Handwriting
*Mental sanity of a person
(impression on EBCA)

If handwriting: what should the proponent make W show? That the W is familiar with the handwriting (show facts
why W is familiar with the handwriting)
e.g. W is familiar with the handwriting because he has seen the handwriting many times
What if the NBI agent = W?
*if expertise used: under 49
*if personal knowledge used: under 50

QUALIFICATION:
-the process of establishing the expertise of the witness to be able to present him as an expert

Is it true that medical conditions always require expert witness under Sec49?

Evidence Page 62
Is it true that medical conditions always require expert witness under Sec49?
No. Res Ipsa Loquitur.

What about mental condition? Why also under Section 50?

Section 50 talks about the general kind of insanity which is observable by other persons
Section 49: if medical condition that is not readily observable by ordinary persons (e.g. ADHD, dementia,
psychosis…)

If W presented to show emotional ties, would mental insanity be relavant?

NO. MENTAL, not psychological, not emotional sanity.

EBC A: why opinion allowed in this situations?

e.g. if a person is under the influence of alcohol, and you're asked about his appearance or behavior?
His speech is blurred, he walks in swaying, he smells of alcohol, he's red in the face…
---but these details are not explained that the person is under alcohol, the W maybe just describing a person under
stupor of drugs…

BUT you can only give your opinion if you're competent to give it

e.g. A vs. B. Doctor examined A, found that he was cuckoo. Doctor left, cannot be found. C ould B testify on what
Doctor found?
---NO. hearsay. B doesnot have personal knowledge of the findings of the doctor + it's an out of court declaration
presented for the truth (irrelevant if it's an opinion or a fact)

Character evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved
in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to
the moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in
any reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

If witness presented Good Morale Character, would it boomerang against him?

NO. Baligtad. Only present Good Morale Character if his character as a witness is impeached. (R132,14)
On presentation of character evidence of the victim (criminal case)
e.g. rape
Defense present that the woman raped was lascivious. Would it prove that she consented?

e.g. libel
If the defense shows that the offended party has a loose mouth. The accused was only provoked to say the libelous
statement

MORAL CHARACTER
-presumption: to do good or bad
-VAA: not philosophy, character being moral or not, depending on the situation
…there are some offenses which do not refer to moral traits (because when we understand it in the general sense,
all offenses are bad!)
-refer to R132.11 (it has to do with honesty, truth, integrity)

Back to slander: does it have something to do with moral character? If the slander or libel contains falsity, it would
reflect on your character

e.g. sa libel
A says, "malandi si B, sumasama sa kung sino-sinong lalaki!"
B, knowing that it was not true, would say, "Chismosa ka! (blahblahblah, which would be slanderous)"
A sued B
B would show that A was the one who started it! She said something which is not true.
VAA: B's testimony/evidence is admissible as it would prove the probability or probability that B really committed
slander/libel

Examples of offenses which does NOT involve a moral trait:

*offenses mala prohibita
*rape: no

Evidence Page 63
*rape: no
*physical injuries
*VAWC: depends
*rebellion: no
*plunder: yes
---wherein character evidence not admissible

PRESUMPTIONS
RULE 131
Burden of Proof and Presumptions
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)
Burden of proof Burden of evidence
Does not shift, remains throughout the trial Shifts from party to party depending upon the
(on COA) exigencies of the case
Generally determined by the pleading filed by Determined
the party *by the developments at the trial
*by the provisions of the substantive law
or procedural rules: admissions, presumptions, judicial
notice
e.g.
CRIMINAL: guilt beyond reasonable doubt
CIVIL: preponderance of evidence
ADMIN: substantial evidence
WHY there's burden of proof: for the court to determine WON the person who has the burden
establishing the burden of proof has done so.

e.g. defense filed demurrer to evidence. Denied. Who has burden of evidence?
Defendant. He has now to present evidence to prove that he is not guilty.

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)

Conclusive presumption:
-the law does not allow to be contradicted
-if the other party presents evidence to contradict it, the evidence would be inadmissible!!!

On (b)
e.g. A (landlord) files a collection suit against B (tenant). B presents as defense that A is not his landlord,
it's C, so he does not have to pay A.
His defense is not admissible...
Estopped!

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted,

but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
-presumption of innocents

Evidence Page 64
(b) That an unlawful act was done with an unlawful intent;
-baligtad ng (a): pag may ginawa kang masama, intended un

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

Requisites:
1. Material: not merely
*corroborative
*cumulative
*unnecessary
2. Party had opportunity to produce it
3. Party who had opportunity to produce it is the only party who has access to it: not available to
both parties
4. Privilege not to produce it
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
Obligation: it's the evidence of the obligation
e.g. PN, IOU
…debtor usually makes the PN, and the creditor keeps it as proof of the obligation of the debtor to him
(so that he would be authorized to collect/demand action). If the PN is with the debtor na, it is
presumed that the debtor already paid or completed the obligation for the creditor not be able to
demand once again

(i) That prior rents or installments had been paid when a receipt for the later one is produced;
-VAA: presumption is that you're not dyslexic. Pay chronologically. It is normal that you don't want to be
confused, so pay chronologically! You don't want to pay for December then September…

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
e.g. Robbery with homicide. Took wallet. Then A found to have the wallet. A is presumed to be the thief
and the killer.

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;
e.g. Negotiable Instrument, Bill of lading
Somebody drawn the instrument, you are the drawee. When the thing has already been presented to
the drawee, it is presumed that the drawee complied with it

(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(regular performance of duties)

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(presumption of proper jurisdiction)

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by
it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;

Evidence Page 65
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was overdue and
at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he
is considered dead for all purposes, except for those of succession.
e.g. For insurance purposes.
For marriage: applicable - maximum!

The absentee shall not be considered dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing
for four years;
(3) A person who has been in danger of death under other circumstances and whose existence has
not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may
contract a subsequent marriage if he or she has well-founded belief that the absent spouse is
already death. In case of disappearance, where there is a danger of death the circumstances
hereinabove provided, an absence of only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any case, before marrying again, the spouse
present must institute a summary proceedings as provided in the Family Code and in the rules for
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

E.g. there is a small tugboat which has to deliver some persons to Batangas during a storm. Only found
tugboat afterwards, without the passengers. 4 years already passed.
Not under (1) because the vessel is not lost. But may be presumed under (3): show that the waves
would be 20ft high and the tugboat found upturned

E.g. what about journalists and medical staff who are also in armed hostilities. Under (2)?
No. Under (3). There's a danger of death here!

In respect of marriage, the spouse present MUST HAVE A WELL-FOUNDED BELIEF, not a well-founded
desire.

*the rules were old. Examples: entries in the course of business and the definition of the original of the
document. During that time, there was no photocopier nor printer.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
VAA: but laws of nature are also subject to judicial notice. Pano ngayon yan?
e.g. laws of nature that the court could take JN:
*gravity
*when there's smoke, there's fire

Evidence Page 66
*when there's smoke, there's fire
*when you boil water, it would evaporate
e.g. presumption: that when a land widens

(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other
and who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,
if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the same time. (5a)
Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a
child born after three hundred days following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)

Evidence Page 67
Evidence Page 68
 Borje vs. Sandiganbayan
Evidence Notes dated October 6, 2009
Monday, September 21, 2009 Capili vs. Cardana
4:35 PM

Evidence Notes dated October 6, 2009

y. That things have happened according to the ordinary course of nature and the ordinary habits of life;
Example: ORDINARY HABITS OF LIFE
…that you sleep at night
…that you'll have ridges on your nose when you use glasses regularly

"aa. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;"

ROC Civil Code

No time period provided 5 year period
Rule of procedure Rule of substantive law
Disputable presumption Just provides for a ground where no marriage license is necessary; does not provide for a presumption

bb. That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each ot her as husband and wife without the benefit of marriage or
under a void marriage, has been obtained by their joint efforts, work, or industry;

(compare with the following)

NCC
Art. 144. When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or
industry or their wages and salaries shall be governed by the rules on co-ownership.

FC
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife *without the benefit of marriage or *under a void marriage, their wage s and salaries
shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtaine d by their joint efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation an d owned in common, without the consent of the other, until after the termination of their
cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co -ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all
of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the a bsence of descendants, such share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation. (144a)

Art. 148. In cases of cohabitation not falling under the preceding Article (meaning: they are not capacitated to marry each other), only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions . In the absence of proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co -ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who ac ted in bad faith is
not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding A rticle.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

***
Why presumed to have been obtained through joint EWI:
-even if wife did not contribute financially (as it is usually the wife who stays at home), wife presumed to have taken care o f the household chores - so may contribution (see FC provisions, it
explains a lot)
e.g. What if the man and a woman, capacitated to marry each other and lives exclusively with each other, it's just that they are not married or their marriage is void, jointly contribute financially
to the acquisition of a house and lot. The man declares that he owns 90% of the property. Is the presumption relevant?
CHA: YES. The woman could claim that it is presumed that they have obtained the house and lot through their joint efforts, as presumed by law, and it is on the man to prove otherwise (i.e. that
he owns 90% of the property as he contributed that proportion). (Ma'am didn't give any answer so I tried to do so)

JOINT: is this not equivalent to EQUAL shares?

VAA: contemplate equal shares, or else they are worse off than men and women who are not capacitated to marry but enjoy the p resumption that they equally share their properties

cc. That in cases of cohabitation by a man and a woman who are * not capacitated to marry each other and who have acquired property through their actual joint contribution of money,
property, or industry, such contributions and their corresponding shares including joint deposits of money and evidences of c redit are equal;
CHA: similar to Family code provision

"NOT CAPACITATED to marry each other"

-does not involve a situation where the other person is married (that's why they are not capacitated to marry each other)
-if the other person is married, in accordance with the family code, the share of the guilty person from the co -ownership shall accrue to the ACO of the valid marriage

"ACTUAL JOINT CONTRIBUTION"

-should prove the fact that actual contribution of money, property or industry was provided for the presumption to apply that their contributions and shares are equal (unless they prove that
they possess more than just 50% of the share)

dd. That if the marriage is terminated and the mother contracted another marriage within 300 days after such termination of t he former marriage, these rules shall govern in the absence of
proof to the contrary:
1) A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 days
after the termination of the former marriage.
2) A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within 300 days
after the termination of the former marriage.

Cutoff points
1. 180 days after the solemnization of the 2nd marriage: relevant: pertains to the date of conception, as it takes at least 6 mo nths for a baby to live outside mom's womb
2. 300 days after the termination of the former marriage

If born BEFORE 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child co nceived during 1st marriage

Evidence Page 69
 If born AFTER 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child con ceived during 2nd marriage

e.g. In civil code:

Art. 269. Only natural children can be legitimated. Children born outside wedlock of parents who, at the time of the concepti on of the former, were not disqualified by any impediment to marry each other, are natural.
Does this apply to presumptions?
NO. IRRELEVANT AND DIFFERENT. ROC provision refers to the termination of 1st marriage while in CIVIL CODE, there's a subseque nt marriage which legitimizes a child born when there's no
marriage yet. (so if sa ROC, terminate marriage, sa NCC, start pa lang)

When marriage may be TERMINATED

A. PHYSICAL TERMINATION: Death of the other spouse
B. LEGAL TERMINATION
1) Declaration of nullity of marriage
2) Presumptive death of one spouse, judicially declared
3) Annulment: deemed terminated from the point of judgment
4) Foreign divorce
5) 2nd marriage when the spouse presumptively presumed

VAA: if the child was born after 180 days after 2nd marriage but born after 300 days after the 1st marriage, is the child pre sumed a legitimate child of the second marriage?
NO. NO PRESUMPTION AS TO LEGITIMACY OR ILLEGITIMACY. (R131.4)

Sec.4 No presumption of legitimacy or illegitimacy. There is no presumption of legitimacy or illegitimacy of a child born aft er three hundred days following the dissolution of the marriage or
the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.
(compare with CC and FC)
CC
Art. 261. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissol ution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the
illegitimacy of such child must prove his allegation.

FC
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage s hall be proved by whoever alleges such legitimacy or illegitimacy.

"(ee) That a thing once proved to exist continues as long as is usual with the things of that nature;"
-refers to longetivity
"USUAL"
-there must be a basis, a track record

VAA: does this cover human life?

No. You have to die at some point. It falls under (y) *that things happen according to the ordinary course of nature…+
"(gg)That a printed or published book, purporting to be printed or published by public authority, was so printed or published;"
PUBLIC AUTHORITY- institution which has authority to publish BOOKS (note: not just anything, it must be in book form, which would include manua ls, etc)
e.g. National Law Register published by the Law Center
Official Gazette

VAA: does this apply to foreign books?

NO. (hh) implicitly include foreign books.
(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;
-refers to "country", does implying that it is another country aside from the Philippines…a foreign country
-reports of cases: not just digests of cases, should contain the complete report of the cases
e.g. US Reports, Atlantic Reporter
Amjur not included as it only contains the digest of cases decided

(jj) That except for purposes of succession, when 2 persons perish in the same calamity, such as wreck, battle, or conflagrat ion, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strengt h and age of the sexes, according to the following rules:
1) If both were under the age of 15, the older is deemed to have survived;
2) If both were above the age of 60, the younger is deemed to have survived;
3) If one is under 15 and the other is above 60, the former is deemed to have survived;
4) If both be over 15 and under 60, and the sex is different, the male is deemed to have survived; if the sex is the same, the older;
If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived

4 factors necessary
1. NO succession issues
2. No particular circumstances from which one can refer as to who died first: Absolutely no way to determine: if there's another way, don't use the presumption
e.g. One can swim, the other cannot, then possibly the one who can't swim died ahead
One is sick, the other is healthy, it can be inferred that the healthy person lived longer
3. WHERE:
a. Wreck
b. Battle
c. Conflagration
d. Any other calamity
4. Infer from strength/age/sex

"DISKARTE. That's the Filipino word for DISCRETION." - VAA

(kk) That if there is doubt, as between 2 or more persons who are called to succeed each other, as to which of them died firs t, whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be considered to have died at the same time.
-this is the provision applicable to succession
GR: died at the same time
X: unless death of one first proven by the person who alleges
WHY there's such a provision: this is for succession. To be fair, the two persons are presumed to have died at the same time so that no one succeeds from t he other. But if one wants to prove
that one succeeds from the other (through the earlier death of the latter), he has the burden of proving that it is the case, as after proving such, he could win the case (sorry medyo mahaba. Di
ko ma-explain nang mas maganda eh)

e.g. X, a wealthy business man, went on a trip abroad with one of his child, A. They boarded a plane which crashed. Only X's body was found. B was the only one left in the family. Would B apply
the presumption/s?
YES. It would be beneficial for X to apply (w) presumption, i.e. presumption of death of his sibling A. If he proves that A i s presumed to be dead, then he could inherit both from his dad X and
from his sibling A, provided A does not have compulsory heirs. If A still presumed to be alive, he would have someone who wou ld be sharing the estate of his dad X, aside from their mom if alive
and other heirs.

Presumptions are divided into 2 parts

1. Regularity
2. Good Faith
(VAA did not tell the difference between the two though. It is for us to determine which provision belongs to which)
Basis of presumptions: human experience

CAN YOU STIPULATE BURDEN OF PROOF REQUIRED?

NO.
WHY: (CHA) It is provided by law. Parties cannot amend the law by stipulation, only the Congress can amend the law.

Evidence Page 70
 CAN YOU STIPULATE ON THE BURDEN OF EVIDENCE?
VAA: yes you can! Burden of evidence only refers to the order of presentation of evidence, and in each stage, one of the part ies either the claimant or defendant has the burden of evidence
Burden of Proof Burden of Evidence
C ivil cases - on the party who would be defeated if no evidence were given on either side Both civil and criminal cases – lies with party who asserts an affirmative allegation
C riminal cases – always on the prosecution
Does not shift as it remains throughout the trial with the party upon whom it is imposed Shifts from party to party depending upon the exigencies of the case in the course of the trial
Generally determined by the pleading filed by the party Generally determined by the developments at the trial or by provisions of law

REVERSE TRIAL:
-case where the defendant presents his evidence first, when the usual practice is that the prosecution or the plaintiff presen ts evidence first
-here, only the BURDEN OF EVIDENCE CHANGES.
e.g. CIV: when the defendant presents an AFFIRMATIVE DEFENSE
…in a complaint for collection of money, the defendant could claim that he has already paid money so he can prove first that he DID pay so as to speed things up. So the defendant has the
burden of evidence first. But the plaintiff still has the burden of proving that the defendant did not pay, or else his claim would be defeated, same with the defendant who has the burden of
proving that he did pay, or he was not liable to pay
e.g. CRIM: when the defendant presents a JUSTIFYING CIRCUMSTANCE (usually when he alleges that he only acted in SELF -DEFENSE)
-only the burden of evidence affected, i.e. the defense would be presenting its evidence first. The burden of proof still rema ins with the prosecution to prove the guilt of the accused beyond
reasonable doubt

ZULUETA v. CA (? - not sure)

-here, the airlines allege as a defense that under US laws, overbooking is allowed, i.e. give out tickets to more passengers a s there are seats on the plane.
…is there any presumption applicable in this case?
YES. Processual presumption [note: processual presumption is not among those enumerated in R131.3. It is found in jurispruden ce: In Re: Testate Estate of Suntay, CIR v. Fisher…)
Processual presumption: Absent any evidence of foreign law, the foreign law is presumed to be the same as that in the Philippines.
-applying this in the case, OVERBOOKING IS NOT ALLOWED IN THE PHILIPPINES. SO absent any proof that it is allowed in the US, i t cannot be made as an excuse for bumping off a passenger in
the Philippines.
(ff question: would US law be applicable at all? )

Borje vs. Sandiganbayan

F: Borje, the Provincial Plant Industry Officer, was alleged to have falsified several public documents (Timebook, Payroll, D aily Time Record, Certification) in order to receive P225.00 which was
supposed to have been received by one of his subordinates, Ducosin
-here, Borje was earlier convicted based on the presumption "(j) that a person found in possession of a thing taken in the doi ng of a recent wrongful act is the taker and thedoer of the whole
act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him"
HELD
Borje’s guilt has NOT been established beyond reasonable doubt.
Sandiganbayan’s reliance on the presumption that as possessor of the document, the accused is presumed to be the author of th e falsification is misplaced and unwarranted, there being no sufficient reason to
apply the same.
(1) Testimony of the Regional Disbursing Officer and Cashier, to the effect that she delivered payroll and checks to Borje, i s impeached by her orig testimony at Tanodbayan reinvestigation where she said she
delivered the payroll and checks to complainant Ducusin, even identifying the genuine signature of Ducusin on the payroll. To use this doubtful testimony as factual basis is unwarranted.
(2) Timebook and payroll was also signed by 10 other production technicians. It is initialled by 3 personnel in Accounting Se rvices Unit and further signed by Regional Accountant and for the Regional Director. All of
these persons were at one time or another in possession of the document, all of them had the same opportunity impliedly imput ed to the accused. Payroll must have been carried and passed by messengers &
other employees from one office to another, from one desk to another for purposes of typing, funding, initialling, verificati on, certification, accounting, recording, drawing of the check and finally, issuing of the
check.
- On the whole, the evidence presented against the accused is not clear, competent and convincing.

VAA discussion (CHA's interpretation): Mali daw doctrine ng Borje (and the doctrine is?)
For the presumption to attach, the following should concur
(1) there was a taking
(2) taking was done in the doing of a recent wrongful act
Here, the wrongful act is falsification. What could be taken during the falsification are the documents, as the presumption w ould presume that if Borje possesses the falsified documents, he
took it and was also the one who falsified it. The thing allegedly taken here is the check, which was not falsified and was n ot proven to be in the possession of Borje. Therefore, the presumption
does not apply

BARCELON V. ROXAS
-wrong doctrine rin! Inulit ang Africa v. Caltex!
F: BIR issued an assessment for deficiency of tax. Taxpayer alleged that he didn't receive any assessment, protested. Even wi th the protest, BIR levied on the properties of the taxpayer.
-during trial, the BIR was only able to present a record containing the fact that a notice was sent to the taxpayer on this da te through this sender.
H: "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." - kaya di naniwala sa BIR. Most probably (as di naman 'to assigned, binanggit lang ni ma'am so di ko alam facts) the one
who made the entry was deemed not to have personal knowledge that the assessments were indeed received by the taxpayer.

CAPILI V CARDAÑA
(eto yung case na hinahanap ko buong summer!!!!)
F: young 12 year old girl, while walking OUTSIDE the school premises, was killed when an old caimito tree, located inside the school grounds, but on the perimeter wall, fell on her. Action for
damages filed against school principal!
-School principal presented the following defense:
A. SHE DID NOT KNOW that the tree was dead!
(1) the tree does not look dead so she would not know that it is dead. If she did, she might have ordered it removed
(2) someone offered to buy the tree (*ehem* to make it as firewood). Why would anyone buy a tree if it's dead (e kasi nga gag awing panggatong!)
(3) when a meeting was held (to discuss WON they would sell the tree), no one told her that the tree is dead!
B. Granting that the tree is dead and she knew of it, SHE ALREADY ASSIGNED IT!
--here Res Ipsa Loquitur was used to make the principal liable

ELEMENTS of RES IPSA LOQUITUR: 3 elements must concur

(1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant's negligence;
(2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the pers on charged with the negligence complained of; and
(3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.
---there's a PRESUMPTION: THE DEFENDANT IS PRESUMED TO BE NEGLIGENT granting the requisites concur

VAA: how do we use the doctrine if the principal uses the defense that SHE DIDN'T KNOW? Why would anyone be liable if she did not even know the fact?
The mere fact that she did not know of the dead tree means she is negligent. As the principal, it is her duty to oversee what happens inside the school and her admission that she did not know
only means she failed to observe of the due diligence required of her as the principal of the school

RULE 132
A. EXAMINATION OF WITNESSES

Section 1 – EXAMINATION TO BE DONE IN OPEN COURT

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

Section 2 – PROCEEDINGS TO BE RECORDED

The entire proceedings of a trial or hearing,
including the questions to be propounded to a witness
and his answer thereto,
the statements made by the judge or any of the parties, counsel, or witnesses
with reference to the case,
shall be recorded by means of

Evidence Page 71
 shorthand
or stenotype
or by other means of recording found suitable by the court.
A transcript of the record of the proceedings
made by the official stenographer, stenotypist or recorder
and certified as correct by him
shall be deemed prima facie a correct statement of such proceedings.

To be admissible, testimony of a witness must be given in open court

» XC PT that such testimony may be supplanted:
1. in civil cases: by depositions (Rules 23-24ff)
2. in criminal cases: by depositions
conditional examinations (R119.12-15 // R123.1)
records of the preliminary investigation (R115.1(f)

GenRule: Mere presentation of affidavits of prosecution witnesses subject to cross -examination is not allowed by the Rules
BUT under BP 129, summary procedures may be authorized by SC in special cases
SC may also adopt simplified procedures which may provide that affidavits and counter -affidavits be admitted in lieu of oral testimony (Sec. 36)

Testimony of witness should be elicited by questions of counsel

» But C ourt itself may propound questions or may suggest questions to counsel

Can a statement made during the trial be "off the record"?

VAA: Pwede, if both parties agree. If one of the parties invoke R132.2 and the statement refers to the case, the judge has no choice but to order the recording of the statement

Steno vs. Shorthand

Steno: uses a machine
Shorthand: it is handwritten

How should the witness answer

GR: ORALLY
X: when other modes are allowed

Video recording: is it allowed?

YES. SEC2: if found suitable by the court. It is the court which chooses the means how the proceedings are to be recorded. He determines what is the official record of the case
FF UP: what if the judge leans toward one of the parties, make statements for the other party, and orders the stenographer no t to record it in the transcript BUT you have a tape or video
recording of the proceedings. Can you insist that the statement made by the judge be included in the transcript?
YES. File a MOTION FOR CORRECTION OF THE TSN. The video recording can be used as evidence to support a motion in R133

RIGHTS OF A WITNESS
Section 3 - RIGHTS AND OBLIGATIONS OF A WITNESS
A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or
5. Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from whi ch the fact in issue would be presumed. But a witness must answer to
the fact of his previous final conviction for an offense. (3a, 19a)

Witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him
But may refuse if:
1. Under the right against self-degradation unless:
a. Such question is directed to the very fact in issue
b. Refers to his previous final conviction or offense
2. Under the right against self-incrimination
▪ C riminal cases – Rule 115 Section 1(e): accused may refuse to take the stand altogether
Accused: may be with reference to the offense involved in the same case wherein he is charged or to an offense for which he m ay be charged and tried in another case
Witness: offense involved is one for which he may be tried in another case
Right should be seasonably invoked and may be waived
▪ Other cases/proceedings – a party may be compelled to take the stand but he may object to incriminating questions

Beltran v Samson (53 Phil 570): Where in a prosecution for falsification, the accused took the stand and testified denying his authorship of the alleged fals ified signature, on cross-examination he can be
compelled to give a sample of his handwriting and it was not a denial of his right against self -incrimination

Bermudez vs. Castillo (64 Phil 483): Where, in a disbarment case, the complainant on cross-examination denied authorship of certain handwritten letters, she could not be compelled to give samples of her
handwriting as it would amount to a denial of her right against self-incrimination in a possible charge for perjury

C onflict can be reconciled:

>Beltran: it was the accused himself who opened the issue on his direct examination
» He could have refused to testify altogether
» Therefore, he waived his right
>Bermudez: complainant could not refuse to testify without an unfavorable inference being drawn against her
» Also, issue was raised during cross-exam, hence she did not waive the right
▪ “unless otherwise provided by law” – refers to immunity statutes wherein the witness is granted immunity from criminal prosecution

Why allowed to be asked questions even if it may tend to establish a claim against him, but not when the question would subje ct the witness to a penalty for an offense?
VAA: It would not help the cause of truth if the evidence used to convict the accused came from the accused himself. (remembe r "Goya's Ghost", where the accused was tortured so that she
would admit the offense charged against her.

Section 4 - ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

The order in which the individual witness may be examined is as follows;
a. Direct examination by the proponent;
b. Cross-examination by the opponent;
c. Re-direct examination by the proponent;
d. Re-cross-examination by the opponent.

Section 5 - DIRECT EXAMINATION

Direct examination is the examination-in-chief of a witness
by the party presenting him on the facts relevant to the issue.

Section 6 - CROSS-EXAMINATION; ITS PURPOSE AND EXTENT

Upon the termination of the direct examination,
the witness may be cross-examined by the adverse party
as to many matters stated in the direct examination,
or connected therewith,
with sufficient fullness and freedom to test his accuracy and truthfulness and
freedom from interest or bias, or the reverse, (impt daw to sabi ni ma'am)
and to elicit all important facts bearing upon the issue.

Section 7 - RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT

After the cross-examination of the witness has been concluded,
he may be re-examined by the party calling him,
to explain
or supplement
his answers given during the cross -examination.
On re-direct-examination,
questions on matters not dealt with during the cross -examination,

Evidence Page 72
may be allowed by the court in its discretion.

Section 8 - RE-CROSS-EXAMINATION
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the court in its discretion.

A witness may be cross examined by the adverse party not only as to matters stated in the direct examination but also as to m atters connected therewith, and this should be allowed to do with sufficient fullness
and freedom to test the witness’ accuracy, truthfulness and freedom from interest or bias, and also to elicit from him any im portant fact bearing upon the issue
» American rule: cross-exam must be confined to matters inquired about in direct
» English rule: witness may be cross-examined not only upon matters relevant to the issue
» This jurisdiction – more on English rule
Unwilling/hostile/adverse party witness – cross examination shall only be on the subject of his examination -in-chief
» Same as accused testifying on his own behalf
Question which assumes facts not on the record:
» If on cross examination – objectionable for bring misleading
» If on direct examination – objectionable for lack of basis
Bachrach Motor Co., Inc. vs. CIR (1978): When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness , the uncompleted testimony is
thereby rendered incomplete and should be stricken from the record.

People vs. Seneris (1980): Where in a criminal case the prosecution witness was extensively cross examined on the essential elements of the crime and wh at remained for further cross-examination was the
matter of the prize or reward which was treated therein as merely an aggravating circumstance, his failure to appear for furt her cross-examination thereon will not warrant the striking out of his direct
examination, especially since further cross-examination could not be conducted due to the subsequent death of the said witness, a circumstance not attributable to the pr osecution
*note: basta if the witness was already extensively cross -examined on material points and failed to appear, don't strike his testimony!
*EXAMINATION: only refers to TESTIMONIAL EVIDENCE, not to other forms of evidence.
*After re-cross, no more re-re-cross…no more re-redirect

Section 9 - RECALLING WITNESS

After the examination of a witness by both sides has been concluded,
the witness cannot be recalled without leave of the court.
The court will grant or withhold leave in its discretion,
as the interests of justice may require.

a. Recall based on discretion of the court

» But recall is a matter of right if
*the examination of the witness has not been concluded
*the recall has been expressly reserved by a party with the approval of the court

If new witness discovered after end of period for examination of witnesses: RE -OPEN TRIAL
If witness already presented wants to add something else - RECALL witness

Section 10 - LEADING AND MISLEADING QUESTIONS

A question which suggests to the witness the answer which the examining party desires is a LEADING QUESTION. It is not allowe d, except:
a. On cross examination;
b. On preliminary matters;
c. When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant,
or a child of tender years
or is of feeble mind
or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

A MISLEADING QUESTION is one

which assumes as true a fact not yet testified to by the witness,
or contrary to that which he has previously stated.
It is not allowed.

LEADING QUESTION – one which suggests to the witness the answer desired
» May cause the witness, by reacting to an inference in his mind, to testify in accordance with the suggestion by the question
▪ Answer may be “rather an echo of the question than a genuine recollection
» Testimony on direct examination elicited through leading questions has little probative value
People vs. Dela Cruz (2002): Leading questions may be permitted in the examination of a witness who is immature; aged and infirm; an bad physical conditio n; uneducated; ignorant of, or unaccustomed to,
court proceedings; inexperienced; unsophisticated; feeble-minded; confused and agitated; terrified, timid or embarrassed while on stand; lacking in comprehension of questions or slow to understand; deaf and
dumb; or unable to speak or understand the English language or only imperfectly familiar therewith

MISLEADING QUESTION – one which assumes facts not in evidence or without sufficient basis or which assumes testimony or proof which has not been gi ven

*Leading questions are only prohibited when it is asked of the witness of the party conducting the direct (i.e. kakampi nung lawyer yung witness)
Illustrations: in a collection suit
Example of leading question: "Is this not the signature of the debtor-defendant?"
Example of misleading question (where a fact not yet established is assumed): "When did you say the defendant was supposed to pay?" - obligation to pay not yet established
Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS
A witness may be impeached by the party against whom he was called,
by contradictory evidence, (CE)
by evidence that his general reputation for truth, honestly, or integrity is bad,or (THI)
by evidence that he has made at other times statements inconsistent with his present testimony, (PSI)
but not by evidence of particular wrongful acts, (not PWA)
EXCEPT that it may be shown by the examination of the witness, or
the record of the judgment,
that he has been convicted of an offense.

Party can impeach adverse party’s witness by:

1. C ontradictory evidence – other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness (VAA: Pede naman kahit ibang
testimony)
2. Evidence of prior inconsistent statements –statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying
▪ “Laying the predicate”
a. By confronting him with such statements, with the circumstances under which they were made
b. By asking him whether he made such statement
c. By giving him a chance to explain the inconsistency
» Impeachment is incomplete if witness is not given the chance to explain the discrepancy
» But defect is waived if no objection on that ground is raised when the document involved is offered for admission
▪ No need to lay the predicate if the prior inconsistent statement appears in a deposition of the adverse party and not a mere witness
» Statements are in the nature of an admission
▪ Juan Ysmael & Co., Inc. vs. Hashim (50 Phil 132): Where previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on la ying the
predicate does not apply
3. Evidence of bad character
4. evidence of bias, interest, prejudice or incompetence

THI: you can't prove this through a particular wrongful act

WHY: Res Inter Alios Acta part 2
Section 12 - PARTY MAY NOT IMPEACH HIS OWN WITNESS
Except with respect to witnesses referred to in par. (d) and (e) of Section 10,
the party producing a witness is not allowed to impeach his credibility.

(MOTION TO DECLARE A WITNESS AS A HOSTILE WITNESS)

A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate showing of
his adverse interest,
unjustified reluctance to testify, or

Evidence Page 73
unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared,

or the witness who is an adverse party,
may be impeached by the party presenting him IN ALL RESPECTS
as if he had been called by the adverse party,
except by evidence of his bad character.
He may also be impeached and cross -examined by the adverse party, BUT
such cross-examination must only be on the subject matter of his exam-in-chief.

Fernandez vs. Tantoco (49 Phil 380): A party who voluntarily offers the testimony of a witness in the case is, as a rule, bound by the testimony of the said witne ss.
EXC EPTIONS:
1. In case of a hostile witness
2. Where the witness is the adverse party or the representative of a judicial person which is the adverse party
3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of a subs cribing witness to a will
Party can impeach his own witness only by:
1. evidence contradictory to his testimony
2. Evidence of prior inconsistent statements
» In case of hostile/adverse party/involuntary witnesses – can also be impeached by other modes of impeachment

WHY CAN'T you impeach your own witness?

It's just a waste of time! This may be a good delaying tactic though (uh -oh)

IMPEACHMENT
-you attack the witness of the adverse party so that the court would not give any weight or probative value to the testimony o f a witness
-you only impeach the witness ALREADY PRESENTED!

Refer to last paragraph: Why can't a party presenting a hostile witness/adverse party impeach the party by giving evidence of his bad character?
Prevent prejudice to the accused

IF THE WITNESS ALREADY HOSTILE BEFORE YOU CALL HIM TO THE WITNESS STAND, CAN YOU DECLARE HIM A HOSTILE WITNESS?
YES. Para sure, under unjustified reluctance to testify!

Section 13 - HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS

Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testim ony,
(eto na: LAYING THE PREDICATE)
the statements must be related to him,
with the circumstances of the times and places and the persons present, and
he must be asked whether he made such statements, and
if so, allowed to explain them.
If the statements be in writing they must be shown to the witness
before any question is put to him concerning them.

▪ “Laying the predicate”

a. By confronting him with such statements, with the circumstances under which they were made
b. By asking him whether he made such statement
c. By giving him a chance to explain the inconsistency
» Impeachment is incomplete if witness is not given the chance to explain the discrepancy
» But defect is waived if no objection on that ground is raised when the document involved is offered for admission
▪ No need to lay the predicate if the prior inconsistent statement appears in a deposition of the adverse party and not a mere witness
» Statements are in the nature of an admission
▪ Juan Ysmael & Co., Inc. vs. Hashim (50 Phil 132): Where previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on la ying the predicate does
not apply

WHY LAY THE PREDICATE IN PIS, not in CE? So that the witness must be given an opportunity to explain
CARAPEN v. PPL (?):
If a person made A, then now B, it's possible that A was made through a mistake. If the reason for the inconsistency is reaso nable (thus W explains), the judge could still give weight to his
statement

Evidence Page 74
 Evidence OCT8
Thursday, October 08, 2009
6:01 PM
CORRECTIONS: ZULUETA CASE SHOULD HAVE BEEN SALAMEYA??? (BASTA DI ZULUETA)
CARAPEN: dapat daw probative value of testimony of relatives; ma'am was referring to Buduhan

Arcilla vs. Teodoro was in the bar last Sunday

Presumptions: review
CONCLUSIVE: child born during wedlock is legitimate: even mother could not declare that the child is not legitimate, UNLESS i mpossibility of access between husband and wife
(but you don't have to resort to this presumption with DNA Evidence)

REFER TO THE DOCUMENTS:

*presumption: duly dated presumption
*sent…does not apply to electronic evidence, messages: it doesn't follow that when a person sent you a message, you have rece ived it? NO.

CLARIFICATION
Sec7, last sentence
Re-direct: supplement or explain
BUT you go beyond this with the court's discretion.
WHAT DOES THIS MEAN? It's the call of the court?
Ma'am tells something about impartiality of the court. Court asks questions to determine facts, not to help another party.
Example
Collection suit: A vs. B
A presented IOU, testified…
Prove:
-execution
-receipt of B
-nonpayment and other damages and costs

B denied under oath

-never executed the IOU presented by A (FALSIFICATION): He made an IOU BUT FOR P1M NOT FOR P5M
-AFFIRMATIVE DEFENSE: PRESCRIPTION

ON CROSS of A: subject matter would be the

*statements made on the direct examination, or connected therewith, with sufficient fullness
*freedom to test his accuracy and truthfulness
Freedom from interest or bias, or reverse
*elicit all important facts bearing upon the issue
…may include impeachment of witness…e.g. black witness in The Verdict

it the aim is to trap, the only limitations is:

*BILL OF RIGHTS OF THE WITNESS
*can't ask misleading questions: why not allowed: It is unfair! It would not contribute to the ferreting out of the truth
-you should build your case through the witness, not the counsel. Establish facts through your witness, not the lawyer.
-why bawal misleading: the witness must have made mistakes just because he was confused, not because he was not telling the tr uth. And the judge may also be confused!

WHEN YOU RE-DIRECT: limit to those taken up during the cross. But if you do not, it is subject to the discretion of the court

*sample cross
"portable safe"

"The technique of cross is to trap. If you don't know what the witness would say, don't cross" - VAA

*leading questions does not depend on WON the question is answerable by yes or no. It depends on WON the fact already was est ablished.

*in Re-direct, can ask other matters you forgot to ask to ask the witness during her DIRECT EXAMINATION! But is should be explained to the court because you're wasting the court's
time! Possible reasons: inadvertent negligence, full unavailability of the witness

When you rehabilitate a witness impeached during cross exam, how do you rehabilitate the credibility of the witness? (on GR, THI)
Present other witnesses to contradict the evidence presented to impeach the adverse party's witness

EVIDENCE IN CHIEF DEFENSE EVIDenCE

Direct Direct
Cross Cross
Re-direct Re-direct
Re-cross Re-cross
REBUTTAL SURREBUTTAL
Direct Direct
Cross Cross
Re-direct Re-direct
Re-cross Re-cross

Section 11: only refers to ADVERSE PARTY's WITNESS, not to the adverse party
1. CE
2. GR
BC: THI
3. PIS
X: PWA

-can you use the same method to impeach the ADVERSE PARTY HIMSELF?
YES, but limited by Section 51
-plus take note if it involves a natural or juridical person

*THE ONLY MODE TO IMPEACH THE ONE WHO impeached your witness is through CONTRADICTORY EVIDENCE (CE)!
-can one show the plaques, awards, etc….to establish good character?

Evidence Page 75
VAA: YES

R130.47: testimony in a former proceeding

-former proceeding, same parties, same subject matter
-basta may chance to cross

Vs. RULE 23.4(c)

-can present the deponent as a witness for any purpose which was stated therein
-is this an exception to the hearsay rule
-conditions only when use the deposition for your benefit, not to attack another

Vs. RULE 132.11 (PIS)

If the PIS happens to be a deposition, even if it is in the present case, it can be used to impeach the deponent himself.
If under Rule 23.4, can use the deposition against the adverse party.

?What if the deponent is not a party, how can you say that it is an admission that can be used against a party?
If it is an exception to RIAA > co-conspirator, shared interest…

SECTION 12, R132

Last paragraph: limited conduct of cross, NO COURT DISCRETION so this is ABSOLUTe!!!! Only on matters touched upon the direct .

DI ba sabi sa cross, kahit ano pede itanong sa ADVERSE PARTY on the witness stand?
It would be unfair to establish a claim from the adverse party. Limited ang "cross" kuno kasi naging adverse party na yung ka la mo witness mo. And during cross, you can ask leading
questions so unfair na. mas madali to build your case!!!
-if the lawyer of the adverse party still ask questions aside from those covered during the direct:
GR: Not objectionable under the general rule: SECTION 6
X: if became a hostile witness, under last paragraph under SECTION 12

If you are cross examining a person regarding a contract whose original you didn't bring to court, can you do that or is it o bjectionable?
( You can ask anything on cross except those violating the bill of rights of the witness and misleading)
-is the photocopy misleading????
YES: It assumes the fact that the original document exists when it has not yet proven to exist
…next day, you bring the original…BER applies? NO. You are not presenting it!

-MISLEADING pa rin, should first offer the evidence for it to be part of the records…?
OFFER:
*on Witness: offer even before start of testimony…
*after everything, saka palang offer evidence

*When you confront somebody on cross, your only goal is to impeach the witness of the other party! You're not presenting your witness yet, kinocross mo nga eh!!!
(try reading P v. MOLO where there are examples of cross…)

Evidence Page 76
Borje vs. Sandiganbayan
Monday, September 21, 2009
4:36 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Law phil Proj ect - Arellano Law Foundation
G.R. No. L-55436 Nov ember 25, 1983
NICASIO BORJE v s. SANDIGANBAYAN

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-55436 November 25, 1983
NICASIO BORJE, petitioner,
vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.
Salonga, Ordoñez, Yap, Corpuz & Padlan Law Offices and Nicodemo T. Ferrer for petitioner.
The Solicitor General for respondents

GUERRERO, J.
That the constitutional presumption of innocence in favor of the accused has not been satisfactorily overcome by the prosecution
evidence in the case at bar where the conviction of petitioner for falsification of public documents was based principally on the mere
assumption that as possessor of the falsified documents, he is presumed to be the author of the falsification , is stoutly raised in this
appeal by certiorari. Since there is no direct proof showing that accused-appellant, being then the Provincial Plant Industry Officer with many
subordinate employees and personnel under him engaged in agricultural field work and assigned in the rural areas like the com plainant
Rodrigo Ducusin, had personally and actually falsified the public documents in question (Timebook and Payroll, Exhibit "A"; Daily Time
Record, Exhibit "B"; and Certification, Exhibit "C") which under normal office procedures pass through numerous hands at several
government offices for typing, attestations, funding, accounting, and payment of the check for P225.00, the legal issue thus raised merits Our
careful consideration and resolution, in the face of accused-appellant's vigorous denial.

The information filed against the accused-appellant reads as follows:

The undersigned Special Prosecutor accuses NICASIO BORJE of the crime of FALSIFICATION OF PUBLIC DOCUMENT committed as follow s:
That on or about the period from January, February and March, 1977, and sometime thereafter, in the Municipality of San Ferna ndo, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above -named accused, being then the Provincial Plant Industry Officer of Bureau of Plant
Industry, Provincial Office at San Fernando, La Union and in relation by his performance of the duties of his office, taking advantage of his position as such,
did then and there willfully, unlawfully and feloniously falsify the Timebook and Payroll of his office for the periods Janua ry to March, 1977, Daily Time
Record for the same period of Rodrigo Ducusin and Certification for P225.00 by causing it to appear in the said documents tha t Rodrigo Ducusin have
participated in the same and affixed his signatures thereon when in truth and in fact he did not so sign the said documents n or otherwise participated in their
execution to the damage and prejudice of the and Rodrigo Ducusin and the Republic.
CONTRARY to Article 171 of the Revised Penal Code, in relation to P.D. 1606.
Manila, August 31, 1979.
(SGD.) FRANCISCO M. TEJANO Special Prosecutor
APPROVED: têñ.£îhqwâ£
(SGD.) VICENTE ERICTA
TANODBAYAN

The accused-appellant pleaded not guilty to the crime charged and the trial commenced on August 7, 1980 after the. case was reinvestigate d
by the Tanodbayan on petition of said accused-appellant, herein petitioner.

On October 23, 1980, the respondent court rendered a decision promulgated on October 29, 1980, finding the petitioner guilty as per the
dispositive portion thereof, to wit: têñ.£îhqwâ£
WHEREFORE, accused is hereby found guilty beyond reasonable doubt as principal for the crane of Falsification of Public Docum ents as defined and
penalized under Article 171, paragraph 2, of the Revised Penal Code, and there being no modifying circumstance to consider, t he Court hereby sentences
him to an indeterminate imprisonment ranging from two (2) years, four (4) months and one (1) day of prision correccional as m inimum, to eight (8) years and
one (1) day of prision mayor as maximum, to pay a fine of P2,500.00 and to pay the costs.
SO ORDERED.1äwphï1.ñët
Manila, Philippines, October 23, 1980.

The decision appealed from recites the evidence for the government as follows:
The gist of the evidence of the prosecution, which consist of the testimonies of Ducusin, Edgardo Olivares, 43 years old, mar ried, agronomist and Provincial
Plant Officer, Manuel Varquez, 45 years old, married and Regional Director and Remedios Lorenzo, 47 years old, married and Ca shier, all of the Bureau of
Plant Industry in San Fernando, La Union, shows that Ducusin was employed as Plant Pest Officer with the Bureau of Plant Indu stry stationed in San
Fernando, La Union from February 2, 1975 up to his resignation on April 30, 1978. From February 2, 1975 up to December 1976, he was detailed as
production technician in the Program of the Bureau of Plant Industry and the Bureau of Agricultural Extension receiving incen tive pay from the National
Food and Agricultural Council (NFAC) during said period. In 1977, however, Ducusin was no longer entitled to the NFAC incenti ve pay as he was detailed to
the Surveillance Team of the Bureau of Plant Industry on January 1977 up to April 30, 1978.

Before one can receive his NFAC incentive pay, he must prepare his Daily Time Record (CS Form 48) for the month and a certifi cation that he is detailed
with the Program. In February 1978, Ducusin was informed by one Roberto Castro that he is supposed to receive NFAC incentive pay because his name is
included in the special order enumerating those included in the program. This prompted Ducusin to go to the Accounting Divisi on of the Bureau of Plant
Industry, Region I in San Fernando, La Union to verify the information relayed to him by Castro and there he discovered that in the payroll for January,
February and March 1977 (Exhibit A) his name and signature appeared. Attached to said payroll were a certification that he wa s detailed to the Program
(Exhibit C) and the corresponding Daily Time Records for said months (Exhibit D) which appeared to have been all signed by hi m. Actually, however, he
did not sign the said payroll, certification and time records nor did he authorize anybody to sign for him . Ducusin referred the aforesaid falsification
to the accused in the last week of February 1978 and accused, confessing to him that he got the money, repeatedly offered him Two Hundred Twenty
Five (P225.00) Pesos to cover his incentive pay but he remained silent and refused to receive the amount. He finally brought the matter to Regional Director
Manuel Varquez who assigned Olivares to investigate the case. But inasmuch as no further action was taken, he brought the cas e to the attention of the
President and the Director of the Bureau of Plant Industry. Ducusin likewise submitted his written resignation to the Regiona l Director (Exhibit E) on April 28,
1978 because he felt 'utterly' demoralized because of undesirable actuations which he recently discovered ... On May 18, 1978 , he received a reply from
Regional Director Varquez dated May 15, 1978 (Exhibit F) stating that his aforesaid letter of resignation had been endorsed t o the accused and attached
therewith was the reply of the latter (Exhibit F-1).

Similarly, the decision condensed the evidence of the defense in the following manner:
On the other hand, accused, in brief, claimed that Ducusin was one of those involved in the Program for the months of January , February and March 1977

Evidence Page 77
as shown in Special Order No. 172 of the Bureau of Plant Industry Director Domingo E. Panganiban (Exhibits 6 and 6 -A) and actually paid of his incentive
pay and that it is not true that he received the payroll (Exhibit A) and the corresponding checks from Remedios Lorenzo for d elivery to the persons whose
names appear in said payroll. Accused denied that he instigated the filing of two cases of falsification against Ducusin and to bolster said denial accused
presented Jacinto Costales, 54 years old, married and Second Assistant Provincial Fiscal of La Union.

In fairness to the accused, We are constrained to include hereunder the more detailed statement of facts submitted by him in his Brief, viz.
The Province of La Union undertook as one of its projects the program known as the Gulayan sa Kalusugan and Masagana '99 Prog ram, the
implementation of which became a joint program of its Bureau of Plant Industry and its Bureau of Agricultural Extension. Gove rnment employees detailed as
production technicians in the Gulayan Program received incentive allowances from the NFAC during the covered period. Their de tail as production
technicians of the said program was effected only by a special order emanating from the Bureau of Plant Industry Door; and be fore the employee received
his incentive pay, he was required to prepare his Daffy Time Record for the particular month and submit a Certification attes ting to the fact that he was
detailed to the program.
In the case-at-bar, complainant Rodrigo Ducusin, an employee of the Bureau of Plant Industry, was detailed to the program from February 2,19 75 up to
December 1977, his assignment of work being contained in the NFAC Order captioned 'Detail and Designation of Personnel to NFA C, in connection with the
Gulayan Program where his name appeared opposite item 60 thereof. (Exhibit 6)
Making it appear that he was surprised to learn that he was supposed to receive his NFAC incentive pay for the months of Janu ary, February and March
1977 because he was not entitled thereto as he was not anymore connected with the Gulayan Program; and falsely making it appe ar that some person
other than himself received his incentive pay by allegedly forging his signature on the Daily Time Records, the Payroll and t he Certification required and
submitted — complainant Rodrigo Ducusin caused to be filled a complaint against the petitioner, Nicasio Borje, supervising agronomist of the Bureau of
Plant Industry, Region I, before the Tanodbayan ...

Accused-appellant contends that complainant Ducusin was paid his incentive pay for the months of January to March, 1977 in the total sum of
P225.00 as Ducusin was included in the payroll since he has worked with the Program as shown by Special Order No. 72 issued b y the BPI
Director and concurrent Executive Director of NFAC, Domingo Panganiban, and that said Special Order, Exhibit 6 entitled "Deta il and
Designation of BPI Personnel to NFAC in Connection with the Masagana '99 Program effective January to December 1977" and date d May
17, 1977, included the name Rodrigo Ducusin, herein complainant, opposite item No. 60 in page 2 of the Exhibit and marked Exh ibit 6-A
(TSN, Aug. 27, 1980, pp. 43-46). He confirms substantially the official procedure in the preparation of the payroll and subsequent payment of
the incentive pay to the production technicians as described by witness Remedios Lorenzo, disbursing officer and cashier for the BPI office in
San Fernando, La Union. However, he vigorously denies having received the payroll and the corresponding checks from witness L orenzo as
his participation in the preparation of the said payroll ended with his signing thereof after which the payroll goes to the d isbursing officer for
the preparation and issuance of the checks to the payees.
The defense also presented in evidence certified true copies of two (2) criminal informations for falsification dated August 13, 1979 filed by
Assistant Provincial Fiscal Jacinto Costales against complainant Ducusin before the Court of First Instance of La Union, Bran ch III, Agoo,
docketed as Criminal Cases Nos. A-893 (Exhibit 1) and A-894 (Exhibit 2). The accused contends that the instant case against him was
initiated by Ducusin to get even with the petitioner as the complainant admitted in cross -examination that he believes that Borje instigated said
two criminal cases against him (TSN, Aug. 25,1980, pp. 21-27).
Further contending that complainant Ducusin was doing dual work from July, 1976 up to December, 1977, the defense presented E xhibits 5 to
5-C which is Memorandum Order No. 56, Series of 1976, dated June 11, 1976, issued by BPI Director Panganiban for the implementa tion of
the Plant Pest and Disease Surveillance and Early Warning Monitoring Project under the Philippine-German Crop Protection Program which
shows that complainant Ducusin was included in the list of personnel assigned to the Surveillance and Early Warning System SE WS team as
Plant Pest Control Officer. The accused-appellant declared that although Ducusin was named to this SEWS team, he continued working with
the Gulayan Program as production technician during said work.
The defense disclaims the authenticity of the prosecution's Exhibit H which is purportedly the original Borje reply letter to BPI Regional
Director Varquez' endorsement of Ducusin's resignation letter. Instead, Exhibit 8 was presented in evidence as the genuine ca rbon copy of
Borje's signed letter reply dated May 5,1978 in response to Varquez' memorandum of May 3, 1978 wherein petitioner recommended
disapproval of Ducusin's resignation in order that Ducusin could face the charges against him in connection with his work wit h the Gulayan
Program. (TSN, Aug. 27,1980, pp. 56- 58,90).
The Sandiganbayan in its decision formulated two issues determinative of the innocence or guilt of the accused, to wit: (1) W hether or not the
Time Book and Payroll (Exhibit A), the certification (Exhibit C) and the Daily Time Records (Exhibit D) in support of said pa yroll were falsified,
and (2) If they were, the liability of the accused, if any. As indicated earlier, the accused - appellant was found guilty by respondent court.
Hence, the instant appeal by way of certiorari.
Petitioner submits the following assignment of errors: têñ.£îhqwâ£
I. The respondent court erred in holding that the petitioner is guilty of the offense of falsification of public documents, t he same not having began established
by proof beyond reasonable doubt, considering that: têñ.£îhqwâ£
A. the originals of the alleged falsified documents were not presented in court and, hence, the corpus delicti has not been e stablished as held in the case of
U S. vs. Gregorio
B. There is no iota of evidence that the petitioner falsified the complainant's signature on the alleged falsified documents;
C. The testimony of complainant's witness, Remedios Lorenzo, was sufficiently impeached by her own conflicting testimony prev iously given before the
Tanodbayan;
D. The respondent court erred in finding as a fact that complainant was not entitled to the NFAC incentive pay, in total disr egard to the documentary
evidence proving that he was doing dual work, both with the Gulayan Program as wen as the SEWS and therefore, still entitled to the NFAC allowance.
II. The respondent court erred in not holding that complainant falsely ascribed the offense to the petitioner, there being pr oof that complainant was
possessed of ill motives against petitioner.
Before resolving the above assigned errors, We find it imperative and compelling to describe and detail the nature and conten ts of the vital
documentary exhibits of the prosecution alleged to have been falsified by the accused-appellant. These are official forms and they are (1)
Exhibit A, Timebook and Payroll of accused-appellant's office for the period January to March 1977; (2) Exhibit D, Daily Time Record for the
same period of Rodrigo Ducusin; and (3) Exhibit C, Certification that Ducusin was detailed to the Program.
As appearing on the face of these exhibits, the act or participation of the petitioner thereon is indicated below: têñ.£îhqwâ £
In Exhibit A (Timebook and Payroll), the printed certification below which the signature of petitioner is affixed, reads thus :
2. I certify that this roll is correct; every person whose name appears hereon rendered service for the nine and at the rates stated under my general
supervision, and I approve payment of this roll
CERTIFIED CORRECT:
(SGD.) NICACIO B. BORJE NFAC, Prov'l Chairman
In Exhibit D (Daily Time Record, Service Form No. 18), the signature of the accused -appellant appears below the following words:
Certified true copy of the original:
Verified as to the prescribed office hours. têñ.£îhqwâ£
(SGD.) NICACIO BORJE
In-Charge
Exhibit C (Certification) indicates no participation whatsoever of appellant Borje. It simply states, thus:
CE R T IF I C A TI O N
I hereby certify that the amount of two hundred twenty five pesos (P225.00) herein claimed is only in reimbursement of representation and transportation
expenses (excepting trips from home to office and vice-versa) actually incurred by me in the performance of my official duties as Production technician while
on detailed with the National Food and Agriculture Council, during the period from Jan. 1977 to March 1977 that I did not use any government vehicle or
transportation furnished paid by the government nor did I collect similar transportation and representation expenses from my mother organization Bureau of
Plant Industry during the period.
Certified true copy of the original: têñ.£îhqwâ£
(SGD.) Rodrigo Ducusin
(Signature)
RODRIGO DUCUSIN

Evidence Page 78
RODRIGO DUCUSIN
(Print Name)

On the face of the above documentary evidence, Exh. "A" and "D", the liability of petitioner as head of the office who had si gned the
certification and verification printed thereon must be limited to the contents of said verification and certification for whi ch he does not
necessarily incur criminal responsibility if the entries, data or statements certified and verified turn out not to be true i n which case the
employee or personnel making the entries, data or statements as to his services and attendance is solely and separately respo nsible therefor.
In the instant case, since there is the Special Order No. 172 of Executive Director Domingo Panganiban, concurrently BPI Dire ctor, marked
Exh. 6, "Detail and Designation of BPI personnel to NFAC in connection with the Masagana -99 Program effective January to December,
1977" listing complainant for the assignment and detail, the inclusion of Ducusin's name in the payroll was not irregular. Be sides, the payroll is
prepared by the Budget Office based on the Special Order and not by the petitioner's office.
According to complainant Ducusin, he was no longer connected with the Masagana Program during the period of January to March 1977
because his assignment thereto had been terminated. But he was asked this question by the Sandiganbayan, thus: têñ.£îhqwâ£
JUSTICE ESCAREAL: têñ.£îhqwâ£
Q — What evidence do you have that you were removed in 1977 and you were no longer performing your duties as technician?
A — It is only verbal. (TSN, p. 47, Aug. 25, 1980)
The alleged verbal order is doubtful for under normal and usual official procedure, a written special order issued by a gover nment office is
cancelled, amended or modified only by another written special order, not only for purposes of record on file but also to pre vent conflict and
confusion in government operations. Moreover, under the best evidence rule, Section 2, Rule 130 of the Rules of Court, the su pposed verbal
order cannot prevail over the written Special Order No. 172 stated above.
Respondent Sandiganbayan, however, justified the conviction of the accused on the basis of the testimony of witness Remedios Lorenzo,
Regional Disbursing Officer and Cashier, to the effect that she delivered the payroll and checks to petitioner accused - appellant, relying
further on the presumption that as possessor of the document, accused-appellant is presumed to have falsified it.
But reviewing the testimony of witness Lorenzo, the records disclose that her original testimony at the reinvestigation of th e case before the
Tanodbayan was favorable to the accused, saying that she delivered the payroll and the checks to the complainant Ducusin, eve n Identifying
the genuine signature of Ducusin on the payroll. We quote hereunder excerpts of her testimony: têñ.£îhqwâ£
Prosecutor Ferrer:
Q: What is your SOP in the preparation of timebook and payroll, do you have to sign as Regional Disbursing Officer?
A: I don't sir. It is only the Budget Officer who prepares the payroll. After the budget officer has prepared it will go to t he accounting for funding and after the accounting it will go to my office.
Q: All in all how many signatures are to be signed in the payroll for its validity under your standard operation procedure?
A: There are four, sir. The provincial officer, the accountant for funding, then the Director and after the signed it, it wil l go to my office.
xxx xxx xxx
xxx xxx xxxtêñ.£îhqwâ£
Q: Under your standard operating procedure who win sign first the payroll. The payee or the provincial plant officer?
A: Provincial plant officer.
Q: After the Provincial Plant Officer, the payroll will go to the regional accountant, is that correct?
A: Yes, sir.
Q: And after the Regional accountant it will go to the Director?
A: Yes, sir.
Q: And after the Regional Director, it will go to the Disbursing Officer?
A Yes, sir.
Q: And that will be the time that the payee will receive the amount, is that correct?
A: We prepare the check for them.
Q: When do the payee affix their signatures in the payroll if you know?
A: When I will issue them the check that is the time that they affix their signatures in the payroll.
Q: So after that the check will go back to the Provincial Plant Officer?
A: It will not go back to the Provincial Plant Officer.
Q: After the Provincial Plant Officer has fixed his signature he has no further participation in this payroll?
A: No more, sir.
Q: Now, Mrs. Lorenzo, you also brought with you . . . . . . . . By the way, who is supposed to sign first this timebook and p ayroll under your Standard Operation Procedure. Is it the Provincial Plant Officer?
A: Yes, sir. Then after that it will go to the office of the Regional Accountant, and after the regional accountant have sign ed, it will go to the regional director for approval, and from there it win go to my office.
Q: You are the same time cashier?
A: Yes, sir. My item is Cashier I.
Q: So, do you have any participation in this Exhibit "X" by way of issuing the check to corresponding payee in this timebook and payroll?
A: In the preparation of the check, sir.
Q: Who delivers the check to the payee?
A: After we have prepared the check, they will just go to my office to get the check and that is the nine they will affix the ir signature.
Q: And they sign their names after delivering to them their respective checks ?
A: Yes, sir.
Q: Are you familiar with any of these signatures appearing in this timebook and payroll, particularly that of Mr. Ducusin?
PROSECUTOR FERRER:
Q: By the way, before you answer that question do you know personally Mr. Rodrigo Ducusin?
A: Yes, sir.
Q: Why do you know him?
A: He is also our employee in the office. He is one of the technicians under M -99.
Q: Since when have you known Mr. Rodrigo Ducusin ?
A: I could not exactly remember, sir. Because I have come across their names when they got their checks from me.
Q: But before January 1977, you have already known him?
A: Yes, sir.
Q: How long before January 1977 have you been a cashier or Regional Disbursing Officer?
A: I was already a cashier since 1976, July 1975.
Q: As a cashier since that time, are you f with the signature of Mr. Ducusin?
A: I could not remember their signatures because there are plenty of personnel in the Bureau of Plant Industry.
Q: Were you the one who issued the check to the complainant?
A: Yes, sir.
Q: In issuing the checks did you issue them individually to the personnels in the BPI?
A: Yes, sir. As soon as we pay the check to anyone, they have to affix their signature first.
Q: Where do you deliver the checks to the payees?
A: In my office.
Q: At San Fernando, La Union?
A: Yes, sir.
(TSN December 21, 1979, pp. 5-14, Tanodbayan, Emphasis supplied.)
The contradictory and conflicting testimonies of this witness only proves her unreliability and unworthiness in respect to th e sanctity of the
witness' oath. Although she tried to explain her complete "turn-about" by saying during the Sandiganbayan hearing: "They told me that if I win
testify against them, I will be accessory and I don't want to be involved in the case because I am not the one really who del ivered the checks
to the production technician, sir." (TSN, p. 18, Aug. 27, 1980), the conclusion of the respondent court that she was intimida ted to testify in
favor of the accused during the reinvestigation is not warranted, considering that the witness herself is a high regional off icial, being the
Regional Disbursing Officer and Cashier and not subordinate to but perhaps co-equal in rank to the petitioner and, therefore, may not be so
easily intimidated by the accused who was in no position or power to include her as accessory in the case. Lorenzo's testimon y given at the
Sandiganbayan hearing is not worthy of belief and must be rejected.

We also reject respondent court's reliance on the presumption that as possessor of the document, the accused is presumed to b e the author
of the falsification. In the first place, the factual basis which is the Lorenzo testimony which We have reviewed as doubtful and variable,
cannot be credited. Petitioner has denied vigorously the testimony of Lorenzo that he received the payroll and the checks fro m her. He said
that his participation in the preparation of the payroll ended with his signing thereof after which the payroll goes to the D isbursing Officer for
the preparation and issuance of the checks to the payees at which time the payee affix their signatures on the payroll, which is substantially
corroborated by the original testimony of the witness Lorenzo during the reinvestigation of the case before the Tanodbayan.

In the second place, Exhibit "A" appears to be also signed by ten (10) other production technicians fisted in the payroll, be sides complainant
Ducusin. It is initialled by three (3) personnel in the Accounting Services Unit and further signed by the Regional Accountan t and for the
Regional Director. All of these persons were at one time or another in possession of the document, all of them had the same o pportunity

Evidence Page 79
impliedly imputed to the accused, The payroll must have been carried and passed by messengers and other employees from one of fice to
another, from one desk to another for purposes of typing, funding, initialling, verification, certification, accounting, reco rding, drawing of the
check and finally, issuing of the check. In Our view, the respondent court's reliance on the presumption which is only presum ptive, is
misplaced and unwarranted, there being no sufficient reason to apply the same.

The defense contends that the prosecution, having presented xerox copies only of the falsified documents, Exhs. "D" and "C", fatted to prove
the corpus delicti of the crime charged, citing the case of U.S. vs. Gregorio, 17 Phil. 522. In this case of Gregorio, the Supreme Court held:
têñ.£îhqwâ£
In a criminal case for the falsification of a document, it is indispensable that the judges and the courts have before them t he document alleged to have been
simulated, counterfeited or falsified, in order that they may find, pursuant to the evidence produced at the trial, whether o r not the crime of falsification was
actually committed; in the absence of the original document, it is improper to conclude, with only a copy of the said origina l in view, that there has been a
falsification of a document which was neither found nor exhibited, because, in such a case, even the existence of such origin al document may be doubted.
Reacting to the defense contention, the Sandiganbayan held that "(a)ccused's claim that in the absence of the original docume nts it is
improper to conclude that there is falsification of document in accordance with the case of U.S. vs. Gregorio, 17 Phil. 522, is sleazy for the
case referred to is not in point," and then attempted to differentiate said case with the case at bar by holding that "(h)ad the issue confronting
the Court been one of alteration or superimposition of signatures or word or figure, then the issue of bringing out the origi nal may have
relevance. " The Sandiganbayan further added: "At any rate, it is worthwhile to note that with the development of modem copyi ng devices
which virtually eliminate the possibility of error in reproduction of the original, the relevancy of the doctrine in U.S. vs. Gregorio is now open to
question.

We do not agree with the respondent court. Firstly the Gregorio ruling makes no distinction for the doctrine itself applies in criminal
proceedings for the falsification of a document, whether simulated, counterfeited, or falsified. Secondly, the Gregorio doctrine is still tenable
notwithstanding modern copying devices for a falsified document, passed off as an original can also be duplicated by xeroxing and thereafter,
certified as true copy of the original as in Exh. "D". And thirdly, considering that in the case at bar, the xeroxing was don e or caused to be
done by complainant Ducusin (TSN, pp. 189-191, Aug. 25, 1980) after taking out the original documents without the official authority and
permission of the Disbursing Officer and Cashier, Remedios Lorenzo, who was then out on rural service and thereafter the orig inals were lost,
misplaced and are now missing, the failure to present the originals is suspicious for complainant had ulterior and ill motive s in accusing the
petitioner as will be shown hereunder.

The ill motives of the complainant in falsely accusing the accused-appellant is easily discernible herein. There is presented Exhibit " 1 ",
certified true copy of the information filed against complainant Rodrigo Ducusin in Criminal Case No. A-893, CFI, Agoo, La Union, for
falsification committed on or about July 24, 1975 in relation to the grant of farmer's loan under the Gulayan Sa Kalusugan Fo od Production
Program when complainant was assigned to the Agoo Rural Bank, and a similar information for falsification against Ducusin in Criminal Case
No. A-894, Exh. "2". Referring to these two (2) cases, Ducusin declared that petitioner Borje motivated the filing of the cases; th at in the filing
of the case in the Fiscal's Office in San Fernando, La Union, there is an affidavit of Mr. Nicasio Borje and that because of that affidavit, it was
Mr. Borje who motivated the filing of the charge against him. (TSN, pp. 26-27, Aug. 25, 1980). There is also the refusal of the petitioner to
recommend acceptance of the resignation of Ducusin until he shall have cleared matters with the Rural Bank of Agoo, La Union considering
that the total amount of P52,047.73 is involved. (Exhibit "8").

The rule is established that the absence of evidence as to an improper motive actuating the offended party and the principal prosecution
witness tends to sustain the conclusion that no such improper motive existed and that their testimonies are worthy of full fa ith and credit.
(People vs. Amiscua 37 SCRA 813; People vs. Mercado, 38 SCRA 168; People vs. Valdemoro , 102 SCRA 170). Conversely, where there is
showing as to improper motives, as in the case at bar, the testimony of complainant Ducusin is unworthy of faith and credit a nd, therefore,
deserves scant consideration. And since the prosecution theory is built or based on such testimony, the cause of the prosecut ion collapses or
falls with it.

According to respondent court, its conclusion that the accused falsified or caused to be falsified the document in question i s further supported
by the following facts: (1) that the accused confessed to him that he was the one who got the money and offered immediately t o Ducusin the
sum of P225.00 to cover the incentive pay so that Ducusin will just keep silent but Ducusin did not accept the money; and (2) that in his reply
to the letter of Ducusin denouncing the forging of his signature that he received his incentive pay from January to March, 19 77, the accused
tried to justify the falsification of the time record as shown in the portion of said reply, Exhibit "H".

In the light of the ill-motives of the complainant as shown above, this particular assertion of Ducusin which is uncorroborated is sleazy, that is,
flimsy, shabby, cheap or unsubstantial. Moreover, petitioner's reply marked Exh. "H" is not an admission of the accused that he falsified or
caused to be falsified the documents in question. In fact, examining Exh. "H", it says that "his Ducusin daily time record (w as) prepared by
other employees in order to justify such payment. The authenticity of Exh. "H" is denied by the petitioner who presented Exh. "8" as the real
and correct copy duly received and initialed by the Regional Office, and therein, he wrote: "I therefore deny knowledge of th e alleged forgery
of the signature of Mr. Ducusin in the same payroll."

Finally, the defense puts forth the exemplary and distinguished record of the petitioner as a public servant, having been in the government
service for more than twenty (20) years and multi-awarded and commended for meritorious services, among them as scholar under the
Colombo Plan specializing in pest management in England; Diploma of Merit as Most Outstanding Employee in Ilocos Sur; Award a s one of
the Most Outstanding Green Revolutionist in the Philippines, 1976; and Award as one of the Most Outstanding Bureau of Plant Industry
Employees, 1978. And citing the case of Manero vs. Court of Appeals, 102 SCRA 817 wherein the Supreme Court said: têñ.£îhqwâ£
(T)he petitioner exhibited an exemplary record as a policeman; he was thrice cited by his superiors for refusing to accept a bribe, was commended for
minimizing armed robberies, was twice the recipient to Letters of Appreciation and has been recommended for promotion on the basis of known honesty
and integrity ...
in sustaining the innocence of the accused, petitioner also prays for his acquittal.
The record and services of the accused-appellant is, indeed praiseworthy and commendable. But an accused is not entitled to an acquittal
simply because of his previous good moral character and exemplary conduct if the court believes he is guilty beyond reasonabl e doubt of the
crime charged. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution ha s discharged its
duty of proving his guilt beyond peradventure of doubt, of convincing the court as to the moral certainty of his guilt.
Considering that, on the whole, the evidence presented against the accused in the case at bar is not clear, competent and con vincing, and
considering further that there is jurisprudence which, by analogy, supports the defense in U.S. vs. Balais, 17 Phil. 503 wherein We held: têñ.
£îhqwâ£
The municipal treasurer who 'certifies that the official payroll he signs is correct, that the services have been rendered an d the payments made as stated,'
does not pervert the truth in the narration of the facts, if the persons certified as municipal secretary and clerk to the mu nicipal president were duly
appointed and qualified as such municipal secretary and clerk to the municipal president, discharging the duties of their res pective offices, the services
certified having been rendered at the time referred to in the payroll, and both persons having received their respective sala ries from the municipal treasurer
certifying the payroll. Nor can it be taken as proving the falsification of the document if it is subsequently discovered tha t the services were really not
rendered by the aforementioned persons themselves but by substitutes; for it is not the mission of the municipal treasurer to take upon himself to investigate
whether the persons accredited to him as secretary and clerk, by the municipal council and whom he, in turn, acknowledges and pays their monthly salary,
really or apparently perform the duties of such offices,
in resume Our review of the case at bar concludes that the prosecution failed in discharging its sworn duty to prove the guil t of the accused
beyond reasonable doubt. It has not overcome the constitutional presumption of innocence in favor of the accused. Consequentl y, accused-

Evidence Page 80
beyond reasonable doubt. It has not overcome the constitutional presumption of innocence in favor of the accused. Consequentl y, accused-
appellant must be acquitted.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the Sandiganbayan convicting the accused is hereby REVERSED and
SET ASIDE. We find the accused-appellant NOT GUILTY. No costs.
Judgment reversed.
SO ORDERED.1äwphï1.ñët
Fernando, CJ., Makasiar, Concepcion Jr., De Castro, Plana, Escolin, Relova and Gutierrez, Jr., JJ., concur.
Aquino, Melencio-Herrera, JJ. and Teehankee, J., took no part.
Abad Santos, J., I vote to affirm the judgment of conviction for the reasons stated by the Sandiganbayan.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1983/nov1983/gr_l_55436_1983.html>

Evidence Page 81
Capili vs. Cardana
Monday, September 21, 2009
4:36 PM

G.R. No. 157906

November 2, 2006
THIRD DIVISION
JOAQUINITA P. CAPILI, Petitioner,
vs.
SPS. DOMINADOR CARDAÑA and ROSALITA CARDAÑA, Respondents.
DECISION
QUISUMBING, J.:
Before us is a petition for review assailing the Decision [1] dated October 18, 2002 of the Court of Appeals
in CA-G.R. CV. No. 54412, declaring petitioner liable for negligence that resulted in the death of Jasmin
Cardaña, a school child aged 12, enrolled in Grade 6, of San Roque Elementary School, where
petitioner is the principal. Likewise assailed is the Resolution [2] dated March 20, 2003 denying
reconsideration.
The facts are as follows:
On February 1, 1993, Jasmin Cardaña was walking along the perimeter fence of the San Roque
Elementary School when a branch of a caimito tree located within the school premises fell on her,
causing her instantaneous death. Thus, her parents - Dominador and Rosalita Cardaña - filed a case for
damages before the Regional Trial Court of Palo, Leyte against petitioner.
The Cardañas alleged in their complaint that even as early as December 15, 1992, a resident of the
barangay, Eufronio Lerios, reported on the possible danger the tree posed to passersby. Lerios even
pointed to the petitioner the tree that stood near the principal’s office. The Cardañas averred that
petitioner’s gross negligence and lack of foresight caused the death of their daughter.
Petitioner denied the accusation and said that at that time Lerios had only offered to buy the tree. She
also denied knowing that the tree was dead and rotting. To prove her point, she presented witnesses
who attested that she had brought up the offer of Lerios to the other teachers during a meeting on
December 15, 1992 and assigned Remedios Palaña to negotiate the sale.
In a Decision [3] dated February 5, 1996, the trial court dismissed the complaint for failure of the
respondents to establish negligence on the part of the petitioner.
On appeal, the Court of Appeals reversed the trial court’s decision. The appellate court found the
appellee (herein petitioner) liable for Jasmin’s death, as follows:
Foregoing premises considered, the instant appeal is GRANTED. Appellee Joaquinita Capili is
hereby declared liable for negligence resulting to the death of Jasmin D. Cardaña. She is hereby
ordered to indemnify appellants, parents of Jasmin, the following amounts:
1. For the life of Jasmin D. Cardaña P50,000.00;
2. For burial expenses 15,010.00;
3. For moral damages 50,000.00;
4. For attorney’s fees and litigation expenses 10,000.00.
SO ORDERED. [4]
Petitioner’s motion for reconsideration was denied. Petitioner now comes before us submitting the
following issues for our resolution:
I
WHETHER OR NOT THE COURT OF APPEALS VIS-À-VIS THE SET OF FACTS STATED IN THE
CHALLENGED DECISION, ERRED IN FINDING THE PETITIONER NEGLIGENT AND THEREFORE LIABLE
FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE AND IN ORDERING THE PETITIONER TO
PAY DAMAGES TO THE RESPONDENTS; AND
II

Evidence Page 82
 II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONER’S MOTION FOR
RECONSIDERATION. [5]
On the other hand, respondents posit the following issue:
Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division, in CA G.R. CV.
No. 54412 promulgated on October 18, 2002 … should be affirmed and respected, thus remain
undisturbed. [6]
Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaña.
Petitioner asserts that she was not negligent about the disposal of the tree since she had assigned her
next-in-rank, Palaña, to see to its disposal; that despite her physical inspection of the school grounds,
she did not observe any indication that the tree was already rotten nor did any of her 15 teachers
inform her that the tree was already rotten; [7] and that moral damages should not be granted against
her since there was no fraud nor bad faith on her part.
On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet, she
did not exercise reasonable care and caution which an ordinary prudent person would have done in the
same situation.
To begin, we have to point out that whether petitioner was negligent or not is a question of fact which is
generally not proper in a petition for review, and when this determination is supported by substantial
evidence, it becomes conclusive and binding on this Court. [8] However, there is an exception, that is,
when the findings of the Court of Appeals are incongruent with the findings of the lower court. [9] In our
view, the exception finds application in the present case.
The trial court gave credence to the claim of petitioner that she had no knowledge that the tree was
already dead and rotting and that Lerios merely informed her that he was going to buy the tree for
firewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstances
require and that there was an absence of evidence that would require her to use a higher standard of
care more than that required by the attendant circumstances. [10] The Court of Appeals, on the other
hand, ruled that petitioner should have known of the condition of the tree by its mere sighting and that
no matter how hectic her schedule was, she should have had the tree removed and not merely
delegated the task to Palaña. The appellate court ruled that the dead caimito tree was a nuisance that
should have been removed soon after petitioner had chanced upon it. [11]
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence
and may be one which creates a situation involving an unreasonable risk to another because of the
expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one
from which an ordinary prudent person in the actor’s position, in the same or similar circumstances,
would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in
a more careful manner. [12]
The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a
danger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenance of
the school grounds and safety of the children within the school and its premises. That she was unaware
of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of her
discharge of the responsibility of her position.
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some
other person for whose act he must respond; and (3) the connection of cause and effect between the
fault or negligence and the damages incurred. [13]
The fact, however, that respondents’ daughter, Jasmin, died as a result of the dead and rotting tree
within the school’s premises shows that the tree was indeed an obvious danger to anyone passing by
and calls for application of the principle of res ipsa loquitur.
The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an
inference that it would not have happened except for the defendant’s negligence; (2) the accident
must have been caused by an agency or instrumentality within the exclusive management or control of
the person charged with the negligence complained of; and (3) the accident must not have been due to
any voluntary action or contribution on the part of the person injured. [14]
The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere
falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter

Evidence Page 83
falling of the branch of the dead and rotting tree which caused the death of respondents’ daughter
was a result of petitioner’s negligence, being in charge of the school.
In the case of D.M. Consunji, Inc. v. Court of Appeals, [15] this Court held:
…As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things would not happen if those who had its control
or management used proper care, there is sufficient evidence, or, as sometimes stated,
reasonable evidence, in the absence of explanation by the defendant, that the injury arose from
or was caused by the defendant’s want of care.
The procedural effect of the doctrine of res ipsa loquitur is that petitioner’s negligence is presumed
once respondents established the requisites for the doctrine to apply. Once respondents made out a
prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or
inference may be rebutted or overcome by other evidence and, under appropriate circumstances a
disputable presumption, such as that of due care or innocence, may outweigh the inference. [16]
Was petitioner’s explanation as to why she failed to have the tree removed immediately sufficient to
exculpate her?
As the school principal, petitioner was tasked to see to the maintenance of the school grounds and
safety of the children within the school and its premises. That she was unaware of the rotten state of
the tree calls for an explanation on her part as to why she failed to be vigilant.
Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merely
offered to buy the tree and did not inform her of its condition. Neither did any of her teachers inform
her that the tree was an imminent danger to anyone. She argues that she could not see the immediate
danger posed by the tree by its mere sighting even as she and the other teachers conducted ground
inspections. She further argues that, even if she should have been aware of the danger, she exercised
her duty by assigning the disposition of the tree to another teacher.
We find petitioner’s explanation wanting. As school principal, petitioner is expected to oversee the
safety of the school’s premises. The fact that she failed to see the immediate danger posed by the
dead and rotting tree shows she failed to exercise the responsibility demanded by her position.
Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises
supervision over her assignee. [17] The record shows that more than a month had lapsed from the time
petitioner gave instruction to her assistant Palaña on December 15, 1992, to the time the incident
occurred on February 1, 1993. Clearly, she failed to check seasonably if the danger posed by the rotting
tree had been removed. Thus, we cannot accept her defense of lack of negligence.
Lastly, petitioner questions the award of moral damages. Moral damages are awarded if the following
elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission
factually established; (3) a wrongful act or omission by the defendant as the proximate cause of the
injury sustained by the claimant; and (4) the award of damages predicated on any of the cases stated in
Article 2219 of the Civil Code. [18] However, the person claiming moral damages must prove the existence
of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough
that one merely suffered sleepless nights, mental anguish, and serious anxiety as the result of the
actuations of the other party. Invariably, such action must be shown to have been willfully done in bad
faith or with ill motive. [19] Under the circumstances, we have to concede that petitioner was not
motivated by bad faith or ill motive vis-à -vis respondents’ daughter’s death. The award of moral
damages is therefore not proper.

Evidence Page 84
damages is therefore not proper.
In line with applicable jurisprudence, we sustain the award by the Court of Appeals of P50,000 as
indemnity for the death of Jasmin, [20] and P15,010 as reimbursement of her burial expenses. [21]
WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the Resolution dated
March 20, 2003, of the Court of Appeals in CA-G.R. CV. No. 54412 are AFFIRMED with MODIFICATION
such that the award of moral damages is hereby deleted.
Costs against petitioner.
SO ORDERED.
Carpio, Carpio-Morales, and Velasco, JJ. concur.
Tinga, J., on leave. ↩
Endnotes ↩
1. Rollo, pp. 34-40. [ ]↩
2. Id. at 53. [ ]↩
3. CA rollo, pp.↩67-73. [ ]
4. Rollo, p. 39.↩[ ]
5. Id. at 152. [ ↩ ]
6. Id. at 169. [ ]
7. Id. at 156.
↩ [ ]
8. Heirs of Simeon Borlado v. Court of Appeals, G.R. No. 114118, August 28, 2001, 363 SCRA
↩ 753,
756. [ ] ↩
9. See Vera Cruz↩ v. Calderon, G.R. No. 160748, July 14, 2004, 434 SCRA 534, 538-539. [ ]
10. Rollo, pp. 192-193. [ ] ↩
11. Id. at 11-12. [ ]
12. 65 ↩C.J.S. § 1(14), p. 462. * ]
13. Child Learning↩ Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236, 242.
[ ]
14. Id.↩at 244. [ ]
15. G.R. No. 137873,
↩ April 20, 2001, 357 SCRA 249, 257-258 citing 57B Am Jur 2d, Negligence §1819.
[ ] ↩
16. Id. at 260. [ ] ↩
17. See Panuncio v. Icaro-Velasco, A.M. No. P-98-1279, October 7, 1998, 297 SCRA 159, 161. [ ]
18. Quezon City ↩ Government v. Dacara, G.R. No. 150304, June 15, 2005, 460 SCRA 243, 254. [ ]
19. Ace Haulers Corporation v. Court of Appeals, G.R. No. 127934, August 23, 2000, 338 SCRA 572,
580-581. [↩ ]
20. See San Miguel Corporation v. Heirs of Sabiniano Inguito, G.R. No. 141716, July↩4, 2002, 384 SCRA
87, 104. [ ]
21. See People v. Alcantara, G.R. No. 157669, April 14, 2004, 427 SCRA 673, 684. [ ]

Pasted from <http://ocampolaw.co-ph.com/library/capili-v-cardana-gr-157906-2-november-2006>

Evidence Page 85
Laying the Predicate
Monday, September 21, 2009
4:38 PM

People vs. Molo

Appellant contents that inconsistencies exist between Simeona's statement given to the police
and her foregoing testimony in court, relative to — 1) the precise moment when Simeona
recognized the accused, 26 and 2) whether there was a conversation between Simeona and the
accused. 27

The records show, however, that the alleged statement given to the police was neither offered
as evidence nor shown to witness in order to enable her to explain the discrepancies if any in
accordance to Section 16, Rule 132 of the Rules of Court. The proper basis was, therefore, not
laid to impeach Simeona's testimony on the basis of alleged inconsistent statements which she
allegedly made before the police. 28
*just alleged the statement before the police - it was not shown in the court!

Ysmael vs. Hashim

FACTS
Appellant argues that TC erred in refusing to receive the testimony of the given by Mr. Hemady and the
Hashims in the earlier case.
HELD
In offering the testimony, appellant did not claim that said testimony contained admissions against interest
by the parties to the action or their agents; if such had been the case, the testimony would have been
admissible without the laying of a foundation and without the witnesses having testified in the case at bar.
But the purpose of the offer of the testimony was evidently to impeach the testimony of the same witnesses
in the present case and if so, a foundation should have been laid by calling the attention of the witnesses to
the former statements so as to give them opportunity to explain before the statements were offered in
evidence.

Evidence Page 86
People vs. Molo
Monday, September 21, 2009
4:39 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Law phil Proj ect - Arellano Law Foundation
G.R. No. L-44680 January 11, 1979
PEOPLE OF THE PHILIPPINES v s. DOMINADOR MOLO

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-44680 January 11, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINADOR MOLO, defendant-appellant.
Pedro Q. Quadra (Counsel de Oficio) for appellant.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato & Puno and Solicitor Romeo C. de la Cruz for appel lee.

PER CURIAM:
Automatic review of the death sentence with accessory penalties imposed on September 3, 1976 upon accused -appellant Dominador Molo by Hon. Job B. Mandayag of
the Court of First Instance of Romblon, 11th Judicial District, in Criminal Case No. 571 for the murder of Venancio Gapisa on 9 April 1976 at Sitio Dacotan, Barrio
Tambac, Romblon, Romblon.
The above-named accused was charged with murder in an Information filed by Asst. Provincial Fiscal Cesar M. Solis, on May 31,1976, as f ollows:
The undersigned Assistant Provincial Fiscal of Romblon accuses DOMINADOR MOLO of the crime of MURDER committed as follows:
That on or about the 9th day of April 1976, at around 8:00 o'clock in the evening, at sitio Dacotan, barrio of Tambac municip ality of Romblon, province of Romblon, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused with treachery and taking advantage of superior strength, did then and there wilfully, unlawfully and felonious ly attack
and assault one Venancio Gapisa, with the use of a bolo as a consequence of which he sustained mortal injuries that resulted in his death thereafter.
That the killing was attended with the following aggravating circumstances:
(A) Dwelling, for the crime was committed in the house of the offended party who has not given any provocation at all.
(B) Recidivism in view of the fact that the accused has been charged for (1) Frustrated Murder before the Court of First inst ance of Mindoro in Criminal Case V-542 entitled People va.
Dominador Molo and convicted thereof on September 2, 1950; and (2) Murder, before the Court of First Instance of Romblon in C riminal Case No. 862 entitled People vs. Dominador
Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted before different courts in the following criminal cases:
(1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case No. V -669 and convicted on June 5, 1957.
(2) Less Serious Physical Injuries, before the Municipal Court of Romblon, Romblon in Criminal Case No. 839 and convicted on October 9, 1959.
(3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon, Romblon in Criminal Case No. 845 and convicted on February 25, 1960.
(4) Robbery, before the Court of First Instance of Davao in Criminal Case No. 9982 and convicted on March 1, 1967.
That as a consequence of the aforementioned act committed by the accused. the heirs of the deceased are entitled to recover c ivil damages pursuant to the provisions of law.
CONTRARY TO LAW.
Romblon, Romblon, May 31,1976.
(SGD.) CESAR M. SOLIS
Assistant Provincial Fiscal

At the trial, the prosecution presented the testimonies of — (1) the victim's wife, Simeona Gapisa, an eye-witness to the alleged murder; (2) Alejandro Gapisa, a son of
the victim who went to the rescue of his father after he was stabbed by accuse -appellant and was able to talk with him before he succumbed to several bolo wounds; (3)
Roman man a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished the Autopsy Rep ort, Exhibits "A" and "A.1 The
accused, who offered alibi as a defense, presented his testimony and that of his wife. Barbara Mingo, and Police Patrolman Rodolfo Manunggay and Exhibit s 1, a bolo
and 1-a, scabbard.

The operative facts of the case and the circumstances surrounding the apprehension and investigation of the accused now appel lant established by the evidence on
record are as follow.

In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio Tambac, Municipality of Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and
wife, retired to sleep. The couple lived in a typical hut made of bamboo flooring and dilapidated burl walling surrounded by fruit. bearing banana plants. Venancio Gapisa
immediately fell asleep because he was tired from clearing the fields, and besides, had drunk tuba on that day. He slept near the door lying on his right side. 1
Not long after the couple had retired, Simeona, who had not yet fallen asleep, heard an indistinct sound of murmur and gnashi ng of teeth. Although she was seized by
fear, she managed to peep through the dilapidated buri wall and saw accused Dominador Molo attired only in short pants. He wa s alone. Trembling, she immediately
lighted a kerosene lamp and placed it on top of the trunk nearby. She tried to awaken her husband, but the latter did not res pond. 2

Meanwhile, the accused had already climbed up the house which was only a flight of two steps. The accused forcibly pushed the sliding door and barged into the house.
He inquired from Simeona where Venancio was and she replied that he was asleep. Finding Venancio sleeping near the door, he i mmediately grabbed his left wrist and
started hacking at the sleeping old man. Rudely awakened, Venancio quickly stood up and with his right hand reached for his b olo which was atop the table nearby; but
he was not able to retaliate in as much as Dominador Molo was quick to hack at him again. Fearing for her own life, Simeona r ushed out of the house through the door
of the unfinished kitchen to summon help from her son, Alejandro Gapisa, who was at Roman Mangaring's house some 100 meters a way. Trembling, she told him that
his father was boloed by Boslo, the name by which accused-appellant was known in their locality. 3

Upon being informed, Alejandro and Roman ran towards the house of Venancio, followed by Simeona. Upon arrival, they saw Venan cio bleeding profusely and in
weakened condition. He was sitting on the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms, Venancio told him that he was boloed by
Boslo. Roman Mangaring who was present also inquired from Venancio who his assailant was and elicited the answer, "Boslo". 4 Venancio was then rushed to the
hospital and arrived there at about 1:50 a.m. He expired a few minutes after. 5

An autopsy of the victim disclosed that he died of hemorrhage from multiple incised wounds. The wounds sustained were:
1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in position with the lower portion located anteriorly, pen etrating the bone, at the anterolateral aspect of the distal 3rd of
the left arm.
2. Incised wound, about 10 cms. in length, gaping, slanting in position, with the lower and located anteriorly, penetrating t he bone, located 3 cms. below the wound mentioned above.
3. Incised wound, about 10 cms. in length, gaping slightly at the anterolateral aspect of the neck, left side, slanting, with the lower and located anteriorly penetrating the muscle layer.
4. Incised wound, about 10 cms. gaping, slightly slanting with the lower end located anteriorly, located 3 cms. below the 3rd wound, fracturing the clavicle, the costo-chondral portion of
the 2nd rib and the lateral portion of the sternum, left side.
5. Incised wound, 8 cms. in length, gaping about 4 cms., slanting with the lower end located anteriorly, penetrating the bone , located at the lower end of the distal 3rd of the right arm,
anterolateral portion.
6. Incised wound, 5 cms. in length, gaping slightly, slanting with the lower end located anteriorly, penetrating the bone, at the; upper 3rd of the right forearm, anterolateral aspect.
7. Incised wound, 4 cms., superficial, at the anterior portion of the neck,
8. Incised wound 4 cms., superficial, right medial aspect, upper 3rd, right forearm.
Internal Findings:
Wound No. 4 penetrated the apex of the left lung inflicting a small wound, about 2 -3 cms. causing minimal bleeding.
The Cause of Death: Hemorrhage from multiple incised wounds. 6

The following morning an investigation of the fatal incident was conducted. Pat. Manuel Marino in the presence of Patrolmen M ontojo and Antonio Madali took the
statement of Simeona Gapisa, who Identified Dominador Molo as the assailant of her deceased husband. 7 Thereafter, PC soldiers and policemen were dispatched to
the house of Dominador Molo some one and a half (1-1/2) kilometers away from the scene of the killing. Dominador Molo was placed under arrest and brought by the
arresting officers to the poblacion. Investigated at the PC barracks, Molo denied having committed any wrong and having gone to the place of Venancio Gapisa. 8

On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring and Florencio Guarte were secured, a crim inal complaint was filed in the
Municipal Court of Romblon. 9 The preliminary examination was conducted by Mayor Peter M. Montojo, for and in the absence of the municipal judge. Thereafte r, he
issued an order confirming the detention of accused who was then detained in the Municipal jail of Romblon, there being "... reasonable ground to believe that the

Evidence Page 87
offense was committed and that the accused is probably guilty thereof. 10 The accused waived the second stage of the preliminary investigation. 11 On May 31, 1976, an
information, as adverted to above, was filed against Molo accusing him of the crime of murder. 12

After trial, the court a quo — relying on the testimony of Simeona Gapisa who was an eye- and ear-witness to the incident and the corroborating testimonies of
Alejandro Gapisa and Roman Mangaring, who testified on the antemortem statements of the victim Identifying accused as the ass ailant; discounting the defense of alibi
put forth by the accused and his wife; appreciating the qualifying circumstance of treachery and the aggravating circumstance s of dwelling, recidivism and reiteration
alleged in the Information, and a mitigating circumstance, voluntary surrender, sentenced the accused on September 3, 1976, a s follows:
WHEREFORE, this Court renders judgment finding accused Dominador Molo guilty beyond reasonable doubt of the crime of murder, charged in the information and, since after off-
setting the lone mitigating circumstance of voluntary surrender with the aggravating circumstance of either dwelling, recidiv ism or reiteration there remains two aggravating
circumstances, sentencing him to suffer the supreme Penalty of death. He is further adjudged to pay the heirs of the deceased Venancio Gapisa, the sum of Twelve Thousand Pesos (P
12,000), and to pay the cost.
SO ORDERED. 13

Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on the basis of two assigned erors, to wit -
1. Appellant was convicted upon proof not beyond reasonable doubt;
2. Identification of the appellant was not proven beyond reasonable doubt. 14

1. In support of the first, he argues that while proof of motive is unnecessary if the evidence of Identification is convinci ng — citing People vs. Cunanan, 19 SCRA 769;
People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA 206; and People vs. Guardo, 24 SCRA 851 — there is, he claims, a total want of motive on
appellant's part, as admitted by the victim's wife, Simeona Gapisa, and son, Alejandro Gapisa. 15

2. In support of the second assigned error, appellant contents that his Identity as the assailant was not established beyond reasonable doubt, because of — (a) alleged
inconsistencies and incredible assertions in Simeona's testimony; (b) physical conditions which rendered it impossible for he r to recognized accused-appellant; (c) her
alleged admission that she pointed to accuse-appellant as the assailant because he was a hated criminal in their locality; and (d) that the so -called dying declarations
should not have been accorded credence, because the victim could not have Identified his assailant. 16

Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. dela Cruz - after refuting the foregoing
assignment of errors submits the following conclusions as to the nature of the offense committed, the qualifying and aggravat ing circumstances that attended the
commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender, thus —
xxx xxx xxx
Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was at tended with treachery. Treachery qualifies the killing
into murder. (Article 248, Revised Penal Code).
Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provoc ation. (Art. 14 (3), Revised Penal Code).
Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accuse d-appellant had been previously convicted of murder,
frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery. (pp. 10 -12, tsn., July 12, 1976).
Accused-appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force
of policemen and Philippine Constabulary agents at his residence the day after the killing. (p, 6, tsn., July 29,1976).
Since there are three aggravating circumstances and no mitigating circumstance, the penalty properly imposable upon accused -appellant is death. 17
and recommends that the finding of guilt for the offense of murder and the death sentence imposed upon appellant be affirmed in toto. 18

Now, to consider the merits of the alleged errors.

1. Re the claim that there is no proof of motive on appellant's part. This error may be subsumed under and/or discussed together with the second, since it admits that
motive need not be shown where there is positive Identification, which, as We shall explain later, happened in this case. How ever, by way of traverse, We find the
following observations of the Solicitor General well-taken, and therefore well worth adopting.
xxx xxx xxx
Appellee concedes that it has failed to show any motive of accused - appellant in killing Venancio Gapisa.
Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of accused -appellant (pp. 34, 44, tsn., July 12, 1976). They could not, however, state how much money was
taken, from whom it was taken and how it was taken (pp. 34 -38, 44-45, tsn., July 12,1976).
Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony, thus rendering themselves untrustworthy wit nesses, it should be pointed out that when they
mentioned robbery as the possible motive of accused-appellant, Alejandro Gapisa made it clear that was only his "surmise" (p. 34, tsn., July 12, 1976) while Simeona Gapisa quali fied
her assertion with the word "maybe" (p. 44, tsn., July 12, 1976). They were not committal or categorical about the matter.
Aside from robbery, there was no other possible motive of accused -appellant. Both Simeona Gapisa and Alejandro Gapisa admitted that accused -appellant had no grudge against
Venancio Gapisa and his family and vice-versa (pp. 33-34, 53-54, tsn., July 12, 1976).
But even in the absence of proof of motive, the conviction of accused - appellant can stand inasmuch as he had been positively Identified by Simeona Gapisa and by the deceased
himself through his dying declaration. Motive need not be shown when there is positive Identification. (People vs. Feliciano, 58 SCRA 383; People vs. Dorico, 54 SCRA 172). 19
xxx xxx xxx

2. Re the contention that his Identity as assailant was not established beyond reasonable doubt.
(a) That there are inconsistencies and incredible assertions in Simeona's testimony .Simeona Gapisa — who was present when accused-appellant attacked her
husband Venancio with a bolo — testified on direct and re-direct examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and recross examinations by
Atty. Alexander Mortel, counsel de oficio of accused, thus —
xxx xxx xxx
Fiscal Solis:
Q — By the way, when you first heard the unusual sound since you were still awake, what did you do?
A — I lighted a lamp, I first looked at him by peeping thru the wall of our house and once I had recognized his face as that of D ominador Molo I lighted a lamp.
Q — Was it only the face of Dominador Molo that you recognized outside?
A — Yes, and he was alone.
Q — What about his body, did you recognize that body belong to Dominador Molo?
A — I could see and that was the very body of his including his face because it was bright.
Q — What provides the brightness that allowed you to recognize him outside the house?
A — The moon was bright.
Q — Now, aside from the unusual murmuring sound, did you hear the sound of grinding teeth?
A — In fact that was what he had done he was murmuring and at the same time sounding like grinding teeth.
Q — Now, after you lighted a lamp what else did you do inside?
A — I stood up and stepped back because he had come up into the house.
Q — Did you not wake up your husband?
A — I had but he did not notice.
Q — Now, what did you do with the lamp after you lighted it?
A — I placed it on top of our trunk which was towards our head.
Q — Now, how did you know that Dominador had gone up the house?
A — Because I saw him going up into our house.
Q — When he went up the house, what did he do?
A — Once up the house he held my husband by the arm and suddenly pulled out his bolo from his back and hacked him. 20
xxx xxx xxx
Q — How long have you known him?
A — Since he was a boy and until he grew up.
Q — By the way, by what affiliation (sic, should be appelation or name) is he known in your locality?
A — Boslo.
Q — If that Dominador Molo the accused in this case known as Boslo is present in the court room, will you be able to point him ou t in the court?
A — He is here he is the one sitting.
Q — Could you not be mistaken?
A — That is true, it was his very appearance who is looking up in the ceiling. 21
xxx xxx xxx
Atty. Mortel:
Q — Nevertheless, because the moon was a quarter moon only that night April 9 the illumination any object that could be seen is q uite pale not so bright as if there was an alladin lamp, correct?
A — Yes.
Q — And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear
as if there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face and he is far from the banana plantation and the Moon lights very w ell on him.
Q — When the moon lighted very well on him his color was yellowish was it not?
A — It was indeed his appearance that I saw and that is exactly how he looked.
Q — And When you looked at him the first time that night he looked lie Dominador Molo?
A — It was his very own appearance, his appearance never changed.
Q — And when you saw him you lighted a lamp, is that right?
A — I lighted a lamp because he was already there and I was afraid of what he had done to us.
Q — You mean from the very first time that you saw him he was making murmuring sounds you were already afraid that he would do so mething bad against you and your husband?
A — Yes, I was already afraid and my skin seemed to shiver. 22
xxx xxx xxx
Q — And so when your husband was or rather when your house that night of April 19 was entered into by a person making murmuring s ounds outside and boloed to death your husband there was no other conclusion that you made but that it must
be Boslo the killer?
A — Yes, in fact he was the very one it was his very looks . 23
Fiscal Solis:
Q — And who pushed open that door of yours, was it Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband ?

Evidence Page 88
A — He was the one it was his very looks and I saw that it is his looks.
xxx xxx xxx
Q — Now, what is this basis for positively telling us that is Dominador Molo who killed your husband was it because of rumor circ ulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you
saw then Dominador Molo committing the act against your husband?
A — Not only what was given to me by way of information from other people but because of what I actually saw with my eyes. 24
xxx xxx xxx
Atty. Mortel:
Q — Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are point ing to as Dominador Molo, is that correct?
A — He is the very one.
Q — And not only that person who entered the looks of that Dominador Molo the accused in this case but he also has the height tha t looks like the height of Dominador Molo, is that correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that correct?
A — Yes, that is his very appearance and could not be altered anymore . 25
xxx xxx xxx

Appellant contents that inconsistencies exist between Simeona's statement given to the police and her foregoing testimony in court, relative to — 1) the precise moment
when Simeona recognized the accused, 26 and 2) whether there was a conversation between Simeona and the accused. 27

The records show, however, that the alleged statement given to the police was neither offered as evidence nor shown to witnes s in order to enable her to explain the
discrepancies if any in accordance to Section 16, Rule 132 of the Rules of Court. The proper bast was, therefore, not laid to impeach Simeona's testimony on the basis
of alleged inconsistent statements which she allegedly made before the police. 28

At any rate, We find the alleged inconsistencies inconsequential. Inconsistencies on minor details or on matters that are not of material consequence as to affect the
guilt or the innocence of the accused do not detract from the credibility of the witnesses. 29 The discordance in their testimonies on collateral matters heightens their
credibility and shows that their testimonies were not coached or rehearsed. 30 Far from being evidence of falsehood, they could justifiably be regarded as a
demonstration of good faith. 31

It is also contended that the testimony of Simeona contains inconsistent averments. According to accused -appellant Simeona claimed that she was able to Identify him
because of the lamp which was then lighted but that she also declared that the light was put out when the door was opened bec ause of the sudden gust of wind. 32 To
support this contention, he quoted Simeona's testimony:
Q — And when the door was pushed open there was a sudden gust of wind that entered the house, correct?
A — There was a consequence of the sudden entry.
Q — And with that sudden entry and gust of wind carried by this fellow the light was snuffed out, correct?
A — Yes. (P. 51, tsn., July 12,1976).
A review of the transcript of the testimony shows that the foregoing is an inaccurate representation of Simeona's testimony. For she clarified that her husband was
already boloed before the light was snuffed out. Thus, she testified on cross -examination:
Atty. Mortel:
Q — And with that sudden entry and gust of wind carried by that fellow the light was snuffed out, correct?
A — Yes.
Q — And in the darkness inside this fellow who entered the house began stabbing and boloing your husband, correct?
A — My husband was already boloed when the light was put out because upon entrance he instantly took hold of my husband's arm and started hacking him all over. 33
xxx xxx xxx
On re-direct examination, she declared —
Fiscal Solis:
Q — Now, you admitted on cross examination that the lamp was put out now how were you able to know that your husband had attempte d to hold his bolo with his right hand and while in that position he was hacked twice by a bolo by the accused
Dominador Molo?
A — That stage occurred when the light was still on so it was still bright. 34

Appellant also alleges that her testimony contains incredible assertions, i.e. that it was very unusual that she remained sil ent while witnessing the attack on her
husband. 35

But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel, during the cross -examination, provided the answer to this misgiving :
xxx xxx xxx
Q — When the door was pushed open did you not shout?
A — No, because I was afraid.
Q — Afraid of what?
A — I was afraid because I did not shout for fear that he might bolo me.
Q — You were tongue-tied?
A — Yes.
Q — Because of fear?
A — Yes.
Q — Terrible fear?
A — Yes, it was terrible fear because my body trembled .
Q — To such extent that you were shocked?
A — Yes. 36

Appellant also argues that Simeona's account is contrary to physical facts. He claims that if, as she testified, the victim w as lying down when attacked, he would sustain
stab, not incised wounds. He explains that the natural tendency of a person attacking another who is lying down with a bolo w ould be to thrust the bolo towards the body
and not hack him. 37 This claim is without merit. The Solicitor General's explanation on this point is well -taken. To simply thrust a bolo at a lying person is not as forceful
as to hack him with it. The first is an awkward if not difficult movement, but the second is natural and can be done with fac ility. 38

(b) That conditions rendered it impossible for Simeona to recognize accused -appellant. It is contended that Simeona could not have recognized accused -appellant while
he was at the foot of the stairs because the banana plants obstructed the light cast by the moon. 39

This, again, is without merit. Simeona testified that the banana plants did not obstruct the light cast by the moon and the d efense did not disprove this fact:
xxx xxx xxx
Atty. Mortel:
Q — And because of the banana plantation that is covering your yard this quarter moon, the illumination thereof is obstructing a little by this banana plantation?
A — But the bananas are not directly obstructing the door of our house because they are standing towards the footpath the part of our house was not obstructed of the light cast by the moon .
Q — Except by the footpath and the surrounding premises of the east side of the house is shaded because the banana plantation are there to obstruct the illumination of the moon, correct?
A — No, the light coming from the moon could not be obstructed anymore by that plantation because the main door of our house is f ronting a yard.
Q — Nevertheless, because the moon was a quarter moon only that night April 9 the illumination to any object that could be seen i s quite pale not so bright as if there was an alladin lamp, correct ?
A — Yes.
Q — And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear
as if there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face and he is far from the banana plantation and the moon lights very w ell on him.
Q — When the moon lighted very well on him his color was yellowish was it not?
A — It was indeed his appearance that I saw and that is exactly how he looked.
Q — And when you looked at him the first time that night he looked like Dominador Molo?
A — It was his very own appearance his appearance never changed. 40

Indeed, Simeona had no difficulty in recognizing the accused, considering that their house was only elevated by two steps and at the time she saw him through the
dilapidated burl wall he was already at the foot of the stairs. 41

(c) That Simeona pointed to the accused as the killer because he was a hated criminal in the locality . 42 Appellant contends that Simeona pointed to him as the assailant
because he was a hated criminal in the locality - not because he was properly Identified as the one who attacked the victim. This claim has no basis in the records. For
the testimony of Simeona shows that she was certain of accused -appellant's Identity as assailant and that at one point accused-appellant even inquired from her where
her husband was, thus —
xxx xxx xxx
Fiscal Solis:
Q — And who pushed open that door of yours, was it Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband ?
A — He was the one it was his very looks and I saw that it is his looks.
xxx xxx xxx
Q — Now, what is this basis for positively telling us that it is Dominador Molo who killed your husband was it because of rumor c irculating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because
you saw then Dominador Molo committing the act against your husband?
A — Not only what was given to me by way of information from other people but because of what I actually saw with my eyes .
xxx xxx xxx
Atty. Mortel:
Q — Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are point ing to as Dominador Molo, is that correct.
A — He is the very one.
Q — And not only that person who entered has the looks of Dominador Molo the accused in this case but he also has the height that looks like the height of Dominador Molo, is that correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that correct?
A — Yes, that is his very appearance and could not be altered anymore.
xxx xxx xxx
Court: In your entire testimony you did not mention of any conversation of Dominador Molo as soon as he went up the house, di d you not talk to him, did you not converse with him?

Evidence Page 89
A — No, because he suddenly rushed our house.
Q — And did he not ask you where is your husband and answered there he is ?
A — That was it he was also asking as he entered.
Q — So it is clear that you had a conversation with him?
A — Yes.
Q — And that is what you stated in the police?
A — Yes, sir. 43
(d) Re the dying declarations. Appellant claims that the same should not be accorded credence because the victim could not have recognized his assailant, since as
testified by Simeona he was asleep when attacked. 44 Again this is inaccurate. It was only at the initial stage of the attack when the victim was asleep, because he was
awakened by the first blows and stood up to defend himself Simeona declared:
xxx xxx xxx
Fiscal Solis:
Q — How many times did you see Dominador bolo your husband on the left arm?
A — I saw him boloed my husband twice on the left arm and when my husband noticed that he was being hacked he reached for his bolo with his right arm to which instance Dominador M olo noticing that he was going to use a bolo Dominador
hacked him again on the right arm.
Q — Was your husband able to take hold of his bolo?
A — He was able to take hold of the handle only because at this instance he was hacked by Dominador and so the bolo fell from his hands.
Q — What hand did your husband use in taking hold of his bolo?
A — Right arm (sic: should be hand).
xxx xxx xxx
Q — But was your husband able to rise from where he was lying to get that bolo?
A — He was able to rise but he was already weak because his left arm was already wounded. 45
The statements of Venancio Identifying Dominador Molo as his assailant to Alejandro, his son, and Roman, his neighbor are dyi ng declarations. Alejandro Gapisa
testified:
xxx xxx xxx
Q — What was the position when you found him there?
A — He was sitting.
Q — What else if any did you observe of your father?
A — When I came up he said, "Ando I have wounds because I was boloed by Boslo. "
Q — What was his actual physical situation when he uttered these words?
A — He was already weak, his body was weak.
Q — How did you observe that he was already very weak, that he was already weak physically?
A — Because his wounds are big and many.
Q — Was it bleeding?
A — It was bleeding but the flow of the blood had declined since they had been drained of blood.
Q — In your observation was he dying or not?
A — He was about to die.
Q — Now, since he had wounds what did you do with these injuries?
A — Upon arrival I tied his wounds.
Q — Which injuries did you bind, what did you tie?
A — The wounds in the arm because it was dangling.
Q — Which arm the left or the right?
A — The left.
Q — What about the right arm?
A — It had also many wounds.
Q — What was your father doing there, in that kitchen?
A — He was sitting.
Q — Was he doing anything else from sitting ?
A — I think he was defecating as a result of the pain.
Q — Did he have his pants on?
A — Yes. 46
Ad Roman Mangaring declared:
xxx xxx xxx
A — I was talking to him as to who boloed him.
Q — And his answer to you was Boslo?
A — Yes.
Q — He called his assailant as Boslo?
A — Yes. 47
Considering the nature and extent of the wounds, eight in all, Venancio must have realized the seriousness of his condition a nd it can therefore be inferred that he made
the incrimination under the conciousness of impending death, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed.
In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa, who was an eye -witness to the fatal incident, and that of Alejandro
Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant
beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivis m and reiteration, it appearing that
accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qua lified trespass to dwelling and robbery,
and, had served sentences for said crimes.
We agree with the Solicitor General that appellant is not entitled the mitigating circumstance of voluntary surrender. For in order that the same may be properly
appreciated in favor of the accused, it must appear that — a) he had not been actually arrested; b) he surrendered himself to a person in authority or his agent; and c)
his surrender is voluntary, which circumstances are not present in this case. 49 For appellant admitted that on the day after the killing, police authorities surrounded his
house and arrested him. The fact that he did not try to escape or did not resist arrest after he was taken into custody by th e authorities, does not amount to voluntary
surrender. 50
A word about the penalty. It appears that accused-appellant is an incorrigible criminal with clearly anti-social proclivities against which the community has the need if not
the right, to defend itself. Where, as in this case, the reformative end of punishment seems to have failed in amending his criminal t endencies — he was convicted for
frustrated murder in Criminal Case V-542, Mindoro on September 2, 1950; murder in Criminal Case No. 862, Romblon on July 27, 1961; grave slander in Criminal Case
No. V-669, Romblon, on June 5, 1957; less serious physical injuries, before the Municipal Court of Romblon, Romblon in Criminal Cas e No. 839 on October 9, 1959;
qualified by trespass to dwelling, before the Municipal Court of Romblon, Romblon in - Criminal Case No. 845 on February 25, 1960 and robbery, before the Court of
First Instance of Davao in Criminal Case No. 9982 on March 1, 1967 — the imposition of the supreme penalty, is not only justified by the facts of this case, but is
required as a measure of social defense. Society had given accused -appellant several chances. It would seem that compassion had not reformed him but had instead
made him a hardened criminal and a menace to his fellow men. To spare his life is to endanger the lives and properties of oth ers.
WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to costs.
SO ORDERED.
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.
Castro, C.J., Fernando and Teehankee, JJ., in the result.
# Footnotes
1 T.S.N., July l2,1976, pp. 5, 38, 45 and 50.
2 Id., pp. 38-40, 47 and 57.
3 Id., pp. 3, 10, 13, 21, 26, 40 -43,50,52,56-57.
4 Id., pp. 3-6,15-17,23-24,31-32.
5 Id., July 26,1976, p. 61.
6 Exhibit "A "Record, pp. 13-14.
7 Records, pp. 9-13.
8 T.S.N., July 12, 1976, p. 19; July 29, 1976, pp. 69 -70; July 30, 1976, pp. 82-83; and 90.
9 Records, P. 5-6; 15-17.
10 Id., p. 18.
11 Id., p. 21.
12 Id., p. 38.
13 Rollo, pp. 18-19.
14 Brief, defendant-appellant, p. 4.
15 Id., Id., pp. 4-5.
16 Id., Id., pp, 3, 6-16.
17 Brief, People, pp. 17-18.
18 Id., Id., p. 18,
19 Brief, People, pp. 4-6.
20 TSN., July 12,1976, pp, 39 -41, direct.
21 Id., pp. 43-44, Id.
22 Id., pp. 46-48, Cross.
23 Id., p. 54, Id.
24 Id., pp. 56-57; re direct.
25 Id., p. 57; re-cross.
26 Brief, defendant-appellant, pp. 8-9.
27 Id., Id., pp. 13-14.
28 People v. Escosura L-1291, Nov. 2, 1948, 82 Phil. 41; Juan Ysmael & Co. v. Hashim & Jorayeb, No. 26247, March 18, 1927; United States v. Baluyot, No. 14476, Nov. 6, 1919, 40 Phil. 385.
29 People v. Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Reyes, L -33154, Feb. 27, 1976, 69 SCRA 474; People v. Pajenado, L -26458, Jan. 30,1976, 69 SCRA 172.
30 People v. Estocada, L-31024, Feb. 28, 1977, 75 SCRA 295; People v. Doria, L -26188-90, Jan. 31, 1974, 55 SCRA 435.
31 People v. Estocada, supra; People v. Alcantara, L -26867, 33 SCRA 813; People v. Cabiltes, L -18010, Sept. 25, 1968, 25 SCRA 112.
32 Brief, defendant-appellant, pp. 11-12.
33 TSN., July 12, 1976, p. 32.
34 Id., p. 56.
35 Brief, defendant-appellant, p. 14.
36 TSN., p. 51.
37 Brief, defendant-appellant, p. 15.
38 Id., People, p. 13.
39 Id., defendant-appellant, pp. 10-11.
40 TSN., July 12, 1976, pp, 46 -47.
41 id., pp. 41-45.
42 Brief, defendant-appellant, pp. 3, 5-6.
43 TSN., July 12, 1976, pp. 56 -58.

Evidence Page 90
43 TSN., July 12, 1976, pp. 56 -58.
44 Brief, defendant-appellant, pp. 15-16.
45 TSN., July 12,1976, p. 42.
46 Id., pp. 23-24.
47 Id., p. 16.
48 See: People v. Brioso, et al., G.R. No. L -28482, Jan. 30, 1971, 37 SCRA 336; People v. Beraces, et al., G.R. No. 25016, March 27, 1971, 38 SCRA 127.
49 People v. Hanasan, L-25989, 29 SCRA 534.
50 People v. Reyes, 1,33154, Feb. 27, 1976, 69 SCRA 474, citing People v. Dimdiman, L -12622, Oct. 28, 1959, 106 Phil. 391.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1979/jan1979/gr_l_44680_1979.html>

Evidence Page 91
Ysmael vs. Hashim
Monday, September 21, 2009
4:39 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. L-26247 March 18, 1927
JUAN YSMAEL & CO., INC. vs. NAGEEB T. HASHIM, ET AL.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26247 March 18, 1927
JUAN YSMAEL & CO., INC., plaintiff-appellant,
vs.
NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants.
AFIFE ABDO CHEYBAN GORAYEB, appellant.
M.H. de Joya, Felipe Ysmael and Claudio R. Sandoval for plaintiff-appellant.
Gibbs & McDonough and J.E. Blanco for defendant-appellant.
COMPLAINT:
OSTRAND, J.:
YSMAEL, representing the JUAN YSMAEL & CO,
The complaint in the present case sets forth two causes of action. For its first cause of action the plaintiff
INC, filed a collection suit against GORAYEB and
alleges, in substance, that the defendant Nageeb T. Hashim on September 21, 1916, executed a chattel
HASHIM based on 2 COA:
mortgage in favor of said plaintiff for the sum of P13,160.87, with interest at 8 per cent per annum, the
1. Hashim executed a CM in favor of Ysmael for
mortgage falling due on September 21, 1917; that the said defendant having failed to make payment in
P13,160.87 with interest. Hashim was in default,
accordance with the terms agreed upon, the chattel mortgage was foreclosed and the mortgage the CM was foreclosed BUT there was still a
property sold by the sheriff on January 15, 1921; that the proceeds of the sale amounted to the sum of
balance amounting to P11,060.87 so Ysmael
P2,100 only, thus leaving a balance of P11,060.87, which, with thecorresponding interest at the rate of 8
wants to collect
per cent per annum from September 21, 1916, until January 9, 1925, now amounts to the sum of
2. Hashim Commercial & Trading Co, Ltd assigned
P19,134.32, for which amount judgment is prayed.
the amount due to to it to Ysmael on October 3,
1921. Included in the amounts due to it was
For the second cause of action, the plaintiff alleges that the defendant Nageeb T. Hashim has been
P14,646.47 owed by HASHIM. Ysmael demanded
indebted in the sum of P14,646.47 to the Hashim Commercial & Trading Company, Ltd., a limited
payment from Hashim and the GORAYEB spouses
copartnership, organized under the laws of the Philippine Islands and that, for good and valuable but was not paid
consideration, the said Hashim Commercial & Trading Company, Ltd., assigned the amount due it on
said indebtedness to the plaintiff on October 3, 1921, together with its other bills receivable, fixtures, ANSWER:
cash on hand in banks, and its entire stock of goods; that the plaintiff has in vain demanded payment
*HASHIM: admits all the allegations in the
from the defendants and now asks judgment against them for said sum of P14,060.47. The plaintiff also
complaint
prayed for a writ of attachment of the property of the defendants, which prayer was granted.
*GORAYEB: special defense of conspiracy: Hashim
and his relations conspired to defraud her of her
The defendant Hashim in his answer admits all of the allegations of the complaint and consents to the
alimony granted in the Civil Case No. 19115
rendition of the judgment in conformity therewith. The defendant Afife Abdo Cheyban Gorayeb in her
answer admits that the plaintiff is a corporation duly organized and existing under the laws of the
Philippine Islands and that the defendants are husband and wife, but deny all other allegations
contained in the complaint and set up as a special defense that the action is the result of a conspiracy
between Hashim and his relations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of the
alimony granted her in civil case No. 19115 of the Court of First Instance of Manila. She also alleges that
she has suffered damages in the sum of P20,000 by reason of the preliminary attachment upon said real
property belonging to her exclusively.

Upon trial the Court of First Instance rendered judgment in favor of the plaintiff for the full amount CFI: for plaintiff Ysmael
demanded under the first cause of action, but dusmissed the second cause of action on the ground that BUT DISMISSED 2nd COA: Ysmael failed to show that the
the plaintiff had failed to show that the credit upon which said cause of action is based had been credit was really legally assigned to his company
legally assigned to it. Both the plaintiff and the defendant Gorayeb appealed from this judgment.

The plaintiff-appellant assigns as error the finding of the trialcourt that the indebtedness of the
defendant Nageeb T. Hashim to the Hashim Commercial & Trading Co., Ltd., in the amount of
P14,646.47, was assigned by the latter to the Asia Banking Corporation and not to the plaintiff Juan
Ysmael & Co., Inc., and that the court likewise erred in dismissing the second cause of action alleged in
the complaint. This contention is principally based on a resolution of the stockholders of the Hashim
Commercial & Trading Co., Ltd., adopted on October 3, 1921, the last three paragraphs of which reads
as follows:
Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of the stock of this company, have
arranged for the suspension of the foreclosure proceedings began as mentioned above, and agree to
assume the obligation of this company with the Asia Banking Corporation as stated in the deed dated
March 8th, 1921, on condition that this company transfer to Juan Ysmael & Co., Inc. its entire stock of
goods, cash on hand and in banks, bills receivable, fixtures, and to have access to the books whenever
required by them;
Now, therefore, be it resolved that Mr. A. T. Hashim, President and General Manager of this company, be
and hereby is, authorized in an irrevocable manner to transfer in favor of Messrs. Juan Ysmael & Co., Inc.,
its entire stock of goods, cash on hand and in banks, bills receivable, fixtures and to have access to the
books whenever required by them; and be it further.
Resolved that the said Mr. A. T. Hashim be and hereby is authorized in an irrevocable manner to execute,
acknowledge, and deliver all such documents and intruments in writing as may be necessary to
effectuate the foregoing purpose.
It does not appear that the assignment authorized by this resolution was ever made and on November
2, 1921, the same stockholders, together with Juan Ysmael & Co., Inc., also a stockholders, adopted

Evidence Page 92
another resolution which practically revoked the resolution of October 3, 1921 and which reads as
follows:
Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the stockholders of Hashim Commercial
& Trading Co., Ltd., to transfer the entire stock of the Company, cash on hand, bills receivable, and
fixtures, to Juan Ysmael & Co., Inc., and
Whereas, subsequently, it appeared advisable to A. T. Hashim that the transfer of said stocks of goods,
etc., should be made to the Asia Banking Corporation, who would then make Juan Ysmael & Co., Inc., its
agent, for the purpose of disposing the same, and
Whereas, a transfer was made to the Asia Banking Corporation, in the form of an agreement entered
into between the Asia Banking Corporation, Juan Ysmael & Co., Inc., and Hashim Commercial & Trading
Co., Ltd., thru their proper representatives, on the 31st day of October, 1921.
Now, therefore, be it resolved that the transfer made by A. T. Hashim, as aforesaid, to the Asia Banking
Corporation, of all goods, wares and merchandise, as per said agreement, be and the same approved,
and transfer ratified.

As will be seen the only assignment actually effected was that to the Asia Banking Corporation. The HELD
court below was, therefore, justified in dismissing the second cause of action and if so, the plaintiff's -As to Ysmael's appeal: CA correct in ruling that
second assignment of error to the effect that the bond in the sum P20,000 fixed by the court below for Ysmael failed to prove that the credit of Hashim's Co.
the discharge of the writ of attachment was inadequate, is also without merit. We may say in passing was legally assinged to him. The resolution showed
that the authorities cited in support of the first assignment of error have reference to equitable before the court shows that the assignment was
assignments and are not in point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might, actually effected to Asia Banking Corporation and not
perhaps, have compelled the Hashim Commercial & Trading Co. to execute an assignments of the credit to his company
in controversy, byt it does not follow that the same facts would constitute a valid assignment as against -Even if it is true that Ysmael compelled Hashim & Co.
third parties and that the prospective assignee may maintain an action against the debtor for the to execute an assignment of credit in his favor, if it did
collection of the credit without a formal assignment of such dredit. The debtor has the right to demand not follow the formalities required by law (i.e. it must
that the person who sues him for the debt shall be the real party in interest and shall show a valid title be in writing), then the assignment cannot be
to the chose in action; a mere equitable right to the assignment thereof is not sufficient. Both under suffuciently proved
article 51 of the Code of Commerce and under paragraph 6 of article 1280 of the Civil Code, a formal
assignment of a credit of over three hundred pesos must be in writing. The formalities for sales of
choses in action are governed by paragraph 4 of section 335 of the Code of Civil Procedure.

The defendant-appellant makes the following assignments of error: -As to GORAYEB's appeal: All four grounds sustained
I. The trial court erred in rendering judgment upon the first cause of action in favor of the plaintiff and except for one:
against the defendant and appellant, jointly and severally, with her husband A. T. Hashim for the sum of 3 grounds:
P19,134.32, with interest on P11,060.87 thereof at 8 per cent per annum from the 10th day of TC did err in
January,1925. (1) prohibiting GORAYEB from inquiring into the
II. The trial court erred in prohibiting appellant from inquiring into the details of the account set forth in details of the account related to the alleged
Exhibit 3. indebtedness
III. The trial court erred in refusing to receive the testimony of the defendant N. T. Hashim, that of A. T. (2) preventing GORAYEB from presenting proofs to
Hashim, and that of K. N.Hemady in the former action No. 19569 (G. R. No. 21345). support her claim that there was conspiracy against
IV. The trial court erred in preventing defendant and appellant from representing proofs in support of her
the allegations of her answer and special defenses. (3) in rendering judgment in favor of Ysmael…

There is some merit in all of these assignments, except the third. The court below undoubtedly erred in BUT NOT in refusing to receive the testimony of
denying the defendant-appellant the opportunity to inquire into the sources of the entries found in the Hashim, Hemady etc. which was made in GR 19569
plaintiff's books of account in relation to the indebtedness of the defendants; the fact that such sources (which dealt with the validity of the chattel mortgage
might have been examined in civil case No. 19569 of the Court of First Instance of Manila cannot be executed by Hashim in favor of Ysmael)
regarded as a bar to a reasonable inquiry into the character of the debt in the present case. The issues in In offering in evidence the testimony given by Mr.
the two cases are entirely different; the former case dealt with the validity of a chattel mortgage, while Hemady and the Hashims in the earlier case, the
in the present case, wer are dealing with the amount of the defendant's indebtedness to the plaintiff. defendant-appellant did not claim that said testimony
For much the same reasons, the defendant-appellant should have been permitted to present evidence contained admissions against interest by the parties to
in support of her special defense of conspiracy. the action or their agents; if such had been the case,
the testimony would have been admissible without
The third assignment of error cannot be sustained. In offering in evidence the testimony given by Mr. the laying of a foundation and without the witnesses
Hemady and the Hashims in the earlier case, the defendant-appellant did not claim that said testimony having testified in the case at bar. But the purpose of
contained admissions against interest by the parties to the action or their agents; if such had been the the offer of the testimony was evidently to impeach
case, the testimony would have been admissible without the laying of a foundation and without the the testimony of the same witnesses in the present
witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently case and if so, a foundation should have been laid by
to impeach the testimony of the same witnesses in the present case and if so, a foundation should have calling the attention of the witnesses to the former
been laid by calling the attention of the witnesses to the former statements so as to give them statements so as to give them opportunity to explain
opportunity to explain before the statements were offered in evidence. before the statements were offered in evidence.

In discussing their first assignment of error, counsel for the defendant-appellant insist that, taking into
consideration the facts of the case and the circumstances preceeding the same, it is obvious that the
case is "fraudulent and that even if the indebtedness claimed were over a true indebtedness, either the
same had been paid or payment thereof waived." This contention is not entirely without foundation and
though we cannot fully agree with counsel, we do think that, in view of the very apparent unreliability of
some of the oral evidence presented, the plaintiff's recovery on its first cause of action should be limited
to the amount shown by its books of account.

On December 31, 1924, the plaintiff's ledger showed a balance of P12,238.02 against the defendant
Hashim, and it does not appear that he has incurred any further indebtedness to the plaintiff since that
date. The plaintiff explains that the amount claimed in excess of the sum shown by the ledger
represents interest at the rate of 8 per centper annum, but under the circumstances of the case, we
cannot give much weight to this explanation. It clearly appears that the chattel mortgage debt, upon
which the plaintiff's first cause of action is based, is included in the ledger account and it may properly
beconsidered as merged therein. It also appears that the account was balanced at the end of the years
1920, 1922 and 1924, and considering the fact that the plaintiff corporation is a well conducted business
organization, it seems rather improbable that, in striking its book balances, it would have overlooked the
important item of interest if any interest on the book account in question had been agreed upon.

The judgment appealed from is, therefore, modified by reducing the plaintiff's recovery to the sum of

Evidence Page 93
P12,238.02, with interest at the rate of 6 per cent per annum from January 13, 1925, the date of the
filing of the complaint. In all other respects said judgment is affirmed without costs in this instance. So
ordered.

Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1927/mar1927/gr_l-26247_1927.html>

Evidence Page 94
Prior Inconsistent Statement
Monday, September 21, 2009
4:43 PM

F: According to the prosecution, at around 11pm of July 24, while the eyewitness CHERRY ROSE Salazar was entertaining LARRY ERESE and his companions, the
other group who were already inside the videoke bar consisting of RUDY BUDUHAN (in red tshirt), ROBERT BUDUHAN (in white Giordano Tshirt), a man wearing
BLUE TSHIRT and another in BLUE TSHIRT and black jacket, declared a holdup.

ROBERT BUDUHAN (the one wearing WHITE GIORDANO TSHIRT) approached LARRY ERESE, poked a gun at him and asked for LARRY's wristwatch. At the same
time, the person in BLUE TSHIRT poked a gun at ROMUALDE ALMERON, the manager of the beerhouse. After the holdup was conducted, ROBERT and the GUY
in BLUE shot both LARRY and ROMUALDE. ORLANDO PASCUA was also shot. As a result, the three died. ROMUALDE's wallet, allegedly containing P50k, was also
not recovered.

When the shooting was reported to the police, the police went to the beerhouse and found the four accused running from the beerhouse. When asked where
they were from and after the accused gave different answers, they were detained. They went back to the beerhouse to conduct an investigation and brought
witnesses to the police station. These witnesses were able to identify the four accused as those who committed the holdup.

According to the defense:

ROBERT BUDUHAN: he was with RUDY BUDUHAN, BOYET GINYANG and BOY GUIHICNA and they drank one bottle of SANMIG GIN, then went to sleep. However,
RUDY and BOYET GINYANG continued their drinking session. Later, GINYANG arrived, woke up ROBERT and told him that they had to go to the beerhouse
because RUDY must have been involved in a fight there. WHEN ROBERT, GUICHICNA and GINYANG were on their way back, policemen asked them where they
were headed. When they said they were looking for RUDY, they were brought to Maddela Police station and were detained. Rudy was later detained with them.
On the evening of the 26th (2 days after), a group of ladies were brought to identify them. However, none recognized them.

Boyet GINYANG: RUDY and him went to a beerhouse. When he heard gunshots and saw the man beside him fall, he run towards theirboarding house and
roused ROBERT and GUIHICNA. They were halted on their way back by a man who asked them where they were headed. RUDY kwento. Bought to Maddela
Police Station to be detained. The next day (on july 25) a group of ladies were brought in to identify them but were not recognized.

RUDY BUDUHAN: Was with GINYANG in the beerhouse when they heard gunshots and the person near them fell. They ran towards the road. While running, an
armed man wearing white tshirt held him, while GINYANG was able to get away. He was brought to the Maddela police station, was detained…

TC: GUILTY OF COMPLEX CRIME OF ROBBERY WITH HOMICIDE

CA: MODIFIED. Added MORAL DAMAGES

SC: AFFIRM
The appeal mainly rests on the allegation that there were contradictions in the statements given by the main witness of the prosecution, RUBY ROSE.

On the alleged conflicting answers of CHERRY ROSE: sworn statement before the police, statement in the PI and her testimony in open court

DURING PI:
Cherry Rose stated that a man wearing a white Giordano T-Shirt shot Larry, and pointed to Boy Guinhicna as that person
Robert Buduhan was the one who allegedly shot Orlando Pascua
Vs.
IN OPEN COURT:
Robert shot Larry Erese, and he's the one wearing Giordano T-Shirt

SWORN STATEMENT before POLICE

The group of the appellants (5 of them) were already inside the canteen
Vs.
OPEN COURT (DIRECT EXAM):
Robert had only 3 companions

OPEN COURT (DIRECT EXAM):

Larry Erese was NOT her boyfriend
Vs.
(PI: when clarified during CROSS?)
Larry was HER BOYFRIEND

COURT:
As between statements made during the preliminary investigation of the case and the testimony of a witness in open court, the latter deserves more
credence. Preliminary investigations are commonly fairly summary or truncated in nature, being designed simply for the determination, not of guilt beyond
reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements of a witness in open court which deserve careful
consideration.[88]

In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent statements by a witness, is revealing:

Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him concerning them.

The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense
and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred
to and to show that they were made by mistake, or that there was no discrepancy between them and his testimony.[89]

In the present case, the statements made by Cherry Rose during the preliminary investigation with respect to the identities of the accused were not related to
her during the trial. Indeed, it is only during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Rose’s identification
of the appellants in order to destroy her credibility as a witness. No opportunity was ever afforded her to provide an explanation. Without such explanation,
whether plausible or not, we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable explanation is given

Evidence Page 95
by a witness in reconciling her conflicting declarations that she should be deemed impeached.[90]

In this regard, what the defense brought to Cherry Rose’s attention during the trial were her contradictory statements about her romantic relationship with
Larry Erese. As a result of this confrontation, Cherry Rose changed her answer. We rule, however, that this inconsistency relates only to an insignificant
aspect of the case and does not involve a material fact in dispute.

Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility of Cherry Rose as a witness stands unimpeached. As
found by the trial court, the testimony of Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for her to
bear false witness against them. As a matter of fact, Cherry Rose testified during cross-examination that she did not personally know appellant Robert, and that
she had first seen him only during the night when the shooting incident took place.[91]

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 178196

Plaintiff-Appellee,
Present:

YNARES-SANTIAGO,
J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
RUDY BUDUHAN y BULLAN and ROBERT BUDUHAN y REYES, JJ.
BULLAN,
Defendants-Appellants.
Promulgated:

August 6, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECIS ION

CHICO-NAZARIO, J.:

Before Us is a review of the Decision[1] of the Court of Appeals dated 29

December 2006 in CA-G.R. CR-HC No. 01940, which affirmed with
modifications the Decision[2] dated 24 July 2003 of the Regional Trial Court
(RTC) of Maddela, Quirino, Branch 38, in Criminal Case No. 38-18, finding
accused-appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan
guilty of the special complex crime of robbery with homicide with respect to
the deceased Larry Erese, and of the crime of homicide with respect to the
deceased Romualde Almeron. The Court of Appeals ordered the payment of
moral damages to the heirs of said victims, in addition to the award already
given by the trial court.

On 26 August 1998, an Information[3] was filed against Robert Buduhan,

Rudy Buduhan, Boy Guinhicna, Boyet Ginyang and 3 John Does before the
RTC of Maddela, Quirino, for the crime of Robbery with Homicide and
Frustrated Homicide. Docketed as Criminal Case No. 38-18, the accusatory
portion of the information provides:

That on or about 10:40 o’clock in the evening of July 24, 1998 in Poblacion

Evidence Page 96
 That on or about 10:40 o’clock in the evening of July 24, 1998 in Poblacion
Norte, Municipality of Maddela, Province of Quirino, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, four of
them are armed and after first conspiring, confederating and mutually helping
one another and with force and violence did then and there willfully,
unlawfully and feloniously rob ROMUALDE ALMERON of his wallet and wrist
watch and LARRY ERESE of his wrist watch to the damage and prejudice of the
said ROMUALDE ALMERON and LARRY ERESE;

That on the occasion of the Robbery, the said accused, armed with firearms of
different caliber and after first conspiring, confederating and mutually helping
one another did then and there willfully, unlawfully and feloniously, shoot and
fire upon ROMUALDE ALMERON, LARRY ERESE and ORLANDO PASCUA
resulting to their instanteneous (sic) death and the injuries to the persons of
FERNANDO PERA and GILBERT CORTEZ.

On 20 October 1998, the accused filed a Motion to Quash[4] the above

information, alleging that the court did not legally acquire jurisdiction over
their persons. The accused contended they were neither caught in flagrante
delicto, nor did the police have personal knowledge of the commission of the
offense at the time when their warrantless arrests were effected.[5]

In an Order dated 25 August 1999, the RTC denied the above motion on the
ground that the assertion of lack of personal knowledge on the part of the
arresting officers regarding the commission of the crime is a matter of
defense, which should be properly taken up during the trial.[6]

When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert MOTION TO QUASH INFORMATION
Buduhan and Boyet Ginyang, with the assistance of their counsel de oficio, Warrantless arrest: NOT
entered their pleas of “Not Guilty” to the crime charged.[7] With respect to -caught in flagrante delicto
-no personal knowledge of the commission of the
accused Boy Guinhicna, counsel for the accused informed the trial court of offense
his death and thus moved for the dismissal of the charges against him.[8] --denied: it's a defense that should be properly taken
up during the trial
On the same date, the pre-trial conference was terminated and both parties
agreed on the following stipulation of facts, namely:

That the incident transpired at about 10:40 in the evening of July 24, 1998;
ARRAIGNMENT: NOT GUILTY
That the incident happened at Poblacion Norte, Maddela, Quirino;

That no firearm has been confiscated from any of the accused.[9]

Upon the submission of accused Boy Guinhicna’s Certificate of Death, [10] the RTC dismissed the
case against him on 14 February 2000. [11] Thereafter, trial of the case ensued.

The prosecution presented the following witnesses: (1) Cherry Rose Salazar,
an employee of the establishment where the crime was committed[12]; (2)
Senior Police Officer 1 (SPO1) Leo Saquing, a police officer at the Maddela
Police Station who investigated the crime committed[13]; (3) Dr. Fernando T.
Melegrito, the medical examiner who conducted the autopsies on the bodies
of the victims[14]; (4) Myrna Almeron, the widow of the victim Romualde
Almeron[15]; and (5) Laurentino Erese, Sr., the father of the victim Larry
Erese.[16]

The defense, on the other hand, presented: (1) appellant Robert

Buduhan[17]; (2) accused Boyet Ginyang[18]; (3) Police Inspector Ma.
Leonora Chua-Camarao, a Forensic Chemist of the Philippine National Police
(PNP) Crime Laboratory at Camp Crame, Quezon City[19]; (4) appellant Rudy
Buduhan[20]; and (5) Reynaldo Gumiho, an eyewitness who was allegedly
present at the scene of the crime shortly before the incident in question
occurred.[21]

The People’s version of the incident as narrated by its principal witness,

Cherry Rose Salazar (Cherry Rose), is as follows:

On 24 July 1998, Cherry Rose was working as a guest relations officer at the
RML Canteen, a beerhouse and a videoke bar in Maddela, Quirino.[22] At

Evidence Page 97
RML Canteen, a beerhouse and a videoke bar in Maddela, Quirino.[22] At
about 9:00 to 10:00 p.m., there were only two groups of men inside the
beerhouse.[23] The group that went there first was that of the
appellants,[24] which was composed of Robert Buduhan, who was wearing a
white T-shirt marked Giordano,[25] Rudy Buduhan, who was wearing a red T-
shirt,[26] a man wearing a blue T-shirt,[27] and another man wearing a blue
T-shirt with a black jacket.[28] The second group was composed of Larry
Erese and his companions Gilbert Cortez (alias Abe) and Fernando Pera (alias
Nanding).

At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese,
Robert approached them and poked a gun at Larry.[29] Immediately, the
man wearing a blue T-shirt likewise approached Cherry Rose’s Manager
Romualde Almeron (alias Eddie), who was seated at the counter.[30] The
man in blue poked a gun at Romualde and announced a hold-up.[31] Larry
then handed over his wristwatch to Robert. Instantaneously, all four men
from Robert’s group fired their guns at Larry and Romualde, which caused
them to fall down.[32] Abe and Nanding ran out of the RML Canteen when
the shooting occurred, and Cherry Rose hid below the table.[33]

SPO1 Leo T. Saquing[34] testified that on 24 July 1998, at 11:00 p.m., he and
SPO4 Alex M. Gumayagay were detailed as duty investigators at the Maddela
Police Station when Eddie Ancheta, a fireman, reported to them a shooting
incident at the RML Canteen in Barangay Poblacion Norte, Maddela,
Quirino. SPO1 Saquing and SPO4 Gumayagay then proceeded to the said
place. About 50 meters from the scene of the crime, they encountered four
male individuals who were running away therefrom.[35] The policemen
immediately halted the men and asked them where they came from. When
they could not respond properly and gave different answers, the policemen
apprehended them and brought them to the Maddela Police Station for
questioning and identification.[36] Afterwards, the policemen went back to
the RML Canteen to conduct an investigation therein.[37] Later that night,
the witnesses[38] of the shooting incident went to the police station and
they positively pointed to the four persons, later identified as Robert
Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants
in the said incident.[39]

Dr. Fernando Melegrito,[40] the Chief of Hospital at the Maddela Hospital,

testified that he conducted the autopsies on the bodies of the victims
Romualde Almeron, Larry Erese and Orlando Pascua.[41] With respect to
Romualde, Dr. Melegrito found that the former sustained a gunshot wound
1/2 x 1/2 centimeter in diameter, one inch above the right nipple,
perforating the fourth rib of the right chest, penetrating the superior aspect
of the right lung, the aorta of the heart, the midportion of the left lung and
exited through the back, two inches below the lower portion of the left
scapular region.[42] These findings were also contained in Romualde
Almeron’s Autopsy Report.[43] From the nature of the wound, Dr. Melegrito
concluded that the victim was near and was in front of the assailant when he
was fatally shot.

As regards Larry Erese, Dr. Melegrito testified that said victim sustained a
gunshot wound 1/2 x 1/2 centimeter in diameter in the sternal region of the
chest, between the third left and right rib, perforating the arch of the aorta
of the heart and penetrating the subcutaneous tissue of the left lower back
at the level of the seventh rib, where a slug (bullet)[44] was
extracted.[45] These findings were likewise contained in Larry Erese’s
Autopsy Report.[46]

Concerning the victim Orlando Pascua, Dr. Melegrito testified that the
gunshot wound that the former sustained resulted into a massive disruption
of the lung.[47] As presented in Pascua’s Autopsy Report,[48] the gunshot
wound was 1 x 1 inch in diameter, perforating the midportion of the fourth
rib of the left chest, macerating the three-fourth (3/4) portion of the left
lung, and penetrating the subcutaneous tissues of the left back at the level of
the third and fourth ribs, then the fourth and fifth ribs where pellets were

Evidence Page 98
the third and fourth ribs, then the fourth and fifth ribs where pellets were
extracted therein.

Myrna Almeron[49] testified that as a result of the untimely death of her

husband Romualde Almeron, which fact was evidenced by a Death
Certificate,[50] she incurred expenses for funeral services in the amount of
P38,000.00 and expenses during her husband’s wake in the amount of
P25,000.00. She also claimed that during the night of the shooting incident,
Romualde brought with him the amount of P50,000.00 in his wallet, but the
same was no longer recovered. Among these figures, however, Myrna
Almeron was only able to present a receipt for the expenses for funeral
services [51] and only in the amount of P26,000.00.

Laurentino Erese testified that during the wake of his deceased son, whose
death was evidenced by a Death Certificate,[52] he incurred funeral
expenses for Larry in the amount of P18,000.00.[53] From the wake to the
first death anniversary, the total expenses were claimed to be more or less
P100,000.00.[54] However, only the receipt for the above funeral
services[55] was offered.

The prosecution did not present the other surviving victims in the shooting
incident, namely Gilbert Cortez and Fernando Pera. The latter were fearful of
reprisals from unknown individuals. No evidence was likewise adduced on
their behalf. Also, the other employees who worked as guest relations
officers in the RML Canteen and who likewise witnessed the incident were
said to have absconded already.[56]

For the defense,

appellant Robert Buduhan[57] testified that on the evening of 24 July 1998,
he was at their boarding house in Poblacion, Maddela, Quirino, together with
Rudy Buduhan, Boyet Ginyang, and Boy Guinhicna. The group drank one
bottle of San Miguel Gin, and then went to sleep. Unknown to him and
Guinhicna, Rudy and Ginyang still went out to continue their drinking
sessions. While he was sleeping, Ginyang arrived and woke him up. Ginyang
told him that they had to go to the beerhouse where he (Ginyang) and Rudy
had been to because something might have happened to Rudy, as there was
a fight there. Robert, Ginyang and Guinhicna then proceeded to look for
Rudy. On their way there, at the junction of the National Highway, they
encountered some policemen who asked them where they were
headed. When Robert said that they were looking for Rudy, the policemen
told them to board the police vehicle and the group was given a ride. As it
turned out, Robert’s group was taken to the Municipal Jail of Maddela where
they were detained. The policemen went out to look for Rudy and they
likewise put him in jail. The following day, the policemen confiscated the
shirts worn by the group. They were also taken to Santiago City where
paraffin tests were conducted. On the evening of 26 July 1998, the
policemen went to the jail with three ladies who were asked to identify
Robert’s group. The ladies, however, did not recognize Robert and his
companions.

Boyet Ginyang[58] testified that on 24 July 1998, at 10:00 p.m., he and Rudy
went to a beerhouse in Maddela, Quirino. After ordering some drinks and
chatting, they suddenly heard gunshots from the outside. Looking towards
the direction of the sound, he saw somebody fall to the ground and at that
point, he and Rudy ran to get away from the place. While running towards
their boarding house, Rudy was stopped by an unknown armed person in a
white T-shirt. When Ginyang reached the boarding house, he roused
appellant Robert and Guinhicna from their sleep and asked them to go with
him and search for Rudy. Upon reaching the junction at the National
Highway, they were halted by a man who asked where they were
heading. After hearing their story, the man said they should wait for a
vehicle that would help them look for Rudy. When the vehicle arrived, he
and the others were brought to the municipal jail. Thereafter, Rudy was
likewise picked up by the police and detained with the group. On the
morning of 25 July 1998, three ladies were brought to the municipal jail to

Evidence Page 99
morning of 25 July 1998, three ladies were brought to the municipal jail to
identify his group, but the former did not recognize them. On the morning of
26 July 1998, Ginyang and his three companions were brought to Santiago
City where they were made to undergo paraffin testing. Afterwards, the
group was brought back to the municipal jail in Maddela, Quirino. Ginyang
also testified that the policemen took the shirts they wore on the night of 24
July 1998, but he could not remember when they did.

Police Inspector Maria Leonora Chua-Camarao[59] testified that she was the
one who conducted the examination proper of the paraffin casts taken from
Robert Buduhan, Rudy Buduhan, Boyet Ginyang and Boy Guinhicna. She
likewise brought before the trial court the original Letter Request[60] of the
Maddela Police Station for the conduct of paraffin casting; the Letter of
Request[61] addressed to the Officer-in-Charge the PNP Crime Laboratory in
Region 2 for the conduct of paraffin examination; and the paraffin casts of
subjects Rudy, Ginyang, Guinhicna and Robert.[62] Police Inspector Chua-
Camarao explained that the purpose of conducting a paraffin test was to
determine the presence of gunpowder residue in the hands of a person
through extraction using paraffin wax. The process involves two stages: first,
the paraffin casting, in which the hands of the subject are covered with
paraffin wax to extract gunpowder residue; and second, the paraffin
examination per se, which refers to the actual chemical examination to
determine whether or not gunpowder residue has indeed been
extracted. For the second stage, the method used is the diphenyl amine test,
wherein the diphenyl amine agent is poured on the paraffin casts of the
subject’s hands. In this test, a positive result occurs when blue specks are
produced in the paraffin casts, which then indicates the presence of
gunpowder residue. When no such reaction takes place, the result is
negative.

The findings and conclusion on the paraffin test that Police Inspector Chua-
Camarao conducted were contained in Physical Science Report No.
C-25-98[63] which yielded a negative result for all the four
accused. Nonetheless, the forensic chemist pointed out that the paraffin test
is merely a corroborative evidence, neither proving nor disproving that a
person did indeed fire a gun. The positive or negative results of the test can
be influenced by certain factors, such as the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate
conditions, the length of the barrel of the firearm or the open or closed
trigger guard of the firearm.[64]

Appellant Rudy Buduhan testified that at past 10:00 p.m. of 24 July 1998, he
and Ginyang went to a beerhouse. Shortly after ordering their drinks, they
heard gunshots, and a person seated near the door fell. They then ran
towards the road.[65] While running, an armed man wearing a white T-shirt
held him, while Ginyang was able to get away.[66] After a while, the police
arrived and they took him to the Maddela police station where he was jailed
along with Robert, Ginyang and Guinhicna.[67] The rest of his testimony
merely corroborated the testimonies of Robert and Ginyang.

Reynaldo Gumiho (Reynaldo)[68] testified that on the evening of 24 July

1998, he was in Poblacion, Maddela, Quirino, for a business transaction
involving the sale of a 6x6 truck with a certain alias Boy. At about 8:00 p.m.,
Reynaldo and Boy proceeded to a beerhouse in Maddela. After settling with
their drinks, Reynaldo heard a group of five men near their table who were
conversing and he recognized from the accent of their voices that they were
from Lagawe (Ifugao). One of the men then told him that they should leave
after finishing their drinks because the former were looking for someone
who killed their relative. Reynaldo disclosed that he recognized one of the
persons whom he usually saw in Lagawe, and that the group was composed
of relatively tall people who were mostly wearing jackets. Not long after,
Reynaldo and Boy left the beerhouse so as not to get involved in any
trouble. Two days after he left Maddela, Reynaldo learned of the shooting
incident in the beerhouse.

Evidence Page 100

In a Decision dated 24 July 2003, the trial court found appellants guilty of the
charges, the dispositive portion of which reads:

WHEREFORE, premises considered, the court renders judgment as follows:

1) Finding accused Robert and Rudy, both surnamed Buduhan, GUILTY beyond
reasonable doubt of the special complex crime of Robbery with Homicide (Par.
1 Article 294 of the Revised Penal Code) with respect to the deceased Larry
Erese and sentences each of them to suffer the penalty of reclusion perpetua;

2) As to the victim Romualde Almeron, the court also finds them GUILTY
beyond reasonable doubt of Homicide (Article 249 of the Revised Penal Code)
and sentences each of them to the indeterminate penalty of 12 years of Prision
Mayor as minimum to 20 years of Reclusion Temporal as maximum;

However, they shall be entitled to a deduction of their preventive

imprisonment from the term of their sentences in accordance with Article 29
of the Revised Penal Code, as amended by R.A. No. 6127.

3) To pay jointly the heirs of Larry Erese the amount of P50,000.00 as civil
indemnity, P25,000 as exemplary damages, P18,000 as actual expenses and
P5,000 as temperate damages; and the heirs of Mr. Almeron: P50,000 as civil
indemnity, P25,000 as exemplary damages, P38,000.00 as actual expenses and
P5,000.00 as temperate damages.

With costs against them.

However, with respect to accused Boyet Ginyang, the court ACQUITS him of
the offense charged since the prosecution had failed to overcome, with the
required quantum of evidence, the constitutional presumption of
innocence. Consequently, the Chief of the BJMP, Cabarroguis, Quirino, is
hereby ordered to immediately release him from confinement unless being
held for some other lawful cause; and to make a report hereon within three (3)
days from receipt hereof.[69]

On 1 August 2003, the appellants filed a Notice of Appeal[70] raising

questions of law and facts.

On 7 June 2004, the Court initially resolved to accept the appeal, docketed as
G.R. No. 159843,[71] and required the appellants to file their Brief.[72]

However, on 5 October 2005, we resolved to transfer the case to the Court of

Appeals in view of our ruling in People v. Mateo.[73] The case was then
docketed as CA-G.R. CR-HC No. 01940.

On 29 December 2006, the Court of Appeals rendered its decision, the

dispositive portion of which reads:

WHEREFORE, premises considered, the July 24, 2003 Decision of the Regional
Trial Court of Maddela, Quirino, Branch 38, in Civil Case No. 39-18, is hereby
MODIFIED only in that, in addition to the award already given by the trial
court, in consonance with current jurisprudence, the heirs of ERESE are also
entitled to moral damages of P50,000 and in addition to the award already
given by the trial court, the heirs of ALMERON are also entitled to moral
damages of P50,000.00.

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as
amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became
effective on October 15, 2004, this judgment of the Court of Appeals may be
appealed to the Supreme Court by notice of appeal filed with the Clerk of
Court of the Court of Appeals.[74]

From the Court of Appeals, the case was then elevated to this Court for
automatic review. In a Resolution[75] dated 5 September 2007, we required
the parties to file their respective supplemental briefs, if they so desired,
within 30 days from notice.

In a Manifestation[76] filed on 30 October 2007, the People informed the

Court that it will no longer file a supplemental brief, as the arguments raised

Evidence Page 101

 Court that it will no longer file a supplemental brief, as the arguments raised
by appellants had already been discussed in the brief[77] filed before the
Court of Appeals.

Appellants, on the other hand, filed their supplemental brief on 28 November 2007.

As a final plea for their innocence, appellants ask this Court to consider the following assignment of
errors:

I.

IN GIVING COMPLETE CREDENCE TO THE TESTIMONY OF THE PRINCIPAL WITNESS OF THE

PROSECUTION DESPITE THE PRESENCE OF FACTS TAINTING THE CREDIBILITY OF THE
WITNESS.

II.

IN DISREGARDING THE DEFENSE OF THE APPELLANTS, WHICH WAS CORROBORATED BY

THE FINDINGS OF THE FORENSIC CHEMIST.

III.

IN FAILING TO MAKE A DIRECT RULING ON THE MOTION OF THE ACCUSED TO QUASH THE
INFORMATION ON THE GROUND THAT THE ARREST OF THE ACCUSED WITHOUT A
WARRANT OF ARREST IS ILLEGAL AS THERE WAS NO PERSONAL KNOWLEDGE OF THE
ARRESTING OFFICERS REGARDING THE COMMISSION OF THE CRIME.

To state differently, appellants argue that their guilt was not proven beyond reasonable doubt in view of
the trial court’s error in the appreciation of the evidence for and against them. They fault the trial
court’s over-reliance on the testimony of the prosecution’s main witness and its failure to consider the
glaring inconsistencies in Cherry Rose’s previous accounts of the shooting incident.

The appeal lacks merit.

Appellants insist that Cherry Rose is not a credible witness in view of the
conflicting answers she gave in her sworn statement before the police,[78] in
the preliminary investigation of the case and in her testimony in open
court. They contend that the trial court failed to scrutinize the entirety of
the statements made by Cherry Rose vis-à-vis the shooting incident.

Appellants called attention to the fact that during the preliminary

investigation of the case, Cherry Rose stated that a man wearing a white
Giordano T-shirt shot Larry after Larry handed his
wristwatch.[79] Thereafter, when Cherry Rose was asked whom she saw
wearing a white Giordano T-shirt, she pointed to Boy Guinhicna.[80] With
respect to appellant Robert Buduhan, Cherry Rose identified him as the one
who shot Orlando Pascua.[81]

In the testimony of Cherry Rose in open court, however, she identified

appellant Robert as the man who was wearing a white Giordano T-shirt and
who shot Larry Erese.[82]

Also, in Cherry Rose’s sworn statement before the police, she narrated that
the group of the appellants, consisting of five persons, was already inside the
RML Canteen before the shooting incident occured.[83] However, in her PIS: On the alleged conflicting answers of CHERRY
direct examination, Cherry Rose stated that appellant Robert had only three ROSE: sworn statement before the police,
statement in the PI and her testimony in open
other companions.[84]
court

Finally, in the preliminary investigation, appellants pointed out that Cherry DURING PI:
Rose unhesitatingly admitted that Larry Erese was her intimate boyfriend and Cherry Rose stated that a man wearing a white
Giordano T-Shirt shot Larry, and pointed to Boy
that was why she embraced him after the latter was shot.[85] Guinhicna as that person
Robert Buduhan was the one who allegedly shot
In her cross-examination, however, Cherry Rose stated that Larry was only a Orlando Pascua
customer and not her boyfriend.[86] When questioned about her prior Vs.
IN OPEN COURT:
statement about this fact given during the preliminary investigation, Cherry Robert shot Larry Erese, and he's the one wearing
Rose changed her answer and said that Larry was indeed her boyfriend.[87] Giordano T-Shirt

Evidence Page 102

 Giordano T-Shirt

SWORN STATEMENT before POLICE

Taking all these circumstances into account, appellants argue that, judging The group of the appellants (5 of them) were
from the conflicting statements of Cherry Rose, the identification of the already inside the canteen
accused is highly doubtful. Vs.
OPEN COURT (DIRECT EXAM):
Robert had only 3 companions
We are not persuaded.
OPEN COURT (DIRECT EXAM):
As between statements made during the preliminary investigation of the Larry Erese was NOT her boyfriend
case and the testimony of a witness in open court, the latter deserves more Vs.
(PI: when clarified during CROSS?)
credence. Preliminary investigations are commonly fairly summary or Larry was HER BOYFRIEND
truncated in nature, being designed simply for the determination, not of guilt
beyond reasonable doubt, but of probable cause prior to the filing of an
information in court. It is the statements of a witness in open court which
deserve careful consideration.[88]

In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the
matter of inconsistent statements by a witness, is revealing:

Section 13. How witness impeached by evidence of inconsistent statements. —

Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements must
be related to him, with the circumstances of the times and places and the
persons present, and he must be asked whether he made such statements,
and if so, allowed to explain them. If the statements be in writing they must be
shown to the witness before any question is put to him concerning them.

The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common senseand is essential to protect the character of a
witness. His memory is refreshed by the necessary inquiries, which enable him to explain the
statements referred to and to show that they were made by mistake, or that there was no discrepancy
between them and his testimony.[89]

In the present case, the statements made by Cherry Rose during the preliminary investigation with
respect to the identities of the accused were not related to her during the trial. Indeed, it is only
during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry
Rose’s identification of the appellants in order to destroy her credibility as a witness. No opportunity
was ever afforded her to provide an explanation. Without such explanation, whether plausible or not,
we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no
reasonable explanation is given by a witness in reconciling her conflicting declarations that she should
be deemed impeached.[90]

In this regard, what the defense brought to Cherry Rose’s attention during the trial were her
contradictory statements about her romantic relationship with Larry Erese. As a result of this
confrontation, Cherry Rose changed her answer. We rule, however, that this inconsistency relates only
to an insignificant aspect of the case and does not involve a material fact in dispute.

Inasmuch as the above-stated mandatory procedural requirements were not complied with, the
credibility of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of
Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or
motive for her to bear false witness against them. As a matter of fact, Cherry Rose testified during
cross-examination that she did not personally know appellant Robert, and that she had first seen him
only during the night when the shooting incident took place.[91]

As the trial judge who penned the assailed decision did not hear the testimonies of the witnesses for the
prosecution,[92] the rule granting finality to the factual findings of trial courts does not find
applicability to the instant case.[93]

After a careful review of the entire records of this case, the Court finds no reason to disagree with the
factual findings of the trial court that all the elements of the crime of Robbery with Homicide were
present and proved in this case.

Robbery with Homicide is penalized under Article 294, paragraph 1 of the Revised Penal Code,[94]
which provides:

Art. 294. Robbery with violence against or intimidation of persons-Penalties. – Any

person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed, or when the robbery shall
have been accompanied by rape or intentional mutilation or arson.

Evidence Page 103

To warrant conviction for the crime of robbery with homicide, one that is primarily classified as a crime
against property and not against persons, the prosecution has to firmly establish the following elements:
(1) the taking of personal property with the use of violence or intimidation against the person;
(2) the property thus taken belongs to another;
(3) the taking is characterized by intent to gain or animus lucrandi; and
(4) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in
a generic sense, is committed.[95]

In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before,
during or after the robbery. It is immaterial that death would supervene by mere accident, or that the
victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a
homicide is committed by reason or on the occasion of the robbery, the felony committed is the special
complex crime of Robbery with Homicide.[96]

The original design must have been robbery; and the homicide, even if it precedes or is subsequent to
the robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the
robbery. The taking of the property should not be merely an afterthought, which arose subsequently to
the killing.[97]

With respect to the elements of the crime, the following excerpts from the direct testimony of Cherry
Rose clearly illustrates the same, viz:

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS –

Q: At that night of July 24, 1998 at around 10:40 in the evening, what were you doing
at RML Canteen?

A: I was entertaining a costumer sir. (nakatable)

xx xx

Q: Who was that person who requested you to entertain him?

A: Larry Erese sir.

Q: Do you recall if this Larry Erese have a companions (sic) that time?

A: Yes, sir.

Q: Name them?

A: Abe at Nanding sir.

Q: That night while you were entertaining them, this three (3) what transpired next?

A: An Ifugao approached us sir and he poke a gun at Larry Erese sir.

Q: And what did Larry Erese do when a gun was poke at him?

A: He gave his wrist watch sir.

Q: To whom did Larry Erese gave his wrist watch?

A: To the Ifugao who poke a gun at him sir.

xx xx

Q: Will you please go around and see if he is inside the courtroom and point at him?

A: The witness is pointing to a man [seated] at the back bench of the court and when
asked about his name he answered Robert Buduhan.

xx xx

Q: What was the attire of Robert Buduhan at that time?

A: White T-shirt sir.

Q: Can you name or can you recall any particular description of that T-shirt worn by
Robert Buduhan at that time?

xx xx

A: It was marked with Giordano sir.

xx xx

Evidence Page 104

Q: When Robert Buduhan approached Larry Erese and Larry Erese gave his wrist
watch, do you recall if Robert Buduhan have a companions (sic) at that time?

A: There was sir.

Q: How many of them?

A: Four (4) sir.

xx xx

Q: Where are these companions of Robert Buduhan at the time Robert Buduhan poke
a gun at Larry Erese?

A: The other one was there to my Manager [Romualde] Eddie Almeron sir.

Q: What was the attire of this person who approached Eddie Almeron, your Manager?

A: He was in blue sir.

xx xx

Q: He wore blue T-shirt?

A: Yes, sir.

xx xx

Q: What about the other two (2) companions of Robert Buduhan where are they?

A: They were inside sir.

Q: The first of the two (2) what is the attire?

A: Color red sir.

Q: What about the last one?

A: He was in blue T-shirt and with black jacket sir.

xx xx

Q: The person in red T-shirt whom you claim the companion of Robert Buduhan, can
you identify him?

A: Yes, sir.

xx xx

Q: Stand and point at him?

A: Witness pointed one of the accused sitting infront and when asked about his name
he answered Rudy Buduhan.

xx xx

Q: You mention about a person wearing blue T-shirt who approached your Manager
Eddie Almeron. What did he do first before he approached your Manager if [any]?

A: He poke a gun at our Manager sir.

Q: What did he tell to you (sic) Manager if any while poking a gun?

A: Holdup sir.

Q: Are they simultaneous in approaching Larry Erese and Eddie Almeron, this person
in blue T-shirt and the accused Robert Buduhan?

A: No, sir. Robert Buduhan approached first.

Q: And then the person in blue T-shirt likewise approached Eddie Almeron?

A: Yes, sir.

Evidence Page 105

 xx xx

Q: What transpired first before Larry Erese gave his wrist watch. The announcement
of holdup or the giving of his wrist watch?

A: The announcement of the holdup comes first sir.

Q: When Larry Erese gave his watch to Robert Buduhan with Robert Buduhan poking a
gun at Larry Erese, what transpired next?

A: They fired sir.

Q: Who fired?

A: All of them sir.

xx xx

Q: You mentioned a while ago that Robert Buduhan poke a gun at Larry Erese?

A: Yes, sir.

Q: Do you know the caliber of the gun?

A: It looks like a 38 but it is long sir.

Q: You likewise mention that the person in blue T-shirt poke a gun at Eddie Almeron?

A: Yes, sir.

Q: What about the person in red?

A: It looks like an armalite sir.

Q: What about the person in blue T-shirt with black jacket?

A: Armalite sir.

Q: When Rudy Buduhan fired his gun was there any person who was hit?

A: There was sir.

Q: Name that person?

A: Larry Erese sir.

Q: When the person in blue T-shirt who was poking a gun at Eddie Almeron fired his
gun was there any person who was hit?

A: There was sir.

Q: Who was that person who was hit?

A: Eddie Almeron sir.

xx xx

Q: How far is Robert Buduhan from Larry Erese when Robert Buduhan fired his gun?

A: He was arms like sir.

Q: You mention also about a person in blue T-shirt fired a gun at Eddie Almeron. How
far was he from Eddie Almeron when he fired his gun?

A: The witness pointed to a place in the courtroom.

xx xx

COURT –

About 2 to 3 meters?

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS –

Yes, 2 to 3 meters.

Evidence Page 106

 xx xx

Q: Do you know what happened to Larry Erese?

A: Yes, sir.

Q: Where is he now?

A: He was dead already sir.

Q: What about Eddie Almeron. Do you know what happened to him?

A: He was also dead sir.[98]

Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion
in blue T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of
a hold-up were what caused Larry to give his watch to Robert. At this point, there already occurred the
taking of personal property that belonged to another person, which was committed with violence or
intimidation against persons.

Likewise, the intent to gain may already be presumed in this case. Animus lucrandior intent to gain is an
internal act, which can be established through the overt acts of the offender.[99] The unlawful act of
the taking of Larry’s watch at gunpoint after the declaration of a hold-up already speaks well enough for
itself. No other intent may be gleaned from the acts of the appellant’s group at that moment other than
to divest Larry of his personal property.

The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court,
conspiracy was proved by the concurrence of the following facts: that the four men were together when
they entered the RML canteen; that they occupied the same table; that they were all armed during that
time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket
prevented the robbery or the killing of the victims; that all four fired their firearms when the robbery
was going on and that they fled all together and were seen running by the police before they were
intercepted just a few meters from the scene of the crime.

There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The same degree of proof necessary to prove the crime is required to
support a finding of criminal conspiracy. Direct proof, however, is not essential to show
conspiracy.[100] Proof of concerted action before, during and after the crime, which demonstrates
their unity of design and objective is sufficient.[101]

As the fatal shooting of both Larry Erese and Romualde Almeron happened on the occasion of the
robbery and was subsequent thereto, both of the appellants must be held liable for the crime of
Robbery with Homicide on two counts.

The defense of appellants of alibi is at best weak when faced with the positive identification of the
appellants by the prosecution’s principal witness. It is elemental that for alibi to prosper, the
requirements of time and place must be strictly met. This means that the accused must not only prove
his presence at another place at the time of the commission of the offense but he must also
demonstrate that it would be physically impossible for him to be at the scene of the crime at that
time.[102] In the present case, there was absolutely no claim of any fact that would show that it was
well nigh impossible for appellants to be present at the locus criminis. In fact, they all testified that they
were going towards the vicinity of the area of the shooting incident when the police apprehended them.

The testimonies of Robert Buduhan and Boyet Ginyang were also markedly inconsistent on the material
date as to when the witnesses in the shooting incident identified them. Robert Buduhan testified that
the three lady witnesses came to identify them at the municipal jail on the evening of 26 July
1998.[103] However, in the direct examination of Boyet Ginyang, he testified that said witnesses
arrived on the morning of 25 July 1998.[104] This fact only tends to lend suspicion to their already
weak alibi.

Appellants likewise cannot rely on the negative findings of Police Inspector Chua-Camarao on the
paraffin tests conducted in order to exculpate themselves. The said witness herself promptly stated that
paraffin test results are merely corroborative of the major evidence offered by any party, and they are
not conclusive with respect to the issue of whether or not the subjects did indeed fire a gun. As
previously mentioned, the positive and negative results of the paraffin test can also be influenced by
certain factors affecting the conditions surrounding the use of the firearm, namely: the wearing of
gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate
conditions, the length of the barrel of the firearm or the open or closed trigger guard of the firearm.

Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of
personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated
in People v. Salazar,[105] granting arguendo that appellants were illegally arrested, such arrest did not
invest these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree."
Considering that their conviction could be secured on the strength of the testimonial evidence given in
open court, which are not inadmissible in evidence, the court finds no reason to further belabor the
matter.

A determination of the appropriate imposable penalties is now in order.

Evidence Page 107

A determination of the appropriate imposable penalties is now in order.

The prescribed penalty for Robbery with Homicide under Article 294 of the Revised Penal Code, as
amended, is reclusion perpetua to death. In accordance with Article 63 of the Revised Penal Code, when
the law prescribes a penalty composed of two indivisible penalties, and there are neither mitigating nor
aggravating circumstances, the lesser penalty shall be applied.

The RTC and the Court of Appeals thus correctly imposed the penalty of reclusion perpetua.

As regards the charge for the death of Orlando Pascua and the injuries sustained by Fernando Pera and
Gilbert Cortez, the trial court aptly held that the prosecution failed to substantiate the same. No
witnesses were presented to testify as to the circumstances leading to the said incidents, and neither
were they proved to be caused by the criminal actions of the appellants.

The two courts below committed a mistake, however, in convicting the appellants separately of the
crime of Homicide for the death of Romualde Almeron. It bears stressing that in the special complex
crime of Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur
before, during or after the robbery. It is immaterial that death would supervene by mere accident, or
that the victim of homicide is other than the victim of robbery, or that two or more persons are
killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed
is the special complex crime of Robbery with Homicide.[106]

As to the award of damages, we hold that the heirs of Larry Erese and Romualde Almeron are each
entitled to the amount of P50,000.00 as civil indemnity ex delicto. This award for civil indemnity is
mandatory and is granted to the heirs of the victim without need of proof other than the commission of
the crime.[107]

We agree with the Court of Appeals’ grant of moral damages in this case even in the absence of proof
for the entitlement to the same. As borne out by human nature and experience, a violent death
invariably and necessarily brings about emotional pain and anguish on the part of the victim’s family. It
is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of
a violent or brutal killing.[108] The heirs of Erese and Almeron are thus entitled to moral damages in
the amount of P50,000.00 each.

On the award of actual damages, we hold that the heirs of Larry Erese are entitled to the award of
temperate damages for P25,000.00, in lieu of the lower amount of P18,000 that was substantiated by a
receipt. In People v. Villanueva,[109] we have laid down the rule that when actual damages proven by
receipts during the trial amount to less than P25,000.00, the award of temperate damages for
P25,000.00 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual
damages proven exceeds P25,000.00, then temperate damages may no longer be awarded. Actual
damages based on the receipts presented during trial should instead be granted.

However, with respect to the award of the amount of P38,000.00 to the heirs of Romualde Almeron, the
same is incorrect since the receipt presented therefor covers only the amount of P26,000.00. The award
of actual damages should be reduced accordingly. The grant of temperate damages to the heirs of
Almeron is thus deleted.

The award of exemplary damages is likewise deleted, as the presence of any aggravating circumstance
was neither alleged nor proved in this case.[110]

WHEREFORE, premises considered, the decision dated 29 December 2006 of the Court of Appeals in CA-
G.R. CR-HC No. 01940 is hereby MODIFIED as follows:

For the death of Larry Erese, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan are
found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each to suffer
the penalty of reclusion perpetua.

For the death of Romualde Almeron, appellants Robert Buduhan y Bullan and Rudy Buduhan y
Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced each
to suffer the penalty of reclusion perpetua.

Appellants shall be entitled to a deduction of their preventive imprisonment from the term of
their sentences in accordance with Article 29 of the Revised Penal Code, as amended by Republic
Act No. 6127.

Appellants are ordered to indemnify jointly and severally the heirs of Larry Erese as follows: (a)
P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P25,000.00 as temperate
damages.

Appellants are ordered to indemnify jointly and severally the heirs of Romualde Almeron as
follows: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P26,000.00 as
actual damages.

For reasons herein stated, appellants are ACQUITTED of the separate crime of Homicide for the
death of Romualde Almeron.

No costs.

SO ORDERED.

Evidence Page 108

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of the
Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

[1] Penned by Associate Justice Vicente Q. Roxas with Associate Justices Josefina Guevara-
Salonga and Apolinario D. Bruselas, Jr. concurring; rollo, pp. 3-13.
[2] Penned by Judge Menrado V. Corpuz; CA rollo, pp. 27-41.
[3] CA rollo, pp. 13-14.
[4] Records, Vol. 1, pp. 73-74.
[5] RULES OF COURT, Rule 113, Section 5 provides the instances when a warrantless arrest may
be lawfully made, to wit:
SEC. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.

Evidence Page 109

 has escaped while being transferred from one confinement to another.
[6] Records, Vol. 1, pp. 94-95.
[7] Id. at 116.
[8] Id. at 114.
[9] Id.
[10] Id. at 89.
[11] Id. at 125.
[12] TSN, 14 February 2000.
[13] TSN, 12 April 2000.
[14] TSN, 15 February 2000.
[15] TSN, 16 February 2000.
[16] Id.
[17] TSN, 23 May 2002.
[18] TSN, 19 June 2002.
[19] TSN, 9 July 2002.
[20] TSN, 23 August 2002.
[21] TSN, 10 January 2003.
[22] TSN, 14 February 2000, p. 7.
[23] Id. at 24.
[24] Id. at 35.
[25] Exhibit “A” for the prosecution.
[26] TSN, 14 February 2000, p. 13.
[27] Id. at 11.
[28] Id. at 12.
[29] Id. at 9.
[30] Id. at 11, 39.
[31] Id. at 14.
[32] Id. at 17.
[33] Id. at 17-18.
[34] TSN, 12 April 2000, pp. 3-16.
[35] Joint Affidavit of SPO3 Alex M. Gumayagay and SPO1 Leo T. Saquing, Exhibit “M” for the
Prosecution, Records, Vol. 1, p. 15.
[36] Id. at 4-5.
[37] Id. at 16.
[38] Cherry Rose Salazar, Maureen Pasion and Marveloza Lopez. (TSN, 12 April 2000, p. 15.)
[39] TSN, 12 April 2000, p. 5.
[40] TSN, 15 February 2000, pp. 4-5.
[41] The circumstances of Orlando Pascua’s death were not testified to by any of the witnesses
for the prosecution during the trial. It was during the preliminary investigation of the case before the
sala of the Municipal Circuit Trial Judge Moises M. Pardo when Maureen Pasion, an employee of the
RML Canteen, narrated how the assailants shot Orlando Pascua. (Records, Vol. 1, pp. 46-49). The
prosecution no longer presented said witness.
[42] TSN, 15 February 2000, p. 4.
[43] Exhibit “D” for the Prosecution, Records, Vol. 1, p. 59.
[44] Exhibit “F” for the Prosecution.
[45] TSN, 15 February 2000, p. 5.
[46] Exhibit “E” for the Prosecution, Records, Vol. 1, p. 60.
[47] TSN, 15 February 2000, p. 6.
[48] Exhibit “G” for the Prosecution, Records, Vol. 1, p. 122.
[49] TSN, 16 February 2000, pp. 6-9.
[50] Exhibit “I” for the Prosecution, Records, Vol. 2, p. 339.
[51] Exhibit “J” for the Prosecution, Records, Vol. 2, p. 340.
[52] Exhibit “K,” id. at 341.
[53] TSN, 16 February 2000, p. 18.
[54] Id. at 17.
[55] Exhibit “L” for the Prosecution.
[56] Records, Vol. 1, pp. 205-206.
[57] TSN, 23 May 2002, pp. 7-26.
[58] TSN, 19 June 2002, pp. 8-20.
[59] TSN, 9 July 2002, pp. 6-12.
[60] Exhibit “2” for the Defense, CA rollo, p. 92.
[61] Exhibit “2-A” for the Defense, Records, Vol. 2, p. 312.
[62] Exhibits “2-B,” “2-C,” “2-D,” and “2-E,” respectively, Records, Vol. 2, pp. 313-327.
[63] Exhibit “1” for the Defense, Records, Vol. 1, p. 310.
[64] TSN, 9 July 2002, pp. 13-16.
[65] TSN, 23 August 2002, p. 7.
[66] TSN, 9 July 2002, pp. 8-9.
[67] Id. at 10-11.
[68] TSN, 10 January 2003, pp. 3-10.
[69] CA rollo, pp. 40-41.
[70] Id. at 42.
[71] Id. at 44.
[72] Id. at 46.
[73] In the said case, we ruled thus:
While the Fundamental Law requires a mandatory review by the Supreme Court of cases
where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere,
however, has it proscribed an intermediate review. If only to ensure utmost circumspection
before the penalty of death, reclusion perpetua or life imprisonment is imposed, the Court
now deems it wise and compelling to provide in these cases a review by the Court of
Appeals before the case is elevated to the Supreme Court. Where life and liberty are at
stake, all possible avenues to determine his guilt or innocence must be accorded an
accused, and no care in the evaluation of the facts can ever be overdone. A prior
determination by the Court of Appeals on, particularly, the factual issues, would minimize

Evidence Page 110

 determination by the Court of Appeals on, particularly, the factual issues, would minimize
the possibility of an error of judgment. If the Court of Appeals should affirm the penalty of
death, reclusion perpetua or life imprisonment, it could then render judgment imposing
the corresponding penalty as the circumstances so warrant, refrain from entering
judgment and elevate the entire records of the case to the Supreme Court for its final
disposition. (G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640, 656). (Emphasis ours).
[74] Rollo, pp. 12-13.
[75] Id. at 18.
[76] Id. at 19-21.
[77] CA rollo, pp. 103-119.
[78] Exhibit “C-C2” for the Prosecution, records, Vol. 1, pp. 10-12.
[79] Minutes of the Preliminary Investigation, records, Vol. 1, p. 43.
[80] Id. at 44.
[81] Id. at 45.
[82] TSN, 14 February 2000, p. 9, 15.
[83] Sworn Statement of Cherry Rose Salazar, Exhibit “C-C2” for the Prosecution, records, Vol. 1,
p. 11.
[84] TSN, 14 February 2000, p. 10.
[85] Minutes of the Preliminary Investigation, records, Vol. 1, pp. 43-44.
[86] TSN, 14 February 2000, p. 29.
[87] Id. at 30-33.
[88] People v. Villanueva, G.R. No. 96469, 21 October 1992, 215 SCRA 22, 28-29.
[89] People v. de Guzman, 351 Phil. 587, 596 (1998).
[90] Id. at 596-597.
[91] TSN, 14 February 2000, pp. 35-36.
[92] The Honorable Theresa Dela Torre-Yadao heard the prosecution witnesses’ testimonies
before the Honorable Menrado V. Corpuz took over and eventually penned the decision.
[93] See People v. Navarro, 357 Phil. 1010, 1024 (1998).
[94] As amended by paragraph 1 of Section 9 of Republic Act No. 7659 (An Act to Impose the
Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Laws, as
Amended, Other Special Penal Laws, and for Other Purposes).
[95] People v. Lara, G.R. No. 171449, 23 October 2006, 505 SCRA 137, 154, citing People v. Del
Rosario, 411 Phil. 676, 685 (2001).
[96] People v. Cabbab, Jr., G.R. No. 173479, 12 July 2007, 527 SCRA 589, 604, citing People v. De
Jesus, G.R. No. 134815, 27 May 2004, 429 SCRA 384, 403.
[97] People v. Lara, supra note 95, citing People v. Consejero, 404 Phil. 914, 932-933 (2001).
[98] TSN, 14 February 2000, pp. 8-18.
[99] People v. Gavina, 332 Phil. 488, 495 (1996).
[100] People v. Ponce, 395 Phil. 563, 571-572 (2000).
[101] Id.
[102] People v. Fuertes, 357 Phil. 603, 612-613 (1998).
[103] TSN, 23 May 2002, p. 20.
[104] TSN, 19 June 2002, p. 15.
[105] 342 Phil. 745 (1997).
[106] People v. Jabiniao, G.R. No. 179499, 30 April 2008.
[107] People v. Opuran, 469 Phil. 698, 720 (2004).
[108] People v. Piedad, 441 Phil. 818, 839 (2002), cited in People v. Rubiso, 447 Phil. 374, 383
(2003).
[109] 456 Phil. 14, 29 (2003).
[110] Article 2230 of the Civil Code provides:
ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may
be imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party.

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2008/august2008/178196.htm>

Evidence Page 111

Reference to Memorandum
Monday, September 21, 2009
4:40 PM

Figueras vs. Serrano

People vs. Odencio

Evidence Page 112

 FIGUERRAS V SERRANO (1928)
Figueras vs. Serrano
Written memoranda made at or about the time of the transaction to which they relate are
Monday, September 21, 2009 sometimes admitted in evidence to corroborate the testimony of the person by whom they
4:41 PM were made (22 C J 896).
In this case, the exhibits for the plaintiff were not admitted since they were not
contemporaneous, and the plaintiff who made the memoranda noted therein did not even
testify concerning them. On the other hand, the exhibits for the defendant were admitted
PHILIPPINE JURISPRUDENCE - FULL TEXT because, in addition to being sufficiently identified by the persons who made them at the
The Lawphil Project - Arellano Law Foundation time of the doctor’s visits, their appearance, details, and the fact that they were made at the
G.R. No. 28208 September 3, 1928 time of the visits so recorded, render them competent corroborative evidence.

GREGORIO FIGUERAS vs. SIMEON SERRANO ON THE OTHER HAND, the records in BRISTOL ALMANACS recorded by the former clerk of
the Serranos and testified by him in open court, was admitted by the court, it appearing that
these were made at the time of each visit, plus details on each visit such as the time and
date…and the clerk was enjoined to record these visits...

Republic of the Philippines

SUPREME COURT COMPLAINT FOR COLLECTION filed by FIGUERAS
Manila -for medical services amounting to P52,229 plus
EN BANC interest damages and cost of suit
G.R. No. 28208 September 3, 1928
GREGORIO FIGUERAS, plaintiff-appellee, COUNTERCLAIMS
vs. 1. For P10k damages as Figueras' suit prevented/delayed
SIMEON SERRANO, as administrator of the Estate of Leandro Serrano, defendant-appellant. the partition of the estate of LEANDRO SERRANO
Abad Santos, Camus, Delgado and Recto, Jesus O. Serrano and Bernardino Quitoriano for appellant. among his heirs
Julio Borbon for appellee. 2. For P200k damages for negligence, with PRIMITIVA
SERRANO losing her eyesight
ROMUALDEZ, J.:
This is an action to collect the balance of professional fees, for medical services amounting to P52,229,
with P7,310 interest, plus P5,000 damages, and the costs of the action.

Besides filing a general denial and a special defense, the defendant sets up two counterclaims: One for
P10,000 damages on account of the plaintiff's having prevented the partition of the estate of the
deceased Leandro Serrano among his heirs, by means of a groundless, unreasonable claim of fees; and
another for P200,000 damages also, on the ground that Primitiva Serrano lost her eyesight completely,
due to lack of diligence and precaution on the plaintiff's part in not having given her proper treatment, in
consequence of which the patient suffered hardships and moral depression.

The judgment of the Court of First Instance of Ilocos Sur which tried the case, reads as follows:

The plaintiff acquiesced in this decision, but not so the defendant, who appeals assigning the following
errors as committed by the trial court:
1. In not dismissing the complaint for lack of jurisdiction, there being no evidence that the appellee's
appeal from the decision of the committee of claims of the testate proceeding for the settlement of the
estate of the deceased Leandro Serrano, was taken within the legal period.
2. In admitting as evidence for the appellee, Exhibits C, H, I, J, K and N, and in not finding that these
exhibits are false and apocryphal.
3. In holding that the appellee and the deceased Leandro Serrano agreed that said appellee would be
entitled to charge P4 for each of the 27 kilometers between Vigan and Cabugao, for the services he
would render Primitiva Serrano.
4. In admitting as evidence Exhibits Q and R, A, B, E, F, G, L, M, O, P, S, T, U, W, W-1, W-2, X, Y, Z, Z-1, Z-2,
CC, DD, and EE, presented by the appellee.
5. In finding that the appellee made 134 medical visits to Primitiva Serrano in Cabugao, and 195 in
Vigan, and that during these 195 visits the appellee gave Primitiva Serrano 161 electrical treatments,
120 intramuscular injections, 132 treatments and 192 treatments of both eyes.
6. In not finding that the appellee made no more than 26 medical visits in Cabugao and 90 visits in
Vigan, and that on commencing the treatment of Primitiva Serrano, said appellee agreed to charge P20
for each visit in Cabugao and P2 for each visit in Vigan when the patient was brought to the latter
municipality.
7. In holding that, besides the medical service rendered to Primitiva Serrano by the appellee, he treated
Leandro Serrano also, having made 126 visits in Cabugao.
8. In holding that the reasonable price of the electrical treatments, injections and eye treatments is P15
for each treatment, P5 for each injection, and P2 for each eye treatment.
9. In ordering appellant to pay appellee P19,144 with interest and the costs of the action when it should
have held the appellee's fee are already fully paid.
10. In not holding upholding appellant's counterclaim and in not ordering the appellee to pay the sum
claimed therein.

According to the complaint, the services for which compensation is here claimed consist in medical
attendance during the years 1919, 1920, and 1921, on Primitiva Serrano as well as on her father Leandro
Serrano, for which purpose the plaintiff, who at that time lived in Vigan, had to make many trips to the
town of Cabugao, 27 kilometers distant from where said patients lived. Leandro Serrano is now dead, F: As alleged by Figueras, he allegedly treated
and the complaint here is directed against his estate, represented by the defendant administrator. It is PRIMITIVA SERRANO, as well as her father
also alleged therein that Leandro Serrano promised to pay for plaintiff's trip to the town of Cabugao at LEANDRO (who was already dead at the time of
the rate of P4 per kilometer. the suit), and gave treatments and injections for
the former's eyes. As he lived in Vigan and the
The principal evidence adduced to prove this promise is the letter Exhibit C which is alleged to be Serranos lived in Cabugao, 27km away, he
addressed to the plaintiff and signed by Leandro Serrano. The defendant assails the authenticity of this allegedly was to be paid for the trip he had to
letter and the signature at the bottom thereof. Indeed, we notice as to the context that the typewritten make from Vigan to Cabugao.
characters therein are very similar to those of Exhibit 2. (p. 184 of the record) which is a letter written by -As proof, Figueras presented EXHIBIT C (A
the plaintiff's brother. The difference we observe in the typewriting of these documents consists in that LETTER) alleged to be addressed to Figueras and
in Exhibit C the type is more worn, thus suggesting the fact that it was written later. The prior date signed by LEANDRO SERRANO. -SERRANOS ASSAIL
appearing in it does not preclude this conclusion, for any date, past or future, may at a given time be THE AUTHENTICITY OF THE LETTER AND THE
written on any document. SIGNATURE AT THE BOTTOM OF THE LETTER!
-the context that the typewritten characters
therein are very similar to those of Exhibit 2

Evidence Page 113

A careful examination of Exhibit C reveals some details which bear out the presumption that it was therein are very similar to those of Exhibit 2
written on the same typewriter as document Exhibit 2.

And the changes and erasures which have not been satisfactory explained, likewise argue against the
admissibility of this exhibit.

The remarkable resemblance almost identical, in point of size and contour, between the signature in
Exhibit C and the one in Exhibit J, as may be clearly seen by placing one upon the other, casts serious EXHIBIT C: Court think it's not genuine!!!
doubts on its genuineness. It seems hardly probable that Leandro Serrano should have been able to
write two signatures so exactly alike, not only in the curvature at the base of the letters, and in the form
of the small as well as the capital letters, but also in the distance between them, the space they occupy,
and the slant of the strokes of the whole signature as well as of each letter thereof, and even in the
length, contour, and other details of the paraph.
Figueras had burden of proving that EXHIBIT
C is admissible, when the signature on the
As these details strongly indicate that Exhibit C is not genuine, we cannot consider it as reliable proof in
instrument appears to have been forged
this case. The burden of proof was on plaintiff to show, at least by a preponderance of evidence, that
this document was admissible evidence of record, and, in this case the preponderance militates against
the document.

It cannot be held proven, therefore, that Leandro Serrano promised to pay the plaintiff P4 for every
kilometer of his trips to Cabugao on his medical visits.

The preponderance of admissible evidence of record is to the effect that the cost of each of such visits
to Cabugao is about P25. Considering plaintiff's social standing, he was entitled to use an automobile as
the most adequate mode of transportation.

Exhibits Q and R are objected to by the defendant as not duly identified and as incompetent evidence. EXHIBITS Q AND R: NOT DULY IDENTIFIED AND AS
It is true that the witnesses Parto and Florendo testified that they recognized the writing in said INCOMPETENT EVIDENCE: THE WRITINGS ON THOSE
notebooks as plaintiff's, but there is no proof that the notes in these exhibits were written with the ALLEGED NOTES BY FIGUERAS, THOUGH ALLEGED TO
knowledge and consent, or even in the presence, of Leandro Serrano. Neither does it appear that such HAVE BEEN MADE ON DIFFERENT OCCASIONS AND AT
notes were made at the time of the visits and professional services referred to therein, or that they DIFFERENT PERIODS OF TIME, HAVE UNIFORM
were written about that time. And the appearance of the writing in these books (Exhibit Q and R ) does HANDWRITING AND COLOR OF INK!
not show that such notes were made therein on different occasions and at different periods of time, -to be admissible, such entries must be proven to
considering the noticeable uniformity of the handwriting and of the color of the ink used (in Exhibit Q), have been made at or about the time of transactions
in almost all the entries, notwithstanding the fact that these entries cover a period of over one year. to which they relate
-NOTE: other W testified to it, not Figueras!
It is absolutely necessary for the admission of such entries to prove that they were made at or about the -these notes WERE PRESENTED ALLEGEDLY TO PROVE
time of the transaction to which they relate. Once this is proven they may be admitted to corroborate THE NUMBER OF VISITS MADE BY FIGUERAS
the testimony of the person who made them.

Written memoranda made at or about the time of the transaction to which they relate are sometimes
admitted in evidence to corroborate the testimony of the person by whom they were made. (22 C.J.,
869.)

But the fact is that Exhibits Q and R not only do not meet the requirement as to being
contemporaneous, but it appears that the plaintiff who made the memoranda noted therein did not
even testify concerning them.

These exhibits cannot, therefore, be taken into consideration to determine the number of visits made by
the plaintiff nor that of the times he rendered professional services. The W presented were drivers who took Figueras
to Cabugao. They testified to corroborate the
The appellee alleges that said entries are corroborated by the witness Florendo, Formoso, Figueras and Figueras notebook. The fact that Figueras made
Arcebal, the first three of whom, chauffeurs who successively took the plaintiff to Cabugao, among trips to Cabugao was also admitted by the
themselves fixed the total number of trips to Cabugao at about one hundred, and Arcebal testified that defendant. THE ISSUE IS HOW MANY TRIPS
at the time in question, he saw the plaintiff stop in front of the municipal building of Cabugao two or FIGUERAS MADE
three times a week, going in the direction of Leandro Serrano's house. The number of times testified to
by these witnesses, is, as it could not otherwise be as inferred from their own testimony, mere
conjecture, without sufficient assurance of approximation, much less exactness. What these witnesses
definitely established and wherein they corroborate the notebooks Exhibits Q and R, is that the plaintiff
made trips to Cabugao, a fact admitted by the defendant. But as to the number of said trips, which is the
point in question, the testimony of these witnesses, with all its uncertainty on this point, cannot be
considered as either direct or corroborative evidence.

We therefore find that the plaintiff's evidence does not supply data legally competent to ascertain the
number of times he was in Cabugao to render professional services to Primitiva Serrano.

According to the defendant's evidence consisting of Exhibits 6, 7, 9 and 10, identified by Pedro Suero Defendants Serranos presented entries entered
and Simeon Serrano, the plaintiff made twenty-six medical visits to Primitiva Serrano in Cabugao, and by the former clerk which was enjoined to note
ninety in Vigan. Not only are these Exhibits 6, 7, 9 and 10, identified, but it appears from the testimony down in during the years 1919 and 1920:
of Pedro Suero, that he, as former clerk to Leandro Serrano, was enjoined to note down in Exhibits 6 *the name of Gregorio Figueras
and 7, which are Bristol Almanacs for the years 1919 and 1920, the name of Gregorio Figueras, *whenever said Physician paid a professional visit
whenever said physician paid a professional visit to Primitiva Serrano in Cabugao that he used to to Primitiva Serrano in Cabugao
record plaintiff's medical visits to witness' sister, Primitiva Serrano, in Vigan, in the almanacs Exhibits *time when the visits were made
9 and 10 with the initial G and the letters "a.m." or "p.m." according as they were made in the >>>COMPETENT:
morning or afternoon. 1. Sufficiently identified by the persons who made
them at the time of the visits
Unlike the entries in Exhibits Q and R, those of Exhibits 6, 7, 9 and 10, are competent evidence, because, 2. Appearance, details and the fact that they were
in addition to being sufficiently identified by the persons who made them at the time of the visits, made at the time o the visits so recorded
their appearance, details, and the fact that they were made at the time of the visits so recorded,
render them competent corroborative evidence under the rule above quoted from Corpus Juris (22 C.J.,
896) and in accordance with the provision of section 279 of our present Code of Civil Procedure.

Consequently we conclude that the number of visits proven in these proceedings is 26 in Cabugao and

Evidence Page 114

Consequently we conclude that the number of visits proven in these proceedings is 26 in Cabugao and
90 in Vigan, and that the evidence shows that the plaintiff is entitled to receive P25 for each visit to
Primitiva Serrano in Cabugao and P2 for each visit to her in Vigan, or a sum total of P830, as
professional fees. It has not been sufficiently proven that these amounts do not include the fees for the
treatment given on such visits, nor that the reasonable price of electrical treatments, injections and eye
treatments (which in themselves are not sufficiently established) is P15 for each electrical treatment, P5
for each injection, and P2 for each eye treatment.

It does not appear sufficiently established that the plaintiff rendered medical service to Leandro
Serrano.

With regard to the appellant's allegation of lack of jurisdiction, the lower court could take judicial notice
of the administration proceedings in which the estate was represented by the defendant and when that
court proceeded to hear this case on appeal from the committee on claims, it must be presumed that in
doing so, taking judicial notice of the legality of the appeal, it acted in the performance of its duty, and
within the scope of its jurisdiction. (Sec. 334, Nos. 14 and 15, Code of Civil Procedure.) And this
presumption not having been rebutted by evidence to the contrary, it sufficiently proves the allegation
in the first paragraph of the complaint relative to the perfection of the present appeal from the
committee on claims.

We agree with the court a quo that the defendant's counterclaims have been sufficiently proven.
Having rendered our decision on the determining points of the case, we deem it unnecessary for the
purposes of this decision to take up the other assignments of error in detail.

It appearing that the plaintiff admitted, and that the trial judge so held without any objection from said
plaintiff, that the latter has already been paid the sum of P1,025 on account of the fees here in question,
and as the sum of P830 as above stated to which he is thus entitled is less than that, said fees have
already been amply satisfied.

Therefore, the judgment appealed from is modified, and defendant is absolved from the complaint, with
costs against the plaintiff. So ordered.
Avanceña, C. J., Johnson, Street, Ostrand, and Villa-Real, JJ., concur.

Separate Opinions
MALCOLM, J., dissenting:
The issue in this case is the reasonable value of the professional services performed by Dr. Gregorio
Figueras for Leandro Serrano. The issue is not as to whether Dr. Gregorio Figueras is criminally guilty of
fabricating the much discussed Exhibit C. With or without Exhibit C, there is sufficient evidence,
including the physician's book of account, which establishes satisfactory the approximate number of
visits made by Doctor Figueras to Mr. Serrano and the proper amount for each visit. (30 Cyc., 1603.) The
total demanded by Doctor Figueras of the estate of Mr. Serrano coming to over P60,000 is grossly
exaggerated. Even the sum of P19,144 granted by trial judge is too high. Yet there is no need to be so
carried away by an enthusiastic desire to condemn unethical and unprofessional practices in making
evidence to establish claims when no such evidence is necessary, as to throw out the action entirely and
concede nothing to Doctor Figueras. Figuring on a basis of approximately two hundred visits to Cabugao,
the home of the deceased, at P20 a visit and nearly the same number of consultation at the office of the
physician at P2 a consultation, and adding a reasonable sum for special service and treatments, and
taking into consideration the professional standing of Doctor Figueras, it is my opinion that the physician
should be allowed P5,000 for his services. That is my vote and to that extent I dissent.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1928/sep1928/gr_28208_1928.html>

Evidence Page 115

 PEOPLE V ODENCIO (1979)
People vs. Odencio FACTS
Policemen brought the victim Talib to a medical clinic where he was
Monday, September 21, 2009 interrogated by Pat. Sañada. In an unsigned antemortem
4:41 PM declaration, it was stated that Talib revealed to Sañada the name of
his assailants, that Talib had told Sañada he wanted to sign it but
that he could not do so because of the wound in his arm. Talib also
PHILIPPINE JURISPRUDENCE - FULL TEXT articulated his belief that he was going to die because he could
The Law phil Proj ect - Arellano Law Foundation hardly breathe and his wound was painful. Within 48 hrs after
G.R. No. L-31961 January 9, 1979 taking Talib's unsigned antemortem statement, Sañada executed an
PEOPLE OF THE PHIL. v s. FLORENCIO ODENCIO affidavit reciting the circumstances surrounding the taking thereof.
Sañada testified in court on Talib's dying declaration.
HELD
The rule is that a dying declaration may be oral or written. If
Republic of the Philippines
oral, the witness, who heard it, may testify thereto without
SUPREME COURT the necessity, of course, of reproducing exactly the words of
Manila
the decedent, if he is able to give the substance thereof. An
SECOND DIVISION unsigned dying declaration may be used as a memorandum
G.R. No. L-31961 January 9, 1979 by the witness who took it down. [Moran]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORENCIO ODENCIO and GUIAMELON MAMA, accused-appellants.
Manuel P. Calanog for appellants.
Office of the Solicitor General for appellee.

AQUINO, J.:
Florencio Odencio and Guiamelon Mama appealed from the decision of the Court of First
Instance of North Cotabato, finding them guilty of two separate crimes of murder, sentencing
each of them to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of
Prowa Talib and P12,000 to the heirs of Kadir Oranen (Criminal Case No. 5276).

According to the prosecution, at about seven o'clock in the evening of June 29, 1968, while
Prowa Talib (Palua Talib), a forty-year old farmer, was in the yard of his house located at Barrio
Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao,
who was near the stairs, he was felled down by a volley of shots.

Setie rushed to the aid of her husband. When she looked in the direction where the gunshots
emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas
away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also
holding a gun near another coconut tree around ten meters away in the yard of the house of her
neighbor, Daongan Karaing. She noticed that Kadir Oranen, who was nearby, had fallen to the
ground around three arms' length from Daongan's house. Kadir died instantly.

Setie had known for a long time Florencio and Guiamelon who were friends and
neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent
farmlands.

While Setie was comforting her husband, he allegedly told her that he was going to die. He
directed her to remember what had happened to him and that they had seen Guiamelon Mama Possible motive: stealing of lumber
and Poren armed with guns. Prior to that shooting incident, Prowa Talib had reported to the
barrio captain that Florencio Odencio had stolen his lumber.

The two assailants fled westward. At the time the incident occurred, Japal Rongot was on his
way to Talib's house. He encountered Guiamelon and Joseph Odencio with both of whom he
was well acquainted. He asked Guiamelon why there were gunshots but the latter did not make
any reply. Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap.
Setie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which
was about two arms' length from Talib.

Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard, the gunshots on the
occasion in question. He hastened to Talib's house. Setie told him that Guiamelon Mama had
shot Talib. She advised her uncle not to use his flashlight because Guiamelon was still in the
vicinity. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in
order to get assistance from his father-in-law. While crossing the trail his flashlight focussed on
Florencio Odencio with two companions leaving the scene of the crime.

Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder.
They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Sañada PATROLMAN JOAQUIN SANADA!!! TOOK THE DYING
Talib told Sañada that his assailants were Guiamelon, Florencio Odencio and Florencio's DECLARATION OF TALIB
father, Joseph Odencio. Due to the critical condition of Talib (nagaagonto), he was not able to ALSO MADE AN AFFIDAVIT RECITING THE
sign his dying declaration (Exh. B) as taken down by Patrolman Sañada Talib was brought to CIRCUMSTANCES SURROUNDING THE TAKING OF
the hospital. He died on the following day. TALIB'S UNSIGNED ANTEMORTEM STATEMENT
In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected
that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and
that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of
Damiog, the father-in-law of Guiamelon. It was stated further in the same dying declaration
that Talib had told Patrolman Sañada that he wanted to sign it but that he could not do so
because of the wound in his arm. Talib also articulated his belief that he was going to die
because he could hardly breathe and his wound was painful.

On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem statement,
Sañada executed an affidavit reciting the circumstances surrounding the taking thereof.
Sañada testified in court on Talib's dying declaration.

The autopsy disclosed that Talib sustained eight gunshot wounds in the back or posterior chest
wall. No autopsy was performed on the body of Oranen who, as noted above, died at the scene
of the crime.

On July 1, 1968, a complaint for double murder was filed in the municipal court against
Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law.
They waived the second stage of the preliminary investigation. On September 19, 1968, an
information was filed in the Court of First Instance against Guiamelon Florencio Odencio and
Joseph Odencio, The trial court acquitted Joseph and convicted only Florencio and Guiamelon.

In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and that he
had a misunderstanding with Oranen and Talib with both of whom he was acquainted.
Florencio testified that he was in his house when the shooting occurred. He was arrested on the
following day, June 30, 1968. He surmised that he was implicated in the case because he

Evidence Page 116

did not support Mayor Doruelo, the incumbent mayor, and, instead, he voted for Estañol,
the candidate of the Liberal Party. Florencio's alibi was corroborated by his wife and his
brother-in-law, Antonio Cesar.

The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same line of
defense. He declared that he was also in his house when Talib was shot; that he had no THE VICTIM WAS A DISTANT RELATIVE OF THE
misunderstanding with Talib, who is his father's brother-in-law, being the brother of his SUSPECT
stepmother, his father's second wife; that he was arrested while he was attending Talib's
funeral, and that he came to know his co-accused Florencio Odencio only in jail.

The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified that he was
TALIB ALLEGEDLY DECLARED THAT HE WAS NOT
present when Patrolman Sañada interrogated Talib and that the latter declared that he was
not able to recognize his assailant because it was dark. Sañada said he did not know of that ABLE TO RECOGNIZE THE ASSAILANT BECAUSE IT
interrogation made by Jubilan. WAS DARK

In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused
were indubitably Identified as the assailants in Talib's dying declarations to his wife and Tc: AGAINST ACCUSED
Patrolman Sañada. Setie Mamalintao in her statement to the police declared that she was able SETIE (TALIB'S WIFE) ALLEGEDLY WAS ABLE TO
to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and
RECOGNIZE THE ACCUSED BECAUSE OF THE BIG
Karaing's house (No. 19, Exh. 1, p. 11, Record).
TORCH IN FRONT OF THEIR HOUSE
The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib
because he was preparing" supper when he was shot and that Setie was able to
recognize the accused because she had been acquainted with them for a long time. As
stated above, two witnesses saw the accused in the vicinity of Talib's house shortly after the
shooting. Therefore, the contention of appellants' counsel de oficio that they had not been
sufficiently Identified as the killers cannot be sustained.

Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and
Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence.
Guiamelon and Odencio were seen pacing back and forth near Talib's house on the day of the
incident (No. 27, Exh. 1). They shot the two victims in the same place and almost
simultaneously, thus showing a coordination of efforts and community of design.

On leaving the scene of the crime, they proceeded in the same direction (westward). They were
animated by the same motive, which was to liquidate the victims because the latter allegedly
stole the carabaos of the relatives of the accused. The record does not disclose any reason
why Setie Mamalintao and Patrolman Sañada would frame up the appellants.

The manner in which they shot the victims shows treachery. The shooting was not the product
of momentary impulse. There was alevosia because the two malefactors, taking advantage of
the cover of night, stationed themselves in a place where they could shoot the victims with
impunity without any risk to themselves or without exposing themselves to any retaliation since
the victims did not expect to be assaulted at that time and place.

Appellants' counsel further contends that they were convicted on the basis of the wife's
uncorroborated testimony "which is open to suspicion due to inherent improbabilities''
and "motives to falsify the truth". That contention is not correct. Talib's antemortem
statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other
witnesses saw the appellants leaving the scene of the crime.
An unsigned dying declaration may be used as a
Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration memorandum by the witness who took it down
may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity,
of course, of reproducing exactly the words of the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used as a memorandum by the witness who
took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315-316.)
We are satisfied that the guilt of the appellants was proven beyond reasonable doubt. As they
were co-conspirators, they are each liable for the two murders. There being no modifying
circumstances concomitant with the commission of the two assassinations, the trial court
properly penalized each murder with reclusion perpetua (Arts. 64[1] and 248, Revised Penal
Code).
The trial court's judgment is affirmed with the sole modification that the two appellants should be
held solidarity liable for the two indemnities of P12,000 each. In the service of the two reclusion
perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed.
Costs against the appellants.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1979/jan1979/gr_l_31961_1979.html>

Evidence Page 117

 HEIRS OF LACSA V CA (1991)
Ancient Document Rule FACTS
Petitioners contend that the C ourt of Appeals wrongfully
Monday, September 21, 2009 applied the “ancient document rule” provided in Rule 132.22.
4:42 PM They allege that the documents “Traduccion Al Castellano de
la Escritura de Particion Extrajudicial” and “Escritura de Venta
Heirs of Lacsa vs. CA Absoluta” cannot qualify under the rule since the fact that the
first pages of said documents do not bear the signatures of
the alleged parties thereto is an indelible blemish.
HELD
SC is not persuaded. We are not persuaded by the contention. Under
PHILIPPINE JURISPRUDENCE - FULL TEXT the “ancient document rule,” for a private ancient document to be
The Law phil Proj ect - Arellano Law Foundation
exempt from proof of due execution and authenticity, three
G.R. Nos. 79597-98 May 20, 1991
DEMETRIA LACSA, ET AL. v s. COURT OF APPEALS, ET AL. requisites must concur:
1. that the document be more than
thirty (30) years old;
Republic of the Philippines 2. that it is produced from a custody
in which it would naturally be
SUPREME COURT found if genuine;
Manila
SECOND DIVISION 3. that it is unblemished by any
alteration or circumstances of
G.R. Nos. 79597-98 May 20, 1991 suspicion.
-The last requirement of the “ancient document rule” that a
HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA CABAIS, document must be unblemished by any alteration or circumstances
LEONOR CABAIS-PENA and DOLORES CABAIS-MAGPAYO, petitioners, of suspicion refers to the extrinsic quality of the document itself The
vs. lack of signatures on the first pages, absent any alterations or
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION D. circumstances of suspicion cannot be held to detract from the fact
that the documents in question, which were certified as copied of
SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO, LUDIVINA S. SONGCO, the originals on file with the Register of Deeds of Pampanga, are
JOSEPHINE S. SONGCO, ALBERT S. SONGCO, INOSENCIO S. SONGCO, JAIME S. genuine and free from any blemish or circumstances of suspicion.
SONGCO, MARTIN S. SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio -The documents in question are “ancient documents” under Rule
132.22. Further proof of their due execution and authenticity is no
Songco, respondents. longer required. The other contentions of petitioners that the
Norbin P. Dimalanta for petitioners. documents do not fulfill the mandatory requirements of the 1903
Dante S. David for private respondents. Notarial Law and that the proper person or public official was not
presented to testify on his certification of the documents in question,
need not be resolved as they would no longer serve any purpose.
PADILLA, J.:p

This is a petition for review on certiorari of the decision * of respondent Court of Appeals in CA-
G.R. CV Nos. 08397-08398 dated 16 July 1987 affirming with modification the decision of the
Regional Trial Court of Guagua, Pampanga, in favor of private respondents, and its resolution
dated 14 August 1987 denying the motion for reconsideration.

This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two
(2) cases, namely: Civil Case No. G-1190 and Civil Case No. G-1332. 1

Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary
injunction filed by herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and
John Doe based on the principal allegations that petitioners are heirs of deceased Demetria
Lacsa who, during her lifetime, was the owner of a certain parcel of land consisting partly of a
fishpond and partly of uncultivated open space, located in Bancal, Guagua, Pampanga,
evidenced by Original Certificate of Title No. RO-1038 (11725); that the principal respondent 2 civil cases
and his predecessor-in-interest who are neither co-owners of the land nor tenants thereof, thru
1. Action for recovery of possession with damages and preliminary
stealth, fraud and other forms of machination, succeeded in occupying or possessing the
fishpond of said parcel of land and caused the open space therein to be cleared for expanded injunction filed by LACSA vs. SONGCO
occupancy thereof, and refused to vacate the same despite petitioner's demands on them to -Lacsas were the owners of a property of land with a pond and
vacate. 2 open space where the Songcos, by stealth, fraud and other forms
of machinations, succeeded in occupying or possessing the
Civil Case No. G-1332 is an action also by herein petitioners against private respondents before fishpond
the same lower court for cancellation of title, ownership with damages and preliminary
injunction, based on the allegations that they are the heirs of Demetria Lacsa who was the 2. Action by the Lacsa's vs. Songcos or cancellation of title,
owner of the land also involved in Civil Case No. G-1190; that the herein private respondents ownership with damages and preliminary injunction because
and their predecessors-in-interest, thru stealth, fraud and other forms of machination, allegedly, INNOCENCIA SONGCO, the predecessors of the
succeeded in occupying or possessing the fishpond of the said parcel of land, and later
respondents, by using forged and simulated documents namely:
abandoned the same but only after the case was filed and after all the fish were transferred to
the adjoining fishpond owned by the private respondents; that on 31 October 1923 and 15 "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
March 1924, by presenting to the Register of Deeds of Pampanga certain forged and absolutely PARTICION EXTRAJUDICIAL" and
simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE "ESCRITURA DE VENTA ABSOLUTA"
PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and Transfer the title to the said property in their name.
by means of false pretenses and misrepresentation, Inocencio Songco, the private respondents'
predecessor-in-interest, succeeded in transferring the title to said property in his name, to the
damage and prejudice of the petitioners; and that a preliminary injunction was necessary to
prevent the private respondents from disposing of said property. 3
DEFENSES
Private respondents denied the material allegations of both complaints and alleged as special 1. Lack of COA
and affirmative defenses, petitioners' lack of cause of action, for the reason that Original 2. "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
Certificate of Title No. RO-1038 (11725) was merely a reconstituted copy issued in April 1983 PARTICION EXTRA-JUDICIAL" was entered by the heirs of
upon petitioners' expedient claim that the owner's duplicate copy thereof had been missing Lacsa with Guevarra and Limpin to cancel the title of Lacsa
when the truth of the matter was that OCT No. RO-1038 (11725) in the name of Demetria which the respondents alleged was missing
Lacsa, had long been cancelled and superseded by TCT No. 794 in the name of Alberta
Guevarra and Juan Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO
DE LA ESCRITURA DE PARTICION EXTRA-JUDICIAL" entered into by the heirs of Demetria
Lacsa; that the latter TCT was in turn superseded by TCT No. 929 issued in the name of
Inocencio Songco (father of private respondents) by virtue of a document entitled "ESCRITURA
DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta Guevarra in favor of
said Inocencio Songo. 4

Private respondents, in their answer, pleaded a counterclaim against petitioners based on

allegations that the latter headed by Carlito Magpayo, by force and intimidation, took possession
of a portion of the fishpond in the land and occupied a hut therein, that at that time, private
respondents had 3,000 bangus fingerlings left in the fishpond which upon petitioners' harvest
thereof left private respondents deprived and damaged in the amount of P50,000.00 more or
less; that such illegal occupancy caused private respondents to suffer unrealized income and
profits, sleepless nights, wounded feelings and serious anxiety which entitled them to actual,
moral and exemplary damages as well as attorney's fees and P500.00 appearance fee for every
hearing. 5

JOINT STIPULATION OF FACTS

On 20 January 1985, the parties assisted by their respective counsel filed in Civil Case No.
G-1332 a joint stipulation of facts, alleging:
1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil Case No. 1190;
2. That after the defendants filed their Answer in the said Civil Case No. G-1190, and learning the land

Evidence Page 118

1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil Case No. 1190;
2. That after the defendants filed their Answer in the said Civil Case No. G-1190, and learning the land
subject of the two (2) abovementioned cases (sic), said plaintiffs filed a Motion for Leave to Admit
Amended and/or Supplemental Complaint.
3. That the said motion was denied by the Honorable Court, hence, said plaintiffs filed Civil Case No.
G-1332, the above-entitled case, with the same cause of action as that of the proposed Amended and/or
Supplemental Complaint;
4. That the evidences of both parties in Civil Case No. G-1190 and in the above-entitled case are
practically and literally the same;
5. That in view of the foregoing, and in order to avoid duplicity of action by repeatedly presenting the
same act of evidences and same set of witnesses, the parties mutually agreed as they hereby agree and
stipulate that any and all evidences presented under Civil Case No. 1190 shall be adopted as evidences
for both parties in the above-entitled case, and upon submission for resolution of Civil Case No. G-1190,
the above-entitled case shall likewise be deemed submitted for resolution on the basis of the evidence
presented in the same Civil Case No. G-1190. 6

On the basis of this joint stipulation of facts, the lower court held that:
. . . the fishpond in question was originally owned by Demetria Lacsa under Original Certificate of Title
No. 11725. After Demetria Lacsa died her two daughters Alberta Guevarra and Ambrocia Guevarra with
their respective husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition of the
properties left by Demetria Lacsa under the document "Traduccion Al Castellano de la Escritura de
Partition Extra-judicial" dated April 7, 1923 (Exhibits "3","3-A" and "3-B") wherein the fishpond in
question was adjudicated to Alberta Guevarra and which deed was duly registered in the Office of the
Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds
marked as Exhibit "3-C". Aside from the "Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" written in the Spanish language, the spouses Alberta Guevarra and Juan Limpin and the
spouses Ambrosia Guevarra and Damaso Cabais executed on April 7, 1923, another deed of partition
in the Pampango dialect marked as Exhibit "3-D" "wherein the fishpond in question was adjudicated to
Alberta Guevarra. As a consequence, Original Certificate of Title No. 794 (Exhibit "4") was issued to
spouses Alberta Guevarra and Juan Limpin. On January 20, 1924, the spouses Juan Limpin and Alberta DEED OF ABSOLUTE SALE!!!!
Guevarra sold the fishpond in question to Inocencio Songco under the deed entitled "Escritura de Venta
Absoluta" (Exhibits "7" and "7-A") which was duly registered in the Office of the Registry of Deeds of
Pampanga as evidenced by the certification of the Deputy Register of Deeds marked Exhibit "7-B". As a
result of the sale, Transfer Certificate of Title No. 794 (Exhibit "4") in the name of the spouses Alberta
Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and
Transfer Certificate of Title No. 929 was issued to Inocencio
Songco." 7

The lower court thus held that the fishpond in question belongs to the private respondents,
having been inherited by them from their deceased father Inocencio Songco. 8
The dispositive portion of the judgment in favor of private respondents reads:
WHEREFORE, JUDGMENT is hereby rendered
In Civil Case No. G - 1190
(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;
In Civil Case No. G-1332
(B) Ordering the dismissal of the complaint in Civil Case No. G-1332;
In Both Civil Case No. G-1190 and Civil Case No. G-1332
(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725) in the name of Demetria
Lacsa;
(D) Ordering the plaintiffs to restore possession of the fishpond in question located in Bancal, Guagua,
Pampanga, to the defendants (sic);
(E) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for moral damages;
(F) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for exemplary damages;
(G) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Ten Thousand
(P10,000.00) Pesos, Philippine Currency, as attorney's fees;
(H) Costs against the plaintiffs.
SO ORDERED. 9

Petitioners appealed the above-mentioned decision to the respondent Court of Appeals

assigning the following errors allegedly committed by the lower court:
I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN FAVOR OF THE
PLAINTIFFS-APPELLANTS THAT THE TWO DOCUMENTS (EXHS. 3 & 7 AND THEIR SUB-
MARKINGS) WERE FORGED AND ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULL AND
VOID;
II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE OF JUAN LIMPIN AND
THUMBMARK OF ALBERTA GUEVARRA APPEARING ON THE EXCRITUA DE VENTA ABSOLUTA
(EXHS. 7 & 7-A) WERE FORGED;
III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS PRESENTED BY
WITNESS JESUS CRUZ WHEN THEIR SOURCES COULD NOT BE ACCOUNTE D FOR AND THEIR
AUTHENTICITY IS IN QUESTION;
IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-IN-INTE RES T OF THE
APPELLEES WAS AN INNOCENT PURCHASER FOR VALUE;
V. IN HOLDING THAT TRANSFER CERTIFICA TE OF TITLE NO. 929 WAS ISSUED TO INOCENCIO
SONGCO BY THE REGISTERED TRY OF DEEDS OF PAMPANGA;
VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038 (11725) WAS ISSUED BY
THE COURT (CFI-III PAMPANGA) IN EXCESS OF OR WITHOUT JURISDICTION AND THEREFORE
NULL AND VOID;
VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT OF THE FISHPOND IN
QUESTION BY THE APPELLEES WAS A RECOGNITION OF APPELLANTS' TITLE TO IT;
VIII. IN AWARDING DAMAGES TO THE APPELLEES. 10

The Court of Appeals rendered a decision in the appealed case, the dispositive portion of which
reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification that appellants are
not liable for moral and exemplary damages as well as attorney's fees.
SO ORDERED. 11
Petitioners flied a motion for reconsideration with the Court of Appeals but the same was denied
in its resolution dated 14 August 1987. 12 Hence, this petition.

Petitioners assign the following alleged errors to the Court of Appeals:

I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE QUESTIONED DOCUMENT ENTITLE D
"ESCRITURA DE PARTICION EXTRAJUDICIA L" AND "ESCRITURA DE VENTA ABSOLUTA; AND
MARKED DURING THE TRIAL AS EXHIBITS "3" AND "7", RESPECTIVELY, FOR THE RESPONDENT
HEREIN;
II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE NOTARIAL LAW WHICH TOOK
EFFECT AS EARLY AS FEBRUARY 1, 1903;
III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL RECORD, (SEC. 25, RULE
132, RULES OF COURT) 13

Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule"
provided in Sec. 22, Rule 132 of the Rules of Court. 14 The rule states that:
Sec. 22. Evidence of execution not necessary.— Were a private writing is more than thirty years

Evidence Page 119

provided in Sec. 22, Rule 132 of the Rules of Court. 14 The rule states that:
Sec. 22. Evidence of execution not necessary.— Were a private writing is more than thirty years
old, is produced from a custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion, no other evidence of its execution
and authenticity need be given.

It is submitted by petitioners that under this rule, for a document to be classified as an "ancient
document",
*it must not only be at least thirty (30) years old
*but it must also be found in the proper custody and
*is unblemished by alterations and is otherwise free from suspicion. 15 Thus, according to
petitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" and "Escritura de Venta Absoluta", respectively, can not qualify under the
foregoing rule, for the reason that since the "first pages" of said documents do not bear the
signatures of the alleged parties thereto, this constitutes an indelible blemish that can beget
unlimited alterations. 16

We are not persuaded by the contention. Under the "ancient document rule," for a private
ancient document to be exempt from proof of due execution and authenticity, it is not enough
that it be more than thirty (30) years old; it is also necessary that the following requirements are
fulfilled; (1) that it is produced from a custody in which it would naturally be found if genuine; and
(2) that it is unblemished by any alteration or circumstances of suspicion. 17

The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" was executed on 7 April 1923 whereas the second document, exhibit "7", entitled
"Escritura de Venta Absoluta" was executed on 20 January 1924. These documents are,
therefore, more than thirty (30) years old. Both copies of the aforementioned documents were
certified as exact copies of the original on file with the Office of the Register of Deeds of
Pampanga, by the Deputy Register of Deeds. There is a further certification with regard to the
Pampango translation of the document of extrajudicial partition which was issued by the
Archives division, Bureau of Records Management of the Department of General Services. 18

Documents which affect real property, in order that they may bind third parties, must be
recorded with the appropriate Register of Deeds. The documents in question, being certified as
copies of originals on file with the Register of Deeds of Pampanga, can be said to be found in
the proper custody. Clearly, therefore, the first two (2) requirements of the "ancient document
rule" were met.

As to the last requirement that the document must on its face appear to be genuine, petitioners
did not present any conclusive evidence to support their allegation of falsification of the said
documents. They merely alluded to the fact that the lack of signatures on the first two (2)
pages could have easily led to their substitution. We cannot uphold this surmise absent any
proof whatsoever. As held in one case, a contract apparently honest and lawful on its face must
be treated as such and one who assails the genuineness of such contract must present
conclusive evidence of falsification. 19

Moreover, the last requirement of the "ancient document rule" that a document must be
unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the
document itself. The lack of signatures on the first pages, therefore, absent any alterations
or circumstances of suspicion cannot be held to detract from the fact that the documents
in question, which were certified as copied of the originals on file with the Register of
Deeds of Pampanga, are genuine and free from any blemish or circumstances of
suspicion.

The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the
Rules of Court. Further proof of their due execution and authenticity is no longer required.
Having held that the documents in question are private writings which are more than thirty (30)
years old, come from the proper repository thereof, and are unblemished by any alteration or
circumstances of suspicion, there is no further need for these documents to fulfill the
requirements of the 1903 Notarial Law. Hence, the other contentions of the petitioners that the
documents do not fulfill the mandatory requirements of the Notarial Law 20 and that the proper
person or public official was not presented to testify on his certification of the documents in
question, 21 need not be resolved as they would no longer serve any purpose.
WHEREFORE, the Petition is DENIED. The appealed decision of the Court of Appeals is
AFFIRMED. Costs against the petitioners.
SO ORDERED.
Herrera, Sarmiento and Regalado, JJ., concur.
Paras, J., took no part.

Footnotes
* Penned by Justice Gloria C. Paras, with the concurrence of Justices Jose C. Campos, Jr. and Conrado
T. Limcaoco.
1 Rollo, p. 57.
2 Rollo, p. 57.
3 Rollo, p. 58.
4 Rollo, pp. 57-58.
5 Rollo, p. 59.
6 Rollo, p. 59.
7 Rollo, p. 60.
8 Ibid.
9 Rollo, pp. 60-61.
10 Rollo, pp. 61-62.
11 Rollo, p. 65.
12 Rollo, p. 8.
13 Rollo, p. 8.
14 Rollo, p. 8.
15 Rollo, pp. 8-9.
16 Rollo, p. 9.
17 Francisco, Vicente J., The Revised Rules of Court in the Philippines. Volume III, Part II, 1973 Edition,
p. 432.
18 Exhibit "3-D", Original Folder of Exhibits for the Plaintiffs and Defendants.
19 Dy vs. Sacay, G.R. Nos. 78535-36, September 19, 1988, 165 SCRA 473.
20 Rollo, p. 9.
21 Rollo, p. 10.
The Lawphil Project - Arellano Law Foundation

Evidence Page 120

Pasted from <http://www.lawphil.net/judjuris/juri1991/may1991/gr_79597_98_1991.html>

Evidence Page 121

Proof Of official Record
Monday, September 21, 2009
4:44 PM

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

HEIRS OF THE DECEASED SPOUSES G.R. No. 162886

VICENTE S. ARCILLA and JOSEFA
ASUNCION ARCILLA, namely:
Aida Arcilla Alandan, Rene A. Arcilla, Present:
Oscar A. Arcilla, Sarah A. Arcilla, and
Nora A. Arcilla, now deceased and YNARES-SANTIAGO, J.,
substituted by her son Sharmy Arcilla, Chairperson,
represented by their attorney-in-fact, AUSTRIA-MARTINEZ,
Sarah A. Arcilla, CHICO-NAZARIO,
Petitioners, NACHURA, and
REYES, JJ.
- versus -
MA. LOURDES A. TEODORO, Promulgated:
Respondent. August 11, 2008
x-------- ----------- ----------- --------- ---------- ---------x

DE C I S I O N

AUSTRIA-MARTIN EZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
September 12, 2003 Decision[1] of the Court of Appeals (CA) and its Resolution[2] dated March 24, 2004 in CA-G.R.
SP No. 72032.

The facts of the case are as follows:

On December 19, 1995, Ma. Lourdes A. Teodoro (respondent) initially filed with the Regional Trial Court
(RTC) of Virac, Catanduanes an application for land registration of two parcels of land located at Barangay San
Pedro, Virac, Catanduanes. The lots, with an aggregate area of 284 square meters, are denominated as Lot Nos.
525-A and 525-B, Csd.-05-010483-D of the Virac Cadastre. Respondent alleged that, with the exception of the
commercial building constructed thereon, she purchased the subject lots from her father, Pacifico Arcilla (Pacifico),
as shown by a Deed of Sale[3] dated December 9, 1966, and that, prior thereto, Pacifico acquired the said lots by
virtue of the partition of the estate of his father, Jose Arcilla evidenced by a document entitled Extrajudicial
Settlement of Estate.[4] Respondent also presented as evidence an Affidavit of Quit-Claim[5] in favor of Pacifico,
executed by herein petitioners as Heirs of Vicente Arcilla (Vicente), brother of Pacifico.

On February 7, 1996, the case was transferred to the Municipal Trial Court (MTC) of Virac, Catanduanes in
view of the expanded jurisdiction of said court as provided under Republic Act No. 7691.[6]

In their Opposition dated August 19, 1996, petitioners contended that they are the owners pro-indiviso of

Evidence Page 122

 In their Opposition dated August 19, 1996, petitioners contended that they are the owners pro-indiviso of
the subject lots including the building and other improvements constructed thereon by virtue of inheritance from
their deceased parents, spouses Vicente and Josefa Arcilla; contrary to the claim of respondent, the lots in
question were owned by their father, Vicente, having purchased the same from a certain Manuel Sarmiento
sometime in 1917; Vicente's ownership is evidenced by several tax declarations attached to the record; petitioners
and their predecessors-in-interest had been in possession of the subject lots since 1906. Petitioners moved to
dismiss the application of respondent and sought their declaration as the true and absolute owners pro-indiviso of
the subject lots and the registration and issuance of the corresponding certificate of title in their names.

Subsequently, trial of the case ensued.

On March 20, 1998, herein respondent filed a Motion for Admission[7] contending that through oversight
and inadvertence she failed to include in her application, the verification and certificate against forum shopping
required by Supreme Court (SC) Revised Circular No. 28-91 in relation to SC Administrative Circular No. 04-94.

Petitioners filed a Motion to Dismiss Application[8] on the ground that respondent should have filed the
certificate against forum shopping simultaneously with the petition for land registration which is a mandatory
requirement of SC Administrative Circular No. 04-94 and that any violation of the said Circular shall be a cause for
the dismissal of the application upon motion and after hearing.

Opposing the motion to dismiss, respondents asserted that the petitioners' Motion to Dismiss Application
was filed out of time; respondent's failure to comply with SC Administrative Circular No. 04-94 was not willful,
deliberate or intentional; and the Motion to Dismiss was deemed waived for failure of petitioners to file the same
during the earlier stages of the proceedings.

On July 19, 1999, the MTC issued an Order[9] denying petitioners' Motion to Dismiss Application.

On June 25, 2001, the MTC rendered a Decision[10] the dispositive portion of which reads as follows:

NOW THEREFORE, and considering all the above premises, the Court finds and so holds that Applicant
MA. LOURDES A. TEODORO, having sufficient title over this land applied for hereby renders judgment,
which should be, as it is hereby CONFIRMED and REGISTERED in her name.

IT IS SO ORDERED.[11]

Herein petitioners then filed an appeal with the Regional Trial Court of Virac, Catanduanes. In its
Decision[12] dated February 22, 2002, the RTC, Branch 43, of Virac, Catanduanes dismissed the appeal for lack of
merit and affirmed in toto the Decision of the MTC. Petitioners filed a Motion for Reconsideration but it was
denied by the RTC in its Order[13] of July 22, 2002.

Aggrieved by the RTC Decision, petitioners filed a Petition for Review[14] with the CA. On September 12,
2003, the CA promulgated its presently assailed Decision dismissing the Petition. Petitioners filed a Motion for
Reconsideration but the same was denied by the CA in its Resolution[15] dated March 24, 2004.

Hence, the herein petition based on the following grounds:

A. The Honorable Court of Appeals did not rule in accordance with the prevailing rules and
jurisprudence when it held that the belated filing, after more than two (2) years and three (3) months from
the initial application for land registration, of a sworn certification against forum shopping in Respondent's
application for land registration, constituted substantial compliance with SC Admin. Circular No. 04 -94.

B. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it held that the certification of non-forum shopping subsequently submitted by respondent does not
require a certification from an officer of the foreign service of the Philippines as provided under Section 24,
Rule 132 of the Rules of Court.

C. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it upheld the decisions of the Regional Trial Court (RTC) and Municipal Trial Court (MTC) that the lots
in question were not really owned by Petitioners' father Vicente S. Arcilla, contrary to the evidence
presented by both parties.

Evidence Page 123

 presented by both parties.

D. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence
when it sustained the decision of the RTC which affirmed in toto the decision of the MTC and in not
reversing the same and rendering judgment in favor of Petitioners.[16]
In their Memorandum, petitioners further raise the following issue:

Whether or not the Supreme Court may inquire into conclusions of facts made by the Honorable Court of
Appeals in the instant Petition.[17]

The Court’s Ruling

The petition is bereft of merit.

The CA ruled correctly when it held that the belated filing of a sworn certification of non-forum shopping was
substantial compliance with SC Administrative Circular No. 04-94.

Under the attendant circumstances in the present case, the Court cannot uphold petitioners’ contention
that respondent's delay of more than two years and three months in filing the required certificate of non-forum
shopping may not be considered substantial compliance with the requirements of SC Administrative Circular No.
04-94 and Section 5, Rule 7 of the Rules of Court; that respondent's reasons of oversight and inadvertence do not
constitute a justifiable circumstance that could excuse her non-compliance with the mandatory requirements of
the above-mentioned Circular and Rule; that subsequent compliance with the requirement does not serve as an
excuse for a party's failure to comply in the first instance.

Section 5, Rule 7, of the Rules of Court provides:

Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action
or filed any claim involving the same issues in any court, tribunal or quasi -judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the
same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a
cause for administrative sanctions.

This Rule was preceded by Circular No. 28-91, which originally required the certification of non-forum shopping for
petitions filed with this Court and the CA; and SC Administrative Circular No. 04-94, which extended the
certification requirement for civil complaints and other initiatory pleadings filed in all courts and other agencies.

In Gabionza v. Court of Appeals,[18] this Court has held that Circular No. 28-91 was designed to serve as an
instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such
absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure –
which is to achieve substantial justice as expeditiously as possible.[19] The same guideline still applies in
interpreting what is now Section 5, Rule 7 of the 1997 Rules of Civil Procedure.[20]

The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these
prescribed procedures insure an orderly and speedy administration of justice.[21] However, it is equally settled
that litigation is not merely a game of technicalities.[22] Rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice.[23] Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed.[24] Even
the Rules of Court reflect this principle.[25]

Evidence Page 124

the Rules of Court reflect this principle.[25]

Moreover, the emerging trend in our jurisprudence is to afford every party-litigant the amplest
opportunity for the proper and just determination of his cause free from the constraints of technicalities.[26]

It must be kept in mind that while the requirement of the certificate of non-forum shopping is
mandatory, nonetheless the requirement must not be interpreted too literally and thus defeat the objective of
preventing the undesirable practice of forum shopping.[27] In Uy v. Land Bank of the Philippines,[28] the Court
ruled, thus:

The admission of the petition after the belated filing of the certification, therefore, is not
unprecedented. In those cases where the Court excused non-compliance with the requirements, there were
special circumstances or compelling reasons making the strict application of the rule clearly unjustified. In
the case at bar, the apparent merits of the substantive aspects of the case should be deemed as a “special
circumstance” or “compelling reason” for the reinstatement of the petition. x x x [29]

Citing De Guia v. De Guia[30] the Court, in Estribillo v. Department of Agrarian Reform,[31] held that even if
there was complete non-compliance with the rule on certification against forum-shopping, the Court may still
proceed to decide the case on the merits pursuant to its inherent power to suspend its own rules on grounds of
substantial justice and apparent merit of the case.

In the instant case, the Court finds that the lower courts did not commit any error in proceeding to decide
the case on the merits, as herein respondent was able to submit a certification of non-forum shopping. More
importantly, the apparent merit of the substantive aspect of the petition for land registration filed by respondent
with the MTC coupled with the showing that she had no intention to violate the Rules with impunity, as she was
the one who invited the attention of the court to the inadvertence committed by her counsel, should be deemed
as special circumstances or compelling reasons to decide the case on the merits.

In addition, considering that a dismissal contemplated under Rule 7, Section 5 of the Rules of Court is, as a
rule, a dismissal without prejudice, and since there is no showing that respondent is guilty of forum shopping, to
dismiss respondent's petition for registration would entail a tedious process of re-filing the petition, requiring the
parties to re-submit the pleadings which they have already filed with the trial court, and conducting anew hearings
which have already been done, not to mention the expenses that will be incurred by the parties in re-filing of
pleadings and in the re-conduct of hearings. These would not be in keeping with the judicial policy of just, speedy
and inexpensive disposition of every action and proceeding.[32]

The certification of non-forum shopping executed in a foreign country is not covered by Section 24, Rule 132 of
the Rules of Court.

There is no merit to petitioners’ contentions that the verification and certification subsequently submitted
by respondent did not state the country or city where the notary public exercised her notarial functions; and that
the MTC simply concluded, without any basis, that said notary public was from Maryland, USA; that even granting
that the verification and certification of non-forum shopping were notarized in the USA, the same may not be
deemed admissible for any purpose in the Philippines for failure to comply with the requirement of Section 24,
Rule 132 of the Rules of Court that the notarized document must be accompanied by a certificate issued by an
officer in the foreign service of the Philippines who is stationed in the country in which a record of the subject
document is kept, proving or authenticating that the person who notarized the document is indeed authorized to
do so and has custody of the same.
The Court agrees with the disquisition of the CA, to wit:

From the foregoing provision [referring to Section 24, Rule 132, Rules of Court], it can be gathered
that it does not include documents acknowledged before [a] notary public abroad. For foreign public
documents to be admissible for any purpose here in our courts, the same must be certified by any officer of
the Philippine legation stationed in the country where the documents could be found or had been executed.
However, after judicious studies of the rule, Sec. 24, Rule 132 of the 1997 Rules of Court basically pertains to
written official acts, or records of the official of the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign country. This is so, as Sec. 24, Rule 132 explicitly
refers only to paragraph (a) of Sec. 19. If the rule comprehends to cover notarial documents, the rule could
have included the same. Thus, petitioners -oppositors' contention that the certificate of forum shopping that
was submitted was defective, as it did not bear the certification provided under Sec. 24, Rule 132 of the

Evidence Page 125

 was submitted was defective, as it did not bear the certification provided under Sec. 24, Rule 132 of the
Rules of Court, is devoid of any merit. What is important is the fact that the respondent-applicant certified
before a commissioned officer clothed with powers to administer oath that [s]he has not and will not
commit forum shopping.[33]

The ruling of the Court in Lopez v. Court of Appeals,[34] cited by petitioners, is inapplicable to the present
case because the Rules of Evidence which were in effect at that time were the old Rules prior to their
amendment in 1989. The rule applied in Lopez, which was decided prior to the effectivity of the amended
Rules of Evidence,[35] was Section 25, Rule 132, to wit:

Sec. 25. Proof of public or official record – An official record or an entry therein, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office . (Emphasis
supplied)

When the Rules of Evidence were amended in 1989, Section 25, Rule 132 became Section 24, Rule 132; and the
amendment consisted in the deletion of the introductory phrase “An official record or an entry therein,” which was
substituted by the phrase “The record of public documents referred to in paragraph (a) of Section 19.”
Thus, Section 24, Rule 132 of the Rules of Court now reads as follows:

Sec. 24. Proof of official record. - The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office. (Emphasis supplied)

Section 19(a) of the same Rule provides:

Sec. 19. Classes of documents. - For the purpose of their presentation in evidence, documents are
either public or private.

Public documents are:

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

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

(c) Public records, kept in the Philippines, of private documents required by law to be entered
therein.

All other writings are private.

It cannot be overemphasized that the required certification of an officer in the foreign service under Section
24 refers only to the documents enumerated in Section 19(a), to wit: written official acts or records of the official
acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign
country. The Court agrees with the CA that had the Court intended to include notarial documents as one of the
public documents contemplated by the provisions of Section 24, it should not have specified only the documents
referred to under paragraph (a) of Section 19.

In Lopez, the requirements of then Section 25, Rule 132 were made applicable to all public or official records
without any distinction because the old rule did not distinguish. However, in the present rule, it is clear
under Section 24, Rule 132 that its provisions shall be made applicable only to the documents referred to

Evidence Page 126

 under Section 24, Rule 132 that its provisions shall be made applicable only to the documents referred to
under paragraph (a), Section 19, Rule 132.

The CA did not err in sustaining the findings of fact and conclusion of law of the MTC and the RTC.

Settled is the rule that the trial court’s findings of fact, especially when affirmed by the CA, are generally
binding and conclusive upon this Court.[36] There are recognized exceptions to this rule, among which are: (1) the
conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd
or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5)
the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are
based; (7) the finding of absence of facts is contradicted by the presence of evidence on record; (8) the findings of
the CA are contrary to the findings of the trial court; (9) the CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are
beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties.[37] However,
petitioners failed to show that any of the exceptions is present in the instant case to warrant a review of the
findings of fact of the lower courts.

Petitioners insist that the documents which were presented in evidence by respondent to prove her
ownership of the subject lot are rife with defects and inconsistencies. Petitioners contend that the subject lot
should not have been included in the Extrajudicial Settlement of the Estate of Jose Arcilla, because he was no
longer the owner of the said property at the time of said settlement; the Deed of Sale should be declared null and
void because the seller, Pacifico Arcilla, was not the owner of the subject lands at the time the said Deed was
executed; the Affidavit of Quitclaim is not valid and has no force and effect considering that the document
indicates that the signatures of petitioners were affixed in different places, none of which is in Virac, Catanduanes
where they supposedly acknowledged said document.

The only evidence of petitioners to prove their claim that the disputed property was sold by Jose Arcilla to
Manuel Sarmiento in 1908 is a single Tax Declaration in the name of the latter, with a notation that the property
was acquired by purchase.

The Court agrees with the CA in its finding that petitioners failed to present any substantial evidence, such
as a deed of sale, to prove their claim that their predecessor, Vicente Arcilla, bought the disputed property from
Sarmiento. Petitioners were only able to present tax declarations in Vicente's name to prove their allegation that
Vicente became the owner of the subject property. The tax declarations presented in evidence by petitioners are
not supported by any other substantial proofs.

The Court has ruled time and again that tax declarations do not prove ownership but are at best an indicium
of claims of ownership.[38] Payment of taxes is not proof of ownership, any more than indicating possession in
the concept of an owner.[39] Neither a tax receipt nor a declaration of ownership for taxation purposes is
evidence of ownership or of the right to possess realty when not supported by other effective proofs.[40]

In addition, the Court agrees with the CA when it held that if Vicente, in fact, owned the disputed
properties, his widow, Josefa, would not have agreed to include said lots among those partitioned in the
Extrajudicial Settlement of the Estate of Jose.
On the other hand, respondent's claim of ownership is not only backed up by tax declarations but also by
other pieces of evidence such as the subject Extrajudicial Settlement, Affidavit of Quitclaim, and Deed of Sale.

Petitioners question the validity of the above-mentioned documents. However, as the CA, RTC and MTC
found, these documents are all notarized. It is settled that a notarized document is executed to lend truth to the
statements contained therein and to the authenticity of the signatures.[41] Notarized documents enjoy the
presumption of regularity which can be overturned only by clear and convincing evidence.[42]

Petitioners' bare denials of the contents of the subject documents will not suffice to overcome the
presumption of their regularity considering that they are all notarized. To overthrow such presumption of
regularity, the countervailing evidence must be clear, convincing and more than merely preponderant, which
petitioners failed to present.[43]

An examination of the subject Extrajudicial Settlement of Estate clearly shows that the disputed lot forms
part of the properties adjudicated in favor of Pacifico Arcilla, respondent’s predecessor-in-interest.

Evidence Page 127

 Moreover, petitioners themselves admit that the Extrajudicial Settlement being referred to in the Affidavit
of Quitclaim executed by petitioner and her co-heirs is the Extrajudicial Settlement of the Estate of Jose Arcilla and
not of Vicente Arcilla. An examination of the Affidavit of Quitclaim shows that the reference made therein with
respect to the date of execution of the said Extrajudicial Settlement as well as the notary public who acknowledged
the same and the Document Number, Page Number, Book Number and Series Number all coincide with those
appearing in the document evidencing the Extrajudicial Settlement of the Estate of Jose Arcilla. Hence, what has
been waived by petitioners is their right, if any, to the properties mentioned in the said Affidavit of Quitclaim,
which includes the presently disputed lot.

Petitioners posit that they are not bound by the subject Extrajudicial Settlement because they did not
participate in nor did they sign the document evidencing such settlement and that their mother who signed on
their behalf was not, in fact, authorized to do so. However, the Court agrees with the ruling of the RTC that the
Extrajudicial Settlement is a public document, the same having been notarized; that such document is entitled to
full faith and credit in the absence of competent evidence showing that its execution was tainted with defects and
irregularities which would warrant a declaration of nullity; that in the absence of evidence showing that the person
who signed in behalf of herein petitioners was, in fact, not authorized to do so, the presumption that she had the
authority, as stated in the Extrajudicial Settlement, remains undisturbed.

Moreover, petitioners' execution of the subject Affidavit of Quitclaim is proof that they have ratified the
contents of the disputed Extrajudicial Settlement.

Petitioners' claim that the Affidavit of Quitclaim is null and void on the ground that the signatories thereto
are not residents of Virac, Catanduanes and that they affixed their signature in places other than Virac,
Catanduanes where they supposedly acknowledged the said document, is not persuasive. The Court finds no error
in the finding of the MTC, as affirmed by the CA, that the execution of the subject Affidavit of Quitclaim or the
signatures of the affiants appearing therein were never contested nor raised as an issue and that petitioner Sarah
Arcilla herself acknowledged her own signature in the said Affidavit.

In any event, the law does not require that parties to a document notarized by a notary public should be
residents of the place where the said document is acknowledged or that they affix their signature in the presence
of the notary public. What is necessary is that the persons who signed a notarized document are the very same
persons who executed and personally appeared before the notary public in order to attest to the contents and
truth of what are stated therein.[44]

In the instant case, it is established that, with the exception of petitioner Rene Arcilla, all of herein
petitioners, including their now deceased mother Josefa and sister Nora, executed and personally acknowledged
before the notary public the subject Affidavit of Quitclaim. Hence, aside from Rene, the said Affidavit of Quitclaim
is valid and binding on all the petitioners.

With respect to Rene, petitioner Oscar Arcilla, acting as his attorney-in-fact, signed the document on the
former’s behalf. However, settled is the rule that:

A member of the bar who performs an act as a notary public should not notarize a document
unless the persons who signed the same are the very same persons who executed and personally appeared
before him. The acts of the affiants cannot be delegated to anyone for what are stated therein are facts of
which they have personal knowledge. They should swear to the document personally and not through any
representative. Otherwise, their representative’s name should appear in the said documents as the one who
executed the same. That is the only time the representative can affix his signature and personally appear
before the notary public for notarization of the said document. Simply put, the party or parties who
executed the instrument must be the ones to personally appear before the notary public to acknowledge
the document.[45]

Thus, the herein subject Affidavit of Quitclaim may not be binding on Rene. Nonetheless, with or without Rene’s
participation in the quitclaim, respondent’s ownership of the subject lots has been established by preponderance
of evidence, as unanimously found by the MTC, the RTC and the CA.

Finally, petitioners' physical occupation of the commercial building which they erected on the disputed
property does not necessarily prove their ownership of the subject lots.

Evidence Page 128

property does not necessarily prove their ownership of the subject lots.

This Court has held that:

ownership and possession are two entirely different legal concepts. Just as possession is not a definite proof
of ownership, neither is non-possession inconsistent with ownership. The first paragraph of Article 1498 of
the Civil Code states that when the sale is made through a public instrument, the execution thereof shall be
equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does
not appear or cannot clearly be inferred. Possession, along with ownership, is transferred to the vendee by
virtue of the notarized deed of conveyance. Thus, in light of the circumstances of the present case, it is of
no legal consequence that petitioner did not take actual possession or occupation of the disputed lot after
the execution of the deed of sale in her favor because she was already able to perfect and complete her
ownership of and title over the subject property.[46] (Emphasis supplied)

The Extrajudicial Settlement of Estate in favor of Pacifico, respondent’s predecessor-in-interest, the Affidavit of
Quitclaim and the Deed of Sale in favor of respondent establish respondent’s ownership over the disputed
property.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 12, 2003 and
its Resolution of March 24, 2004 in CA-G.R. SP No. 72032 are AFFIRMED.

Costs against petitioners.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTIN EZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO

Evidence Page 129

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

[1] Penned by Justice Buenaventura J. Guerrero with the concurrence of Justices Andres B. Reyes, Jr.
and Regalado E. Maambong; rollo, p. 8.
[2] Id. at 95.
[3] Annex “I” to Petition, CA rollo, p. 114
[4] Annex “H” to Petition, id. at 109.
[5] Annex “J” to Petition, id. at 115.
[6] Entitled: An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts , Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as the
“Judiciary Reorganization Act of 1980.”
[7] Annex “D” to Petition, CA rollo, p. 99.
[8] Annex “E” to Petition, id. at 102.
[9] Annex “G” to Petition, id. at 107.
[10] Annex “A” to Petition, id. at 73-87.
[11] Id. at 87.
[12] Annex “B” to Petition, id. at 88-97.
[13] Annex “C” to Petition, id. at 98.
[14] Id. at 11.
[15] Id. at 296.
[16] Rollo, pp. 35-36.
[17] Id. at 237-238.
[18] Gabionza v. Court of Appeals, G.R. No. 112547, July 18, 1994, 234 SCRA 192, 198.
[19] Manuel v. Galvez, G.R. No. 147394, August 11, 2004, 436 SCRA 96, 110.
[20] Estribillo v. Department of Agrarian Reform, G.R. No. 159674, June 30, 2006, 494 SCRA 218,
233-234.
[21] Barnes v. Padilla, G.R. No. 160753, June 28, 2005, 461 SCRA 533,538 citing Ginete v. Court of
Appeals, G.R. No. 127596, September 24, 1988, 292 SCRA 38 and Sanchez v. Court of Appeals, G.R. No. 152766,
June 20, 2003, 404 SCRA 540.
[22] Barnes v. Padilla, supra.
[23] Barnes v. Padilla, supra at 541
[24] Id.
[25] Id.
[26] Anadon v. Herrera, G.R. No. 159153, July 9, 2007, 527 SCRA 90, 96-97; Villena v. Rupisan, G.R. No.
167620, April 4, 2007, 520 SCRA 346, 361.
[27] Varorient Shipping Co., Inc. v. National Labor Relations Commission, G.R. No. 164940, November 28,
2007, 539 SCRA 131, 140.
[28] G.R. No. 136100, July 24, 2000, 336 SCRA 419.
[29] Id. at 429.
[30] G.R. No. 135384, April 4, 2001, 356 SCRA 287, 294-295.
[31] Supra note 18.
[32] See Rule 1, Section 6 of the Rules of Court.

Evidence Page 130

[32] See Rule 1, Section 6 of the Rules of Court.
[33] CA Decision, rollo, p. 90.
[34] No. L-77008, December 29, 1987, 156 SCRA 838.
[35] The amendments to the Rules of Evidence were made effective on July 1, 1989.
[36] Sandejas v. Ignacio, Jr., G.R. No. 155033, December 19, 2007, 541 SCRA 61, 74.
[37] Id. at 74-75.
[38] Heirs of Emilio Santioque v. Heirs of Emilio Calma, G.R. No. 160832, October 27, 2006, 505 SCRA
665, 682; Abing v. Waeyan, G.R. No. 146294, July 31, 2006, 497 SCRA 202, 208-209.
[39] Id.
[40] Id.
[41] Llemos v. Llemos, G.R. No. 150162, January 26, 2007, 513 SCRA 128, 139.
[42] Id.
[43] Tapuroc .v Loquellano Vda. de Mende, G.R. No.152007, January 22, 2007, 512 SCRA 97, 109.
[44] Fulgencio v. Martin, A.C. No. 3223, May 29, 2003, 403 SCRA 216, 221.
[45] Bautista v. Bernabe, A.C. No. 6963, February 9, 2006, 482 SCRA 1, 7-8.
[46] Tating v. Marcella, G.R. No. 155208, March 27, 2007, 519 SCRA 79, 90-91.

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2008/august2008/162886.htm>

Evidence Page 131

Offer of Evidence
Monday, September 21, 2009
6:08 PM

Parel v. Prudencio
F: Parel was kidnapped, allegedly on the orders of the husband of his lover…

Fideldia vs. Mulato

Evidence Page 132

Fideldia vs. Mulato
Monday, September 21, 2009
6:10 PM

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 149189 September 3, 2008
LETICIA T. FIDELDIA, petitioner,
vs.
SPOUSES RAUL and ELEONOR MULATO, respondents.
DECIS ION
CHICO-NAZARIO, J.:
This is a Petition for Review under Rule 45 of the Revised Rules of Court assailing the Decision1 dated 23
March 2001 of the Court of Appeals in CA-G.R. SP No. 62263 and its Resolution2 dated 25 July 2001
denying petitioner Leticia T. Fideldia's (Leticia's) Motion for Reconsideration.
I
FACTS
The undisputed factual and procedural antecedents of this case are as follows:
Civil Case No. 459-BG: Action for Specific
Performance against Petra Fideldia
Petra Fideldia (Petra) was then the registered owner of two lots situated in Poblacion Bauang, La Union,
identified as Lot 4-B and Lot 4-C under Transfer Certificates of Title (TCTs) No. 21636 and No. 21637. On
8 March 1982, Petra executed a document, bearing the title Conditional Deed of Sale, selling the said
properties to the spouses Ray and Gloria Songcuan (spouses Songcuan), who were among the lessees
thereof.
The lots subject of the sale were cleared of lessees, except for the spouses Songcuan, who remained on
the property. When the offer to pay the agreed price was refused, the spouses Songcuan filed before
the Regional Trial Court (RTC) of Bauang, La Union, an action for specific performance against Petra and
a certain Manuel L. Mangaser,3 docketed as Civil Case No. 459-BG. During the pendency of the case, a
notice of lis pendens was annotated at the back of TCTs No. 21636 and No. 21637 upon the instance of
the spouses Songcuan.
On 4 November 1991, the RTC ruled in favor of the spouses Songcuan, to wit:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Songcuans against the defendants
[Petra] Fideldia and Mangaser as follows:
(1) Defendant [Petra] Fideldia --
a) She is ordered to execute a document in due form conveying to the plaintiffs spouses Ray Songcuan
and Gloria Songcuan full ownership of the property subject matter of the conditional contract of Sale
(Exh. A and Exh. 4) as well as to deliver to the Songcuans the titles of Lot 4-B and Lot 4-C, and the said
plaintiffs [spouses Songcuan] are likewise ordered to deliver the balance of the purchase price of
P330,000.00 minus the costs of documentary stamps;
b) Defendant [Petra] Fideldia is ordered to pay the Songcuans the following amounts: P11,400.00 as
moral damages and hospital expenses; P5,000.00 as exemplary damage; P8,640.00 refund of rentals,
P20,000.00 for repairs, etc. of the Fideldia building, and P5,000.00 attorney's fees and expenses of
litigation mentioned herein;
c) x x x x
d) The counterclaim of defendant [Petra] Fideldia against the plaintiffs [spouses Songcuan] is also
dismissed.
xxx x
(4) Defendant [Petra] Fideldia is ordered to pay the costs.4
Petra appealed the afore-quoted RTC Decision to the Court of Appeals. Her appeal was docketed as CA-
G.R. CV No. 38855.
Sometime in 1994,5 during the pendency of her appeal before the appellate court, Petra donated both

Evidence Page 133

G.R. CV No. 38855.
Sometime in 1994,5 during the pendency of her appeal before the appellate court, Petra donated both
properties to her daughters: Lot 4-B to Leticia and Lot 4-C to Vilma Fideldia (Vilma).
On 21 March 1996, the Court of Appeals affirmed6 the RTC Decision with modification. Its fallo reads:
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATIONS that paragraph (1),
subparagraph a) of the dispositive portion of said judgment is amended to the effect that parties should
comply with Exhibits A-B and 4-A as quoted in the text of herein decision; and the award of moral
damages is reduced to P8,000.00; the payment for hospital expenses is deleted; the amount of
P2,800.00 is ordered returned to herein plaintiffs-appellees [spouses Songcuan]. The rest of the
dispositive portion of said appealed decision remains undisturbed.
Still unsatisfied, Petra filed a Petition for Review with this Court, docketed as G.R. No. 124336. In a
Resolution dated 5 August 1996, the Court denied the Petition since the issues raised were essentially
factual and there was no sufficient showing that the findings of the Court of Appeals were not supported
by the requisite quantum of evidence. The Court found no reversible error in the appellate court's
Decision. The Motion for Reconsideration was denied with finality on 21 October 1996.
The Court's Resolution dated 5 August 1996 became final and executory on 4 December 1996.
Consequently, the Decision dated 29 March 1996 of the Court of Appeals in CA-G.R. CV No. 38855
modifying the Decision dated 4 November 1991 in Civil Case No. 459-BG became final.
Thereafter, respondents spouses Raul and Eleonor Mulato (spouses Mulato), who were also originally
lessees of the subject properties, negotiated with the spouses Songcuan for the lease of Lots 4-B and 4-C
for P10,000.00 per month. Starting December 1996, the spouses Mulato began paying rentals to the
spouses Songcuan, instead of to Petra.
Sometime in 1997,7 Vilma donated Lot 4-C to her sister Leticia. Leticia had the donation registered,
making her the registered owner of both Lot 4-B and Lot 4-C under TCTs No. T-39541 and No. T-47083,
respectively.
CA-G.R. SP No. 59257: Petition for Certiorari
against the order deferring the execution of the
judgment in Civil Case No. 459-BG
In the meantime, the spouses Songcuan filed with the RTC a motion for execution to enforce the
Decision dated 29 March 1996 of the Court of Appeals in CA-G.R. CV No. 38855. The RTC granted the
motion on 3 November 1997 and issued a Writ of Execution. However, the writ was twice returned
unsatisfied. Thereafter, the RTC issued an Alias Writ of Execution on 13 April 1998. The Alias Writ of
Execution was also returned unsatisfied.
On 27 July 1998, Petra filed with the RTC a Motion to Suspend the Execution of the 29 March 1996
Decision of the Court of Appeals in CA-G.R. CV No. 38855. The RTC issued an Order8 denying said Motion
and issued a Second Alias Writ of Execution on 12 August 1999. However, the Second Alias Writ of
Execution, like the previous writs, was returned unsatisfied.
Petra filed a Motion for Reconsideration of the said RTC Order. In an Order dated 3 December 1999, the
RTC granted Petra's Motion for Reconsideration, reversed its earlier Order, and suspended the
execution of the 29 March 1996 Decision of the Court of Appeals in CA-G.R. CV No. 38855. It was now
the turn of the spouses Songcuan to move for the reconsideration by the RTC of its Order dated 3
December 1999, but it was denied by the RTC in another Order dated 22 May 2000.
The spouses Songcuan, meanwhile, consigned to the RTC on 19 May 2000 the amount of P330,000.00
representing the balance of the purchase price for the two lots.
The spouses Songcuan then filed a Petition for Certiorari with the Court of Appeals seeking to annul the
Order of 22 May 2000 of the RTC deferring the execution of the judgment of the Court of Appeals in CA-
G.R. CV No. 38855, for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. Their Petition was docketed as CA-G.R. SP No. 59257. The Court of Appeals, in its Decision
dated 30 March 2001, granted9 the Petition of the spouses Songcuan and annulled the RTC Order of 3
December 1999; and in its Resolution dated 11 December 2001, denied Petra's Motion for
Reconsideration.
Petra, now joined by her daughter Leticia, filed a Petition for Review with this Court, docketed as G.R.
No. 151352. On 29 July 2005, this Court rendered its Decision10 affirming the 30 March 2001 Decision of
the Court of Appeals in CA-G.R. SP No. 59257.
Civil Case No. 922: The unlawful detainer case,
subject of the present petition

Evidence Page 134

Civil Case No. 922: The unlawful detainer case,
subject of the present petition
On 2 June 1999 (when Petra's Motion to Suspend the Execution of the 29 March 1996 Decision of the
Court of Appeals in CA-G.R. CV No. 38855 was still pending resolution, but before the spouses Songcuan
could pay the balance of the purchase price in the amount of P330,000.00), the spouses Mulato received
a letter of demand from Leticia increasing the monthly rentals for the subject properties to P25,000.00,
to be paid to Leticia; otherwise, the spouses Mulato must vacate the premises. When the spouses
Mulato ignored her letter of demand, Leticia filed with the Municipal Trial Court (MTC) of Bauang, La
Union, a complaint for unlawful detainer against them, which was docketed as Civil Case No. 922.
On 6 April 2000, the MTC rendered its Decision in favor of Leticia, to wit:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiff [Leticia] and
against the defendant[s] [spouses Mulato] who is [sic] hereby ordered, to wit:
1. To vacate the subject premises and surrender possession of the same;
2. To pay the plaintiff [Leticia] the accumulated rental of P100,000.00 and monthly rental of P25,000.00
beginning September 1999 and every succeeding months thereafter until they vacate and surrender the
premises to the plaintiff [Leticia] plus legal interest;
3. To pay the plaintiff [Leticia] attorney's fees in the amount of P25,000.00; and
4. Costs of litigation.11
According to the MTC, the Decision dated 29 March 1996 of the Court of Appeals in CA-G.R. CV No.
38855, although already final and executory, did not automatically transfer ownership of the properties
to the spouses Songcuan. There were still the following acts that needed to be done:
1. The execution by Petra of the document in due form conveying to the spouses Songcuan full
ownership of the property subject matter of the Conditional Contract of Sale;
2. The delivery by Petra of the TCTs of Lots 4-B and 4-C to the spouses Songcuan; and
3. The payment by the spouses Songcuan of the balance of the purchase price for the properties, in the
amount of P330,000.00, minus the cost of documentary stamps.
According to the MTC, the document conveying ownership of the properties need not yet be executed
because the Songcuan spouses had not complied with the order to pay to Petra the balance of the
purchase price for the said properties in the sum of P330,000.00. Thus, ownership of the properties still
remained with Petra and her successor-in-interest Leticia. It was only appropriate that the titles to the
properties continue to be registered in the name of Leticia, under TCTs No. T-39541 and No. T-47083.
Being the registered owner, Leticia was entitled to the payment of the rent on the properties leased to
the spouses Mulato in accordance with Articles 44112 and 44213 of the Civil Code. On the other hand, as
the lessees of the leased premises, the spouses Mulato were bound to pay the rent therefor to the
owner in accordance with Articles 165714 and 124015 of the Civil Code, and not to other persons not
authorized by the rightful owner. Considering the failure of the spouses Mulato to comply with their
obligation as lessees, Leticia, as the rightful owner of the properties, had the right, under Article 167316
of the Civil Code, to judicially eject them on the ground of nonpayment of the price stipulated.
The spouses Mulato filed an appeal with the RTC where it was docketed as Civil Case No. 1274-BG. On
22 September 2000, the RTC promulgated its Decision reversing the judgment of the MTC in Civil Case
No. 922 and ruling thus:
IN VIEW THEREOF, the Court hereby renders judgment declaring the decision rendered by the court a
quo dated April 6, 2000, as without legal basis and is hereby set aside and annulled and declaring herein
Sps. Songcuan as the lessor[s] of herein appellants [spouses Mulato].
Insofar as the resolution of the Motion for Execution pending appeal, the same has become moot and
academic considering that the basis of said motion which is the decision of the Court a quo has been
reversed.
Without pronouncement as to cost.17
The RTC reasoned that the contract entered into by Petra and the spouses Songcuan, although
denominated as a Conditional Contract of Sale, was absolute in nature, there being neither a stipulation
reserving title to the vendor, Petra, until full payment of the purchase price; nor a grant to her of the
right to unilaterally rescind the contract in case of nonpayment of the same. In an absolute sale,
ownership of the thing sold passes on to the vendee upon constructive or actual delivery thereof.
Hence, the ownership of Lot 4-B and Lot 4-C passed on to the spouses Songcuan, considering that the
properties were delivered to them both constructively and actually. There was constructive delivery of
the properties when the contract selling the same was executed on 8 March 1982, in favor of the

Evidence Page 135

the properties when the contract selling the same was executed on 8 March 1982, in favor of the
spouses Songcuan, bearing no condition or reservation. There was actual delivery when the spouses
Songcuan took unconditional possession of the properties and leased the same to the spouses Mulato,
who had been paying rent therefor to them. Given the foregoing, the RTC concluded that the sale of the
properties by Petra to the spouses Songcuan was already perfected, resulting in the transfer of
ownership thereof to the latter. The spouses Mulato now occupied the properties as the lessees of the
rightful owners of the same, namely, the spouses Songcuan. Hence, there was no merit in Leticia's
action for ejectment against the spouses Mulato.
Leticia filed a Petition for Review with the Court of Appeals, where it was docketed as CA-G.R. SP No.
62263. On 23 March 2001, the Court of Appeals promulgated its assailed Decision ruling in favor of the
spouses Mulato and decreeing that:
IN VIEW OF ALL THE FOREGOING, the instant petition for review is ordered DISMISSED and the assailed
Decision of the Regional Trial Court in Civil Case No. 1274-BG is AFFIRMED. Costs against the petitioner
[Leticia].18
The Court of Appeals agreed with the RTC that while the written agreement between Petra and the
spouses Songcuan was entitled "Conditional Contract of Sale," it was in reality a perfected contract of
sale. Neither is payment of the purchase price essential to the transfer of ownership of the property, as
long as the same is delivered. The delivery operates to divest the vendor of title to the property, which
may not be regained or recovered until and unless the contract is rescinded.19 Since there was already a
delivery of the properties to the vendees, spouses Songcuan, and there being no rescission of the
contract of sale by the vendor, Petra, resultantly, the ownership of the properties had likewise been
transferred to the former.
The Court of Appeals denied Leticia's Motion for Reconsideration in its assailed Resolution dated 25 July
2001.20
Leticia seeks recourse from this Court via the Petition at bar.
II
ISSUES AND RULING
In her Petition, Leticia submits the following issues for consideration of this Court:
1. Whether or not the Court of Appeals erred in resolving the issue of ownership in an unlawful detainer
case.
2. Whether or not the Court of Appeals erred in finding that the respondents spouses Mulato are the
lessees of Ray and Gloria Songcuan in the absence of any evidence to support the same.21
Leticia contends that it was not necessary for the Court of Appeals to determine the issue of ownership
of the properties, since she had already established the following facts:
1. Respondents Spouses Mulato are the lessees of petitioner Leticia and her mother, Petra;
2. Respondents Spouses Mulato failed to pay the monthly rentals as stipulated in the contract of lease;
and
3. Respondents Spouses Mulato are not claiming ownership over the leased premises.22
The Court of Appeals validly focused on the matter of ownership of the lots in question in arriving at its
Decision, since the 1997 Revised Rules of Court allows the trial court to rule on the issue of ownership in
an ejectment case to resolve the issue of possession.23 Nevertheless, this Court finds other areas worth
delving into if only to put things in a more proper perspective. Leticia's complaint in Civil Case No. 922
should have been denied by the MTC for failure of the plaintiff to prove her cause of action.
It bears to stress that the complaint filed by Leticia against the spouses Mulato in Civil Case No. 922 was
for unlawful detainer. It was instituted after the finality of the 21 March 1996 Decision of the Court of
Appeals in CA-G.R. CV No. 38855, but before the spouses Songcuan complied with the appellate court's
order by consigning the balance of the purchase price for the said properties with the RTC.
An action for unlawful detainer is grounded on Section 1, Rule 70 of the Rules of Court which provides
that:
[A] lessor, vendor, vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee,
or other person, may, at any time within one (1) year after such x x x withholding of possession, bring an
action in the proper Municipal Trial Court against the person or persons unlawfully withholding or

Evidence Page 136

depriving of possession, or any person or persons claiming under them, for the restitution of such
possession, together with damages and costs.
Unlawful detainer is one of the two kinds24 of ejectment proceedings, which are summary proceedings
for the recovery of physical possession, where the dispossession has not lasted for more than one year.
In unlawful detainer cases, possession of the defendant was originally legal but became illegal due to
the expiration or termination of the right to possess.25
For the purpose of bringing an unlawful detainer suit, two requisites must concur: (1) there must be
failure to pay rent or comply with the conditions of the lease, and (2) there must be demand both to pay
or to comply and vacate. The first requisite refers to the existence of the cause of action for unlawful
detainer, while the second refers to the jurisdictional requirement of demand in order that said cause of
action may be pursued.26 Implied in the first requisite, which is needed to establish the cause of action
of the plaintiff in an unlawful detainer suit, is the presentation of the contract of lease entered into by
the plaintiff and the defendant, the same being needed to establish the lease conditions alleged to have
been violated. Thus, in Bachrach Corporation v. Court of Appeals,27 the Court held that the evidence
needed to establish the cause of action in an unlawful detainer case is (1) a lease contract and (2) the
violation of that lease by the defendant.
An exhaustive review of the records of the instant Petition leads this Court to conclude that Leticia was
not able to establish that she had a cause of action for unlawful detainer against the spouses Mulato.
Leticia did not prove to the satisfaction of this Court that a contract of lease existed between her and
the spouses Mulato, much less, that the spouses Mulato violated the terms of such contract.
Firstly, Leticia never offered in evidence a lease contract with the spouses Mulato pertaining to the
properties. Instead, she merely attached a lease contract to some of her pleadings. Generally,
documents merely attached to pleadings are not admissible in evidence. Section 34, Rule 132 of the
Rules of Court, provides that "[t]he court shall consider no evidence which has not been formally
offered." A formal offer is necessary, since judges are required to base their findings of fact and their
judgment solely and strictly upon the evidence offered by the parties at the trial. To allow parties to
attach any document to their pleadings and then expect the court to consider it as evidence, even
without formal offer and admission, may draw unwarranted consequences. Opposing parties will be
deprived of their chance to examine the document and to object to its admissibility. On the other hand,
the appellate court will have difficulty reviewing documents not previously scrutinized by the court
below.28
Secondly, the lease contract attached by Leticia to her pleadings does not even pertain to the properties
subject of the case at bar. The lease contract she attached to her pleadings pertains to Lot 4-A, covered
by TCT No. T-39503; while the properties involved herein are Lot 4-B and Lot 4-C covered by TCTs No.
T-39541 and No. T-47083.
And thirdly, Leticia relies on alleged admissions made by the spouses Mulato that they were lessees of
Leticia and her mother, Petra. The Court meticulously examined the records of the case, yet still failed to
find any such admission. What the spouses Mulato admitted was that they were the lessees of Petra,
and not of Leticia herself; and that they paid rentals to Leticia only because she collected the same on
behalf of her mother.29
Without a contract of lease with Leticia, then the spouses Mulato could not have committed a violation
of the same.
Leticia likewise failed to convince this Court of her right to possession of the subject property. Unlike
suits for forcible entry, prior physical possession is not required in unlawful detainer cases.30 However, it
is still incumbent for the plaintiff to prove his or her right to possess the subject property, since the very
issue in unlawful detainer cases is who between the plaintiff and the defendant has a better right to
possess the property in question.31
Leticia's right to possession of the properties supposedly arose from the donations of the said properties
to her by her mother, Petra, and sister, Vilma. However, the donations she invokes are highly dubious
and questionable considering the dates when they were executed. Lot 4-B and Lot 4-C were donated by
Petra to Leticia and Vilma, respectively, in 1994, three years after the RTC had already ruled against
Petra in Civil Case No. 459-BG in 1991, which, during the pendency of Petra's appeal, was docketed as
CA-G.R. CV No. 38855, with the Court of Appeals. Vilma would subsequently donate Lot 4-C to Leticia in
1997, after this Court had already issued its Resolution dated 5 August 1996 in G.R. No. 124336
summarily dismissing Petra's Petition challenging the 29 March 1996 Decision of the Court of Appeals in

Evidence Page 137

summarily dismissing Petra's Petition challenging the 29 March 1996 Decision of the Court of Appeals in
CA-G.R. CV No. 38855. The donations of the properties to Leticia were thus made even after findings by
the courts that the said properties should already be delivered to the spouses Songcuan. Although the
rulings of the court were not yet final or executory during the dates of donations of the properties to
Leticia, the more prudent course of action, especially for the party against whom the judgment was
rendered, would have been to suspend all transactions regarding the properties; at least, until the issues
regarding their supposed sale to the spouses Songcuan were settled.
The Court also considers the notices of lis pendens annotated on TCTs No. 21636 and No. 21637
covering Lot 4-B and Lot 4-C, respectively, when Civil Case No. 459-BG for specific performance was
commenced by the spouses Songcuan against Petra before the RTC. These notices subsisted when the
properties were donated to Leticia in 1994 and 1997, and the Deeds of Donations were registered with
the Registry of Deeds. The notices were also carried over to the new certificates, i.e., TCTs No. T-39541
and No. T-47083, covering the same properties issued to Leticia.
By virtue of the notices of lis pendens on the certificates of title, Leticia, as donee, was aware that the
properties donated were still subject of litigation, and that she was bound by the outcome of the
litigation subject of the lis pendens. As a transferee pendente lite, Leticia should have respected any
judgment or decree which may be rendered for or against the transferor, Petra. Her interest was subject
to the incidents or results of the pending suit, and her certificates of title will, in that respect, afforded
her no special protection.32 Thus, the donations of the properties in favor of Leticia and the certificates
of title issued in her name, during the pendency of Petra's appeal of the judgment against her in Civil
Case No. 459-BG, could not serve to evade the ensuing final decision in the pending litigation. Leticia,
herself, was aware that far from being absolute, her title to the properties by virtue of the donation was
tenuous and conditional on the reversal of the judgment in Civil Case No. 459-BG adverse to Petra, her
mother and predecessor-in-interest (a condition which, as subsequent events would show, did not
occur).
The Court gives scant consideration to Leticia's argument that spouses Mulato were unable to present
evidence that they were, instead, the lessees of spouses Songcuan.
The spouses Mulato's submission of their alleged lease contract with the spouses Songcuan is as
defective as Leticia's submission of her alleged lease contract with the spouses Mulato: both lease
contracts were merely attached to their pleadings and not formally offered as evidence. However, for
the MTC to grant Leticia's complaint for unlawful detainer, what was imperative was for her to prove
that the spouses Mulato are her lessees and not merely to disprove the spouses Mulato's claim that
they are someone else's lessees. He who alleges the affirmative of the issue has the burden of proof; and
upon the plaintiff in a civil case, the burden of proof never parts.33
WHEREFORE, the instant Petition is DENIED. The Decision dated 23 March 2001 of the Court of Appeals
in CA-G.R. No. 62263 and its Resolution dated 25 July 2001 are AFFIRMED. The complaint for unlawful
detainer of petitioner Leticia T. Fideldia against the respondent spouses Raul and Eleonor Mulato is
hereby DENIED for failure to prove cause of action. Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Chairperson, Nachura, Reyes, Leonardo-de Castro*, JJ., concur.
Footnotes
* Justice Teresita J. Leonardo-De Castro was designated to sit as additional member replacing Justice Ma.

Alicia Austria-Martinez per Raffle dated 20 August 2008.

1 Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Martin S. Villarama, Jr.,

and Eliezer R. de los Santos, concurring. Rollo, pp. 44-52.

2 Rollo, p. 53.
3 The exact participation of Manuel L. Managaser was not specified in the pleadings in the case at bar.
4 Records, pp. 192-193.
5 Rollo, p. 169.
6 Penned by then Court of Appeals Associate Justice Ma. Alicia Austria Martinez (who is now a Member

of this Court), with Associate Justices Pedro A. Ramirez and Bernardo LL. Salas concurring. Rollo, pp.
93-111.
7 Rollo, p. 169.
8 The date of this Order is not available in the records of the case at bar.
9 Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Ramon Mabutas, Jr. and Roberto

Evidence Page 138

9 Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Ramon Mabutas, Jr. and Roberto

A. Barrios, concurring.
10 Penned by Associate Justice Antonio T. Carpio, with Chief Justice Hilario Davide and Associate Justices

Leonardo A. Quisumbing, Consuelo Ynares-Santiago and Adolfo S. Azcuna, concurring.

11
Rollo, p. 86.
12
Art. 441. To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits.
13 Art. 442. Natural fruits are the spontaneous products of the soil, and the young and other products of

animals.
Industrial fruits are those produced by lands of any kind through cultivation or labor.
Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of
perpetual or life annuities or other similar income.
14
Art. 1657. The lessee is obliged:
(1) To pay the price of the lease according to the terms stipulated;
(2) To use the thing leased as a diligent father of a family, devoting it to the use stipulated; and in the
absence of stipulation, to that which may be inferred from the nature of the thing leased, according to
the custom of the place;
(3) To pay the expenses for the deed of lease.
15
Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or
his successor in interest, or any person authorized to receive it.
16
Art. 1673. The lessor may judicially eject the lessee for any of the following causes:
(1) When the period agreed upon, or that which is fixed for the duration of lease under Articles 1682
and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the
deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the
use thereof.
The ejectment of tenants of agricultural lands is governed by special laws.
17 Rollo, p. 92.
18 Id. at 52.
19 Philippine National Bank v. Court of Appeals, 338 Phil. 795, 822 (1997).
20 Rollo, p. 53.
21
Id. at 175.
22 Petitioner's Memorandum, rollo, p. 177.
23 Relevant provisions of Rule 70 reads:

Section 16. Resolving defense of ownership. - When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of possession.
SEC. 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership.-
Thejudgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the
possession only and shall in no wise bind the title or affect the ownership of the land or building. Such
judgment shall not bar an action between the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall
decide the same on the basis of the entire record of the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court.
24 The other kind of ejectment proceeding is that of forcible entry, and is governed by the same Rule 70

of the Rules of Court.

25 Go, Jr. v. Court of Appeals, 415 Phil. 172, 184 (2001).
26 Siapian v. Court of Appeals, 383 Phil. 753, 761 (2000); Cetus Development, Inc. v. Court of Appeals,

G.R. No. 77647, 7 August 1989, 176 SCRA 72, 80.

27 357 Phil. 483 (1998).
28 Candido v. Court of Appeals, 323 Phil. 95, 99 (1996); Republic v. Sandiganbayan, 325 Phil. 762, 787

Evidence Page 139

27
357 Phil. 483 (1998).
28 Candido v. Court of Appeals, 323 Phil. 95, 99 (1996); Republic v. Sandiganbayan, 325 Phil. 762, 787
(1996); Vda. de Alvarez v. Court of Appeals, G.R. No. 110970, 16 March 1994, 231 SCRA 309, 317-318;
Veran v. Court of Appeals, G.R. No. L-41154, 29 January 1988, 157 SCRA 438, 443; People v. Cariño, G.R.
No. L-73876, 26 September 1988, 165 SCRA 664, 671; People v. Peralta, G.R. No. 94570, 28 September
1994, 237 SCRA 218, 226.
29
Rollo, p. 209.
30
Maddamu v. Judge of Municipal Court of Manila, 74 Phil. 230 (1943).
31
Times Broadcasting Network v. Court of Appeals, G.R. No. 122806, 19 June 1997, 274 SCRA 366, 377.
32 Toledo-Banaga v. Court of Appeals, 361 Phil. 1006, 1018 (1999); Yu v. Court of Appeals, G.R. No.

109078, 26 December 1995, 251 SCRA 509, 513; Tuazon v. Reyes, 48 Phil. 844, 847 (1926); Demontaño v.
Court of Appeals, G.R. No. L-30764, 31 January 1978, 81 SCRA 287; Director of Lands v. Martin, 84 Phil.
140, 143 (1949).
33
Jison v. Court of Appeals, 350 Phil. 138, 173 (1998).

Pasted from <http://www.lawphil.net/judjuris/juri2008/sep2008/gr_149189_2008.html>

Evidence Page 140

Weight and Sufficiency of Evidence
Monday, September 21, 2009
6:30 PM

Delgado vs. Rustia

Bautista vs. Sarmiento

Abarquez vs. People

DBP Pool of Accredited Insurance Companies vs. RMN

People vs. Gaffud

People vs. Notarion

Evidence Page 141

Delgado vs. Rustia
Monday, September 21, 2009
6:32 PM

PHILIPPINE JURISPRUDENCE – FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. 155733 January 27, 2006
IN THE MATTER OF THE INTESTATE ETC. vs. HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, ET AL.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 155733 January 27, 2006
IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO
RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS DELGADO, namely, HEIRS
OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO
ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO
DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF
GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA
DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and
MELINDA DELGADO CAMPO-MADARANG, Petitioners,
vs.
HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and JOSE R.
DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON, HORACIO R. CRUZ,
JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA,
SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO
RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and GUILLERMINA RUSTIA, as Oppositors; 1
and GUILLERMA RUSTIA, as Intervenor, 2 Respondents.3
DE C I S I O N
CORONA, J.:
In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the
Regional Trial Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668, which was reversed and set aside
by the Court of Appeals in its decision5 dated October 24, 2002.
FACTS OF THE CASE
This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado.6 The
main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful
heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution.
The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1)
the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces,
and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his
sisters,7 his nephews and nieces,8 his illegitimate child,9 and the de facto adopted child10 (ampun-
ampunan) of the decedents.
The alleged heirs of Josefa Delgado
The deceased Josefa Delgado was the daughter of Felisa11 Delgado by one Lucio Campo. Aside from
Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and
Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and
her full-blood siblings were all natural children of Felisa Delgado.
However, Lucio Campo was not the first and only man in Felisa Delgado’s life. Before him was Ramon
Osorio12 with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which

Evidence Page 142

Osorio12 with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which
was admittedly one without the benefit of marriage, the legal status of Ramon Osorio’s and Felisa
Delgado’s union is in dispute.
The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants
because the answer will determine whether their successional rights fall within the ambit of the rule
against reciprocal intestate succession between legitimate and illegitimate relatives.13 If Ramon Osorio
and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-
blood brother of Josefa Delgado and therefore excluded from the latter’s intestate estate. He and his
heirs would be barred by the principle of absolute separation between the legitimate and illegitimate
families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to
inherit from Josefa Delgado’s intestate estate, as they would all be within the illegitimate line.
Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they
assert that no evidence was ever presented to establish it, not even so much as an allegation of the date
or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So
did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento14 stated
that he was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado),15 significantly omitting
any mention of the name and other circumstances of his father.16 Nevertheless, oppositors (now
respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that
no marriage ever took place.
Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and
some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo
Rustia executed an affidavit of self-
adjudication of the remaining properties comprising her estate.
The marriage of Guillermo Rustia and Josefa Delgado
Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado17 but whether a marriage in
fact took place is disputed. According to petitioners, the two eventually lived together as husband and
wife but were never married. To prove their assertion, petitioners point out that no record of the
contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado
as one of the sponsors referred to her as "Señorita" or unmarried woman.
The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate
did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa
Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the
death of Josefa on September 8, 1972. During this period spanning more than half a century, they were
known among their relatives and friends to have in fact been married. To support their proposition,
oppositors presented the following pieces of evidence:
1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos
P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines;
2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;
3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active
Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the
Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr.
Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;18
4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa
Delgado.
The alleged heirs of Guillermo Rustia
Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took
into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally
adopted by the couple, were what was known in the local dialect as ampun-ampunan.
During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child,19 the
intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma,
Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and
continuous possession of that status from her birth in 1920 until her father’s demise. In fact, Josefa
Delgado’s obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one
of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as
her parent/guardian.20

Evidence Page 143

her parent/guardian.20
Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate
estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend
that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she
cannot claim voluntary acknowledgement since the documents she presented were not the authentic
writings prescribed by the new Civil Code.21
On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition
for the adoption22 of their ampun-ampunan Guillermina Rustia. He stated under oath "[t]hat he ha[d] no
legitimate, legitimated, acknowledged natural children or natural children by legal fiction."23 The
petition was overtaken by his death on February 28, 1974.
Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia
vda. de Damian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia
Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco
Rustia and Leticia Rustia Miranda.24
ANTECEDENT PROCEEDINGS
On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition
for letters of administration of the intestate estates of the "spouses Josefa Delgado and Guillermo
Rustia" with the RTC of Manila, Branch 55.25 This petition was opposed by the following: (1) the sisters
of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;26 (2) the heirs
of Guillermo Rustia’s late brother, Roman Rustia, Sr., and (3) the ampun-ampunanGuillermina Rustia
Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other
claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa
Delgado.
In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was
the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the
oppositors (respondents herein), the motion was granted.
On April 3, 1978, the original petition for letters of administration was amended to state that Josefa
Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife.
On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC
insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the
interests of the petitioners and the other claimants remained in issue and should be properly threshed
out upon submission of evidence.
On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de
Danao, who had died on May 18, 1987.
On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both
estates.27 The dispositive portion of the decision read:
WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa
Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the
only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8,
1972, and entitled to partition the same among themselves in accordance with the proportions referred
to in this Decision.
Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the
late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of
the oppositors and the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia
on June 15, 1973 is hereby SET ASIDE and declared of no force and effect.
As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered
consolidated in this proceeding in accordance with law, a single administrator therefor is both proper
and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the
appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of
the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J.
RUSTIA.
Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA
DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED
THOUSAND PESOS (P500,000.00).

Evidence Page 144

THOUSAND PESOS (P500,000.00).
Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of
administration of the subject estates, and is likewise ordered to turn over to the appointed administratix
all her collections of the rentals and income due on the assets of the estates in question, including all
documents, papers, records and titles pertaining to such estates to the petitioner and appointed
administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The
same oppositor is hereby required to render an accounting of her actual administration of the estates in
controversy within a period of sixty (60) days from receipt hereof.
SO ORDERED.28
On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal
was not filed on time.29 They then filed a petition for certiorari and mandamus30 which was dismissed by
the Court of Appeals.31 However, on motion for reconsideration and after hearing the parties’ oral
arguments, the Court of Appeals reversed itself and gave due course to oppositors’ appeal in the
interest of substantial justice.32
In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the
ground that oppositors’ failure to file the record on appeal within the reglementary period was a
jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance
of the appeal. The pertinent portion of our decision33 read:
As a rule, periods prescribed to do certain acts must be followed. However, under exceptional
circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice.
xxx xxx xxx
The respondent court likewise pointed out the trial court’s pronouncements as to certain matters of
substance, relating to the determination of the heirs of the decedents and the party entitled to the
administration of their estate, which were to be raised in the appeal, but were barred absolutely by the
denial of the record on appeal upon too technical ground of late filing.
xxx xxx xxx
In this instance, private respondents’ intention to raise valid issues in the appeal is apparent and should
not have been construed as an attempt to delay or prolong the administration proceedings.
xxx xxx xxx
A review of the trial court’s decision is needed.
xxx xxx xxx
WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated
November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private
respondents’ Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV
Regional Trial Court’s May 11, 1990 decision.
SO ORDERED.
Acting on the appeal, the Court of Appeals34 partially set aside the trial court’s decision. Upon motion for
reconsideration,35 the Court of Appeals amended its earlier decision.36 The dispositive portion of the
amended decision read:
With the further modification, our assailed decision is RECONSIDEREDand VACATED. Consequently, the
decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr.
Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr.
Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to
partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion
referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo
Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein;
and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo
Rustia; thus revoking her appointment as administratrix of his estate.
The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate
estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her
qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS
(P500,000.00).
Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of
administration of the subject estates and to turn over to the appointed administrator all her collections
of the rentals and incomes due on the assets of the estates in question, including all documents, papers,

Evidence Page 145

of the rentals and incomes due on the assets of the estates in question, including all documents, papers,
records and titles pertaining to such estates to the appointed administrator, immediately upon notice of
his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina
Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from
notice of the administrator’s qualification and posting of the bond.
The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15,
1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of
Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said
adjudication.
Hence, this recourse.
The issues for our resolution are:
1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;
2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are;
3. who should be issued letters of administration.
The marriage of Guillermo Rustia and Josefa Delgado
A presumption is an inference of the existence or non-existence of a fact which courts are permitted to
draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions
of fact. Presumptions of law are, in turn, either conclusive or disputable.37
Rule 131, Section 3 of the Rules of Court provides:
Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
xxx xxx xxx
In this case, several circumstances give rise to the presumption that a valid marriage existed between
Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their
family and friends knew them to be married. Their reputed status as husband and wife was such that
even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975
referred to them as "spouses."
Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband
and wife without the benefit of marriage. They make much of the absence of a record of the contested
marriage, the testimony of a witness38 attesting that they were not married, and a baptismal certificate
which referred to Josefa Delgado as "Señorita" or unmarried woman.39
We are not persuaded.
First, although a marriage contract is considered a primary evidence of marriage, its absence is not
always proof that no marriage in fact took place.40 Once the presumption of marriage arises, other
evidence may be presented in support thereof. The evidence need not necessarily or directly establish
the marriage but must at least be enough to strengthen the presumption of marriage. Here, the
certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,41 the passport issued to her as
Josefa D. Rustia,42 the declaration under oath of no less than Guillermo Rustia that he was married to
Josefa Delgado43 and the titles to the properties in the name of "Guillermo Rustia married to Josefa
Delgado," more than adequately support the presumption of marriage. These are public documents
which are prima facie evidence of the facts stated therein.44 No clear and convincing evidence sufficient
to overcome the presumption of the truth of the recitals therein was presented by petitioners.
Second, Elisa vda. de Anson, petitioners’ own witness whose testimony they primarily relied upon to
support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and
that eventually, the two had "lived together as husband and wife." This again could not but strengthen
the presumption of marriage.
Third, the baptismal certificate 45 was conclusive proof only of the baptism administered by the priest
who baptized the child. It was no proof of the veracity of the declarations and statements contained
therein,46 such as the alleged single or unmarried ("Señorita") civil status of Josefa Delgado who had no
hand in its preparation.
Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this
jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling

Evidence Page 146

jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling
together apparently in marriage are presumed to be in fact married. This is the usual order of things in
society and, if the parties are not what they hold themselves out to be, they would be living in constant
violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always
presume marriage.47
The Lawful Heirs Of Josefa Delgado
To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of
her mother Felisa Delgado with Ramon Osorio must first be addressed.
As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions
are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may
overturn them.48 On the other hand, disputable presumptions, one of which is the presumption of
marriage, can be relied on only in the absence of sufficient evidence to the contrary.
Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The
oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in
the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon
Osorio) of the surname Delgado and (2) Luis Delgado’s and Caridad Concepcion’s Partida de
Casamiento49 identifying Luis as "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado).50
All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of
marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa
Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood
siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,51
were her natural children.52
Pertinent to this matter is the following observation:
Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural
brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally?
The law prohibits reciprocal succession between illegitimate children and legitimate children of the
same parent, even though there is unquestionably a tie of blood between them. It seems that to allow
an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent
different from that of the former, would be allowing the illegitimate child greater rights than a
legitimate child. Notwithstanding this, however, we submit that
succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood.
The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate
families does not apply to the case under consideration. That prohibition has for its basis the difference
in category between illegitimate and legitimate relatives. There is no such difference when all the
children are illegitimate children of the same parent, even if begotten with different persons. They all
stand on the same footing before the law, just like legitimate children of half-blood relation. We submit,
therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to
them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood
brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally.53
Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado,
her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other.
Accordingly, all of them are entitled to inherit from Josefa Delgado.
We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and
grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in
the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces).
Consequently, it cannot be exercised by grandnephews and grandnieces.54 Therefore, the only collateral
relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and
sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a
vested right to participate in the inheritance.55 The records not being clear on this matter, it is now for
the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa
Delgado at the time of her death. Together with Guillermo Rustia,56 they are entitled to inherit from
Josefa Delgado in accordance with Article 1001 of the new Civil Code:57
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
one-half.

Evidence Page 147

one-half.
Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated
Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of
the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to
the estate:
SECTION 1. Extrajudicial settlement by agreement between heirs. – If the decedent left no will and no
debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives
duly authorized for the purpose, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is
only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of
the register of deeds. x x x (emphasis supplied)
The Lawful Heirs Of Guillermo Rustia
Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child58 of Guillermo Rustia. As such,
she may be entitled to successional rights only upon proof of an admission or recognition of paternity.59
She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after
the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in
effect.
Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no
hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted
certain successional rights to illegitimate children but only on condition that they were first recognized
or acknowledged by the parent.
Under the new law, recognition may be compulsory or voluntary.60 Recognition is compulsory in any of
the following cases:
(1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with
that of the conception;
(2) when the child is in continuous possession of status of a child of the alleged father (or mother)61 by
the direct acts of the latter or of his family;
(3) when the child was conceived during the time when the mother cohabited with the supposed father;
(4) when the child has in his favor any evidence or proof that the defendant is his father. 62
On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before
a court of record or in any authentic writing.63
Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the
open and continuous possession of the status of an illegitimate child and second, voluntary recognition
through authentic writing.
There was apparently no doubt that she possessed the status of an illegitimate child from her birth until
the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but
a mere ground by which she could have compelled acknowledgment through the courts.64 Furthermore,
any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and
the lifetime of the putative parent.65 On the death of either, the action for compulsory recognition can
no longer be filed.66 In this case, intervenor Guillerma’s right to claim compulsory acknowledgment
prescribed upon the death of Guillermo Rustia on February 28, 1974.
The claim of voluntary recognition (Guillerma’s second ground) must likewise fail. An authentic writing,
for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in
this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father
to be his.67 Did intervenor’s report card from the University of Santo Tomas and Josefa Delgado’s
obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code?
Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo
Rustia. The fact that his name appears there as intervenor’s parent/guardian holds no weight since he
had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia
himself who drafted the notice of death of Josefa Delgado which was published in the Sunday Times on
September 10, 1972, that published obituary was not the authentic writing contemplated by the law.
What could have been admitted as an authentic writing was the original manuscript of the notice, in the
handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary.
The failure to present the original signed manuscript was fatal to intervenor’s claim.

Evidence Page 148

The failure to present the original signed manuscript was fatal to intervenor’s claim.
The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in
accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came
to fruition and was dismissed upon the latter’s death. We affirm the ruling of both the trial court and the
Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to
inherit from them ab intestato. We quote:
Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship
similar to that which results from legitimate paternity and filiation. Only an adoption made through the
court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this
jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the
statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The
fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its
existence.68
Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely,
intervenor Guillerma Rustia and the ampun-ampunan Guillermina Rustia Rustia, are not lawful heirs of
the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants,
illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his
sisters,69 nieces and nephews.70
Entitlement To Letters Of Administration
An administrator is a person appointed by the court to administer the intestate estate of the decedent.
Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an
administrator:
Sec. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them,
be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after
the death of the person to apply for administration or to request that the administration be granted to
some other person, it may be granted to one or more of the principal creditors, if competent and willing
to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as
the court may select.
In the appointment of an administrator, the principal consideration is the interest in the estate of the
one to be appointed.71 The order of preference does not rule out the appointment of co-administrators,
specially in cases where
justice and equity demand that opposing parties or factions be represented in the management of the
estates,72 a situation which obtains here.
It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de
de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the
deceased spouses Josefa Delgado and Guillermo Rustia, respectively.
WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila,
Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is
AFFIRMED with the following modifications:
1. Guillermo Rustia’s June 15, 1973 affidavit of self-adjudication is hereby ANNULLED.
2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The
remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b)
the children of any of Josefa Delgado’s full-or half-siblings who may have predeceased her, also
surviving at the time of her death. Josefa Delgado’s grandnephews and grandnieces are excluded from
her estate. In this connection, the trial court is hereby ordered to determine the identities of the
relatives of Josefa Delgado who are entitled to share in her estate.
3. Guillermo Rustia’s estate (including its one-half share of Josefa Delgado’s estate) shall be inherited by

Evidence Page 149

3. Guillermo Rustia’s estate (including its one-half share of Josefa Delgado’s estate) shall be inherited by
Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita)
and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective
shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz
are now deceased, their respective shares shall pertain to their estates.
4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa
Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of
Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such
amount as may be determined by the trial court.
No pronouncement as to costs.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairman
ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA
Associate Justice Asscociate Justice
CANCIO C. GARCIA
Associate Justice
ATT ES T AT I O N
I attest that the conclusions in the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Associate Justice
Chairman, Second Division
CER TI F I C A TI O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman’s Attestation, I hereby
certify that the conclusions in the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Oppositors in SP Case No. 97668 with the RTC Manila, Branch 55.
2
Intervenor in SP Case No. 97668 with the RTC Manila, Branch 55.
3
In the petition for review on certiorari filed by petitioners, the oppositors were identified as
"oppositors-respondents," while intervenor was identified as "intervenor-respondent." For clarity, we
shall refer to them collectively as "respondents" in this decision. The Court of Appeals was also
impleaded as public respondent but this was not necessary since this is a petition for review under Rule
45 of the Rules of Court.
4 Judge Hermogenes Liwag, Rollo, pp. 92-106.
5 Penned by Associate Justice Jose L. Sabio, Jr., and concurred in by Associate Justices Oswaldo D.

Agcaoili and Sergio L. Pestaño of the former 15th Division, Rollo, pp. 75-90.
6 The original action was a petition for letters of administration of the intestate estates of Guillermo

Rustia and Josefa Delgado, Rollo, p. 92.

7 Marciana Rustia vda. de Damian and Hortencia Rustia Cruz, both deceased and now substituted by

their respective heirs.

8 The children of Guillermo Rustia’s deceased brother Roman Rustia, Sr.
9 Intervenor Guillerma Rustia.
10 Oppositor Guillermina Rustia Rustia.
11 In some pleadings, this was spelled as "Feliza."
12 In some pleadings, this was spelled as "Osario" and in others, "Oscorro."
13 Art. 992, new Civil Code. An illegitimate child has no right to inherit ab intestato from the legitimate

Evidence Page 150

12
In some pleadings, this was spelled as "Osario" and in others, "Oscorro."
13 Art. 992, new Civil Code. An illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.
14
Rollo, p. 1262.
15
Id., pp. 1200-1201.
16
In relation, the Civil Code of Spain (the old Civil Code) provided that when the acknowledgment was
made separately by either parent, the name of the other parent shall not be revealed. Nor shall any
circumstance be mentioned by which such person might be recognized (Article 132). This showed the
intent of the said Code to protect the identity of the non-acknowledging parent.
17 One of the children of Felisa Delgado with Lucio Campo.
18 CA decision, Rollo, pp. 77-78.
19 Under the old Civil Code, which was in effect at the time of Guillerma Rustia’s birth in 1920, she was

an illegitimate child, not a natural child, since she was born of parents who at the time of conception
were disqualified to marry each other.
20
Rollo, p. 920.
21 Law in effect at the time of the death of Guillermo Rustia.
22 Filed before the then Juvenile and Domestic Relations Court of Manila.
23 Rollo, p. 1149.
24 Most of the respondents herein.
25 Filed on behalf of the surviving brothers, sisters, nephews, nieces, grandnephews and grandnieces of

Josefa Delgado.
26 Now represented by their heirs as respondents.

The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2006/jan2006/gr_155733_2006.html>

Evidence Page 151

Bautista vs. Sarmiento
Monday, September 21, 2009
6:32 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Law phil Proj ect - Arellano Law Foundation
G.R. No. L-45137. September 23, 1985
FE J. BAUTISTA v s. MALCOLM G. SARMIENTO

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-45137 September 23, 1985
FE J. BAUTISTA and MILAGROS J. CORPUS, petitioners,
vs.
HON. MALCOLM G. SARMIENTO, District Judge, Court of First Instance of Pampanga,
Branch I and the PEOPLE OF THE PHILIPPINES, respondents.

CUEVAS, J.:
In this special civil action of certiorari and Prohibition with Preliminary Injunction, petitioners
assail respondent Judge Malcolm G. Sarmiento's denial of their Motion to Dismiss filed in the
nature of demurrer to evidence in Criminal Case No. 808 for Estafa entitled "PEOPLE OF THE
PHILIPPINES vs. FE BAUTISTA, MILAGROS CORPUS and TERESITA VERGERE ", pending
before the defunct Court of First Instance of Pampanga Branch I.
An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with estafa was
filed before the sala of Judge Malcolm G. Sarmiento. The third accused, Teresita Vergere, was
granted a separate trial. To prove its case, the prosecution presented during the trial the private
complainant, Dr. Leticia C. Yap, as its only witness. Thereafter, petitioners, believing the
prosecution failed to prove their guilty beyond reasonable doubt, moved to dismissal the case
by way of demurrer to the evidence.
In an Order dated June 3, 1976 respondent judge denied said motion. 1 The Order states:
Fe Bautista and Milagros Corpus, accused, through counsel, filed a "Moton to Dismiss" (Demurrer to
Evidence) to the information charging the two accused for Estafa, The other third accused Teresita
Vergere, granted as separate trial.
The grounds alleged in the Motion to Dismiss are as follows: First, the inf•rmation alleges that
the two accused received jewelries from Dr. Leticia C. Yap on April 19, 1975 on consignment.
The defense' contention is that the jewelries were received by the said accused by virtue of
purchase and sale. The defense overlooks the other allegation in the Information specifically
alleging:—
That these pieces of jewelries should be sold by the accused on commission basis and to pay or to
deliver the proceeds thereof to Dr. Leticia C. Yap if sold, and if not sold to return said jewelries. ...
In spite of represented demands made on the said accused, said accused failed and refused and still fails
and refuses to return the jewelries or deliver the proceeds thereof to the damage and prejudice of said Dr.
Leticia C. Yap in the total amount of P77,300.00.
The meaning of consignment is not a sale.
It means that the goods sent by one person to another, to be sold or disposed of by the latter for and on
account of the former. The transmission of the goods.
Agency is within the foregoing meaning by Bouvier's Law Dictionary (Vol. 1, pp. 619-620)
The offended party testified that the accused acted as her agents for the sale of the jewelries. Second
ground, that the prosecution failed to establish the prior demand to prove misappropriation on the part of
the accused. Exhibits B and B-1 are documentary evidence to establish demand through Atty. Gorospe
made by the offended party prior to the filing of the case. This letter of demand was subsequently made
after several previous oral demands were made by the complainant on said accused.
The Court believes that the prosecution established a prima facie case of Estafa alleged in the
Information against said accused on the evidence presented so far on record.
PREMISES CONSIDERED, the Court hereby denies the defense' Motion to Dismiss and orders the trial
of this case for the reception of evidence of the accused on July 9, 1976 at 8:00 o'clock in the morning.
SO ORDERED.

Evidence Page 152

of this case for the reception of evidence of the accused on July 9, 1976 at 8:00 o'clock in the morning.
SO ORDERED.
Accordingly, a motion for reconsideration was duly filed 2 but was likewise denied "for lack of
merit 3 Hence, this petition.
Initially, it is necessary to point out that the remedy of certiorari is improper, The respondent
Judge's order denying the petitioners' motion to dismiss the complaint by way of demurrer to the
evidence is merely an interlocutory order, It cannot, therefore, be the subject of a petition for
certiorari. What should have been done was to continue with the trial of the case and had the
decision been adverse, to raise the issue on appeal. 4
The rule that certiorari cannot be a substitute for appeal, however, admits an exception. This is
when the questioned order is an oppressive exercise of judicial authority. 5 But, even granting
petitioners the benefit of the exception, still certiorari would not lie. For, as would be shortly
explained, there was no arbitrary exercise of judicial authority.
It is the contention of petitioners that respondent Judge lost jurisdiction to proceed with the trial
of the case and that he was in duty-bound to acquit them, considering his findings in denying
their motion to dismiss that "....the prosecution established a prima facie case of Estafa alleged
in the Information against said accused on the evidence presented so far on record". Petitioners
further argue that in a criminal case, conviction can be had only upon proof beyond reasonable
doubt and not on a mere prima facie case.
Since the denial of the motion to dismiss was anchored on a finding of a prima facie case, a
clear understanding of the term and its implications is in order.
A prima facie case is that amount of evidence which would be sufficient to counter-balance the general
presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence
tending to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the
establishment of a prima facie case does not take away the presumption of innocence which may in the
opinion of the jury be such as to rebut and control it. Ex parte Parr 288 P. 852, 855, 106 Cal.
App. 95. 6
There is no denying that in a criminal case, unless the guilt of the accused is established by
proof beyond reasonable doubt, he is entitled to an acquittal. But when the trial court denies
petitioners' motion to dismiss by way of demurrer to evidence on the ground that the
prosecution had established a prima facie case against them, they assume a definite burden. It
becomes incumbent upon petitioners to adduce evidence to meet and nullify, if not overthrow,
the prima facie case against them. 7 This is due to the shift in the burden of evidence, and not of
the burden of proof as petitioners would seem to believe.
When a prima facie case is established by the prosecution in a criminal case, as in the case at
bar, the burden of proof does not shift to the defense. It remains throughout the trial with the
party upon whom it is imposed—the prosecution. It is the burden of evidence which shifts from
party to party depending upon the exigencies of the case in the course of the trial. 8 This burden
of going forward with the evidence is met by evidence which balances that introduced by the
prosecution. Then the burden shifts back.
A prima facie case need not be countered by a preponderance of evidence nor by evidence of
greater weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts
the case in equipoise is sufficient. As a result, plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has the burden of proof, he cannot prevail. 9
In the case at bar, the order denying petitioners' motion to dismiss, required them to present
their evidence. They refused and/or failed to do so. This justified an inference of their guilt. The
inevitable result was that the burden of evidence shifted on them to prove their innocence, or at
least, raises a reasonable doubt as to their guilt.
Petitioners, likewise, assign as error the order of respondent Judge directing them to present
their evidence after the denial of their motion to dismiss. By doing so, they contend that
respondent Judge would, in effect, be relying on the possible weakness of the defense'
evidence, rather than on the strength of the prosecution's own evidence in resolving their guilt or
innocence,
We find petitioners' aforesaid submission utterly devoid of merit. Such a procedure finds support
in the case of Arbriol vs. Homeres 10 wherein we held that—
Now that the Government cannot appeal in criminal cases if the defendant would be placed thereby in
double jeopardy (Sec. 2, Rule 118), the dismissal of the case for insufficiency of the evidence after the
prosecution has rested terminates the case then and there. But if the motion for dismissal is denied, the
court should proceed to hear the evidence for the defense before entering judgment regardless of
whether or not the defense had reserved its Tight to present evidence in the event its motion for dismissal
be denied The reason is that it is the constitutional right of the accused to be heard in his defense before

Evidence Page 153

be denied The reason is that it is the constitutional right of the accused to be heard in his defense before
sentence is pronounced on him. Of course if the accused has no evidence to present or expressly waives
the right to present it, the court has no alternative but to decide the case upon the evidence presented by
the prosecution alone. (Emphasis supplied)
WHEREFORE, finding the order complained of to be well-taken and there being no grave abuse
of discretion that attended its issuance, the instant petition is DISMISSED with costs against
petitioners.
The Presiding Judge of the Regional Trial Court of Pampanga where this case is now assigned,
is hereby ordered to continue immediately with the trial of Criminal Case No. 808 until its final
disposition.
SO ORDERED.
Concepcion, Jr., Abad Santos, Escolin and Alampay, JJ., concur.
Aquino (Chairman), J., in the result.

Footnotes
1 Annex "B".
2 Annex "C".
3 Annex "D".
4 Gamboa vs. Victoriano, 90 SCRA 40.
5 Co Chuan Seng vs. CA, 128 SCRA 308
6 Words & Phrases Permanent Edition 33, p. 545.
7 Moran Rules of Court, Vol. III, pp. 542-543; People vs. Upao Moro 101 Phil. 1226.
8 Florenz D. Regalado, Remedial Law Compendium, 1970 Ed., p. 795
9 20 Am. Jur. 1102-03.
10 84 Phil. 525.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1985/sep1985/gr_l45137_1985.html>

Evidence Page 154

Abarquez vs. People
Monday, September 21, 2009
6:32 PM

THIRD DIVISION

COVERDALE ABARQUEZ, G.R. No. 150762

y EVANGELISTA,
Petitioner,
Present:
Quisumbing, J.,
Chairman,
Carpio,
- versus - Carpio Morales, and
Tinga, JJ.

Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent. January 20, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review [1] assailing the 23 June 2000 Decision[2] and the 7
November 2001 Resolution[3] of the Court of Appeals in CA-G.R. CR No. 21450. The Court of Appeals
affirmed the 30 September 1997 Decision[4] of the Regional Trial Court of Manila, Branch 50 (“trial
court”) in Criminal Cases Nos. 94-135055-56. The trial court found Coverdale Abarquez y Evangelista
(“Abarquez”) guilty beyond reasonable doubt as an accomplice in the crime of homicide in Criminal Case
No. 94-135055.

The Charge

The prosecution charged Abarquez with the crimes of homicide and attempted homicide in two
Informations,[5] as follows:

Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the crime of

Evidence Page 155

 The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the crime of
HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating with one ALBERTO ALMOJUELA Y
VILLANUEVA, who has already been charged for the same offense before the
Regional Trial Court of Manila, under Crim. Case No. 93-129891 and mutually
helping each other, did then and there willfully, unlawfully and feloniously with
intent to kill, attack, assault and use personal violence upon one RICARDO QUEJONG
Y BELLO, by then and there stabbing him twice with a bladed weapon and hitting
him with a gun at the back, thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[6]

Criminal Case No. 94-135056

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of the crime of

ATTEMPTED HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, the said
accused conspiring and confederating with one ALBERTO ALMOJUELA Y VILLANUEVA, who
has already been charged for the same offense before the Regional Trial Court of Manila
under Crim. Case No. 93-129892 and mutually helping each other, with intent to kill, did
then and there wilfully, unlawfully and feloniously commence the commission of the
crime of homicide directly by overt acts, to wit: by then and there holding one JOSE
BUENJIJO PAZ Y UMALI and stabbing him with a bladed weapon, hitting him on the left
arm, but the said accused did not perform all the acts of execution which should have
produced the crime of homicide as a consequence, by reason of causes other than his
own spontaneous desistance, that is, the injury inflicted upon said JOSE BUENJIJO PAZ Y
UMALI is only slight and not fatal.

CONTRARY TO LAW.[7]

Abarquez entered a plea of not guilty to both charges. The cases were tried jointly.

The Version of the Prosecution

On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz[8] (“Paz”), Ricardo Quejong (“Quejong”)
and their friends were in the house of one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were
drinking liquor in celebration of the birthday of Boyet’s son. About 7:45 p.m., Paz and Quejong decided
to go home. Boyet Tong, Abarquez’s son Bardie and Sonito Masula (“Masula”) joined Paz and
Quejong. They proceeded towards the exit of San Jose St.

Meanwhile, about six or seven meters away from Boyet’s house, Alberto Almojuela also known as
Bitoy (“Almojuela”), a certain Ising and Abarquez also known as Dale, were likewise drinking liquor
in front of Almojuela’s house. As the group of Paz was passing towards the main road, Almojuela
and his companions blocked their path.

Evidence Page 156

 and his companions blocked their path.

Almojuela asked Paz, “Are you brave?” Paz replied, “Why?” Almojuela got angry and attacked Paz
with a knife. Paz parried the attack with his left arm but sustained an injury. Abarquez held Paz
on both shoulders while Bardie pacified Almojuela. Paz asked Abarquez, “What is our atraso, we
were going home, why did you block our way?” Abarquez answered, “Masyado kang
matapang. Tumigil ka na, tumigil ka na.”

Almojuela then confronted Quejong and they had an altercation, followed by a scuffle. Paz tried to
get away from Abarquez who continued restraining him. Upon seeing Almojuela and Quejong fall on
the ground, Paz struggled to free himself from Abarquez. Paz approached Quejong and found him
already bloodied. It turned out the Almojuela stabbed Quejong with a knife. Paz tried to pull up
Quejong but failed. Paz left Quejong and ran instead towards the exit of San Jose St. to ask for
help. While Paz was running away, he heard Abarquez shout, “You left your companion already
wounded!”

When Paz and his companions returned, they found Quejong still on the ground. Almojuela and
Abarquez were still in the area. Paz and his companions brought Quejong to the UST
Hospital. They next proceeded to Police Precinct No. 4 to report the incident. However, there
was nobody in the precinct. With Kagawad Villanio Usorio, Paz went to the WPD General
Headquarters to report the incident. At the WPD General Headquarters, they learned that
Quejong died at the UST Hospital. Paz then had his injury treated by Dr. Vic Managuelod at Jose
Reyes Memorial Hospital. The medico-legal certificate showed that Paz sustained a 3-cm.
lacerated wound on his left forearm.

About 9:15 p.m., while SPO1 Danilo Vidad (“SPO1 Vidad”) was at the WPD Homicide Division, his
station received a call from the UST Hospital informing them of the death of Quejong. SPO1 Vidad and
PO3 Ed Co went to the UST Hospital morgue and investigated the incident. They learned that Almojuela,
assisted by Abarquez, stabbed Quejong. Upon the execution of sworn statements by Paz and Masula,
SPO1 Vidad booked Almojuela and Abarquez for homicide and frustrated homicide and prepared the
referral letter to the inquest prosecutor.
Abarquez voluntarily appeared at the police station. Almojuela voluntarily surrendered to one
SPO4 Soriano at Police Station No. 10 and was turned over to the WPD Homicide Division.

Dr. Antonio Rebosa[9] (“Dr. Rebosa”), a medico-legal consultant at UST Hospital, conducted the
post-mortem examination and autopsy on Quejong. Dr. Rebosa reported that Quejong sustained two
stab wounds and suffered from massive hemorrhage due to penetrating stab wounds to the heart and
left lung. According to Dr. Rebosa, a sharp instrument probably caused the wound. Dr. Rebosa also
reported that Quejong sustained abrasions and contusions on the right upper body, the wrist and on the
lower extremities.

The Version of the Defense

Abarquez countered that on 21 November 1993, he was in his residence at 3363 San Jose St., Sta.
Mesa, Manila. About 7:30 p.m., Almojuela’s wife informed him that the group of Paz was challenging
Almojuela to a fistfight. Abarquez, being a barangay kagawad, proceeded to Almojuela’s
house. Almojuela’s house was about twenty meters away from Abarquez’s house. When he arrived at
Almojuela’s house, Abarquez saw Almojuela on the ground being strangled by Quejong. Paz was holding
Almojuela’s waist and boxing him at the stomach. Masula was near Almojuela’s head holding a piece of
stone as if waiting for a chance to hit him. Abarquez shouted at the group to stop. The group did not
heed Abarquez, forcing him to fire a warning shot into the air. Still, the group did not heed Abarquez
who then fired a second warning shot. Paz, Quejong, and Masula scampered away.

Almojuela told Abarquez that he was merely trying to stop the group of Paz from smoking

Evidence Page 157

 Almojuela told Abarquez that he was merely trying to stop the group of Paz from smoking
marijuana. Almojuela then went inside his house while Abarquez went home. On his way home,
Abarquez met the Chief Tanod of the barangay and two kagawads. Kagawad Rudy Lego (“Lego”)
advised him to report the incident to the police. They all proceeded to Precinct No. 4 where Lego
reported the incident to the desk officer. The desk officer told them that a person had been
stabbed. When Abarquez reached their house, he saw policemen and media men with their
barangay chairman. He informed them that he had just reported the incident. Upon the request
of SPO1 Vidad, Abarquez then went to the police station to shed light on the incident.

Almojuela testified that he was inside his house when his daughter informed him that there was
marijuana smoke coming to their window. He went outside to look for the source of the smoke and saw
Quejong, Paz, and Masula smoking marijuana. Almojuela asked the group to move away as there were
children inside the house. He was on his way back to the house when Quejong tried to strangle
him. Later, Almojuela heard a gunshot. He also heard Abarquez shouting, “Tumigil na kayo.” Quejong,
Masula, and Paz ran away.

Winfred Evangelista[10] (“Evangelista”) testified that he was resting in front of his house when he
heard a commotion. He noticed that Paz and Quejong were quarreling. Evangelista saw Paz kicking
Almojuela. Abarquez arrived to break up the fight but he was told not to interfere. Abarquez was
forced to fire a warning shot and the persons involved in the commotion ran away.

The Ruling of the Trial Court

In its Decision[11] dated 30 September 1997, the trial court found Abarquez guilty as an
accomplice in the crime of homicide. The trial court held that the prosecution failed to prove that
Abarquez was a co-conspirator of Almojuela in the killing of Quejong. Hence, Abarquez could not be
convicted as a principal in the crime of homicide. However, the trial court ruled that Abarquez, in
holding and restraining Paz, prevented the latter from helping Quejong and allowed Almojuela to pursue
his criminal act without resistance.

The dispositive portion of the trial court’s Decision reads:

WHEREFORE, in Criminal Case No. 94-135055, this Court finds the accused,
Coverdale Abarquez, guilty beyond reasonable doubt of the crime of homicide only
as accomplice and hereby sentences him to suffer an indeterminate penalty ranging
from six (6) years of prision correccional to ten (10) years of prision mayor. In
Criminal Case No. 94-135056, the accused is hereby acquitted.

With costs de oficio.

SO ORDERED.[12]

Abarquez appealed the trial court’s Decision before the Court of Appeals.

In its Decision[13] of 23 June 2000, the Court of Appeals affirmed the trial court’s Decision. The
Court of Appeals sustained the trial court in giving more credence to the testimony of Paz. The Court of
Appeals held that the prosecution was able to establish that Abarquez aided Almojuela in fatally
stabbing Quejong. The Court of Appeals rejected Abarquez’s allegation that he was merely at the crime
scene to pacify the quarreling parties.

In its 7 November 2001 Resolution,[14] the Court of Appeals denied Abarquez’s motion for
Evidence Page 158
 In its 7 November 2001 Resolution,[14] the Court of Appeals denied Abarquez’s motion for
reconsideration.

Hence, the petition before this Court.

The Issues

The issues[15] Abarquez raises before the Court may be summarized as follows:

1. Whether the prosecution was able to establish the guilt of the accused beyond reasonable
doubt;

2. Whether the trial court and the Court of Appeals erred in giving more credence to the
testimony of the prosecution witnesses.

Abarquez alleges that the prosecution’s evidence does not satisfy the test of moral certainty and is
not sufficient to support his conviction as an accomplice. He further alleges that there was a
misapprehension of facts and that the trial court and the Court of Appeals reached their conclusion
based entirely on speculation, surmises and conjectures. Abarquez also assails the credibility of the
witnesses against him.

The Ruling of This Court

The petition is meritorious.

The rule is that the trial court is in the best position to determine the value and weight of the
testimony of a witness. The exception is if the trial court failed to consider certain facts of substance
and value, which if considered, might affect the result of the case.[16] This case is an exception to the
rule.

Concurrence in Criminal Design

Article 18 of the Revised Penal Code defines accomplices as “those persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts.”[17]

Two elements must concur before a person becomes liable as an accomplice: (1) community of
design, which means that the accomplice knows of, and concurs with, the criminal design of the
principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous
acts that are not indispensable to the commission of the crime.[18] Mere commission of an act, which
aids the perpetrator, is not enough.[19] Thus:

The cooperation that the law punishes is the assistance knowingly rendered, which
cannot exist without the previous cognizance of the criminal act intended to be
executed. It is therefore required in order to be liable as an accomplice, that the accused
must unite with the criminal design of the principal by direct participation. [20]

Indeed, in one case, the Court ruled that the mere presence of the accused at the crime scene cannot be

Evidence Page 159

Indeed, in one case, the Court ruled that the mere presence of the accused at the crime scene cannot be
interpreted to mean that he committed the crime charged.[21]

Here, in convicting Abarquez, the trial court and the Court of Appeals relied mainly on the
testimony of Paz. Paz testified that he was held by Abarquez on the shoulders, thus preventing him
from helping Quejong who was grappling with Almojuela. Paz testified:

q. And what happened in the exchange of words or altercations between Bitoy and
Ricardo Quejong?
a. They grappled with each other, sir.

q. When Bitoy and Ricardo grappled with each other, what did you do, if any?
a. I was intending to help Ricky but I was held back by Dale, sir.

q. And how this Dale hold you?

a. He held my two shoulders, sir.

PROSECUTOR F. G. SUPNET:
I would like to make it of record demonstrated being held by the accused holding
both shoulders, your Honor.

q. Now, when this Dale Abarquez held both on your shoulders, what happened next,
if any?
a. He got angry scolding us. While scolding me the two
who were grappling each other walking away, sir. (sic)

q. Now, you said Bitoy and Ricky were moving, what happened in the course of
grappling, if any?

You testified that Ricky and Bitoy were grappling each other, what happened in the
course of grappling? (sic)
a. They fell to the ground, sir.

q. After that what happened next, if any?

a. When I saw them fall I struggle and I was able to release from the hold of Dale
and I approach the two. I saw Ricky blooded so I was trying to pull him, sir. (sic)

q. You said you saw Ricky blooded, why was he blooded? (sic)
a. He was stabbed by Bitoy, sir.

q. And did you see what instrument did Bitoy used in stabbing Ricky or Ricardo? (sic)
a. It was a knife, sir. (Witness indicating a length about 6 inches including the
handle).

q. Now, you said also that while the two were grappling while you were trying to
free yourself from the hold Dale Abarquez, “Pinagalitan kayo”, in what way or manner did
Dale Abarquez reprimanded you? (sic)
a. You Jose is too brave, sir. (sic)[22]

xxx xxx xxx

Evidence Page 160

 xxx xxx xxx

q. You said you were first attacked by Bitoy, is that correct?

a. Yes, sir.

q. After Bitoy pacified Bardy Abarquez, he went after Ricky Quejong, is it not?[23]
a. They were just arguing, sir.

[q.] And it was during that time when you were held in both shoulders by the
accused [C]overdale Abarquez?
a. Yes, sir.
q. and that Coverdale Abarquez was infront of you, is it not?
a. Yes, sir on my side.

q. And he was holding your shoulder to pacify you and Bitoy from further quarrelling
you, is it not?
a. That is not the way of pacifying, sir.

q. How can you demonstrate how you were held on the shoulder by Abarquez?

ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the witness while the
witness act as the accused demonstrating holding both hands of interpreter
preventing the witness and saying Joey tumigil ka na, joey tumigil ka na.

COURT:
q. How many times?
a. Twice, Your Honor.
ATTY. GASCON:
The accused told you Joey tumigil ka na, Joey tumigil ka na because you were trying
to attack Bitoy, is it not?
a. How can I be charged, he was the one holding the knife, sir. (sic)
q. So what was the reason why the accused restrained you and told you Joey tumigal
ka na, Joey tumigil ka na. What would be the reason?
a. While I was just talking to Bitoy, when he told me to stop.
COURT:
Does the Court get from you that you are trying to explain to Bitoy when the
accused tried to hold you and prevent you?
a. Yes, sir.
q. That is why the reason you concluded that the accused is not pacifying you but to
stop you from helping the victim?
a. Yes, sir.
xxx xxx xxx
q. The only word that the accused [C]overdale Abarquez uttered was Joey, tumigil
ka na, Joey tumigil ka na, is it not?
a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey tumigil ka na.[24]

Paz’s testimony does not show that Abarquez concurred with Almojuela’s criminal
design. “Tumigil” literally means “stop.” Clearly, Abarquez was trying to stop Paz from joining the
fray, not from helping Quejong. Paz claims that he was only trying to talk to Almojuela. However,

Evidence Page 161

fray, not from helping Quejong. Paz claims that he was only trying to talk to Almojuela. However,
Paz could not have been merely talking to Almojuela, as he tried to portray, because Almojuela
was already grappling with Quejong at that time. Paz interpreted Abarquez’s action as an attempt
to prevent him from helping Quejong. His interpretation was adopted by the trial court and
sustained by the Court of Appeals. Yet, in his testimony, Paz admitted that while restraining him,
Abarquez was scolding or reprimanding him and telling him to stop. It was not shown that
Abarquez was stopping Paz from helping Almojuela. It is more likely that Abarquez was trying to
stop Paz from joining the fight. Abarquez’s act of trying to stop Paz does not translate to
assistance to Almojuela.

In People v. Fabros, [25] the Court explained:

To be deemed an accomplice, one needs to have had both knowledge of and

participation in the criminal act. In other words, the principal and the accomplice
must have acted in conjunction and directed their efforts to the same end. Thus, it
is essential that both were united in their criminal design.

xxx. The mere fact that the (accused) had prior knowledge of the (principal’s)
criminal design did not automatically make him an accomplice. This circumstance,
by itself, did not show his concurrence in the principal’s criminal intent.
Paz stated that Abarquez did not do anything to stop Almojuela. However, Paz testified that
Abarquez’s son Bardie, who was one of Paz’s companions, was the one trying to pacify
Almojuela. The trial court in its factual findings confirmed this when it stated that while Abarquez
was holding Paz, his son Bardie was pacifying Almojuela.[26]

The prosecution argues that Abarquez was remiss in his duties as a barangay kagawad in not
extending assistance to the then wounded Quejong. This, however, does not necessarily show
concurrence in Almojuela’s criminal act. When Paz ran away, Abarquez shouted at him that he
left his wounded companion. Apparently, Abarquez was not aware of the extent of Quejong’s
injury and he expected Paz to look after his own companion.

When there is doubt on the guilt of an accused, the doubt should be resolved in his favor. Thus:

Every person accused has the right to be presumed innocent until the contrary is
proven beyond reasonable doubt. The presumption of innocence stands as a
fundamental principle of both constitutional and criminal law. Thus, the prosecution
has the burden of proving every single fact establishing guilt. Every vestige of doubt
having a rational basis must be removed. The defense of the accused, even if weak,
is no reason to convict. Within this framework, the prosecution must prove its case
beyond any hint of uncertainty. The defense need not even speak at all. The
presumption of innocence is more than sufficient.[27]

We apply in this case the equipoise rule. Where the evidence on an issue of fact is in issue or
there is doubt on which side the evidence preponderates, the party having the burden of proof
loses.[28] Hence:

xxx The equipoise rule finds application if, as in this case, the inculpatory facts and
circumstances are capable of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with his guilt, for then the evidence
does not fulfill the test of moral certainty, and does not suffice to produce a
conviction. Briefly stated, the needed quantum of proof to convict the accused of the

Evidence Page 162

 conviction. Briefly stated, the needed quantum of proof to convict the accused of the
crime charged is found lacking.[29]

WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June 2000 Decision and 7 November
2001 Resolution of the Court of Appeals in CA-G.R. CR No. 21450, which affirmed the 30
September 1997 Decision of the Regional Trial Court of Manila, Branch 50 in Criminal Cases Nos.
94-135055-56. We ACQUIT Coverdale Abarquez y Evangelista as an accomplice in the crime of
homicide in Criminal Case No. 94-135055. No pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairman

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

Evidence Page 163

assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1] Under Rule 45 of the 1997 Rules of Civil Procedure.

[2] Penned by Associate Justice Ruben T. Reyes with Associate Justices Andres B. Reyes, Jr. and Jose L.
Sabio, Jr., concurring. Rollo, pp. 32-48.
[3] Rollo, p. 31.
[4] Penned by Judge Urbano C. Victorio, Sr., CA Rollo, pp. 9-21.
[5] Filed by Assistant City Prosecutor Sed A. Cabangon.
[6] CA Rollo, p. 7.

[7] Ibid., p. 8.
[8] Referred to as Jose Buenhijo Paz in the trial court’s Decision.

[9] Referred to as Dr. Antonio Reposo in the TSN.

[10] Also referred to as Winfreed Evangelista.
[11] Supra note 4.

[12] CA Rollo, pp. 20-21.

[13] Supra note 2.

[14] Supra note 3.

[15] Rollo, p. 13.

[16] People v. Manambit, 338 Phil. 57 (1997).

[17] Article 17 of the Revised Penal Code defines “principals.”
[18] People v. Cachola, G.R. Nos. 148712-15, 21 January 2004, 420 SCRA 520.
[19] People v. Castillo, G.R. No. 132895, 10 March 2004, 425 SCRA 136.
[20] Ibid., citing People v. Cual, 384 Phil 361 (2000).
[21] People v. Ambrosio, G.R. No. 135378, 14 April 2004, 427 SCRA 312.

[22] TSN, 31 August 1995, pp. 9-12.

[23] It was actually Bardie or Bardy Abarquez who was pacifying Bitoy Almojuela.

[24] TSN, 12 December 1995, pp. 7-9, 11.

[25] 429 Phil. 701 (2002).

[26] CA Rollo, p. 11.

[27] People v. Castillo, G.R. No. 132895, 10 March 2004, 425 SCRA 136.
[28] People v. Natividad, G.R. No. 151072, 23 September 2003, 411 SCRA 587.
[29] Vergara v. People, G.R. No. 160328, 4 February 2005, 450 SCRA 495.

Evidence Page 164

[28] People v. Natividad, G.R. No. 151072, 23 September 2003, 411 SCRA 587.
[29] Vergara v. People, G.R. No. 160328, 4 February 2005, 450 SCRA 495.

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2006/jan2006/150762.htm>

Evidence Page 165

People vs. Gaffud
Monday, September 21, 2009
6:42 PM

EN BANC

PEOPLE OF THE PHILIPPINES, G.R. No. 168050

Plaintiff-Appellee,
Present:

PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

BERNARDINO gaffud, jr., Promulgated:

Accused-Appellant. September 19, 2008

x- - - - - - - - - - -- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -- - - - x

DEC I S IO N

PUNO, C.J.:

For review before this Court is the Decision[1] of the Court of Appeals (CA)
dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the

Evidence Page 166

dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the
accused-appellant Bernardino Gaffud, Jr. guilty of the complex crime of
double murder and sentencing him to death, affirming with modification the
Decision[2] of the Regional Trial Court (RTC) dated August 28, 2002 in
Criminal Case No. 1125.

The facts of this case were aptly summarized by the CA as follows:

Records show that accused-appellant Bernardino Gaffud, Jr., along with two John Does
were indicted for Double Murder for the killing of Manuel Salvador and Analyn Salvador, under
the following Information:

“The undersigned 2nd Assistant Provincial Prosecutor accuses Bernardino Gaffud, Jr. and two
(2) JOHN DOES of the crime of DOUBLE MURDER defined and penalized under Article 248 of the
Revised Penal Code, committed as follows:

‘That on or about 8:00 o’clock in the evening of May 10, 1994 at Sitio Biton, Barangay
Wasid, Municipality of Nagtipunan, Province of Quirino, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with intent to kill and motivated by long standing
grudge, after conspiring, confederating and mutually helping one another, by means of fire, did
then and there, willfully, unlawfully, and feloniously, shot and burn Manuel Salvador and Analyn
Salvador which caused their instantaneous death.’

CONTRARY TO LAW.” (p. 15, Records)

It appears that Manuel Salvador and his daughter Analyn Salvador were killed when the
house they were staying in located at Sitio Biton, Barangay Wasid, Nagtipunan, Quirino was
burned down while they were inside. An eyewitness pointed to accused-appellant Bernardino
Gaffud, Jr. as one of the arsonists.

Upon preliminary investigation, where appellant Gaffud, Jr. failed to appear despite being
subpoenaed to submit his counter-affidavit, Assistant Provincial Prosecutor Ferdinand Orias
resolved that charges for double murder by means of fire be filed against herein appellant and
two John Does, (p.14, Records).

When arraigned on June 6, 1995, accused-appellant Gaffud, Jr. entered a plea of Not Guilty,
(p. 48, Records), paving the way for his trial.

The prosecution presented six (6) witnesses against appellant Gaffud, Jr., namely Dominga
Salvador, common-law wife of Manuel Salvador and mother of Analyn Salvador, Orly Salvador,
nephew of Manuel Salvador, Potado Ballang, Barangay Captain of Wasid, Nagtipunan, Quirino,
Dan Dangpal, a neighbor of the deceased, SPO2 Dominador Tabal, the investigating police, and Dr.
Teodomiro Hufana who conducted the autopsy on the deceased Manuel Salvador.

Evidence for the prosecution tended to prove that on the night of May 10, 1994, Orly
Salvador was on his way to the house of his uncle Manuel Salvador to fetch the latter as they were
going to attend a wedding at the nearby barangay hall. He suddenly heard two
gunshots. Thereafter, he saw the house of his uncle burning. Because of the glow emanating
therefrom, he saw three persons within the vicinity of the burning house. He saw them hurriedly
leaving the place towards the direction of the Cagayan river. One of the three was holding a
flashlight, whom he identified as appellant Gaffud, Jr. He could not identify the two other
persons. After the house was burned, Orly went towards the barangay hall to see if his uncle
Manuel Salvador was there, but he met Brangay Captain Potado Ballang who informed him that

Evidence Page 167

Manuel Salvador was there, but he met Brangay Captain Potado Ballang who informed him that
his uncle was not at the barangay hall. They then proceeded to the burned house, and found the
charred remains of Manuel Salvador and Analyn Salvador. (TSN, October 10, 1995, pp. 3-8)

Barangay Captain Potado Ballang testified that he saw appellant Gaffud, Jr. on the fateful
day at around 6:30 PM, along the riverbank, a few meters away from the house of Manuel
Salvador. When Potado asked what he was doing there, Gaffud, Jr. said he was looking for his
boat. However, Potado knew that the appellant did not own a boat. After a few minutes, Potado
left to attend the wedding party being held at the barangay hall. (TSN, November 4, 1996, pp. 2-5)

Dan Dangpal’s testimony was dispensed with, but the defense agreed to the nature of the
testimony he would have given, which tended to show that sometime at about 8:00 PM on the
fateful evening, while inside his house, he heard successive gunshots, and when he went out of his
house, he saw the deceased’s house burning about 200 meters away. He heard persons laughing
and saw the light of a flashlight and persons moving away from the burning house. He could not
recognize any of them. (TSN, February 24, 1997; Exhibit “D”, p. 8, Records)

Dominga Salvador’s testimony tended to show that the appellant Gaffud, Jr. was their
neighbor. In the morning of May 10, 1994, she went to the house of the appellant to see him
about her husband’s share in the construction of the barangay hall, which was contracted to the
appellant. Gaffud, Jr. told her that he would go to her house that afternoon to introduce his in-
law Balbino Bravo to her husband. Thereafter, she went home, and left again at around 11:00
AM, leaving behind her husband Manuel Salvador and their daughter Analyn. Later that night, she
was at Natipunan, Quirino attending a seminar for “hilot”, (TSN, July 4, 1995, pp. 3-15). In her
sinumpaang salaysay, offered in evidence as Exhibit “A”, Dominga also related that she had earlier
filed a complaint in the barangay against the appellant and his brother for slaughtering her pig.

SPO2 Dominador Tabal was a police investigator who investigated the killing of Manuel and
Analyn Salvador. Thereat, he saw two dead bodies hanging from a Melina tree. They were put
there so that they would not be reached by the dogs. He saw that one of the victims had a
fractured head, while the other had a wound on the side. Pictures of the victims including the
scene of the incident were taken by them. Among those interviewed the appellant Gaffud, Jr. and
his brother, (TSN, June 5, 1997, pp. 2-7).

Dr. Teodomiro Hufana’s testimony was also dispensed with, (p. 127, Records) in view of the
defense counsel’s admission of the contents of his Autopsy Report on Manuel Salvador, (Exhibit
“C”), which reads in pertinent part:

FINDINGS

-Cremated charcoaled, about 3 ft. long, stomach and intestine (Large) protruding from the
abdomen.

-Presence of semi-burned rattan about 1 inch long about 1 cm. in diameter on the burned
hand.

-Presence of a peculiar hole from the thoracic cavity directed downward to the body,
probably gunshot wound.

CAUSE OF DEATH:

-CREMATION (Burned)

REMARKS: Cannot be identified if male or female

Evidence Page 168

 For the appellant’s defense, the defense presented the appellant himself. His defense of
alibi was corroborated by his wife Juanita Gaffud and in-law Balbino Bravo.

Appellant denied the accusation leveled against him, and testified that the approximate
time of the burning of the victims’ house, he was at home, entertaining his in-laws, Balbino
Bravo and Rufina Bravo, who was there for a visit. After eating dinner, he and Balbino Bravo
talked. At around 7:00 to 8:00 PM, he and Balbino Bravo saw a blaze coming from the other
side of the Cagayan River, about 50 to 80 meters away from the house of the Bravos. They
did not mind the blaze, and instead went to sleep. The next morning, they heard news
about somebody being burned, and because of this, he and Balbino Bravo hiked to the place
of the incident. That’s where he found that his “pare” Manuel Salvador and his daughter
were burned in their house. After seeing the dead bodies, appellant went home. He went
back later, and was even designated by the Barangay Captain to guard the bodies of the
deceased. Thereafter, he was forced to evacuate his family from Nagtipunan, because the
Ilongot tribe was forcing him to testify against someone but he didn’t want to. He was told
that something might happen to his family if he didn’t leave, (TSN, June 3, 2002).

The appellant’s defense was corroborated on its material points by the testimony of his
wife, Juanita Gaffud, and his in-law, Balbino Bravo, both of whom testified that on May 10,
1994, the accused was at his residence entertaining visiting Bravo spouses and stayed there
the whole night, (TSN January 31, 2002 and March 18, 2002).

Juanita Gaffud also testified that during the pendency of the trial, she talked to Dominga
Salvador about the settlement of the case and even offered a certain amount for the said
purpose, (TSN, March 10, 2002, p. 12).[3]

After trial, the RTC rendered its Decision finding accused-appellant guilty of
two (2) counts of murder, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court finds Bernardino Gaffud, Jr. GUILTY for
two (2) counts of murder and hereby sentences him as follows, to wit:

Death penalty - for the death of Manuel Salvador;

Another death penalty - for the death of Analyn Salvador;

To pay the legal heirs of the victims:

c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for each count or a total of ONE
HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as death indemnities;

c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count or a total of ONE HUNDRED
THOUSAND PESOS (P100,000.00) as moral damages;

c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each count or a total of FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages;

c-4) TEN THOUSAND PESOS (P10,000.00) as nominal damages;

and

c-5) Costs.

Evidence Page 169

 c-5) Costs.

xxx x

SO ORDERED.[4]

As the death penalty was imposed, the case was elevated to this Court for
automatic review. In his Appellant’s Brief,[5] accused-appellant argued that the
RTC erred in: (i) failing to rule and resolve whether or not conspiracy existed, as
the information charged him with conspiracy with two others in the commission
of the crime; and (ii) convicting him despite the fact that conspiracy was not
proven, and also despite the fact that there was no proof whatsoever as to what
overt act he committed which would constitute the crime of murder.

The case was transferred to the CA for appropriate action and disposition
per Resolution[6] of this Court dated August 24, 2004, in accordance with the
ruling in People v. Mateo.[7] In disposing of the assigned errors, the CA held that
the lack of discussion of conspiracy among accused-appellant and his anonymous
co-accused in the decision of the RTC was not antithetic to his conviction for the
crime of murder, since the charge that he was a principal performer in the killing
of the victims was spelled out in the Information[8] filed against him.[9]
Moreover, in the absence of conspiracy, each of the malefactors is liable only for
the act committed by him.[10] As to the sufficiency of the evidence presented by
the prosecution, the CA held that the circumstantial evidence in this case
established accused-appellant’s guilt beyond reasonable doubt.[11] Accordingly,
the CA affirmed the Decision of the RTC, finding accused-appellant guilty of the
complex crime of double murder, with the following modifications:

WHEREFORE, premises considered, the appeal is hereby DISMISSED, although the decision
of the lower court is hereby MODIFIED, in that: The accused Bernardino Gaffud, Jr. is hereby
found GUILTY of the complex crime of double murder, and is hereby sentenced to the supreme
penalty of Death. He is also ordered to pay the legal heirs of the victims: (1) P100,000.00 or
P50,000.00 for each victim, as civil indemnity for the death of the victims; (2) P100,000.00 or
P50,000.00 for each victim, as moral damages; and (3) P10,000.00 as nominal damages plus costs.

SO ORDERED.[12]

Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, the case was elevated to this Court for
review.

On the first assigned error, we concur with the CA that the failure to prove
conspiracy in this case is not fatal.
The rule is that in the absence of evidence showing the direct participation
of the accused in the commission of the crime, conspiracy must be established by

Evidence Page 170

of the accused in the commission of the crime, conspiracy must be established by
clear and convincing evidence in order to convict the accused.[13] In the case at
bar, however, we hold that the direct participation of accused-appellant in the
killing of the victims, Manuel Salvador and Analyn Salvador, was established
beyond doubt by the evidence of the prosecution. Hence, a finding of conspiracy
in this instance is not essential for the conviction of accused-appellant.

On the second assigned error, we uphold the finding of both courts a quo
that the evidence proffered by the prosecution, although circumstantial in
nature, leads to the conclusion that accused-appellant is the perpetrator of
the act resulting in the death of the victims.

It is well-settled that circumstantial evidence is sufficient to sustain a

conviction if (i) there is more than one circumstance; (ii) the facts from which the
inference is derived are proven; and (iii) the combination of all circumstances is
such as to produce conviction beyond reasonable doubt.[14]

In this case, the following facts or circumstances were proven:

Accused-appellant was near the place of the incident just a few minutes before
the crime was committed. Captain Potado Bollang testified that he saw the
accused-appellant at the riverbank, about 100 meters from the house of the
victims, coming to and fro, allegedly looking for his boat, when in fact, Captain
Bollang knew that accused-appellant did not own one.[15]

Accused-appellant, together with two unidentified persons, was near the house
of the victims at the time it was on fire. Accused-appellant was identified by Orly
Salvador as one of the three men he saw about 5 meters from the house of his
uncle, Manuel Salvador, while it was burning. Previously, he heard two gunshots
as he was on his way towards the said house. He also saw appellant fleeing with
the other malefactors, while holding a flashlight.[16] His testimony was
corroborated by the admitted testimony of Dan Dangpal who said that he heard
two gunshots while he was at his home, which was near that of the
victims. When he went out, he also heard men laughing, and saw them fleeing
from the burning house, illumined by a flashlight.[17]

Accused-appellant was in a hurry to leave the place of the incident without

giving any help to his kumpare Manuel Salvador and the latter’s daughter,
Analyn. Orly Salvador testified that he saw accused-appellant holding a flashlight,
in a hurry to leave the burning house of the victim, going towards the direction of
the river.[18]

Accused-appellant had a motive to kill the victims because of the complaint

Evidence Page 171

Accused-appellant had a motive to kill the victims because of the complaint
filed by Manuel Salvador’s wife, Dominga Salvador, and the fact that he owed
Manuel Salvador some money. Dominga Salvador testified that she had filed a
complaint against accused-appellant and his brother in their barangay for their
act of slaughtering her pig. Aside from this, in the morning of the same fateful
day, she went to the house of accused-appellant aiming to collect her husband’s
share in the profits for the construction of the barangay hall they had built, but
the accused-appellant only told her that he and his in-law would see her husband
later that day.[19]

These circumstances, when taken together, are enough to produce the

conclusion that accused-appellant was responsible for the killing of the
victims by means of burning them inside their house.

Moreover, we sustain the following observation of the CA that against the

convincing evidence of the prosecution, accused-appellant’s defense of denial
and alibi must fail:

The Court finds incredible appellant’s story that after seeing the blaze across his house, he
merely slept with his in-laws without investigating. The Court finds it against human nature
for one to sleep soundly during a fire occurring just 50-80 metes from one’s house, even
though the blaze is occurring across a river. Also, appellant muse know, after seeing the
location of the blaze, that the house of his “pare”, or close friend, was in danger, and his
natural reaction at least was to verify the object of the conflagration. Appellant’s story that
he only slept soundly after seeing the blaze is therefore unbelievable, and taints the
credibility of his alibi.

Another telling factor on the appellant’s defense is his flight. Appellant admitted that in his
testimony that he fled Wasid, Nagtipunan, Quirino after he was investigated at the Municipal Hall,
(TSN, June 3, 2002, p. 19). Appellant said he fled because of threats from the Ilongots. However,
appellant said it never entered his mind to report the threats on him. Appellant’s explanation fails
to convince. It bears stressing that appellant fled right after being investigated and questioned by
police authorities, and during the time that the preliminary investigation of the case was
ongoing. This is highly suspicious, as such time is the best time for him to defend his innocence, if
he is indeed innocent. As it is, appellant was arrested in San Vicente, Jones, Isabela, a remote
barangay by the elements of the NBI, (Id., at 23; reverse of p. 19, Records). Flight is consistently
held as and indication of guilt, (People v. Magaro, 291 SCRA 601 [1998]). There is no showing why
such conclusion should not be made in this case. [20]

We now go to whether or not accused-appellant should be held liable for

two (2) separate counts of murder or for the complex crime of double
murder.

Article 48 of the Revised Penal Code (RPC), as amended, reads:

ARTICLE 48. Penalty for complex crimes. — When a single act constitutes two or more grave or
less grave felonies, or when an offense is a necessary means for committing the other, the penalty

Evidence Page 172

 less grave felonies, or when an offense is a necessary means for committing the other, the penalty
for the most serious crime shall be imposed, the same to be applied in its maximum period.

In a complex crime, although two or more crimes are actually committed,

they constitute only one crime in the eyes of the law as well as in the conscience
of the offender. Hence, there is only one penalty imposed for the commission of
a complex crime.[21]

There are two kinds of complex crime. The first is known as compound
crime, or when a single act constitutes two or more grave or less grave
felonies. The second is known as complex crime proper, or when an offense
is a necessary means for committing the other.[22]

The classic example of the first of kind is when a single bullet results in the
death of two or more persons. A different rule governs where separate and
distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shots, such acts constitute
separate and distinct crimes.[23]

In the landmark case People v. Guillen,[24] the Court held that the single act
of throwing a grenade at President Roxas resulting in the death of another
person and injuring four others produced the complex crime of murder and
multiple attempted murders. Under Article 248 of the RPC, murder is
committed when a person is killed by means of explosion. Applying Article
48 of the RPC, the penalty for the crime committed is death, the maximum
penalty for murder, which is the graver offense.

More recently, in People v. Carpo et al.,[25] we held that the single act of
hurling a grenade into the bedroom of the victims causing the death of three
persons and injuries to one person constituted the complex crime of multiple
murder and attempted murder. Also, in People v. Comadre,[26] we held:
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the
pro reo principle, is intended to favor the accused by imposing a single penalty irrespective
of the crimes committed. The rationale being, that the accused who commits two crimes
with single criminal impulse demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may quantitatively constitute a
cluster of several separate and distinct offenses, yet these component criminal offenses
should be considered only as a single crime in law on which a single penalty is imposed
because the offender was impelled by a “single criminal impulse” which shows his lesser
degree of perversity.

In light of these precedents, we hold that the single act of accused-

Evidence Page 173

 appellant — burning the house of Manuel Salvador, with the main
objective of killing the latter and his daughter, Analyn Salvador, resulting in
their deaths — resulted in the complex crime of double murder. Under
Article 248 of the RPC, murder is committed by means of fire. Since the
maximum penalty imposed for murder was death, when the case was
pending in the CA, the CA correctly imposed the penalty of death for the
complex crime of double murder instead of the two death penalties imposed
by the RTC for two counts of murder. In view, however, of the passage of
Republic Act No. 9346 (otherwise known as “An Act Prohibiting the
Imposition of Death Penalty in the Philippines”), we reduce the penalty of
death to reclusion perpetua with no eligibility for parole.[27]

Anent the award of damages, we increase the award of civil indemnity by the
CA for the death of the victims from P100,000 or P50,000 for each victim, to
P150,000 or P75,000 for each victim in accordance with prevailing
jurisprudence.[28]

As to the deletion of exemplary damages by the CA, we reinstate the award

by the RTC of exemplary damages in the amount of P50,000, or P25,000 for
each victim.

By and of itself, nighttime is not an aggravating circumstance. It becomes

aggravating only when: (1) it is especially sought by the offender; or (2) it is
taken advantage of by him; or (3) it facilitates the commission of the crime by
ensuring the offender's immunity from capture.[29] In this case, the RTC
correctly appreciated nighttime as aggravating considering that nighttime
was especially sought by accused-appellant to carry out his evil plan.
Evidence shows that accused-appellant waited for nighttime to consummate
his plan. It should be noted that accused-appellant was seen lurking near the
house of the victims earlier in the evening. The fact that he brought with him
a flashlight clearly shows that he intended to commit the crime in darkness.

We sustain the award by the CA of moral damages in the amount of

P100,000, or P50,000 for each victim, in view of the grief and sorrow suffered
by the heirs of the victims. We likewise affirm the award of nominal
damages in the amount of P10,000 for the value of the burned house as
sufficiently explained by the RTC and affirmed by the CA.

IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of the
CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS:

the penalty of death imposed on accused-appellant is REDUCED to reclusion

Evidence Page 174

the penalty of death imposed on accused-appellant is REDUCED to reclusion
perpetua without eligibility for parole;

the civil indemnity for the death of the victims is increased to P150,000, or
P75,000 for each victim; and
accused-appellant is ordered to pay exemplary damages in the amount of
P50,000, or P25,000 for each victim.

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Evidence Page 175

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CER T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Evidence Page 176
 REYNATO S. PUNO
Chief Justice

[1] Rollo, pp. 3-14, penned by Justice Rodrigo V. Cosico, concurred in by Justices Danilo B. Pine
and Arcangelita Romilla-Lontok.
[2] Records, pp. 358-372; penned by Executive Judge Menrado V. Corpuz, Regional Trial Court,
Second Judicial Region, Branch 38, Maddela, Quirino.
[3] Supra note 1 at 4-7.
[4] Supra note 2 at 371-372.
[5] CA rollo, pp. 38-51.
[6] Id. at 107.
[7] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
[8] Records, p. 15.
[9] Supra note 1 at 9.
[10] Id.
[11] Id. at 10.
[12] Id. at 13-14.
[13] People v. Agda et al., 197 Phil. 306 (1982); People v. Taaca et al., G.R. No. 35652,
September 29, 1989, 178 SCRA 56.
[14] Rules of Court, Rule 133, Sec. 5.
[15] TSN, November 4, 1996, pp. 2-5.
[16] TSN, October 10, 1995, pp. 3-8.
[17] TSN, February 24, 1997; Exhibit “D,” records, p. 8.
[18] Supra note 16 at 4-5.
[19] TSN, July 4, 1995, pp. 3-15.
[20] Supra note 1 at 11-12.
[21] Luis B. Reyes, The Revised Penal Code, Revised Fifteenth Edition, Book One, 650 (2001)
citing People v. Hernandez, 99 Phil. 515.
[22] Id.
[23] People v. Hon. Pineda et al., 127 Phil. 150 (1967).
[24] 85 Phil. 307, 318 (1950).
[25] G.R. No. 132676, April 4, 2001, 356 SCRA 248.
[26] G.R. No. 153559, June 8, 2004, 431 SCRA 366, 384.
[27] Republic Act No. 9346 (2006), Sec. 2.
[28] People v. Brodett, G.R. No. 170136, January 18, 2008, 542 SCRA 88.
[29] People v. Silva et al., 435 Phil. 779 (2002).

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2008/september2008/168050.htm>

Evidence Page 177

People vs. Notarion
Monday, September 21, 2009
6:42 PM

THIRD DIVISION

[G.R. No. 181493, August 28, 2008]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICARDO NOTARION Y ZANORIA, ACCUSED-

APPELLANT.

DECIS ION

CHICO-NAZARIO, J.:
For review is the Decision of the Court of Appeals in CA-G.R. CR HC No. 02103, dated 24 August 2007,[1]
affirming with modifications the Decision of the Masbate Regional Trial Court (RTC), Branch 49, in
Criminal Case No. 1511,[2] finding accused-appellant Ricardo Notarion y Zanoria guilty of the special
complex crime of rape with homicide and sentencing him to suffer the penalty of death.

The facts gathered from the records are as follows:

On 28 November 2001, an Information[3] was filed with the RTC charging appellant with the special
complex crime of rape with homicide. The accusatory portion of the information reads:
That on or about the 25th day of July, 2001, in the afternoon thereof, at XXX, Barangay XXX,
Municipality of XXX, Province of XXX, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused by means of violence and intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with one AAA [4] against the latter's will
and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and
stab said AAA with the use of a hunting knife, hitting the latter on the different parts of her body
which caused her death.[5]
When arraigned on 7 March 2002, appellant, assisted by his counsel de oficio, pleaded "Not guilty" to
the charge.[6] Trial on the merits thereafter followed.

The prosecution presented as witnesses Dionilo Cabague (Cabague), BBB (AAA's husband), and Dr.
George Galindez (Dr. Galindez). Their testimonies are summarized as follows:

Cabague, neighbor of appellant, testified that on 25 July 2001, at about 4:30 p.m., he and his wife
arrived at their house in Barangay XXX, Municipality of XXX, Province of XXX. He noticed that the buri
leaves which served as the door's lock was untied. Thereupon, he heard a noise coming from inside the
house. He pushed the door and saw appellant and AAA. Appellant was then putting on his shorts, while
AAA was sprawled and motionless on the floor near appellant. Appellant approached and pointed a
knife at him. Appellant warned him not to tell anyone of what he saw or he would kill him, his wife and
his relatives. Frightened, Cabague and his wife immediately left their house and proceeded to his
brother's house where they spent the whole night.[7]

In the morning of the following day, he and his wife returned to their house and learned that AAA was
already dead, and that the latter's cadaver was found 10 meters away therefrom.[8]

BBB, husband of AAA, recounted that in the early morning of 25 July 2001, he went out fishing. Upon
arriving home at about 4:00 p.m., he noticed that AAA was not around. He went out of the house to look
for AAA. At around 8:00 p.m. of the same day, he met appellant who asked him where he came from. He
replied that he was looking for AAA. Appellant became nervous, dropped his torch and hurriedly left.

Evidence Page 178

replied that he was looking for AAA. Appellant became nervous, dropped his torch and hurriedly left.
Later that evening, he and some relatives and neighbors found AAA's lifeless body several meters away
from Cabague's house.[9]

Dr. Galindez, Municipal Health Officer of Placer, Masbate, declared that he conducted a post-mortem
examination on AAA's corpse. His findings are as follows[10]

POSTMORTEM EXAMINATION FINDINGS:

(+) Hematoma frontal area.
1.
(+) lacerated wound 2 cm. x 0.5 cm left upper
2. eyelid.
(+) lacerated wound 3 cm. x 1 cm right upper
3. eyelid.
(+) Hematoma periorbital area.
4.
(+) Hematoma right cheek.
5.
(+) lacerated wound 2 cm. x 0.5 cm left upper lip.
6.
(+) lacerated wound 1 cm. x 0.5 cm right upper lip.
7.
(+) avulsed teeth 2 upper central incisor.
8.
(+) avulsed tooth 1 left lateral incisor.
9.
(+) avulsed tooth 1 left canine.
10.
(+) confluent hematoma surrounding the neck and
11. shoulder.
(+) confluent hematoma chest.
12.
(+) hematoma left wrist.
13.
(+) hematoma hypogastric area with abdominal
14. distention.
(+) 2nd degree burns both labia majora.
15.
(+) 2nd degree burns circular left thigh.
16.
(+) 2nd degree burns circular right thigh.
17.
(+) multiple nail marks both buttocks lateral area.
18.
(+) multiple abrasion right elbow.
19.

Evidence Page 179

 SPECULUM EXAMINATION DONE:

- (+) cystocele.

- Collected 1 ml. whitish fluid in the vaginal canal.

SPERM ANALYSIS AT CATAINGAN DISTRICT

HOSPITAL:

(+) spermatozoa

CONCLUSION:
Asphyxia 2o strangulation
1.
Rape [11]
2.
Dr. Galindez stated that the confluent hematoma (wound no. 11) around AAA's neck and shoulder
indicated suffocation. He said that AAA died of asphyxia secondary to strangulation.[12]

He also concluded that AAA was raped as shown by the following observations: (1) enlargement of
AAA's cervical area; (2) second-degree burns in AAA's labia majora (wound no. 15); (3) second-degree
burns in AAA's left and right thighs (wound nos. 16 and 17); (4) multiple nail marks in AAA's buttocks
(wound no. 18); and (5) the presence of human spermatozoa in AAA's vagina.[13]

The prosecution also proffered documentary evidence to bolster the testimonies of its witnesses, to wit:
(a) affidavit of Cabague (Exhibit A);[14] (2) affidavit of BBB (Exhibit B);[15] and (3) post-mortem
examination report signed and issued by Dr. Galindez (Exhibit C).[16]

For its part, the defense presented the testimonies of appellant and Maricar Notarion (Maricar).
Appellant denied the foregoing accusation and pointed to a certain Solomon Monsanto (Monsanto) as
the real perpetrator.

Appellant testified that on 25 July 2001, at about 4:30 p.m., he was at his farm tending his carabao.
Later, he saw Monsanto standing beside the lifeless body of AAA which was lying on the ground.
Monsanto approached him, poked a gun at him, and threatened to kill him and his family if he would
report what he saw. Subsequently, appellant was arrested and charged with raping and killing AAA.[17]

Maricar, daughter of appellant, narrated that on 25 July 2001, at about 4:30 in the afternoon, she and
appellant went to their farm to fetch their carabao. Thereafter, she and appellant saw Monsanto hack
and shoot AAA. Monsanto approached appellant and poked a gun at the latter. Monsanto warned
appellant not to tell anyone of the incident or he and his family would be killed. She and appellant then
hurriedly went home.[18]

After trial, the RTC rendered a Decision on 23 January 2006 convicting appellant of the special complex
crime of rape with homicide. Appellant was sentenced to death. He was also ordered to pay the heirs of
AAA the amounts of P100,000.00 as civil indemnity, P50,000.00 as moral damages, and P5,000.00 as
exemplary damages. The dispositive portion of the Decision reads:
WHEREFORE, beyond reasonable doubt, the Court finds the accused, RICARDO NOTARION, guilty

Evidence Page 180

exemplary damages. The dispositive portion of the Decision reads:
WHEREFORE, beyond reasonable doubt, the Court finds the accused, RICARDO NOTARION, guilty
of the special complex crime of Rape with Homicide falling under Article 335 of the Revised Penal
Code as amended by RA 4111 and RA 7659 and accordingly sentences him to suffer the SUPREME
PENALTY OF DEATH.

Accused is ordered to pay the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS as civil
indemnity; FIFTY THOUSAND (P50,000.00) pesos as moral damages and exemplary damages of
FIVE THOUSAND (P5,000.00) PESOS to the heirs of the victim. [19]
Appellant appealed to the Court of Appeals. On 24 August 2007, the appellate court promulgated its
Decision affirming with modifications the RTC Decision. It held that the death penalty imposed by the
RTC on appellant should be reduced to reclusion perpetua pursuant to Section 2(a) of Republic Act No.
9346 with appellant not eligible for parole under the said law. It also ruled that although the heirs of
AAA were not entitled to actual damages because they did not present proof thereof, such as receipts
for funeral and burial expenses, they were, nonetheless, entitled to temperate damages in the amount
of P25,000.00, since it was reasonable to expect that the heirs of AAA incurred funeral and burial
expenses. Further, it increased the amount of moral damages to P75,000.00 and exemplary damages to
P25,000.00.[20] Thus:
WHEREFORE, in view of the foregoing, the assailed Decision dated January 23, 2006 of the
Regional Trial Court of Cataingan, Masbate, Branch 49 finding the accused-appellant guilty beyond
reasonable doubt of the crime of Rape with Homicide is hereby AFFIRMED with MODIFICATION in
that (a) the death penalty imposed by the trial court is reduced to reclusion perpetua and (b) the
judgment on the civil liability is modified by ordering the accused-appellant to pay the amounts of
P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as exemplary damages
and P25,000.00 as temperate damages to the heirs of the victim. [21]

Appellant filed a Notice of Appeal on 11 September 2007. [22]

Before us, appellant assigned the following errors:

I.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO THE EVIDENCE
ADDUCED BY THE ACCUSED-APPELLANT.

II.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE SPECIAL
COMPLEX CRIME OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT. [23]
Apropos the first issue, appellant maintains that his testimony pointing to Monsanto as the one who
raped and killed AAA is more credible than the testimony of Cabague.[24]

In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following
well-settled principles: (1) the reviewing court will not disturb the findings of the lower court, unless
there is a showing that it overlooked, misunderstood or misapplied some fact or circumstance of weight
and substance that may affect the result of the case; (2) the findings of the trial court on the credibility
of witnesses are entitled to great respect and even finality, as it had the opportunity to examine their
demeanor when they testified on the witness stand; and (3) a witness who testifies in a clear, positive
and convincing manner is a credible witness.[25]

We have gone over the testimony of Cabague and found no cogent reason to overturn the RTC's ruling
finding Cabague's testimony credible. Cabague testified in a clear and truthful manner that he saw
appellant and AAA inside his house on the day and time of the incident. Appellant then was putting on
his shorts while AAA was slumped motionless on the floor near appellant. Appellant approached him
and pointed a knife at him. Appellant warned him not to tell anyone of what he saw or he would kill him,
his wife and his relatives. Terrified, Cabague and his wife immediately left their house and proceeded to
his brother's house where they spent the whole night.[26]

Evidence Page 181

his brother's house where they spent the whole night.[26]

BBB and Dr. Galindez corroborated the testimony of Cabague on its relevant points.

Further, the above-mentioned testimonies are consistent with the documentary evidence submitted by
the prosecution. The RTC and the Court of Appeals found the testimonies of Cabague, BBB and Dr.
Galindez to be consistent and honest. Both courts did not find any ill motive on the part of the
prosecution witnesses.

In stark contrast, the testimony of appellant and Maricar composed of denial and alibi were confusing,
contradictory and unreliable. Appellant did not mention in his testimony that he was with Maricar when
he allegedly saw Monsanto kill AAA.[27] Maricar, nevertheless, testified that she was with appellant when
the alleged incident transpired.[28] Further, appellant and Maricar testified that they saw Monsanto kill
AAA.[29] Subsequently, however, appellant and Maricar declared that they did not see Monsanto kill
AAA.[30]

It is settled that as between bare denials and positive testimony on affirmative matters, the latter is
accorded greater evidentiary weight.[31]

Appellant, nonetheless, argues that the evidence presented by the prosecution were merely
circumstantial and, thus, insufficient to prove his guilt of the special complex crime of rape with
homicide.[32] Also, the fact that Monsanto was relieved by the prosecution from this case as an accused
casts doubt on the identity of the real perpetrator.[33]

Direct evidence of the commission of a crime is not the only matrix from which a trial court may draw its
conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial
evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact
or series of facts from which the facts in issue may be established by inference.[34]

In rape with homicide, the evidence against the accused is usually circumstantial. The nature of the
crime, in which only the victim and the rapist-killer would have been around during its commission,
makes the prosecution of the offense particularly difficult because the victim could no longer testify
against the perpetrator. Thus, resorting to circumstantial evidence is almost always inevitable, and to
demand direct evidence to prove in such instance the modality of the offense and the identity of the
perpetrator would be unreasonable.[35]

Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction
if: (1) there is more than one circumstance; (2) the inference is based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the
accused.

After carefully reviewing the evidence on record and applying the foregoing parameters to this case, we
hold that the evidence adduced by the prosecution adequately proved the guilt beyond reasonable
doubt of the appellant. As correctly found by the RTC, the following circumstances, when pieced
together, lead to the ineluctable conclusion that appellant was the perpetrator of the crime charged:
1. The victim and the accused were inside a single room house;
2. The uncontroverted fact that the victim was lying motionless on the floor while the accused
was sitting and putting on his short pants;
3. There was no other person in the house;
4. The accused threatened to kill the witness (Cabague) and the latter's relatives if he (the
witness) says anything on what he saw;
5. The witness did not see any wound or blood on the motionless body of the victim;
6. Death of the victim by strangulation;
7. The victim's dead body was found about ten (10) meters away from the house (of
Cabague).[36]

Evidence Page 182

 7.
Cabague).[36]
In addition thereto, BBB narrated that appellant was nervous and uneasy when he met him along the
road on the night of 25 July 2001. When he told appellant that he was looking for AAA, appellant
dropped his torch and hurriedly walked away.[37]

Further, Dr. Galindez testified that AAA was raped because human spermatozoa and several wounds
were found in and near AAA's vagina.[38]

All of the foregoing circumstances, which were duly proven, undoubtedly constitute an unbroken chain
of events leading to a fair and reasonable conclusion that appellant raped and killed AAA.

It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not mean
such a degree of proof as to exclude the possibility of error and produce absolute certainty. Only moral
certainty is required or that degree of proof which produces a conviction in an unprejudiced mind.[39]
This was sufficiently established in the case at bar.

The fact that Monsanto was relieved by the prosecution from this case as an accused is immaterial
because appellant's guilt was duly proven by the evidence of the prosecution.

We shall now determine the propriety of the penalties imposed by the Court of Appeals.

The penalty for the special complex crime of rape with homicide is death under Article 266-B of the
Revised Penal Code. However, in view of the effectivity of Republic Act No. 9346[40] prohibiting the
imposition of the death penalty, the penalty to be meted out to appellant shall be reclusion perpetua in
accordance with Section 2 thereof, which reads:
SECTION 2. In lieu of the death penalty, the following shall be imposed:

a) the penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code; or
the penalty of life imprisonment, when the law violated does not make use of the
b) nomenclature of the penalties of the Revised Penal Code.
Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole
following Section 3 of said law, which provides:
SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences
will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
Thus, the Court of Appeals was correct in imposing on appellant the penalty of reclusion perpetua
without the possibility of parole.

With regard to damages, the heirs of AAA are entitled to civil indemnity amounting to P100,000.00 in
keeping with current jurisprudence authorizing the mandatory award of P50,000.00 in case of death,
and P50,000.00 upon the finding of the fact of rape.[41] The award of moral damages amounting to
P75,000.00 is also just and reasonable in cases of rape with homicide.[42] The Court of Appeals,
therefore, acted accordingly in awarding civil indemnity amounting to P100,000.00 and moral damages
amounting to P75,000.00 in favor of AAA's heirs.

As to actual damages, we have held that if the amount of the actual damages cannot be determined
because no receipts were presented to prove the same, but it was shown that the heirs are entitled
thereto, temperate damages amounting to P25,000.00 may be awarded.[43] In the instant case, no
receipt or competent proof was presented to show the amount of actual damages incurred by AAA's
heirs. Nonetheless, it is reasonable to expect that AAA's heirs incurred expenses for her coffin, burial,
and food during the wake. Hence, the Court of Appeals properly awarded temperate damages
amounting to P25,000.00 in lieu of actual damages.

Evidence Page 183

amounting to P25,000.00 in lieu of actual damages.

With respect to exemplary damages, Article 2230 of the New Civil Code[44] allows the award thereof as
part of the civil liability when the crime was committed with one or more aggravating circumstances.
The aggravating circumstance must be expressly and specifically alleged in the information;[45]
otherwise, it cannot be considered by the trial court in its judgment, even if such circumstance was
subsequently proved during the trial.[46] In the case at bar, no aggravating circumstance was alleged in
the information. Thus, the RTC and the Court of Appeals erred in awarding exemplary damages.

WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. CR HC No. 02103,
dated 24 August 2007, is hereby AFFIRMEDwith the MODIFICATION that the award of exemplary
damages is deleted.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.

[1] Penned by Associate Justice Rodrigo V. Cosico with Associate Justices Hakim S. Abdulwahid and Arturo

G. Tayag, concurring; rollo, pp. 2-10.

[2]
Penned by Judge Manuel L. Sese; CA rollo, pp. 12-25.

[3]
Records, p. 1.

[4] Pursuant toRepublic Act No. 9262, otherwise known as the "Anti-Violence Against Women and Their
Children Act of 2004" and its implementing rules, the real name of the victim, together with the real
names of her immediate family members, is withheld and fictitious initials instead are used to represent
her, both to protect her privacy. See People v. Cabalquinto, G.R. No. 167693, 19 September 2006, 502
SCRA 419, 421-426.

[5] Records, p. 1.

[6] Id. at 30.

[7] TSN,
13 November 2003, pp. 3-10.

[8] Id. at 10-13.

[9] TSN, 17 June 2004, pp. 3-8.

[10]
TSN, 11 September 2003, pp. 2-5.

[11] Records, p. 26.

[12] TSN, 11
September 2003, p. 5.

[13] Id.
at 6-7.

[14] Records, p. 13.

[15] Id. at 14.

[16] Id. at 26.

Evidence Page 184

[16] Id. at 26.

[17] TSN, 12 August 2004, pp. 2-6.

[18]
TSN, 13 January 2005, pp. 2-5.

[19]
CA rollo, p. 24.

[20] Rollo, p. 9.

[21] Id.

[22]
CA rollo, pp. 105-106.

[23]
Id. at 38.

[24] Id. at 46.

[25] People v. Galido, G.R. Nos. 148689-92, 30 March 2004, 426 SCRA 502, 513.

[26] TSN, 13 November 2003, pp. 3-10.

[27]
TSN, 13 January 2005, pp. 6-7.

[28]
Id. at 3.

[29]
TSN, 12 August 2004, p. 4; TSN, 13 January 2005, p. 4.

[30]
Id. at 5.

[31] Ceniza-Manantan v. People, G.R. No. 156248, 28 August 2007, 531 SCRA 364, 375; People v. Major
Comiling, 468 Phil. 869, 890 (2004).

[32] CA rollo, p. 44.

[33] Id. at 46.

[34] People v.
Padua, G.R. No. 169075, 23 February 2007, 516 SCRA 590, 600-601; People v. Lopez, 371
Phil. 852, 859 (1999); People v. Ayola, 416 Phil. 861, 872 (2001).

[35] People v.
Guihama, 452 Phil. 824, 841 (2003); People v. Rayos, 404 Phil. 151, 167-168 (2001).

[36] Records, pp. 90-91.

[37] TSN, 17 June 2004, pp. 5-6.

[38] TSN, 11 September 2003, pp. 6-7.

[39] People v. Guihama, supra note 35 at 843.

[40] Approved on 24
June 2006.

[41] People v. Padua, supra note 34 at 607, citing People v. Tablon, 429 Phil. 1, 17-18 (2002).

[42] Id., citing People v. Magallanes, 457 Phil. 234, 259 (2003).

Evidence Page 185

[42] Id., citing People v. Magallanes, 457 Phil. 234, 259 (2003).

[43] People v. Abrazaldo, 445 Phil. 109, 126 (2003).

[44]
Article 2230, New Civil Code: In criminal offenses, exemplary damages as a part of the civil liability
may be imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party.

[45] Sections 8 9, Rule 110 of the Revised Rules of Criminal Procedure.

[46] Catiis v. Court of Appeals, G.R. No. 153979, 9 February 2006, 482 SCRA 71, 84

Pasted from <http://elibrary.judiciary.gov.ph/decisions.php?doctype=Decisions%20/%20Signed%20Resolutions&docid=

1220600931284342363>

Evidence Page 186

Special Rules
Monday, September 21, 2009
6:45 PM

In quasi-judicial Bodies
Lepanto v. Dumapis

Electronic Evidence
Nuez v. Cruz-Apao
NPC v. Codilla, Jr.
MCC Industrial Sales Corp. vs. Ssangyong Corp

Rule on DNA
Ong v. Diaz

Evidence Page 187

Lepanto v. Dumapis
Monday, September 21, 2009
6:48 PM

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

LEPANTO CONSOLIDATED G.R. No. 163210

MINING COMPANY,
Petitioner, Present:
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
MORENO DUMAPIS, REYES, JJ.
ELMO TUNDAGUI and
FRANCIS LIAGAO, Promulgated:
Respondents. August 13, 2008
x- - - - - - - - - - -- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - x

DEC IS IO N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court assailing the November 7, 2003 Decision[1] and April 15, 2004
Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 75860.

The antecedents of the case are as follows:

Evidence Page 188

 Lepanto Consolidated Mining Corporation (petitioner), a domestic juridical
entity engaged in mining, employed Moreno Dumapis and Elmo Tundagui as lead
miners; and Francis Liagao, as load, haul and dump (LHD) machine operator
(respondents).[3] All three were assigned at the 850 level, underground, Victoria
Area in Lepanto, Mankayan, Benguet. This is a known “highgrade” area where
most of the ores mined are considered of high grade content.[4]

In the afternoon of September 15, 2000, at 2:00 p.m., Dwayne Chambers

(Chambers), one of its foreign consultants who was then acting as Assistant
Resident Manager of the Mine, went underground at the 850 level to conduct a
routinary inspection of the workers and the working conditions therein. When he
went to the various stopes of the said level, he was surprised to see that nobody
was there. However, when he went to the 8k stope, he noticed a group of
workers sitting, sorting, and washing ores believed to be “highgrade.” Realizing
that “highgrading”[5] was being committed, Chambers shouted. Upon hearing his
angry voice, the workers scampered in different directions of the
stope.[6] Chambers then reported the incident to the security investigation
office.[7]

After investigating, Security Investigators Paul Pespes, Jr. and Felimon Ringor
(Security Investigators) executed a Joint Affidavit, which reads as follows:

xxx x

At about 3:40 PM of September 15, 2000, while we were at the Lepanto Security
Investigation office, we received a report that the LMD Asst. Resident Manager, Mr. Dwayne
Chambers saw and surprised several unidentified miners at 8K Stope, 850 level committing
Highgrading activities therein;

Consequently, all miners assigned to work therein including their supervisor and SG
Ceasarion Damoslog, an element of the Mine Security Patrol posted therein as stationary guard
were called to this office for interrogation regarding this effect;

In the course of the investigation, we eventually learned that the highgrading event really
transpired somewhere at the roadway of 8K Stope, 850 level at about 2:00 o’clock PM of
September 15, 2000. That the involved participants were all miners assigned to work at 7K Stope,
8K Stope, 240 E, Cross Cut South level drive, all located at 850 mine level. Likewise, the detailed
stationary guard assigned thereat and some mine supervisors were also directly involved in this
activity;

Security Guard Ceasarion Damoslog honestly confessed his direct participation then
claimed that he was allegedly convinced by Mr. Joel Gumatin, one of the miners assigned at Panel
No.1-est-North, 8K Stope, 850 level to cooperate with them to commit Highgrading. He revealed
his companions to be all the miners assigned at 8K stope, namely, Joel Gumatin, Brent Suyam,
Maximo Madao, Elmo Tundagui and Daniel Fegsar. He also included those who were assigned to
work at 240 E, XCS, namely: Thomas Garcia (immediate supervisor), John Kitoyan, Moreno
Dumapis, and Marolito Cativo. He enumerated also messrs. Benedict Arocod, Samson Damian,
and Dionisio Bandoc, 7K Stope, 850 level assigned miners and shiftboss, respectively;

Evidence Page 189

 and Dionisio Bandoc, 7K Stope, 850 level assigned miners and shiftboss, respectively;

Mr. Pablo Daguio, the shiftboss of 240 E, XCS, 850 level also positively confirmed the
Highgrading activity. He added that actually he came upon the group and even dispersed them
when he went therein prior to the arrival of Mr. Chambers;

Furthermore, we also learned from the confession of Mr. Maximo Madao that its was
messrs. Joel Gumatin and Brent Suyam who took their issued rock drilling machine then drilled
holes and blasted the same at the 8K Stope roadway with the assistance of Thomas Garcia, John
Kitoyan, Benedict Arocod, Samsom Damian, Daniel Fegsar and Francisco Liagao. That SG Ceasarion
Damoslog was present on the area standing and watching the group during the incident;

That we are executing this joint affidavit to establish the foregoing facts and to support
any complaint that may be filed against respondents;

IN WITNESS WHEREOF, we have hereunto set our hands and affix our signature this 28 th
day of September 2000, at Lepanto, Mankayan, Benguet. [8]
(Emphasis supplied)

On October 24, 2000, petitioner issued a resolution finding respondents

and their co-accused guilty of the offense of highgrading and dismissing them
from their employment.[9]

On November 14, 2000, respondents together with the nine other miners,
filed a Complaint for illegal dismissal with the Labor Arbiter (LA), docketed as
NLRC Case No. 11-0607-00 against petitioner.[10] On August 21, 2001, the LA
dismissed the complaint for lack of merit.

On September 22, 2001, the miners appealed the decision of the LA to the
National Labor Relations Commission (NLRC). On August 30, 2002, the NLRC
rendered a Decision, declaring the dismissal of herein respondents as illegal, but
affirming the dismissal of the nine other complainant miners. The dispositive
portion of the NLRC Decision insofar as respondents are concerned, reads:

WHEREFORE, premises considered, the DECISION dated August 21, 2001 is hereby
MODIFIED declaring the dismissal of complainants [herein respondents] Moreno Dumapis,
Elmo Tundagui and Francis Liagao illegal and ordering respondent to pay them backwages in
the total amount of four hundred eighty thousand one hundred eighty two pesos and
63/100 (P480, 182.63) and separation pay in the total amount of four hundred seventeen
thousand two hundred thirty pesos and 32/100 (P417,230.32) as computed in the body of
the decision.

x xx x

SO ORDERED.[11]

Petitioner filed a motion for reconsideration which was denied for lack of
merit by the NLRC in its Resolution dated on November 22, 2002.[12]

Evidence Page 190

merit by the NLRC in its Resolution dated on November 22, 2002.[12]

Petitioner then filed a petition for certiorari under Rule 65 of the Rules of
Court with the CA assailing the aforementioned decision and resolution of
the NLRC. The CA affirmed the decision of the NLRC[13] and denied
petitioner’s Motion for Reconsideration.

Hence, herein petition on the following grounds:

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR IN

AFFIRMING THE NATIONAL LABOR RELATIONS COMMISSION’S DECISION DATED AUGUST 30,
2002 WHICH DECLARED AS ILLEGAL THE DISMISSAL FROM SERVICE OF HEREIN
RESPONDENTS.[14]

The Court of Appeal’s strict application of the hearsay rule under Section 36, Rule 130 of the
Rules of Court to the present case is uncalled for.

In cases of dismissal for breach of trust and confidence, proof beyond doubt is not required, it
being sufficient that the employer has reasonable ground to believe that the employees are
responsible for the misconduct which renders them unworthy of the trust and confidence
demanded by their position.[15]

The petition is devoid of merit.

In finding the dismissal of respondents illegal, the CA upheld the NLRC in

considering the Joint Affidavit of the Security Investigators (Joint Affidavit) as
hearsay and therefore inadmissible, to wit:

We subscribed to the conclusion of the NLRC that the Joint Affidavit of Security Investigators
Paul D. Pespes, Jr. and Felimon Ringor is hearsay and thus, inadmissible. Their narration of
factual events was not based on their personal knowledge but on disclosures made by
Chambers and Daguio. Section 36, Rule 130 of the Rules of Court defined the nature of
hearsay:

Witness can testify only to those facts which he knows of his personal knowledge, that is,
which are derived from his own perception, except as otherwise provided in these
rules.[16]

Arguing for the admissibility of the Joint Affidavit, petitioner cites Article 221
of the Labor Code, as amended, which provides:

Article 221. Technical rules not binding and prior resort to amicable settlement. In any
proceeding before the Commission or any Labor Arbiters, the rules of evidence prevailing
in courts of law or equity shall not be controllingand it is the spirit and intention of the
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 the technicalities of law or procedure, all in the interest of due process. x x
x (Emphasis supplied)

We agree with the petitioner.

Evidence Page 191

We agree with the petitioner.

Administrative bodies like the NLRC are not bound by the technical niceties
of law and procedure and the rules obtaining in courts of law. Indeed, the
Revised Rules of Court and prevailing jurisprudence may be given only
stringent application, i.e., by analogy or in a suppletory character and
effect.[17]

In a number of cases,[18] this Court has construed Article 221 of the Labor
Code as permitting the NLRC or the LA to decide a case on the basis of
position papers and other documents submitted without necessarily
resorting to technical rules of evidence as observed in the regular courts of
justice. Rules of evidence are not strictly observed in proceedings before
administrative bodies like the NLRC.[19]

In Bantolino v. Coca-Coca Bottlers Phils., Inc.[20] the Court ruled that

although the affiants had not been presented to affirm the contents of their
affidavits and be cross-examined, their affidavits may be given evidentiary
value; the argument that such affidavits were hearsay was not
persuasive. Likewise, in Rase v. National Labor Relations Commission,[21]
this Court ruled that it was not necessary for the affiants to appear and
testify and be cross-examined by counsel for the adverse party. To require
otherwise would be to negate the rationale and purpose of the summary
nature of the proceedings mandated by the Rules and to make mandatory
the application of the technical rules of evidence.

Thus, the CA and the NLRC erred in ruling that the Joint Affidavit is
inadmissible for being hearsay. The Joint Affidavit of the Security
Investigators is admissible for what it is, an investigation report.

However, the admissibility of evidence should not be confused with its

probative value. Admissibility refers to the question of whether certain
pieces of evidence are to be considered at all, while probative value refers to
the question of whether the admitted evidence proves an issue.[22] Thus, a
particular item of evidence may be admissible, but its evidentiary weight
depends on judicial evaluation within the guidelines provided by the rules of
evidence.[23] The distinction is clearly laid out in Skippers United Pacific, Inc.
v. National Labor Relations Commission.[24] In finding that the Report of the
Chief Engineer did not constitute substantial evidence to warrant the
dismissal of Rosaroso, this Court ruled:

According to petitioner, the foregoing Report established that respondent was dismissed

Evidence Page 192

for just cause. The CA, the NLRC and the Labor Arbiter, however, refused to give credence to the
Report. They are one in ruling that the Report cannot be given any probative value as it is
uncorroborated by other evidence and that it is merely hearsay, having come from a source, the
Chief Engineer, who did not have any personal knowledge of the events reported therein.

x x xx

The CA upheld these findings, succinctly stating as follows:

Verily, the report of Chief Engineer Retardo is utterly bereft of probative value. It is not
verified by an oath and, therefore, lacks any guarantee of trusthworthiness. It is furthermore,
and this is crucial, not sourced from the personal knowledge of Chief Engineer Retardo. It is
rather based on the perception of “ATTENDING SUPT. ENGINEERS CONSTANTLY OBSERVING ALL
PERSONNELS ABILITY AND ATTITUDE WITH REGARDS TO OUR TECHNICAL CAPABILITY AND
BEHAVIOURS WITH EMPHASY *sic+ ON DISCIPLINE” who “ NOTICED 3/E ROSAROSO AS BEING
SLACK AND NOT CARING OF HIS JOB AND DUTIES x x x.” Accordingly, the report is plain
hearsay. It is not backed up by the affidavit of any of the “Supt.” Engineers who purportedly
had first-hand knowledge of private respondents supposed “lack of discipline,” “irresponsibility”
and “lack of diligence” which caused him to lose his job. x x x

The Courts finds no reason to reverse the foregoing findings. [25] (Emphasis supplied)

While it is true that administrative or quasi-judicial bodies like the NLRC are
not bound by the technical rules of procedure in the adjudication of cases,
this procedural rule should not be construed as a license to disregard certain
fundamental evidentiary rules. The evidence presented must at least have a
modicum of admissibility for it to have probative value.[26] Not only must
there be some evidence to support a finding or conclusion, but the evidence
must be substantial. Substantial evidence is more than a mere
scintilla.[27] It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.[28] Thus, even though technical
rules of evidence are not strictly complied with before the LA and the NLRC,
their decision must be based on evidence that must, at the very least, be
substantial.[29]

Pursuant to the aforementioned doctrines, we now look into the probative

weight of the Joint Affidavit.

An examination of the Joint Affidavit reveals that the facts alleged therein by
the Security Investigators are not of their own personal knowledge. They
simply referred to the facts allegedly relayed to them by Chambers,
Damoslog, Daguio, and Madao. Thus, there is a need to individually
scrutinize the statements and testimonies of the four sources of the Joint
Affidavit in order to determine the latter’s probative weight.

The Joint Affidavit states that, “Mr. Dwayne Chambers saw and surprised
several unidentified miners x x x.”[30] Chambers simply narrated to the
Security Investigators what he saw but did not indicate herein respondents.
Evidence Page 193
Security Investigators what he saw but did not indicate herein respondents.

Also stated in the Joint Affidavit is the alleged confession of Damoslog

wherein he named respondents Tundagui and Dumapis as his companions in
the act of highgrading .[31]

Records show that Damoslog submitted two sworn statements. In his first
statement,[32] Damoslog claimed that he was unaware of the act of
highrading, and denied any involvement therein. However, in his second
statement,[33] Damoslog claimed to have personally witnessed the act of
highgrading and named the miners involved to wit:

07. Ques - Could you narrate briefly how it transpired then?

Ans - On the first hour of this specific dated and shift at about 0800hrs, while we were at
the 8K stope, 850 level, Mr. Joel Gumatin approached me that he could not procure some needed
amount of money and if possible we will commit highgrading for that effect to settle his
problem. That because I pity him, I just answered that if they could manage to do it then they
could do it.

08. Ques - Who was the companion of Mr. Gumatin when he approached you?
Ans - He was alone.

09. Ques - Did Gumatin specifically informed [sic] you his problem?
Ans - I did not asked him honestly but he only insisted that he needed an amount of
money badly as I earlier said.

10. Ques - So just after telling his purpose did he started [sic] the highgrading activity?
Ans - No, the highgrading scheme started at past 1300 Hrs.

11. Ques - How did it started [sic]?

Ans - They started after they all finished their respective drilling assignment. That while I
was near the panel 2-West located at the inner portion of 8K Stope, I observed the LHD unit
coming from the roadway near the 8K Eating station which was previously parked thereat
proceeded to the roadway of panel 1-West then started cleaning and scraping said roadway. That
after cleaning he parked it at the inner portion of the roadway. Then afterwhich one among the
miner who was not assigned therein and I failed to identify his name shove two shovels on the
roadway recently cleaned by the LHD then handed it to us with another man whom I don’t know
his name but could recognize and identify him if I will meet him again then we washed the same in
the inner area of panel 2-West which is adjacent. That after washing and sorting the same, we
placed it atop of an spread cartoon [sic] sheet. That while we were busy washing and sorting, Mr.
Gumatin also was fixing and spreading the airhose for rockdrilling machine. That few moments
thereafter, I heard the running engine of the drilling machine but I can not identify the operator as
my line of view was obstructed by the curbed angle of the panel where we are washing the
ores. That afterwhich I heard somebody that they are now going to blast the drilled holes but we
remained in our place continuing washing the stones. That after the blast Mr. Garcia and one
other companion whom I failed to identify due to foggy condition caused by the explosive blasting
then handed us the additional newly unearth ores for washing. That while were still busy
washing, Gumatin approached us then told us that he will collect what was already washed and
sorted and start to process the same. That Gumatin took the items then started to pound the ores
atop of an LHD unit parked near the entrance of panel 2-East which was not used during the
shift. That after that, I stood up then subsequently proceeded to panel 2-West then observed
messrs. Maximo Madao, Benedict Arocod, Brent Suyam, Daniel Fegsar, Thomas Garcia, Mariolito

Evidence Page 194

messrs. Maximo Madao, Benedict Arocod, Brent Suyam, Daniel Fegsar, Thomas Garcia, Mariolito
Cativo, John Kitoyna and Samson Damian who acted as the look out at the junction of 240 E, XCS
and 8K Stope. The enumerated miners except Damian were in squatting position in scattered
adjacent places busy sorting ores. Moments later Shift boss Dionisio Bandoc arrived then went to
the place of Gumatin then told us that he will get a portion of the already proceeded ores for the
operator to handcarry so that he will not need to come to 8K Stope, 850 level then after taking
some of the loot he proceeded out simultaneously uttering that he will check the look out at the
outer area of the mainline posted away from the 7K Stope. [34] (Emphasis supplied)

Evidently, Damoslog does not name respondents Dumapis and Tundagui as

among the miners involved in the act of highgrading; neither does he
mention respondent Liagao.

The Joint Affidavit also states that Daguio positively confirmed the act of
highgrading. However, in his sworn statement,[35] Daguio claims that he did
not recognize nor did he identify any of the miners, to wit:

11. Ques - In your own honest observation, what could be the estimate [sic] number of this
group of miners doing highgrading activities?
Ans - I don’t know but obviously they were several as manifested by their number of
cap lamplights. I also speculated that some of them were hidden at the curved inner access of the
roadway enroute to the inner area.

12. Ques - Did you recognize nor [sic] identify any of them?
Ans - Honestly, no.[36] (Emphasis supplied)

Lastly, the Joint Affidavit also points to the confession of Madao wherein he
particularly named respondent Liagao as one of the miners involved in the
act of highgrading.

Madao submitted two sworn statements. In his first sworn statement[37]

dated September 16, 2000, Madao claimed his innocence. He did not
incriminate any of the respondents. However, in his second sworn
statement[38] dated September 20, 2000, Madao claimed to have
knowledge of the act of highgrading and specifically named respondent
Liagao as one of the miners involved, to wit:

09. Ques - Do I understand that Mr. Suyam has companions and

had drilled first the flooring of that roadway before blasting it?
Ans - Yes, that is true I saw Suyam and Gumatin transferred [sic] their assigned
drilling machine at the said roadway and drilled the area with the company of Garcia,
Kitoyan, Arocod, Damian, Fegsar and Liagao.[39] (Emphasis supplied)

Nonetheless, the second sworn statement of Madao is not sufficient to find

Liagao guilty of highgrading. In a Joint Affidavit[40] which he executed with
respondent Tundagui, Madao made the following declarations:

When I, MAXIMO MADAO reported for work on September 16, 2000, I am being required to

Evidence Page 195

 When I, MAXIMO MADAO reported for work on September 16, 2000, I am being required to
appear at the security investigation office. After quitting time I went to the security office
and was surprised to learn that my name is among those listed persons who were seen by
Mr. Chambers committing acts of highgrading on September 15, 2000. However, when I quit
work on September 20, 2000 I was again called through telephone to appear at the security
office. Investigator Felimon Ringor told me that I will give another statement and convinced
to tell me all the names of the persons assigned thereat with the promise that I will report
for work. With my limited education having not finished grade 1, I was made to give my
statement on questions and answers which are self-incriminating and knowingly
mentioned names of persons who are innocent. Worst, when I got my copy and the
contents were fully explained to me by our legal counsel I was surprised that it was duly
notarized when in fact and in truth after I gave my statement I did not appear before Atty.
Nina Fe Lazaga-Raffols for swearing. With this circumstances, I hereby RETRACT my
statement dated September 20, 2000 for being self incriminatory unassisted by my
counsel or union representative and hereby ADAPTS [sic] and RETAINS my sworn statement
dated September 16, 2000.[41] (Emphasis supplied)
In labor cases, in which technical rules of procedure are not to be strictly
applied if the result would be detrimental to the workingman, an affidavit of
desistance gains added importance in the absence of any evidence on record
explicitly showing that the dismissed employee committed the act which
caused the dismissal.[42] Accordingly, the Court cannot turn a blind eye and
disregard Madao’s recantation, as it serves to cast doubt as to the guilt of
respondent Liagao.

Based on the foregoing, the Court is convinced that the Joint Affidavit, being
sourced from Chambers, Damoslog, Daguio and Madao, has no probative
value to support evidence to warrant the dismissal of the
respondents. Chambers and Daguio did not identify the miners involved in
the act of highgrading. In addition, Damoslog’s first and second sworn
statements did not implicate respondents, and Madao recanted his
statement implicating respondent Liagao. As earlier discussed, the sworn
statements and joint affidavits of the sources do not corroborate but actually
cast doubt as to the veracity of the statements in the Joint Affidavit.

The second ground is not plausible.

While the Court agrees that the job of the respondents, as miners, although
generally described as menial, is nevertheless of such nature as to require a
substantial amount of trust and confidence on the part of petitioner,[43] the
rule that proof beyond reasonable doubt is not required to terminate an
employee on the charge of loss of confidence, and that it is sufficient that
there be some basis for such loss of confidence, is not absolute.[44]

The right of an employer to dismiss an employee on the ground that it has

lost its trust and confidence in him must not be exercised arbitrarily and
without just cause.[45] In order that loss of trust and confidence may be
considered as a valid ground for an employee’s dismissal, it must be
Evidence Page 196
 considered as a valid ground for an employee’s dismissal, it must be
substantial and not arbitrary, and must be founded on clearly established
facts sufficient to warrant the employee’s separation from work.[46]

In the present case, the Court reiterates that the evidence is not substantial
to hold respondents guilty of highgrading so as to warrant the dismissal of
respondents.

Moreover, it is a well-settled doctrine that if doubts exist between the

evidence presented by the employer and the employee, the scales of justice
must be tilted in favor of the latter. It is a time-honored rule that in
controversies between a laborer and his master, doubts reasonably arising
from the evidence, or in the interpretation of agreements and writing, should
be resolved in the former’s favor. The policy is to extend the doctrine to a
greater number of employees who can avail themselves of the benefits
under the law, which is in consonance with the avowed policy of the State to
give maximum aid and protection to labor.[47]

Lastly, respondents’ prayer in their Comment[48] and Memorandum,[49]

that the CA Decision be modified by ordering their reinstatement to their former
positions without loss of seniority rights and with payment of full backwages from
their alleged dismissal up to date of reinstatement, deserves scant
consideration. Respondents are estopped from claiming their right to
reinstatement. Records show that respondents along with their co-accused, filed
an appeal with the CA docketed as CA-G.R. SP No. 75457 questioning the decision
of the NLRC. The said appeal was denied by the CA. The case was then elevated
to this Court through a petition for review, entitled Thomas Garcia v. Court of
Appeals, docketed as G.R. No. 162554. However, the same was denied with
finality for having been filed out of time.[50] In effect, it serves to estop the
respondents from praying for their reinstatement in the present case. Under the
doctrine of conclusiveness of judgment, which is also known as “reclusion of
issues” or “collateral estoppel,” issues actually and directly resolved in a former
suit cannot again be raised in any future case between the same parties involving
a different cause of action.[51] Applied to the present case, the “former suit”
refers to CA-G.R. SP No. 75457 wherein the CA ordered separation pay instead of
reinstatement and G.R. No. 162554 wherein this Court denied the petition for
review filed by respondents together with other dismissed workers. The “future
case” is the present case in which the petitioner is Lepanto Consolidated Mining
Company assailing the validity of the CA Decision declaring the dismissal of
respondents to be illegal. Reinstatement was not an issue raised by herein
petitioner. Respondents cannot now be allowed to raise the same in the petition
filed by petitioner, for that would circumvent the finality of judgment as to

Evidence Page 197

separation pay insofar as respondents are concerned.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

dated November 7, 2003 and its Resolution dated April 15, 2004 in CA-G.R.
SP No. 75860 are AFFIRMED.

Double costs against petitioner.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the

Evidence Page 198

consultation before the case was assigned to the writer of the opinion of the
Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson’s Attestation, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

[1] Penned by Justice Buenaventura J. Guerrero with the concurrence of Justices Andres B. Reyes, Jr. and
Regalado E. Maambong; rollo, pp. 9-19.
[2] Id. at 20-21.
[3] Id. at 10.
[4] Rollo, p. 27.
[5] Presidential Decree No. 581, Section 1: Any person who shall take gold-bearing ores or rocks from a
mining claim or mining camp or shall remove, collect or gather gold-bearing ores or rocks in place or shall extract
or remove the gold from such ores or rocks, or shall prepare and treat such ores or rocks to recover or extract the
gold contents thereof, without the consent of the operator of the mining claim, shall be guilty of "highgrading" or
theft of gold x x x.
[6] Rollo, p.10.
[7] Id. at 27.
[8] Rollo, p. 177.
[9] Id. at 183-185.
[10] Id. at 210-221.
[11] Rollo, p. 67.
[12] Id. at 70.
[13] Id. at 9-19.
[14] Id. at 31.
[15] Rollo, p. 31.
[16] Id. at 52.
[17] Bantolino v. Coca-Cola Bottlers, Phils., G.R. No. 153660, June 10, 2003, 403 SCRA 699, 704.
[18] Robusta Agro Marine Products, Inc. v. Gorobalem, G.R. No. 80500, July 5, 1989, 175 SCRA 93; Sevillana
v. I.T. Corp., 408 Phil. 570 (2001).
[19] Bantolino v. Coca-Cola Bottlers, Phils., supra note 17, at 703.
[20] Bantolino v. Coca-Cola Bottlers, Phils., id.

Evidence Page 199

[20] Bantolino v. Coca-Cola Bottlers, Phils., id.
[21] G.R. No. 110637, October 7, 1994, 237 SCRA 523, 534.
[22] PNOC Shipping & Transport Corporation v. Court of Appeals, 358 Phil. 38 (1998).
[23] PNOC Shipping & Transport Corporation v. Court of Appeals, supra note 22, at 59.
[24] G.R. No. 148893, July 12, 2006, 494 SCRA 661.
[25] Skippers United Pacific, Inc. v. National Labor Relations Commission, id. at 666.
[26] Uichico v. National Labor Relations Commission, 339 Phil. 242, 251 (1997).
[27] Labor v. National Labor Relations Commission, G.R. No. 110388, September 14, 1995, 248 SCRA 183,
200.
[28] Gelmart Industries (Phils.), Inc. v. Leogardo, Jr., G.R. No. 70544, November 5, 1987, 155 SCRA 403.
[29] Ang Tibay v. Commissioner of Internal Revenue, 69 Phil. 635 (1940).
[30] Rollo, p. 177 (emphasis supplied).
[31] Id.
[32] Id. at 142-143.
[33] Rollo, pp. 144-147.
[34] Rollo, pp. 144-145.
[35] Id. at 140-141.
[36] Id. at 141.
[37] Rollo, pp. 132-133.
[38] Id. at 134.
[39] Id.
[40] Id. at 136-138.
[41] Id. at 137.
[42] Oania v. National Labor Relations Commission, G.R. Nos. 97162-64, June 1, 1995, 244 SCRA 668.
[43] Mina v. National Labor Relations Commission, 316 Phil. 286 (1995).
[44] Labor v. National Labor Relations Commission, supra note 27, at 199.
[45] Supra note 27, id.
[46] See Pilipinas Bank v. National Labor Relations Commission, G.R. No. 101372, November 13, 1992,
215 SCRA 750; China City Restaurant Corp. v. National Labor Relations Commission, G.R. No. 97196, January 22,
1993, 217 SCRA 443; Marcelo v. National Labor Relations Commission, 310 Phil. 891 (1995).
[47] Nicario v. National Labor Relations Commission, 356 Phil. 936 (1998).
[48] Rollo, p. 291.
[49] Id. at 391.
[50] Rollo, pp. 309-340, 341-342, 343, 344-345, 346-347.
[51] Tan v. Court of Appeals, 415 Phil. 675, 681 (2001).

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2008/august2008/163210.htm>

Evidence Page 200

Electronic Evidence
Monday, September 21, 2009
6:48 PM

The Lawphil Project - Arellano Law Foundation

A.M. No. 01-7-01-SC July 17, 2001

A.M. No. 01-7-01-SC

RULES ON ELECTRONIC EVIDENCE
Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of Court
to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for
this Court's consideration and approval, the Court Resolved to APPROVED the same.
The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall
take effect on the first day of August 2001 following thier publication before the 20th of July in two
newspapers of general circulation in the Philippines
17th July 2001.
RULES ON ELECTRONIC EVIDENCE
Rule 1
COVERAGE
Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an electronic
document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.
Section 2. Cases covered. – These Rules shall apply to all civil actions and proceedings, as well as quasi-
judicial and administrative cases.
Section 3. Application of other rules on evidence. – In all matters not specifically covered by these Rules,
the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply.
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of these Rules, the following terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key pair,
consisting of a private key for creating a digital signature, and a public key for verifying the digital
signature.
(b) "Business records" include records of any business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.
(c) "Certificate" means an electronic document issued to support a digital signature which purports to
confirm the identity or other significant characteristics of the person who holds a particular key pair.
(d) "Computer" refers to any single or interconnected device or apparatus, which, by electronic, electro-
mechanical or magnetic impulse, or by other means with the same function, can receive, record,
transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text,
graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of
these functions.
(e) "Digital signature" refers to an electronic signature consisting of a transformation of an electronic
document or an electronic data message using an asymmetric or public cryptosystem such that a person
having the initial untransformed electronic document and the signer's public key can accurately
determine:
i. whether the transformation was created using the private key that corresponds to the signer's public
key; and
ii. whether the initial electronic document had been altered after the transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital
signature verified by the public key listed in a certificate.
(g) "Electronic data message" refers to information generated, sent, received or stored by electronic,
optical or similar means.
(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
Evidence Page 201
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic document. For purposes of these Rules, the
term "electronic document" may be used interchangeably with "electronic data message".
(i) "Electronic key" refers to a secret code which secures and defends sensitive information that crosses
over public channels into a form decipherable only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic form,
representing the identity of a person and attached to or logically associated with the electronic data
message or electronic document or any methodology or procedure employed or adopted by a person
and executed or adopted by such person with the intention of authenticating, signing or approving an
electronic data message or electronic document. For purposes of these Rules, an electronic signature
includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of communication the evidence
of which is not recorded or retained.
(l) "Information and communication system" refers to a system for generating, sending, receiving,
storing or otherwise processing electronic data messages or electronic documents and includes the
computer system or other similar devices by or in which data are recorded or stored and any procedure
related to the recording or storage of electronic data messages or electronic documents.
(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically related
public key such that the latter can verify the digital signature that the former creates.
(n) "Private key" refers to the key of a key pair used to create a digital signature.
(o) "Public key" refers to the key of a key pair used to verify a digital signature.
Section 2. Construction. – These Rules shall be liberally construed to assist the parties in obtaining a just,
expeditious, and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the international origin of Republic
Act No. 8792, otherwise known as the Electronic Commerce Act.
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional equivalent of paper-based documents. –Whenever a rule
of evidence refers to the term writing, document, record, instrument, memorandum or any other form
of writing, such term shall be deemed to include an electronic document as defined in these Rules.
Section 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner
prescribed by these Rules.
Section 3. Privileged communication. – The confidential character of a privileged communication is not
lost solely on the ground that it is in the form of an electronic document.
Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document. – An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at
or about the same time with identical contents, or is a counterpart produced by the same impression as
the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces the original, such copies
or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.
Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS
Section 1. Burden of proving authenticity. –The person seeking to introduce an electronic document in

Evidence Page 202

AUTHENTICATION OF ELECTRONIC DOCUMENTS
Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in
any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any private electronic document offered as authentic is
received in evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Section 3. Proof of electronically notarized document. – A document electronically notarized in
accordance with the rules promulgated by the Supreme Court shall be considered as a public document
and proved as a notarial document under the Rules of Court.
Rule 6
ELECTRONIC SIGNATURES
Section 1. Electronic signature. – An electronic signature or a digital signature authenticated in the
manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a
person on a written document.
Section 2. Authentication of electronic signatures. – An electronic signature may be authenticated in any
of the following manner:
(a) By evidence that a method or process was utilized to establish a digital signature and verify the
same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the genuineness of the electronic
signature.
Section 3. Disputable presumptions relating to electronic signatures. –Upon the authentication of an
electronic signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it correlates;
(b) The electronic signature was affixed by that person with the intention of authenticating or approving
the electronic document to which it is related or to indicate such person's consent to the transaction
embodied therein; and
(c) The methods or processes utilized to affix or verify the electronic signature operated without error or
fault.
Section 4. Disputable presumptions relating to digital signatures. – Upon the authentication of a digital
signature, it shall be presumed, in addition to those mentioned in the immediately preceding section,
that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not been altered from the time it was signed;
and,
(e) A certificate had been issued by the certification authority indicated therein.
Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Section 1. Factors for assessing evidentiary weight. – In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(a) The reliability of the manner or method in which it was generated, stored or communicated,
including but not limited to input and output procedures, controls, tests and checks for accuracy and
reliability of the electronic data message or document, in the light of all the circumstances as well as any
relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which it is recorded or stored,
including but not limited to the hardware and computer programs or software used as well as
programming errors;
(d) The familiarity of the witness or the person who made the entry with the communication and
information system;
(e) The nature and quality of the information which went into the communication and information

Evidence Page 203

information system;
(e) The nature and quality of the information which went into the communication and information
system upon which the electronic data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic
document or electronic data message.
Section 2. Integrity of an information and communication system. – In any dispute involving the integrity
of the information and communication system in which an electronic document or electronic data
message is recorded or stored, the court may consider, among others, the following factors:
(a) Whether the information and communication system or other similar device was operated in a
manner that did not affect the integrity of the electronic document, and there are no other reasonable
grounds to doubt the integrity of the information and communication system;
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest
adverse to that of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and ordinary course of
business by a person who is not a party to the proceedings and who did not act under the control of the
party using it.
Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of
acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or
near the time of or from transmission or supply of information by a person with knowledge thereof, and
kept in the regular course or conduct of a business activity, and such was the regular practice to make
the memorandum, report, record, or data compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the
rule on hearsay evidence.
Section 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be
overcome by evidence of the untrustworthiness of the source of information or the method or
circumstances of the preparation, transmission or storage thereof.
Rule 9
METHOD OF PROOF
Section 1. Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of an
electronic document may be established by an affidavit stating facts of direct personal knowledge of the
affiant or based on authentic records. The affidavit must affirmatively show the competence of the
affiant to testify on the matters contained therein.
Section 2. Cross-examination of deponent. – The affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined as a matter of right by the adverse party.
Rule 10
EXAMINATION OF WITNESSES
Section 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these Rules,
the court may authorize the presentation of testimonial evidence by electronic means. Before so
authorizing, the court shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances, including the protection of the rights of the
parties and witnesses concerned.
Section 2. Transcript of electronic testimony. – When examination of a witness is done electronically, the
entire proceedings, including the questions and answers, shall be transcribed by a stenographer,
stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done
by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been
electronically recorded.
Section 3. Storage of electronic evidence. – The electronic evidence and recording thereof as well as the
stenographic notes shall form part of the record of the case. Such transcript and recording shall be
deemed prima facie evidence of such proceedings.
Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE
Section 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts
or transactions shall be admissible provided it shall be shown, presented or displayed to the court and
shall be identified, explained or authenticated by the person who made the recording or by some other

Evidence Page 204

shall be identified, explained or authenticated by the person who made the recording or by some other
person competent to testify on the accuracy thereof.
Section 2. Ephemeral electronic communications. –Ephemeral electronic communications shall be
proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In
the absence or unavailability of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by
the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then the
provisions of Rule 5 shall apply.
Rule 12
EFFECTIVITY
Section 1. Applicability to pending cases. – These Rules shall apply to cases pending after their
effectivity.
Section 2. Effectivity. – These Rules shall take effect on the first day of August 2001 following their
publication before the 20th of July 2001 in two newspapers of general circulation in the Philippines.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/courts/supreme/am/am_01-7-01_2001.html>

Evidence Page 205

Nuez v. Cruz-Apao
Monday, September 21, 2009
6:48 PM

EN BANC
[A.M. No. CA-05-18-P. April 12, 2005]
ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.
DE C I S I O N
PER CURIAM:
What brings our judicial system into disrepute are often the actuations of a few erring court personnel
peddling influence to party-litigants, creating the impression that decisions can be bought and sold,
ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in
eradicating the so-called “bad eggs” in the judiciary. And whenever warranted by the gravity of the
offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.[1]
The above pronouncement of this Court in the case of Mendoza vs. Tiongson[2] is applicable to the case
at bar.
This is an administrative case for Dishonesty and Grave Misconduct[3] against Elvira Cruz-Apao
(Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division,
Court of Appeals (CA). The complaint arose out of respondent’s solicitation of One Million Pesos
(P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the
latter’s pending case in the CA,[4] more particularly, CA-G.R. SP No. 73460 entitled “PAGCOR vs. Zaldy
Nuez.”[5] Complainant initially lodged a complaint with the Action Center of the Television program
Imbestigador of GMA Network,[6] the crew of which had accompanied him to the Presidential Anti-
Organized Crime Commission–Special Projects Group (PAOCC-SPG) in Malacañang where he filed a
complaint for extortion[7] against respondent. This led to the conduct of an entrapment operation by
elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the
Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila,[8] the
place where the supposed hand-over of the money was going to take place.
Respondent’s apprehension by agents of the PAOCTF in the course of the entrapment operation
prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office
Order No. 297-04-CG[9] (Order) which created an ad-hoc investigating committee (Committee).[10] The
Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of
respondent’s case and to recommend the proper administrative sanctions against her as the evidence
may warrant.[11]
In accordance with the mandate of the Order, the Committee conducted an investigation of the case
and issued a Resolution[12] dated 18 October 2004 where it concluded that a prima facie case of
Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended
respondent’s preventive suspension for ninety (90) days pending formal investigation of the charges
against her.[13] On 28 January 2005, the Committee submitted a Report[14] to the new CA Presiding
Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service.
Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are
as follows:
Complainant’s case referred to above had been pending with the CA for more than two years.[15]
Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission
(CSC). The CSC ordered complainant’s reinstatement but a writ of preliminary injunction and a
temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not
reinstated to his former job pending adjudication of the case.[16] Desiring an expeditious decision of his
case, complainant sought the assistance of respondent sometime in July 2004 after learning of the
latter’s employment with the CA from her sister, Magdalena David. During their first telephone
conversation[17] and thereafter through a series of messages they exchanged via SMS,[18] complainant
informed respondent of the particulars of his pending case. Allegedly, complainant thought that
respondent would be able to advise him on how to achieve an early resolution of his case.
However, a week after their first telephone conversation, respondent allegedly told complainant that a
favorable and speedy decision of his case was attainable but the person who was to draft the decision
was in return asking for One Million Pesos (P1,000,000.00).[19]
Evidence Page 206
was in return asking for One Million Pesos (P1,000,000.00).[19]
Complainant expostulated that he did not have that kind of money since he had been jobless for a long
time, to which respondent replied, “Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera,
pasensiya na.”[20] Complainant then tried to ask for a reduction of the amount but respondent held firm
asserting that the price had been set, not by her but by the person who was going to make the
decision.[21] Respondent even admonished complainant with the words “Wala tayo sa palengke iho!”[22]
when the latter bargained for a lower amount.[23]
Complainant then asked for time to determine whether or not to pay the money in exchange for the
decision. Instead, in August of 2004, he sought the assistance of Imbestigador.[24] The crew of the TV
program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for
extortion.[25] Thereafter, he communicated with respondent again to verify if the latter was still asking
for the money[26] and to set up a meeting with her.[27] Upon learning that respondent’s offer of a
favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the
entrapment operation was formulated by Imbestigador in cooperation with the PAOCC.
On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of
Jollibee, Times Plaza Bldg.,[28] the place where the entrapment operation was later conducted. Patricia
Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-
law.[29] During the meeting, complainant clarified from respondent that if he gave the amount of One
Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter
together with the assurance that it would take about a month for the decision to come out.[30]
Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a
favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed
later.[31]
When respondent was asked where the money will go, she claimed that it will go to a male researcher
whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division
where complainant case was pending.[32] She also claimed that she will not get any part of the money
unless the researcher decides to give her some.[33]
Complainant tried once again to bargain for a lower amount during the meeting but respondent
asserted that the amount was fixed. She even explained that this was their second transaction and the
reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous
occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that
the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).[34]
Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos
(P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the
decision had been released.[35] However, respondent refused to entertain the offer, she and the
researcher having learned their lesson from their previous experience for as then, the client no longer
paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.[36]
Complainant brought along copies of the documents pertinent to his case during the first meeting. After
reading through them, respondent allegedly uttered, “Ah, panalo ka.”[37] The parties set the next
meeting date at lunchtime on 28 September 2004 and it was understood that the money would be
handed over by complainant to respondent then.[38]
On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang)
as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and
PO2 Edgar delos Reyes[39] arrived at around 11:30 in the morning at Jollibee.[40] Nuez and Siringan
arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents,
Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10)
bundles of marked money and paper money which was to be given to respondent.[41] The envelope did
not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead
contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos
(P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.[42] There were also ten
(10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet
powder by the PAOCTF.[43] The three other PAOCTF agents were seated a few tables away[44] and there
were also three (3) crew members from Imbestigador at another table operating a mini DV camera that
was secretly recording the whole transaction.[45]
Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the

Evidence Page 207

was secretly recording the whole transaction.[45]
Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the
meeting.[47] Ironically, she repeatedly said that complainant might entrap her, precisely like those that
were shown on Imbestigador.[48] She thus refused to receive the money then and there. What she
proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where
she would receive the money.[49]
More irony ensued. Respondent actually said that she felt there were policemen around and she was
afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested
and handcuffed.[50] At one point, she even said, “Ayan o, tapos na silang kumain, bakit hindi pa sila
umaalis?,”[51] referring to Banay and Villena at the next table. To allay respondent’s suspicion, the two
agents stood up after a few minutes and went near the staircase where they could still see what was
going on.[52]
Complainant, respondent and Siringan negotiated for almost one hour.[53] Complainant and Siringan
bargained for a lower price but respondent refused to accede. When respondent finally touched the
unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to
the Western Police District (WPD) Headquarters at United Nations Avenue for questioning.[54]
Respondent became hysterical as a commotion ensued inside the restaurant.[55]
On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the
restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).[56]
Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found
positive for ultra-violet powder that was previously dusted on the money.[57] She was later detained at
the WPD Headquarters.
At seven o’clock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes
Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latter’s house.[58] She tearfully
confessed to Atty. Gepty that “she asked for money for a case and was entrapped by police officers and
the media.”[59] Enraged at the news, Atty. Gepty asked why she had done such a thing to which
respondent replied, “Wala lang ma’am, sinubukan ko lang baka makalusot.”[60] Respondent claimed
that she was ashamed of what she did and repented the same. She also asked for Atty. Gepty’s
forgiveness and help. The latter instead reminded respondent of the instances when she and her co-
employees at the CA were exhorted during office meetings never to commit such offenses.[61]
Atty. Gepty rendered a verbal report[62] of her conversation with their division’s chairman, Justice
Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio
Garcia on 29 September 2004.[63] She also later testified as to the contents of her report to the
Committee.
During the hearing of this case, respondent maintained that what happened was a case of instigation
and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came
not from her but from complainant. To support her contention, she presented witnesses who testified
that it was complainant who allegedly offered money to anyone who could help him with his pending
case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt.
Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus
asked that the administrative case against her be dismissed.
This Court is not persuaded by respondent’s version. Based on the evidence on record, what happened
was a clear case of entrapment, and not instigation as respondent would like to claim.
In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-
breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator
practically induces the would-be defendant into the commission of the offense, and he himself becomes
a co-principal.[64]
In this case, complainant and the law enforcers resorted to entrapment precisely because respondent
demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a
favorable decision of the latter’s pending case. Complainant’s narration of the incidents which led to
the entrapment operation are more in accord with the circumstances that actually transpired and are
more credible than respondent’s version.
Complainant was able to prove by his testimony in conjunction with the text messages from respondent
duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in
exchange for a favorable decision of the former’s pending case with the CA. The text messages were
properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the

Evidence Page 208

properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the
Rules on Electronic Evidence [65] which provides:
“Ephemeral electronic communication” refers to telephone conversations, text messages . . . and other
electronic forms of communication the evidence of which is not recorded or retained.”
Under Section 2, Rule 11 of the Rules on Electronic Evidence, “Ephemeral electronic communications
shall be proven by the testimony of a person who was a party to the same or who has personal
knowledge thereof . . . .” In this case, complainant who was the recipient of said messages and therefore
had personal knowledge thereof testified on their contents and import. Respondent herself admitted
that the cellphone number reflected in complainant’s cellphone from which the messages originated
was hers.[66] Moreover, any doubt respondent may have had as to the admissibility of the text messages
had been laid to rest when she and her counsel signed and attested to the veracity of the text messages
between her and complainant.[67] It is also well to remember that in administrative cases, technical rules
of procedure and evidence are not strictly applied.[68] We have no doubt as to the probative value of the
text messages as evidence in determining the guilt or lack thereof of respondent in this case.
Complainant’s testimony as to the discussion between him and respondent on the latter’s demand for
One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness,
Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was
privy to the parties’ actual conversation since she accompanied complainant on both meetings held on
24 and 28 of September 2004 at Jollibee.
Respondent’s evidence was comprised by the testimony of her daughter and sister as well as an
acquaintance who merely testified on how respondent and complainant first met. Respondent’s own
testimony consisted of bare denials and self-serving claims that she did not remember either the
statements she herself made or the contents of the messages she sent. Respondent had a very selective
memory made apparent when clarificatory questions were propounded by the Committee.
When she was asked if she had sent the text messages contained in complainant’s cellphone and which
reflected her cellphone number, respondent admitted those that were not incriminating but claimed
she did not remember those that clearly showed she was transacting with complainant. Thus, during
the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the
following transpired:
Q: After reading those text messages, do you remember having made those text
messages?
(Respondent)
A: Only some of these, your honors.
Justice Salazar-Fernando: Which one?
A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors.
Q: What else?
A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len
David.
Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was
around 1:09 in the afternoon and you said “di me pwede punta na lang kayo dito sa office
Thursday 4:45 p.m. Room 107 Centennial Building.
A: Yes, your Honors.
Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again
texted Zaldy Nuez and you said “Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N.
Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David.
A: Opo, your Honors.
Q: How about on September 23 at 5:05 in the afternoon when you said “Di pwede kelan mo
gusto fixed price na iyon.”
A: I don’t remember that, your Honors.
Q: Again on September 23 at 5:14 p.m. you said “Alam mo di ko iyon price and nagbigay noon
yung gagawa. Wala ako doon.” You don’t also remember this?
A: Yes, your Honors.
Q: September 27 at 1:42 p.m. “Oo naman ayusin nyo yung hindi halatang pera”. You also don’t
remember that?
A: Yes Your Honors.

Evidence Page 209

A: Yes Your Honors.
Q: September 27 at 1:30 in the afternoon, “Di na pwede sabi sa akin. Pinakaiusapan ko na nga
ulit iyon.” You don’t remember that?
A: No, your Honors.[69]
Respondent would like this Court to believe that she never had any intention of committing a crime, that
the offer of a million pesos for a favorable decision came from complainant and that it was complainant
and the law enforcers who instigated the whole incident.
Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting
her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged.
This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come
from complainant and had she really intended to stop the latter from corrupting her, she could have
simply refused to answer the latter’s messages and calls. This she did not do. She answered those calls
and messages though she later claimed she did not remember having sent the same messages to
complainant. She could also have reported the matter to the CA Presiding Justice, an action which
respondent admitted during the hearing was the proper thing to do under the circumstances.[70] But this
course of action she did not resort to either, allegedly because she never expected things to end this
way.[71]
While claiming that she was not interested in complainant’s offer of a million pesos, she met with him
not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling
complainant to stop pestering her would be more effective if she did it in person, the same would have
been accomplished with a single meeting. There was no reason for her to meet with complainant again
on 28 September 2004 unless there was really an understanding between them that the One Million
Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became
afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal
drugs.[72] This notwithstanding, she still met with him on 28 September 2004.
Anent complainant’s narration of respondent’s refusal to reduce the amount of One Million Pesos
(P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she
actually said the same, respondent wants this Court to believe that she said it merely to have something
to talk about.[73] If indeed, respondent had no intention of committing any wrongdoing, it escapes the
Court why she had to make up stories merely to test if complainant could make good on his alleged
boast that he could come up with a million pesos. It is not in accord with ordinary human experience for
an honest government employee to make up stories that would make party-litigants believe that court
decisions may be bought and sold. Time and again this Court has declared, thus:
“Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and
it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his
conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on
the administration of justice.”[74]
Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have
been in the CA,[75] should have known very well that court employees are held to the strictest standards
of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a
number of cases, “The conduct or behavior of all officials of an agency involved in the administration of
justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy
burden of responsibility.”[76] Their conduct must, at all times be characterized by among others, strict
propriety and decorum in order to earn and maintain the respect of the public for the judiciary.[77]
Respondent’s actuations from the time she started communicating with complainant in July 2004 until
the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court
employees. Respondent’s avowals of innocence notwithstanding, the evidence clearly show that she
solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision. The testimony of Atty. Gepty, the recipient of respondent’s confession immediately after the
entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself
in the activity she is being accused of.
Respondent’s solicitation of money from complainant in exchange for a favorable decision violates
Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M.
No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly
provide:

Evidence Page 210

provide:
“SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits,
privileges or exemption for themselves or for others.”
“SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit
or implicit understanding that such gift, favor or benefit shall influence their official actions.”
(Underscoring supplied)
It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically
provides:
INCORPORATION OF OTHER RULES
“SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing
the conduct of public officers and employees applicable to the judiciary are deemed incorporated into
this Code.”
By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed
an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the people’s
confidence in it.
In the recent case of Aspiras vs. Abalos,[78] complainant charged respondent, an employee of the
Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him
into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his
acquittal in a murder case on appeal before the Supreme Court. It turned out that respondent’s
representation was false because complainant was subsequently convicted of murder and sentenced to
suffer the penalty of reclusion perpetua by the Supreme Court.[79]
The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her
dismissal from the service. This Court aptly held thus:
“In Mirano vs. Saavedra,[80] this Court emphatically declared that a public servant must exhibit at all
times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by
the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold
inviolate, and invigorate the principle that public office is a public trust, solemnly enshrined in the
Constitution.”[81]
Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Shari’a Circuit Court,
Bengo, Tawi-Tawi,[82] this Court stated:
“No position demands greater moral righteousness and uprightness from the occupant than the judicial
office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court
employees in particular, must be individuals of competence, honesty and probity charged as they are
with safeguarding the integrity of the court . . . . The High Court has consistently held that persons
involved in the administration of justice ought to live up to the strictest standards of honesty and
integrity in the public service. He should refrain from financial dealings which would interfere with the
efficient performance of his duties.[83] The conduct required of court personnel must always be beyond
reproach.”[84]
The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC
Branch 14 Cebu City[85] is also worth remembering:
“Court employees bear the burden of observing exacting standards of ethics and morality. This is the
price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing
justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and
propriety to maintain the public’s faith and respect for the judiciary. Improper behavior exhibits not only
a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such
demeanor is a failure of circumspection demanded of every public official and employee.”[86]
In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the
Committee in their Report[87] recommended that respondent be dismissed from government service for
GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court
Personnel.[88]
Finding the Committee’s recommendation to be supported by more than substantial evidence and in
accord with the applicable laws and jurisprudence, the recommendation is well taken.
WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE
MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and
is accordingly DISMISSED from government service, with prejudice to re-employment in any branch,

Evidence Page 211

is accordingly DISMISSED from government service, with prejudice to re-employment in any branch,
instrumentality or agency of the government, including government-owned and controlled
corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur.
Garcia, J., No part.

[1] Mendoza vs. Tiongson, 333 Phil. 508 (1996).

[2] Ibid.
[3] CA Records, Vol. 1, p. 47.
[4] Id. at 13.
[5] Id. at 1.
[6] Id. at 14.
[7] Id. at 15.
[8] Id. at 1, 17, 19.
[9] Id. at 1-2.
[10] Composed of Justice Rodrigo V. Cosico as Chairman and Justices Remedios Salazar-Fernando and
Japar B. Dimaampao as members.
[11] Supra note 9.
[12] CA Records, pp. 92-96.
[13] Id. at 95-96.
[14] Ad Hoc Investigating Committee Report, pp. 1-47.
[15] TSN, 18 October 2004, pp. 117-118.
[16] Id. at 129-132.
[17] Id. at 91.
[18] Short Message Sending.
[19] TSN, 18 October 2004, p. 97.
[20] Id. at 92; TSN, 24 November 2004, p. 32.
[21] TSN, 24 November 2004, pp. 97-98.
[22] Id. at 34.
[23] Ibid.
[24] Id. at 32.
[25] Supra note 7.
[26] TSN, 18 October 2004, p. 224.
[27] TSN, 12 November 2004, p. 55.
[28] TSN, 18 October 2004, pp. 15-17; CA Records, pp. 143-145.
[29] Id. at p. 25; CA Records, p. 153.
[30] Id. at 24-25; CA Records, pp. 152-153.
[31] TSN, 12 October 2004, p. 24; CA Records, p. 84.
[32] TSN, 18 October 2004, pp. 17, 19-20; CA Records, pp. 145, 147-148.
[33] Id. at 18-19.
[34] Id. at 18.
[35] Id. at 87.
[36] TSN, 12 October 2004, p. 24; CA Records, p. 85; Id. at 18; CA Records, p.146.
[37] TSN, 18 October 2004, pp. 25, 87-88; CA Records, p. 153.
[38] Id at 32; CA Records, p. 160.
[39] TSN, 18 October 2004, pp. 45, 59-60.
[40] TSN, 22 October 2004, pp. 21-22.
[41] Id. at 30-31, 42-43.
[42] Ibid.
[43] TSN, 28 October 2004, pp. 10, 34, 41.
[44] Id. at 23; TSN, 18 October 2004, p. 55.
[45] TSN, 18 October 2004, pp. 56, 141.

Evidence Page 212

[44] Id. at 23; TSN, 18 October 2004, p. 55.
[45] TSN, 18 October 2004, pp. 56, 141.
[46] Id. at 23.
[47] Id. at 38, 145.
[48] TSN, 24 November 2004, p. 38.
[49] TSN, 18 October 2004, p. 22; TSN, 24 November 2004, p. 39.
[50] Ibid.
[51] TSN, 18 October 2004, p. 45, 57.
[52] TSN, 22 October 2004, p. 10.
[53] TSN, 24 November 2004, p. 36.
[54] TSN, 22 October 2004, pp. 11-12.
[55] TSN, 24 November 2004, p. 40.
[56] TSN, 22 October 2004, p. 12.
[57] TSN, 28 October 2004, p. 6.
[58] CA Records, Vol. 1, p. 6.
[59] Ibid.
[60] Ibid.
[61] Id. at 7.
[62] Ibid.
[63] CA Records, p. 5.
[64] People vs. Lapatha, No. L-63074-75, 9 November 1988, 167 SCRA 159.
[65] Section 2, Rule 1 of the Rules on Electronic Evidence provides that: “These Rules shall apply to . . .
administrative cases.”
[66] TSN, 12 October 2004, pp. 14, 20.
[67] CA Records, Vol. 1, p. 101; TSN, 17 November 2004, p. 52.
[68] Emin vs. De Leon, G.R. No. 139794, 27 February 2002, 378 SCRA 143.
[69] TSN, 17 November 2004, pp. 60-62.
[70] TSN, 12 November 2004, pp. 69-70.
[71] Ibid.
[72] TSN, 17 November 2004, p. 68.
[73] TSN, 12 October 2004, p. 25.
[74] Racasa vs. Callado-Callizo, 430 Phil. 775 (2002); Valentin Ruga vs. Edwin Ligot, SC Chief Judicial Staff
Officer, MISO, MISO-SDAAD, A.M. No. 2003-5-SC, 20 November 2003, 416 SCRA 255.
[75] TSN, 12 November 2004, p. 33.
[76] Fabian vs. Galo, A.M. No. P-96-1214, June 10, 2003, 403 SCRA 375, 379 citing Biag vs. Gubatanga, 376
Phil. 870; 318 SCRA 753 (1999); Gacho vs. Fuentes, 353 Phil. 665 (1998); OCA vs. Alvarez, 350 Phil. 771
(1998).
[77] Ibid, citing Judge Amado S. Caguioa vs. Crisanto Flora, 412 Phil 426 (2001), citing Alawi vs. Alauya,
335 Phil. 1096 (1997); Quiroz vs. Orfila, 338 Phil. 828 (1997); Re: Report on the Judicial Audit Conducted
in RTC, Br. 82, Odiongan, Romblon, 354 Phil. 1 (1998) citing Orfila vs. Quiroz, supra.
[78] A .M. No. OCA-01-6, 02 September 2003, 410 SCRA 274.
[79] Ibid.
[80] 225 SCRA 77 (1993).
[81] Ibid.
[82] Re: Memorandum dated 27 Sept. 1999 of Ma. Corazon M. Molo, OIC, OAS, OCA, A.M. No. SC-00-6-P,
16 October 2003, 413 SCRA 520.
[83] Cana vs. Santos, 234 SCRA 17 (1994).
[84] Caguioa vs. Flora, 360 SCRA 12 (2001).
[85] A. M. No. P-02-1610, 27 November 2003, 416 SCRA 472.
[86] Ibid.
[87] See note 12.
[88] Ibid.

Pasted from <http://pmc.judiciary.gov.ph/test/dmdocuments/am_ca_05_18_p.htm>

Evidence Page 213

NPC v. Codilla, Jr.
Monday, September 21, 2009
6:48 PM

PHILIPPINE JURISPRUDENCE – FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. 170491 April 4, 2007
NATIONAL POWER CORP. VS. HON. RAMON G. CODILLA, JR., ET AL.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170491 April 4, 2007
NATIONAL POWER CORPORATION, Petitioner,
vs.
HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY,
and WALLEM SHIPPING, INCORPORATED, Respondents.
DE C I S I O N
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing
the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which
dismissed the Petition for Certiorari filed by the National Power Corporation seeking to set aside the
Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying
admission and excluding from the records plaintiff’s (herein petitioner) Exhibits "A", "C", "D", "E", "H"
and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-
markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings.
On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private
respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioner’s Power Barge 209 which
was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu
RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages
caused on petitioner’s power barges.
Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private
respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of
Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was
subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping
Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order
issued on 24 January 2003.
Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before
the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked
portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc.
filed their respective objections to petitioner’s formal offer of evidence.
On 16 November 2004, public respondent judge issued the assailed order denying the admission and
excluding from the records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and
its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-
markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a quo:
The Court finds merit in the objections raised and the motion to strike out filed respectively by the
defendants. The record shows that the plaintiff has been given every opportunity to present the
originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The
plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies
offered are equivalent to the original of the document" on the basis of the Electronic Evidence
(Comment to Defendant Wallem Philippines’ Objections and Motion to Strike). But as rightly pointed out
in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the
Evidence Page 214
in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:
"(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other models of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any printout, readable by sight or other means which accurately reflects
the electronic data message or electronic document. For the purpose of these Rules, the term
"electronic document" may be used interchangeably with "electronic data message".
The information in those Xerox or photocopies was not received, recorded, retrieved or produced
electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the
admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not
executed, much less presented in evidence.
The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being
not properly identified by any competent witness, the loss of the principals thereof was not established
by any competent proof.
xxx x
WHEREFORE, plaintiff’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-
markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings,
"Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records.
However, these excluded evidence should be attached to the records of this case to enable the
appellate court to pass upon them should an appeal be taken from the decision on the merits to be
rendered upon the termination of the trial of this case.
Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the
witness who brought these pictures expressly admitted that he was not present when the photos were
taken and had not knowledge when the same where taken.3
Upon denial of petitioner’s Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed
a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals
maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings,
"I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and
its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings.
On 9 November 2005, the appellate court issued a Decision dismissing petitioner’s petition for certiorari,
the pertinent portions of which elucidate:
After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence
which are applicable in the premises, we have come up with a finding that the petition for certiorari filed
in this case is not meritorious.
It appears that there is no sufficient showing by the petitioner that the respondent judge acted with
grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our
jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as would be equivalent to lack of jurisdiction x x x.
In the case at bench, what has been shown to the contrary by the totality of the record on hand is that
the respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed
order, dated November 16, 2004, in Civil Case No. CEB-18662.
Indeed, it appears that the pieces of petitioner’s documentary evidence which were denied admission
by the respondent judge were not properly identified by any competent witness. As pointed out by the
respondent Bangpai Shipping Company in its comment on the petition filed in this case which
reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr.
Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of
and participation in the preparation and making of the pieces of documentary evidence denied
admission by respondent judge x x x. In other words, there was lack of proper identification of said
pieces of documentary evidence. x x x.
Then another ground for denying admission of petitioner’s Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q,
R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies

Evidence Page 215

R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies
of purported documents or papers. There is no gainsaying the fact that the respondent judge acted
within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of
Rule 130 of the Rules of Court of the Philippines is very explicit in providing that, when the subject of
inquiry are the contents of documents, no evidence shall be admissible other than the original
documents themselves, except in certain cases specifically so enumerated therein, and the petitioner
has not shown that the non-presentation or non-production of its original documentary pieces of
evidence falls under such exceptions. As aptly pointed out by the respondent judge in the order issued
by him on November 16, 2004:
"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present
the originals of the Xerox or photocopies of the documents it offered. It never produced said originals."
So, the petitioner has only itself to blame for the respondent judge’s denial of admission of its
aforementioned documentary evidence.
Of course, the petitioner tries to contend that the photocopies of documents offered by it are
equivalent to the original documents that it sought to offer in evidence, based on the Rules on
Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention is
devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662
which were denied admission by the respondent judge do not actually constitute as electronic evidence
as defined in the Rules on Electronic Evidence. The informations therein were not received, retrieved or
produced electronically. The petitioner has not adequately established that its documentary evidence
were electronic evidence. it has not properly authenticated such evidence as electronic documents,
assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit
pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said
documentary evidence.
Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of
discretion in denying admission of the aforementioned documentary evidence of petitioner.
But even if it be granted just for the sake of argument that the respondent judge committed an error in
denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed
in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In
Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case
of an error of law. x x x.
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the
petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No.
CEB-18662.4
Aggrieved by the aforequoted decision, petitioner filed the instant petition.
The focal point of this entire controversy is petitioner’s obstinate contention that the photocopies it
offered as formal evidence before the trial court are the functional equivalent of their original based on
its inimitable interpretation of the Rules on Electronic Evidence.
Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the
photocopies it presented as documentary evidence actually constitute electronic evidence based on its
own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on
Electronic Evidence is not limited to information that is received, recorded, retrieved or produced
electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes
of written expression that is produced electronically, such as photocopies, as included in the section’s
catch-all proviso: "any print-out or output, readable by sight or other means".
We do not agree.
In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as
contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic
Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following
documents offered as evidence by the petitioner, to wit:
1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED"
stamped thereon, together with a handwritten date;
2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioner’s power barges 207 and
209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex
Malaluan and Virgilio Asprer;

Evidence Page 216

Malaluan and Virgilio Asprer;
3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;
4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by
Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten,
and manually signed by the Notary Public;
5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED"
stamped thereon, together with a handwritten notation of the date it was received;
6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by
petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.;
7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed
by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation
of the date it was received, and other handwritten notations;
8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual
typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was
received by the party;
9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance
agreement between petitioner and Hopewell, containing handwritten notations and every page
containing three unidentified manually placed signatures;
10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C.
Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received.
The sub-markings also contain manual signatures and/or handwritten notations;
11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer
and manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or
handwritten notations;
12. Exhibit "O" is the same photocopied document marked as Annex C;
13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista
and by the Notary Public, with other handwritten notations;
14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public,
together with other handwritten notations.

On the other hand, an "electronic document" refers to information or the representation of information,
data, figures, symbols or other models of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically.5 It includes digitally signed documents and any printout, readable by sight or other means
which accurately reflects the electronic data message or electronic document.6

The rules use the word "information" to define an electronic document received, recorded, transmitted,
stored, processed, retrieved or produced electronically. This would suggest that an electronic document
is relevant only in terms of the information contained therein, similar to any other document which is
presented in evidence as proof of its contents.7 However, what differentiates an electronic document
from a paper-based document is the manner by which the information is processed; clearly, the
information contained in an electronic document is received, recorded, transmitted, stored, processed,
retrieved or produced electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all
of the contents therein, such as the signatures of the persons who purportedly signed the documents,
may be recorded or produced electronically. By no stretch of the imagination can a person’s signature
affixed manually be considered as information electronically received, recorded, transmitted, stored,
processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts
were produced through an electronic process, then these photocopies are electronic documents as
defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous,
interpretation of the law. Having thus declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may not be considered as the functional

Evidence Page 217

electronic documents, it is consequential that the same may not be considered as the functional
equivalent of their original as decreed in the law.
Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the
records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings,
"K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its
sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best
evidence rule and are therefore of no probative value being incompetent pieces of evidence. Before the
onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule
was designed to guard against incomplete or fraudulent proof and the introduction of altered copies
and the withholding of the originals.8 But the modern justification for the rule has expanded from the
prevention of fraud to a recognition that writings occupy a central position in the law.9 The importance
of the precise terms of writings in the world of legal relations, the fallibility of the human memory as
reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns
addressed by the best evidence rule.10
Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:
"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the
contents of which is the subject of inquiry, other than the original writing itself, except in the following
cases:
(a) When the original has been lost, destroyed, or cannot be produced in court;
(b) When the original is in the possession of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;
(c) When the original is a record or other document in the custody of a public officer;
(d) When the original has been recorded in an existing record a certified copy of which is made evidence
by law;
(e) When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general
result of the whole."
When the original document has been lost or destroyed, or cannot be produced in court, the offeror,
upon proof of its execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.11 The offeror of secondary evidence is burdened to prove
the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the
proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of
documents;12 (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable
inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and
bona fide but unsuccessful search has been made for the document in the proper place or places.13
However, in the case at bar, though petitioner insisted in offering the photocopies as documentary
evidence, it failed to establish that such offer was made in accordance with the exceptions as
enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo
denying admissibility of the photocopies offered by petitioner as documentary evidence.
Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given
by the trial court for it to present the originals of the photocopies it presented yet comes before us now
praying that it be allowed to present the originals of the exhibits that were denied admission or in case
the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner
presented the originals of the documents to the court instead of the photocopies it obstinately offered
as evidence, or at the very least laid the predicate for the admission of said photocopies, this
controversy would not have unnecessarily been brought before the appellate court and finally to this
Court for adjudication. Had it not been for petitioner’s intransigence, the merits of petitioner’s
complaint for damages would have been decided upon by the trial court long ago. As aptly articulated
by the Court of Appeals, petitioner has only itself to blame for the respondent judge’s denial of
admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be
given another opportunity to present the originals of the documents that were denied admission nor to
lay the predicate for the admission of secondary evidence in case the same has been lost.
WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of
Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against

Evidence Page 218

Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.
Associate Justice Asscociate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATT ES T AT I O N
I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CE R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Penned by Associate Justice Isaias P. Dicdican with Associate Justices Ramon M. Bato, Jr. and

Apolinario D. Bruselas, Jr., concurring; rollo, pp. 40-49.

2 Civil Case No. CEB-18662, penned by Judge Ramon. G. Codilla, Jr.; id. at 153-160.
3 RTC Order, pp. 5-6; id. at 54-55.
4
CA Decision, pp. 6-9; id. at 45-48.
5 Rules on Electronic Evidence, Rule 2, Sec. 1, par. (h).
6
Id.
7 Revised Rules on Evidence, Rule 130, Sec. 2.
8
Lee v. People of the Philippines, G.R. No. 159288, 19 October 2004, 440 SCRA 662, 683.
9 Id.
10
Id. citing Seller v. Lucas Films Ltd., 808 F. 2d 1316 (1989).
11 Id. citing RULES OF COURT, Rule 130, Sec. 5.
12 Id. citing United States v. Balzano, 687 Fed. 6; Wright v. Farmers Co-op, 681 F. 2d. 549.
13 Id. citing 32 Corpus Juris Secundum, id. at 773.

The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2007/apr2007/gr_170491_2007.html>

Evidence Page 219

MCC Industrial Sales Corp. vs. Ssangyong Corp
Monday, September 21, 2009
6:55 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. 170633 October 17, 2007
MCC INDUSTRIAL SALES CORPORATION vs. SSANGYONG CORPORATION

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170633 October 17, 2007
MCC INDUSTRIAL SALES CORPORATION, petitioner,
vs.
SSANGYONG CORPORATION, respondents.
DECIS ION
NACHURA, J.:
Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R.
CV No. 82983 and its Resolution2 denying the motion for reconsideration thereof.
Petitioner MCC Industrial Sales (MCC), a domestic corporation with office at Binondo, Manila, is engaged
in the business of importing and wholesaling stainless steel products.3 One of its suppliers is the
Ssangyong Corporation (Ssangyong),4 an international trading company5 with head office in Seoul, South
Korea and regional headquarters in Makati City, Philippines.6 The two corporations conducted business
through telephone calls and facsimile or telecopy transmissions.7 Ssangyong would send the pro forma
invoices containing the details of the steel product order to MCC; if the latter conforms thereto, its
representative affixes his signature on the faxed copy and sends it back to Ssangyong, again by fax.8

On April 13, 2000, Ssangyong Manila Office sent, by fax, a letter9 addressed to Gregory Chan, MCC
Manager [also the President10 of Sanyo Seiki Stainless Steel Corporation], to confirm MCC's and Sanyo
Seiki's order of 220 metric tons (MT) of hot rolled stainless steel under a preferential rate of US
$1,860.00 per MT. Chan, on behalf of the corporations, assented and affixed his signature on the
conforme portion of the letter.11

On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice No. ST2-POSTSO40112 containing the
terms and conditions of the transaction. MCC sent back by fax to Ssangyong the invoice bearing the
conformity signature 13 of Chan. As stated in the pro forma invoice, payment for the ordered steel
products would be made through an irrevocable letter of credit (L/C) at sight in favor of Ssangyong.14

Following their usual practice, delivery of the goods was to be made after the L/C had been opened.
In the meantime, because of its confirmed transaction with MCC, Ssangyong placed the order with its
steel manufacturer, Pohang Iron and Steel Corporation (POSCO), in South Korea15 and paid the same in
full.

Because MCC could open only a partial letter of credit, the order for 220MT of steel was split into two,16
one for 110MT covered by Pro Forma Invoice No. ST2-POSTS0401-117 and another for 110MT covered
by ST2-POSTS0401-2,18 both dated April 17, 2000.

On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of a fax

Evidence Page 220

On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of a fax
transmittal, that it was ready to ship 193.597MT of stainless steel from Korea to the Philippines. It
requested that the opening of the L/C be facilitated.19 Chan affixed his signature on the fax transmittal
and returned the same, by fax, to Ssangyong.20

Two days later, on June 22, 2000, Ssangyong Manila Office informed Sanyo Seiki, thru Chan, that it was
able to secure a US$30/MT price adjustment on the contracted price of US$1,860.00/MT for the 200MT
stainless steel, and that the goods were to be shipped in two tranches, the first 100MT on that day and
the second 100MT not later than June 27, 2000. Ssangyong reiterated its request for the facilitation of
the L/C's opening.21

Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000, to the Treasury Group of
Sanyo Seiki that it was looking forward to receiving the L/C details and a cable copy thereof that day.22
Ssangyong sent a separate letter of the same date to Sanyo Seiki requesting for the opening of the L/C
covering payment of the first 100MT not later than June 28, 2000.23 Similar letters were transmitted by
Ssangyong Manila Office on June 27, 2000.24 On June 28, 2000, Ssangyong sent another facsimile letter
to MCC stating that its principal in Korea was already in a difficult situation25 because of the failure of
Sanyo Seiki and MCC to open the L/C's.

The following day, June 29, 2000, Ssangyong received, by fax, a letter signed by Chan, requesting an
extension of time to open the L/C because MCC's credit line with the bank had been fully availed of in
connection with another transaction, and MCC was waiting for an additional credit line.26 On the same
date, Ssangyong replied, requesting that it be informed of the date when the L/C would be opened,
preferably at the earliest possible time, since its Steel Team 2 in Korea was having problems and
Ssangyong was incurring warehousing costs.27 To maintain their good business relationship and to
support MCC in its financial predicament, Ssangyong offered to negotiate with its steel manufacturer,
POSCO, another US$20/MT discount on the price of the stainless steel ordered. This was intimated in
Ssangyong's June 30, 2000 letter to MCC.28 On July 6, 2000, another follow-up letter29 for the opening of
the L/C was sent by Ssangyong to MCC.

However, despite Ssangyong's letters, MCC failed to open a letter of credit.30 Consequently, on August
15, 2000, Ssangyong, through counsel, wrote Sanyo Seiki that if the L/C's were not opened, Ssangyong
would be compelled to cancel the contract and hold MCC liable for damages for breach thereof
amounting to US$96,132.18, inclusive of warehouse expenses, related interests and charges.31
Later, Pro Forma Invoice Nos. ST2-POSTS080-132 and ST2-POSTS080-233 dated August 16, 2000 were
issued by Ssangyong and sent via fax to MCC. The invoices slightly varied the terms of the earlier pro
forma invoices (ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in that the quantity was
now officially 100MT per invoice and the price was reduced to US$1,700.00 per MT. As can be gleaned
from the photocopies of the said August 16, 2000 invoices submitted to the court, they both bear the
conformity signature of MCC Manager Chan.

On August 17, 2000, MCC finally opened an L/C with PCIBank for US$170,000.00 covering payment for
100MT of stainless steel coil under Pro Forma Invoice No. ST2-POSTS080-2.34 The goods covered by the
said invoice were then shipped to and received by MCC.35
MCC then faxed to Ssangyong a letter dated August 22, 2000 signed by Chan, requesting for a price
adjustment of the order stated in Pro Forma Invoice No. ST2-POSTS080-1, considering that the prevailing
price of steel at that time was US$1,500.00/MT, and that MCC lost a lot of money due to a recent
strike.36
Ssangyong rejected the request, and, on August 23, 2000, sent a demand letter37 to Chan for the
opening of the second and last L/C of US$170,000.00 with a warning that, if the said L/C was not opened
by MCC on August 26, 2000, Ssangyong would be constrained to cancel the contract and hold MCC liable
for US$64,066.99 (representing cost difference, warehousing expenses, interests and charges as of
August 15, 2000) and other damages for breach. Chan failed to reply.
Exasperated, Ssangyong through counsel wrote a letter to MCC, on September 11, 2000, canceling the
sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of US$97,317.37

Evidence Page 221

sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of US$97,317.37
representing losses, warehousing expenses, interests and charges.38
Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract
against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court of Makati City. In
its complaint,39 Ssangyong alleged that defendants breached their contract when they refused to open
the L/C in the amount of US$170,000.00 for the remaining 100MT of steel under Pro Forma Invoice Nos.
ST2-POSTS0401-1 and ST2-POSTS0401-2.
After Ssangyong rested its case, defendants filed a Demurrer to Evidence 40 alleging that Ssangyong failed
to present the original copies of the pro forma invoices on which the civil action was based. In an Order
dated April 24, 2003, the court denied the demurrer, ruling that the documentary evidence presented
had already been admitted in the December 16, 2002 Order41 and their admissibility finds support in
Republic Act (R.A.) No. 8792, otherwise known as the Electronic Commerce Act of 2000. Considering
that both testimonial and documentary evidence tended to substantiate the material allegations in the
complaint, Ssangyong's evidence sufficed for purposes of a prima facie case.42
After trial on the merits, the RTC rendered its Decision43 on March 24, 2004, in favor of Ssangyong. The
trial court ruled that when plaintiff agreed to sell and defendants agreed to buy the 220MT of steel
products for the price of US$1,860 per MT, the contract was perfected. The subject transaction was
evidenced by Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2, which were later
amended only in terms of reduction of volume as well as the price per MT, following Pro Forma Invoice
Nos. ST2-POSTS080-1 and ST2-POSTS080-2. The RTC, however, excluded Sanyo Seiki from liability for
lack of competent evidence. The fallo of the decision reads:
WHEREFORE, premises considered, Judgment is hereby rendered ordering defendants MCC Industrial
Sales Corporation and Gregory Chan, to pay plaintiff, jointly and severally the following:
1) Actual damages of US$93,493.87 representing the outstanding principal claim plus interest at the rate
of 6% per annum from March 30, 2001.
2) Attorney's fees in the sum of P50,000.00 plus P2,000.00 per counsel's appearance in court, the same
being deemed just and equitable considering that by reason of defendants' breach of their obligation
under the subject contract, plaintiff was constrained to litigate to enforce its rights and recover for the
damages it sustained, and therefore had to engage the services of a lawyer.
3) Costs of suit.
No award of exemplary damages for lack of sufficient basis.
SO ORDERED.44
On April 22, 2004, MCC and Chan, through their counsel of record, Atty. Eladio B. Samson, filed their
Notice of Appeal.45 On June 8, 2004, the law office of Castillo Zamora & Poblador entered its appearance
as their collaborating counsel.
In their Appeal Brief filed on March 9, 2005,46 MCC and Chan raised before the CA the following errors of
the RTC:
I. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS VIOLATED THEIR
CONTRACT WITH APPELLEE
A. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS AGREED TO
PURCHASE 200 METRIC TONS OF STEEL PRODUCTS FROM APPELLEE, INSTEAD OF ONLY 100 METRIC
TONS.
1. THE HONORABLE COURT A QUO PLAINLY ERRED IN ADMITTING IN EVIDENCE THE PRO FORMA
INVOICES WITH REFERENCE NOS. ST2- POSTS0401-1 AND ST2-POSTS0401-2.
II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ACTUAL DAMAGES TO APPELLEE.
III. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ATTORNEY'S FEES TO APPELLEE.
IV. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING APPELLANT GREGORY CHAN JOINTLY
AND SEVERALLY LIABLE WITH APPELLANT MCC.47
On August 31, 2005, the CA rendered its Decision48 affirming the ruling of the trial court, but absolving
Chan of any liability. The appellate court ruled, among others, that Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F") were admissible in evidence, although
they were mere facsimile printouts of MCC's steel orders.49 The dispositive portion of the appellate
court's decision reads:
WHEREFORE, premises considered, the Court holds:
(1) The award of actual damages, with interest, attorney's fees and costs ordered by the lower court is

Evidence Page 222

WHEREFORE, premises considered, the Court holds:
(1) The award of actual damages, with interest, attorney's fees and costs ordered by the lower court is
hereby AFFIRMED.
(2) Appellant Gregory Chan is hereby ABSOLVED from any liability.
SO ORDERED.50
A copy of the said Decision was received by MCC's and Chan's principal counsel, Atty. Eladio B. Samson,
on September 14, 2005.51 Their collaborating counsel, Castillo Zamora & Poblador,52 likewise, received a
copy of the CA decision on September 19, 2005.53
On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC, filed a motion for reconsideration of
the said decision.54 Ssangyong opposed the motion contending that the decision of the CA had become
final and executory on account of the failure of MCC to file the said motion within the reglementary
period. The appellate court resolved, on November 22, 2005, to deny the motion on its merits,55
without, however, ruling on the procedural issue raised.
Aggrieved, MCC filed a petition for review on certiorari56 before this Court, imputing the following errors
to the Court of Appeals:
THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOT IN ACCORDANCE WITH JURISPRUDENCE AND
SANCTIONED A DEPARTURE FROM THE USUAL AND ACCEPTED COURSE OF JUDICIAL PROCEEDINGS BY
REVERSING THE COURT A QUO'S DISMISSAL OF THE COMPLAINT IN CIVIL CASE NO. 02-124
CONSIDERING THAT:
I. THE COURT OF APPEALS ERRED IN SUSTAINING THE ADMISSIBILITY IN EVIDENCE OF THE PRO-FORMA
INVOICES WITH REFERENCE NOS. ST2-POSTSO401-1 AND ST2-POSTSO401-2, DESPITE THE FACT THAT
THE SAME WERE MERE PHOTOCOPIES OF FACSIMILE PRINTOUTS.
II. THE COURT OF APPEALS FAILED TO APPRECIATE THE OBVIOUS FACT THAT, EVEN ASSUMING
PETITIONER BREACHED THE SUPPOSED CONTRACT, THE FACT IS THAT PETITIONER FAILED TO PROVE
THAT IT SUFFERED ANY DAMAGES AND THE AMOUNT THEREOF.
III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNT OF US$93,493.87 IS SIMPLY UNCONSCIONABLE
AND SHOULD HAVE BEEN AT LEAST REDUCED, IF NOT DELETED BY THE COURT OF APPEALS.57
In its Comment, Ssangyong sought the dismissal of the petition, raising the following arguments: that
the CA decision dated 15 August 2005 is already final and executory, because MCC's motion for
reconsideration was filed beyond the reglementary period of 15 days from receipt of a copy thereof, and
that, in any case, it was a pro forma motion; that MCC breached the contract for the purchase of the
steel products when it failed to open the required letter of credit; that the printout copies and/or
photocopies of facsimile or telecopy transmissions were properly admitted by the trial court because
they are considered original documents under R.A. No. 8792; and that MCC is liable for actual damages
and attorney's fees because of its breach, thus, compelling Ssangyong to litigate.
The principal issues that this Court is called upon to resolve are the following:
I – Whether the CA decision dated 15 August 2005 is already final and executory;
II – Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and
admissible as such;
III – Whether there was a perfected contract of sale between MCC and Ssangyong, and, if in the
affirmative, whether MCC breached the said contract; and
IV – Whether the award of actual damages and attorney's fees in favor of Ssangyong is proper and
justified.
-I -
It cannot be gainsaid that in Albano v. Court of Appeals,58 we held that receipt of a copy of the decision
by one of several counsels on record is notice to all, and the period to appeal commences on such date
even if the other counsel has not yet received a copy of the decision. In this case, when Atty. Samson
received a copy of the CA decision on September 14, 2005, MCC had only fifteen (15) days within which
to file a motion for reconsideration conformably with Section 1, Rule 52 of the Rules of Court, or to file a
petition for review on certiorari in accordance with Section 2, Rule 45. The period should not be
reckoned from September 29, 2005 (when Castillo Zamora & Poblador received their copy of the
decision) because notice to Atty. Samson is deemed notice to collaborating counsel.
We note, however, from the records of the CA, that it was Castillo Zamora & Poblador, not Atty.
Samson, which filed both MCC's and Chan's Brief and Reply Brief. Apparently, the arrangement between
the two counsels was for the collaborating, not the principal, counsel to file the appeal brief and
subsequent pleadings in the CA. This explains why it was Castillo Zamora & Poblador which filed the

Evidence Page 223

subsequent pleadings in the CA. This explains why it was Castillo Zamora & Poblador which filed the
motion for the reconsideration of the CA decision, and they did so on October 5, 2005, well within the
15-day period from September 29, 2005, when they received their copy of the CA decision. This could
also be the reason why the CA did not find it necessary to resolve the question of the timeliness of
petitioner's motion for reconsideration, even as the CA denied the same.
Independent of this consideration though, this Court assiduously reviewed the records and found that
strong concerns of substantial justice warrant the relaxation of this rule.
In Philippine Ports Authority v. Sargasso Construction and Development Corporation,59 we ruled that:
In Orata v. Intermediate Appellate Court, we held that where strong considerations of substantive
justice are manifest in the petition, this Court may relax the strict application of the rules of procedure
in the exercise of its legal jurisdiction. In addition to the basic merits of the main case, such a petition
usually embodies justifying circumstance which warrants our heeding to the petitioner's cry for justice in
spite of the earlier negligence of counsel. As we held in Obut v. Court of Appeals:
[W]e cannot look with favor on a course of action which would place the administration of justice in a
straight jacket for then the result would be a poor kind of justice if there would be justice at all. Verily,
judicial orders, such as the one subject of this petition, are issued to be obeyed, nonetheless a non-
compliance is to be dealt with as the circumstances attending the case may warrant. What should guide
judicial action is the principle that a party-litigant is to be given the fullest opportunity to establish the
merits of his complaint or defense rather than for him to lose life, liberty, honor or property on
technicalities.
The rules of procedure are used only to secure and not override or frustrate justice. A six-day delay in
the perfection of the appeal, as in this case, does not warrant the outright dismissal of the appeal. In
Development Bank of the Philippines vs. Court of Appeals, we gave due course to the petitioner's appeal
despite the late filing of its brief in the appellate court because such appeal involved public interest. We
stated in the said case that the Court may exempt a particular case from a strict application of the rules
of procedure where the appellant failed to perfect its appeal within the reglementary period, resulting
in the appellate court's failure to obtain jurisdiction over the case. In Republic vs. Imperial, Jr., we also
held that there is more leeway to exempt a case from the strictness of procedural rules when the
appellate court has already obtained jurisdiction over the appealed case. We emphasize that:
[T]he rules of procedure are mere tools intended to facilitate the attainment of justice, rather than
frustrate it. A strict and rigid application of the rules must always be eschewed when it would subvert
the rule's primary objective of enhancing fair trials and expediting justice. Technicalities should never be
used to defeat the substantive rights of the other party. Every party-litigant must be afforded the
amplest opportunity for the proper and just determination of his cause, free from the constraints of
technicalities.60
Moreover, it should be remembered that the Rules were promulgated to set guidelines in the orderly
administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of their judicial discretion. Technicalities
must take a backseat to substantive rights. After all, it is circumspect leniency in this respect that will
give the parties the fullest opportunity to ventilate the merits of their respective causes, rather than
have them lose life, liberty, honor or property on sheer technicalities.61
The other technical issue posed by respondent is the alleged pro forma nature of MCC's motion for
reconsideration, ostensibly because it merely restated the arguments previously raised and passed upon
by the CA.
In this connection, suffice it to say that the mere restatement of arguments in a motion for
reconsideration does not per se result in a pro forma motion. In Security Bank and Trust Company, Inc. v.
Cuenca,62 we held that a motion for reconsideration may not be necessarily pro forma even if it
reiterates the arguments earlier passed upon and rejected by the appellate court. A movant may raise
the same arguments precisely to convince the court that its ruling was erroneous. Furthermore, the pro
forma rule will not apply if the arguments were not sufficiently passed upon and answered in the
decision sought to be reconsidered.
- II -
The second issue poses a novel question that the Court welcomes. It provides the occasion for this Court
to pronounce a definitive interpretation of the equally innovative provisions of the Electronic Commerce
Act of 2000 (R.A. No. 8792) vis-à-vis the Rules on Electronic Evidence.

Evidence Page 224

Act of 2000 (R.A. No. 8792) vis-à-vis the Rules on Electronic Evidence.
Although the parties did not raise the question whether the original facsimile transmissions are
"electronic data messages" or "electronic documents" within the context of the Electronic Commerce
Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile
transmissions), we deem it appropriate to determine first whether the said fax transmissions are indeed
within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are covered by
the law. In any case, this Court has ample authority to go beyond the pleadings when, in the interest of
justice or for the promotion of public policy, there is a need to make its own findings in order to support
its conclusions.63
Petitioner contends that the photocopies of the pro forma invoices presented by respondent Ssangyong
to prove the perfection of their supposed contract of sale are inadmissible in evidence and do not fall
within the ambit of R.A. No. 8792, because the law merely admits as the best evidence the original fax
transmittal. On the other hand, respondent posits that, from a reading of the law and the Rules on
Electronic Evidence, the original facsimile transmittal of the pro forma invoice is admissible in evidence
since it is an electronic document and, therefore, the best evidence under the law and the Rules.
Respondent further claims that the photocopies of these fax transmittals (specifically ST2-POSTS0401-1
and ST2-POSTS0401-2) are admissible under the Rules on Evidence because the respondent sufficiently
explained the non-production of the original fax transmittals.
In resolving this issue, the appellate court ruled as follows:
Admissibility of Pro Forma
Invoices; Breach of Contract
by Appellants
Turning first to the appellants' argument against the admissibility of the Pro Forma Invoices with
Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F", pp. 215-218,
Records), appellants argue that the said documents are inadmissible (sic) being violative of the best
evidence rule.
The argument is untenable.
The copies of the said pro-forma invoices submitted by the appellee are admissible in evidence,
although they are mere electronic facsimile printouts of appellant's orders. Such facsimile printouts are
considered Electronic Documents under the New Rules on Electronic Evidence, which came into effect
on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-7-01-SC).
"(h) 'Electronic document' refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any printout or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic document. For purposes of these Rules, the
term 'electronic document' may be used interchangeably with 'electronic data message'.
An electronic document shall be regarded as the equivalent of an original document under the Best
Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect
the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)
The ruling of the Appellate Court is incorrect. R.A. No. 8792,64 otherwise known as the Electronic
Commerce Act of 2000, considers an electronic data message or an electronic document as the
functional equivalent of a written document for evidentiary purposes.65 The Rules on Electronic
Evidence 66 regards an electronic document as admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner
prescribed by the said Rules.67 An electronic document is also the equivalent of an original document
under the Best Evidence Rule, if it is a printout or output readable by sight or other means, shown to
reflect the data accurately.68
Thus, to be admissible in evidence as an electronic data message or to be considered as the functional
equivalent of an original document under the Best Evidence Rule, the writing must foremost be an
"electronic data message" or an "electronic document."
The Electronic Commerce Act of 2000 defines electronic data message and electronic document as
follows:
Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows:

Evidence Page 225

Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows:
xxx
c. "Electronic Data Message" refers to information generated, sent, received or stored by electronic,
optical or similar means.
xxx
f. "Electronic Document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically.
The Implementing Rules and Regulations (IRR) of R.A. No. 8792,69 which was signed on July 13, 2000 by
the then Secretaries of the Department of Trade and Industry, the Department of Budget and
Management, and then Governor of the Bangko Sentral ng Pilipinas, defines the terms as:
Sec. 6. Definition of Terms. For the purposes of this Act and these Rules, the following terms are
defined, as follows:
xxx
(e) "Electronic Data Message" refers to information generated, sent, received or stored by electronic,
optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram,
telex or telecopy. Throughout these Rules, the term "electronic data message" shall be equivalent to and
be used interchangeably with "electronic document."
xxx x
(h) "Electronic Document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. Throughout
these Rules, the term "electronic document" shall be equivalent to and be used interchangeably with
"electronic data message."
The phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy" in the IRR's definition of "electronic data message" is copied from the Model Law on Electronic
Commerce adopted by the United Nations Commission on International Trade Law (UNCITRAL),70 from
which majority of the provisions of R.A. No. 8792 were taken.71 While Congress deleted this phrase in
the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The deletion by Congress of
the said phrase is significant and pivotal, as discussed hereunder.
The clause on the interchangeability of the terms "electronic data message" and "electronic document"
was the result of the Senate of the Philippines' adoption, in Senate Bill 1902, of the phrase "electronic
data message" and the House of Representative's employment, in House Bill 9971, of the term
"electronic document."72 In order to expedite the reconciliation of the two versions, the technical
working group of the Bicameral Conference Committee adopted both terms and intended them to be
the equivalent of each one.73 Be that as it may, there is a slight difference between the two terms. While
"data message" has reference to information electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or extinguish an obligation,74 unlike an electronic
document. Evident from the law, however, is the legislative intent to give the two terms the same
construction.
The Rules on Electronic Evidence promulgated by this Court defines the said terms in the following
manner:
SECTION 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as
follows:
xxx x
(g) "Electronic data message" refers to information generated, sent, received or stored by electronic,
optical or similar means.
(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and print-out or output, readable by sight or other means, which accurately

Evidence Page 226

reflects the electronic data message or electronic document. For purposes of these Rules, the term
"electronic document" may be used interchangeably with "electronic data message."
Given these definitions, we go back to the original question: Is an original printout of a facsimile
transmission an electronic data message or electronic document?
The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic Evidence,
at first glance, convey the impression that facsimile transmissions are electronic data messages or
electronic documents because they are sent by electronic means. The expanded definition of an
"electronic data message" under the IRR, consistent with the UNCITRAL Model Law, further supports
this theory considering that the enumeration "xxx [is] not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy." And to telecopy is to send a document from one place to
another via a fax machine.75
As further guide for the Court in its task of statutory construction, Section 37 of the Electronic
Commerce Act of 2000 provides that
Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its
international origin and the need to promote uniformity in its application and the observance of good
faith in international trade relations. The generally accepted principles of international law and
convention on electronic commerce shall likewise be considered.
Obviously, the "international origin" mentioned in this section can only refer to the UNCITRAL Model
Law, and the UNCITRAL's definition of "data message":
"Data message" means information generated, sent, received or stored by electronic, optical or similar
means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.76
is substantially the same as the IRR's characterization of an "electronic data message."
However, Congress deleted the phrase, "but not limited to, electronic data interchange (EDI), electronic
mail, telegram, telex or telecopy," and replaced the term "data message" (as found in the UNCITRAL
Model Law ) with "electronic data message." This legislative divergence from what is assumed as the
term's "international origin" has bred uncertainty and now impels the Court to make an inquiry into the
true intent of the framers of the law. Indeed, in the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law.77 A
construction should be rejected that gives to the language used in a statute a meaning that does not
accomplish the purpose for which the statute was enacted, and that tends to defeat the ends which are
sought to be attained by the enactment.78
Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal author of Senate Bill 1902 (the
predecessor of R.A. No. 8792), sponsored the bill on second reading, he proposed to adopt the term
"data message" as formulated and defined in the UNCITRAL Model Law.79 During the period of
amendments, however, the term evolved into "electronic data message," and the phrase "but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" in the
UNCITRAL Model Law was deleted. Furthermore, the term "electronic data message," though
maintaining its description under the UNCITRAL Model Law, except for the aforesaid deleted phrase,
conveyed a different meaning, as revealed in the following proceedings:
xxx x
Senator Santiago. Yes, Mr. President. I will furnish a copy together with the explanation of this proposed
amendment.
And then finally, before I leave the Floor, may I please be allowed to go back to Section 5; the Definition
of Terms. In light of the acceptance by the good Senator of my proposed amendments, it will then
become necessary to add certain terms in our list of terms to be defined. I would like to add a definition
on what is "data," what is "electronic record" and what is an "electronic record system."
If the gentleman will give me permission, I will proceed with the proposed amendment on Definition of
Terms, Section 5.
Senator Magsaysay. Please go ahead, Senator Santiago.
Senator Santiago. We are in Part 1, short title on the Declaration of Policy, Section 5, Definition of
Terms.
At the appropriate places in the listing of these terms that have to be defined since these are arranged
alphabetically, Mr. President, I would like to insert the term DATA and its definition. So, the amendment
will read: "DATA" MEANS REPRESENTATION, IN ANY FORM, OF INFORMATION OR CONCEPTS.

Evidence Page 227

will read: "DATA" MEANS REPRESENTATION, IN ANY FORM, OF INFORMATION OR CONCEPTS.
The explanation is this: This definition of "data" or "data" as it is now fashionably pronounced in
America - - the definition of "data" ensures that our bill applies to any form of information in an
electronic record, whether these are figures, facts or ideas.
So again, the proposed amendment is this: "DATA" MEANS REPRESENTATIONS, IN ANY FORM, OF
INFORMATION OR CONCEPTS.
Senator Magsaysay. May I know how will this affect the definition of "Data Message" which
encompasses electronic records, electronic writings and electronic documents?
Senator Santiago. These are completely congruent with each other. These are compatible. When we
define "data," we are simply reinforcing the definition of what is a data message.
Senator Magsaysay. It is accepted, Mr. President.
Senator Santiago. Thank you. The next term is "ELECTRONIC RECORD." The proposed amendment is as
follows:
"ELECTRONIC RECORD" MEANS DATA THAT IS RECORDED OR STORED ON ANY MEDIUM IN OR BY A
COMPUTER SYSTEM OR OTHER SIMILAR DEVICE, THAT CAN BE READ OR PERCEIVED BY A PERSON OR A
COMPUTER SYSTEM OR OTHER SIMILAR DEVICE. IT INCLUDES A DISPLAY, PRINTOUT OR OTHER OUTPUT
OF THAT DATA.
The explanation for this term and its definition is as follows: The term "ELECTRONIC RECORD" fixes the
scope of our bill. The record is the data. The record may be on any medium. It is electronic because it is
recorded or stored in or by a computer system or a similar device.
The amendment is intended to apply, for example, to data on magnetic strips on cards or in Smart cards.
As drafted, it would not apply to telexes or faxes, except computer-generated faxes, unlike the United
Nations model law on electronic commerce. It would also not apply to regular digital telephone
conversations since the information is not recorded. It would apply to voice mail since the information
has been recorded in or by a device similar to a computer. Likewise, video records are not covered.
Though when the video is transferred to a website, it would be covered because of the involvement of
the computer. Music recorded by a computer system on a compact disc would be covered.
In short, not all data recorded or stored in digital form is covered. A computer or a similar device has to
be involved in its creation or storage. The term "similar device" does not extend to all devices that create
or store data in digital form. Although things that are not recorded or preserved by or in a computer
system are omitted from this bill, these may well be admissible under other rules of law. This provision
focuses on replacing the search for originality proving the reliability of systems instead of that of
individual records and using standards to show systems reliability.
Paper records that are produced directly by a computer system such as printouts are themselves
electronic records being just the means of intelligible display of the contents of the record. Photocopies
of the printout would be paper record subject to the usual rules about copies, but the original printout
would be subject to the rules of admissibility of this bill.
However, printouts that are used only as paper records and whose computer origin is never again called
on are treated as paper records. In that case, the reliability of the computer system that produces the
record is irrelevant to its reliability.

Senator Magsaysay. Mr. President, if my memory does not fail me, earlier, the lady Senator accepted
that we use the term "Data Message" rather than "ELECTRONIC RECORD" in being consistent with the
UNCITRAL term of "Data Message." So with the new amendment of defining "ELECTRONIC RECORD," will
this affect her accepting of the use of "Data Message" instead of "ELECTRONIC RECORD"?
Senator Santiago. No, it will not. Thank you for reminding me. The term I would like to insert is
ELECTRONIC DATA MESSAGE in lieu of "ELECTRONIC RECORD."
Senator Magsaysay. Then we are, in effect, amending the term of the definition of "Data Message" on
page 2A, line 31, to which we have no objection.
Senator Santiago. Thank you, Mr. President.
xxx x
Senator Santiago. Mr. President, I have proposed all the amendments that I desire to, including the
amendment on the effect of error or change. I will provide the language of the amendment together
with the explanation supporting that amendment to the distinguished sponsor and then he can feel free
to take it up in any session without any further intervention.

Evidence Page 228

to take it up in any session without any further intervention.
Senator Magsaysay. Before we end, Mr. President, I understand from the proponent of these
amendments that these are based on the Canadian E-commerce Law of 1998. Is that not right?
Senator Santiago. That is correct.80
Thus, when the Senate consequently voted to adopt the term "electronic data message," it was
consonant with the explanation of Senator Miriam Defensor-Santiago that it would not apply "to telexes
or faxes, except computer-generated faxes, unlike the United Nations model law on electronic
commerce." In explaining the term "electronic record" patterned after the E-Commerce Law of Canada,
Senator Defensor-Santiago had in mind the term "electronic data message." This term then, while
maintaining part of the UNCITRAL Model Law's terminology of "data message," has assumed a different
context, this time, consonant with the term "electronic record" in the law of Canada. It accounts for the
addition of the word "electronic" and the deletion of the phrase "but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy." Noteworthy is that the Uniform Law
Conference of Canada, explains the term "electronic record," as drafted in the Uniform Electronic
Evidence Act, in a manner strikingly similar to Sen. Santiago's explanation during the Senate
deliberations:
"Electronic record" fixes the scope of the Act. The record is the data. The record may be any medium. It
is "electronic" because it is recorded or stored in or by a computer system or similar device. The Act is
intended to apply, for example, to data on magnetic strips on cards, or in smart cards. As drafted, it
would not apply to telexes or faxes (except computer-generated faxes), unlike the United Nations Model
Law on Electronic Commerce. It would also not apply to regular digital telephone conversations, since
the information is not recorded. It would apply to voice mail, since the information has been recorded in
or by a device similar to a computer. Likewise video records are not covered, though when the video is
transferred to a Web site it would be, because of the involvement of the computer. Music recorded by a
computer system on a compact disk would be covered.
In short, not all data recorded or stored in "digital" form is covered. A computer or similar device has to
be involved in its creation or storage. The term "similar device" does not extend to all devices that
create or store data in digital form. Although things that are not recorded or preserved by or in a
computer system are omitted from this Act, they may well be admissible under other rules of law. This
Act focuses on replacing the search for originality, proving the reliability of systems instead of that of
individual records, and using standards to show systems reliability.
Paper records that are produced directly by a computer system, such as printouts, are themselves
electronic records, being just the means of intelligible display of the contents of the record. Photocopies
of the printout would be paper records subject to the usual rules about copies, but the "original"
printout would be subject to the rules of admissibility of this Act.
However, printouts that are used only as paper records, and whose computer origin is never again called
on, are treated as paper records. See subsection 4(2). In this case the reliability of the computer system
that produced the record is relevant to its reliability.81
There is no question then that when Congress formulated the term "electronic data message," it
intended the same meaning as the term "electronic record" in the Canada law. This construction of the
term "electronic data message," which excludes telexes or faxes, except computer-generated faxes, is in
harmony with the Electronic Commerce Law's focus on "paperless" communications and the "functional
equivalent approach"82 that it espouses. In fact, the deliberations of the Legislature are replete with
discussions on paperless and digital transactions.
Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based.

A facsimile machine, which was first patented in 1843 by Alexander Bain,83 is a device that can send or
receive pictures and text over a telephone line. It works by digitizing an image—dividing it into a grid of
dots. Each dot is either on or off, depending on whether it is black or white. Electronically, each dot is
represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine translates a
picture into a series of zeros and ones (called a bit map) that can be transmitted like normal computer
data. On the receiving side, a fax machine reads the incoming data, translates the zeros and ones back
into dots, and reprints the picture.84 A fax machine is essentially an image scanner, a modem and a
computer printer combined into a highly specialized package. The scanner converts the content of a
physical document into a digital image, the modem sends the image data over a phone line, and the

Evidence Page 229

physical document into a digital image, the modem sends the image data over a phone line, and the
printer at the other end makes a duplicate of the original document.85 Thus, in Garvida v. Sales, Jr.,86
where we explained the unacceptability of filing pleadings through fax machines, we ruled that:

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and
graphic matter by scanning an original copy, one elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric current. The current is transmitted as a signal over
regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the
elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or
other device that produces a printed record on paper referred to as a facsimile.

x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the
marks of an original. Without the original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It
may, in fact, be a sham pleading.87

Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information or

data that is scanned, sent through a phone line, and re-printed at the receiving end. Be it noted that in
enacting the Electronic Commerce Act of 2000, Congress intended virtual or paperless writings to be the
functional equivalent and to have the same legal function as paper-based documents.88 Further, in a
virtual or paperless environment, technically, there is no original copy to speak of, as all direct printouts
of the virtual reality are the same, in all respects, and are considered as originals.89 Ineluctably, the law's
definition of "electronic data message," which, as aforesaid, is interchangeable with "electronic
document," could not have included facsimile transmissions, which have an original paper-based copy as
sent and a paper-based facsimile copy as received. These two copies are distinct from each other, and
have different legal effects. While Congress anticipated future developments in communications and
computer technology90 when it drafted the law, it excluded the early forms of technology, like
telegraph, telex and telecopy (except computer-generated faxes, which is a newer development as
compared to the ordinary fax machine to fax machine transmission), when it defined the term
"electronic data message."
Clearly then, the IRR went beyond the parameters of the law when it adopted verbatim the UNCITRAL
Model Law's definition of "data message," without considering the intention of Congress when the latter
deleted the phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex
or telecopy." The inclusion of this phrase in the IRR offends a basic tenet in the exercise of the rule-
making power of administrative agencies. After all, the power of administrative officials to promulgate
rules in the implementation of a statute is necessarily limited to what is found in the legislative
enactment itself. The implementing rules and regulations of a law cannot extend the law or expand its
coverage, as the power to amend or repeal a statute is vested in the Legislature.91 Thus, if a discrepancy
occurs between the basic law and an implementing rule or regulation, it is the former that prevails,
because the law cannot be broadened by a mere administrative issuance—an administrative agency
certainly cannot amend an act of Congress.92 Had the Legislature really wanted ordinary fax
transmissions to be covered by the mantle of the Electronic Commerce Act of 2000, it could have easily
lifted without a bit of tatter the entire wordings of the UNCITRAL Model Law.
Incidentally, the National Statistical Coordination Board Task Force on the Measurement of E-
Commerce,93 on November 22, 2006, recommended a working definition of "electronic commerce," as
"[a]ny commercial transaction conducted through electronic, optical and similar medium, mode,
instrumentality and technology. The transaction includes the sale or purchase of goods and services,
between individuals, households, businesses and governments conducted over computer-mediated
networks through the Internet, mobile phones, electronic data interchange (EDI) and other channels
through open and closed networks." The Task Force's proposed definition is similar to the Organization
of Economic Cooperation and Development's (OECD's) broad definition as it covers transactions made
over any network, and, in addition, it adopted the following provisions of the OECD definition: (1) for
transactions, it covers sale or purchase of goods and services; (2) for channel/network, it considers any
computer-mediated network and NOT limited to Internet alone; (3) it excludes transactions
received/placed using fax, telephone or non-interactive mail; (4) it considers payments done online or

Evidence Page 230

received/placed using fax, telephone or non-interactive mail; (4) it considers payments done online or
offline; and (5) it considers delivery made online (like downloading of purchased books, music or
software programs) or offline (deliveries of goods).94
We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined
under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a
facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of
an original under the Best Evidence Rule and is not admissible as electronic evidence.
Since a facsimile transmission is not an "electronic data message" or an "electronic document," and
cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a
fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original
fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate
courts.
- III -
Nevertheless, despite the pro forma invoices not being electronic evidence, this Court finds that
respondent has proven by preponderance of evidence the existence of a perfected contract of sale.
In an action for damages due to a breach of a contract, it is essential that the claimant proves (1) the
existence of a perfected contract, (2) the breach thereof by the other contracting party and (3) the
damages which he/she sustained due to such breach. Actori incumbit onus probandi. The burden of
proof rests on the party who advances a proposition affirmatively.95 In other words, a plaintiff in a civil
action must establish his case by a preponderance of evidence, that is, evidence that has greater weight,
or is more convincing than that which is offered in opposition to it.96
In general, contracts are perfected by mere consent,97 which is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are to constitute the contract. The offer must
be certain and the acceptance absolute.98 They are, moreover, obligatory in whatever form they may
have been entered into, provided all the essential requisites for their validity are present.99 Sale, being a
consensual contract, follows the general rule that it is perfected at the moment there is a meeting of the
minds upon the thing which is the object of the contract and upon the price. From that moment, the
parties may reciprocally demand performance, subject to the provisions of the law governing the form
of contracts.100
The essential elements of a contract of sale are (1) consent or meeting of the minds, that is, to transfer
ownership in exchange for the price, (2) object certain which is the subject matter of the contract, and
(3) cause of the obligation which is established.101
In this case, to establish the existence of a perfected contract of sale between the parties, respondent
Ssangyong formally offered in evidence the testimonies of its witnesses and the following exhibits:

Exhibit Description Purpose

E Pro forma Invoice dated 17 April 2000 with
Contract No. ST2-POSTS0401-1, photocopy
E-1 Pro forma Invoice dated 17 April 2000 with
Contract No. ST2-POSTS0401, contained in
facsimile/thermal paper faxed by defendants
to plaintiff showing the printed transmission
details on the upper portion of said paper as
coming from defendant MCC on 26 Apr 00
08:41AM
E-2 Conforme signature of Mr. Gregory Chan,
contained in facsimile/thermal paper faxed by
defendants to plaintiff showing the printed
transmission details on the upper portion of
To show that defendants contracted with
plaintiff for the delivery of 110 MT of
stainless steel from Korea payable by way of
an irrevocable letter of credit in favor of
plaintiff, among other conditions.
To show that defendants sent their
confirmation of the (i) delivery to it of the
specified stainless steel products, (ii)
defendants' payment thereof by way of an
irrevocable letter of credit in favor of plaintiff,
among other conditions.
To show that defendants sent their
confirmation of the (i) delivery to it of the
total of 220MT specified stainless steel
products, (ii) defendants' payment thereof by

Evidence Page 231

 transmission details on the upper portion of
said paper as coming from defendant MCC on
26 Apr 00 08:41AM
F Pro forma Invoice dated 17 April 2000 with
Contract No. ST2-POSTSO401-2, photocopy
G Letter to defendant SANYO SEIKE dated 20
June 2000, contained in facsimile/thermal
paper
G-1 Signature of defendant Gregory Chan,
contained in facsimile/thermal paper.
H Letter to defendants dated 22 June 2000,
original
I Letter to defendants dated 26 June 2000,
original
J Letter to defendants dated 26 June 2000,
original
K Letter to defendants dated 27 June 2000,
original
L Facsimile message to defendants dated 28
June 2000, photocopy
M Letter from defendants dated 29 June 2000,
contained in facsimile/thermal paper faxed by
defendants to plaintiff showing the printed
transmission details on the upper portion of
said paper as coming from defendant MCC on
29 June 00 11:12 AM
M-1 Signature of defendant Gregory Chan,
contained in facsimile/thermal paper faxed by
defendants to plaintiff showing the printed
transmission details on the upper portion of
said paper as coming from defendant MCC on
June 00 11:12 AM
N Letter to defendants dated 29 June 2000,
original
O Letter to defendants dated 30 June 2000,
photocopy
Evidence Page 232
products, (ii) defendants' payment thereof by
way of an irrevocable letter of credit in favor
of plaintiff, among other conditions.
To show that defendants contracted with
plaintiff for delivery of another 110 MT of
stainless steel from Korea payable by way of
an irrevocable letter of credit in favor of
plaintiff, among other conditions.
To prove that defendants were informed of
the date of L/C opening and defendant's
conforme/approval thereof.
To prove that defendants were informed of
the successful price adjustments secured by
plaintiff in favor of former and were advised
of the schedules of its L/C opening.
To prove that plaintiff repeatedly requested
defendants for the agreed opening of the
Letters of Credit, defendants' failure and
refusal to comply with their obligations and
the problems of plaintiff is incurring by
reason of defendants' failure and refusal to
open the L/Cs.
To prove that defendants admit of their
liabilities to plaintiff, that they requested for
"more extension" of time for the opening of
the Letter of Credit, and begging for favorable
understanding and consideration.
To prove that plaintiff reiterated its request
for defendants to L/C opening after the
latter's request for extension of time was
granted, defendants' failure and refusal to
comply therewith extension of time

P Letter to defendants dated 06 July 2000,
original
Q Demand letter to defendants dated 15 Aug
2000, original
R Demand letter to defendants dated 23 Aug
2000, original
S Demand letter to defendants dated 11 Sept
2000, original
W Letter from plaintiff SSANGYONG to defendant
SANYO SEIKI dated 13 April 2000, with fax
back from defendants SANYO SEIKI/MCC to
plaintiff SSANGYONG, contained in
facsimile/thermal paper with back-up
photocopy
W-1 Conforme signature of defendant Gregory
Chan, contained in facsimile/thermal paper
with back-up photocopy
W-2 Name of sender MCC Industrial Sales
Corporation
notwithstanding.
To prove that plaintiff was constrained to
engaged services of a lawyer for collection
efforts.
To prove that defendants opened the first L/C
in favor of plaintiff, requested for further
postponement of the final L/C and for
minimal amounts, were urged to open the
final L/C on time, and were informed that
failure to comply will cancel the contract.
To show defendants' refusal and failure to
open the final L/C on time, the cancellation of
the contract as a consequence thereof, and
final demand upon defendants to remit its
obligations.
To prove that there was a perfected sale and
purchase agreement between the parties for
220 metric tons of steel products at the price
of US$1,860/ton.
To prove that defendants, acting through
Gregory Chan, agreed to the sale and
purchase of 220 metric tons of steel products
at the price of US$1,860/ton.
To prove that defendants sent their
conformity to the sale and purchase
agreement by facsimile transmission.

X Pro forma Invoice dated 16
August 2000, photocopy
X-1 Notation "1/2", photocopy
X-2 Ref. No. ST2-POSTS080-1,
photocopy
X-3 Conforme signature of
defendant Gregory Chan,
photocopy
DD Letter from defendant MCC to
plaintiff SSANGYONG dated 22
August 2000, contained in
facsimile/thermal paper with
back-up photocopy
DD-1 Ref. No. ST2-POSTS080-1,
To prove that defendant MCC agreed to adjust and split the
confirmed purchase order into 2 shipments at 100 metric
tons each at the discounted price of US$1,700/ton.
To prove that the present Pro forma Invoice was the first of 2
pro forma invoices.
To prove that the present Pro forma Invoice was the first of 2
pro forma invoices.
To prove that defendant MCC, acting through Gregory Chan,
agreed to the sale and purchase of the balance of 100 metric
tons at the discounted price of US$1,700/ton, apart from the
other order and shipment of 100 metric tons which was
delivered by plaintiff SSANGYONG and paid for by defendant
MCC.
To prove that there was a perfected sale and purchase
agreement between plaintiff SSANGYONG and defendant
MCC for the balance of 100 metric tons, apart from the other
order and shipment of 100 metric tons which was delivered
by plaintiff SSANGYONG and paid for by defendant MCC.
To prove that there was a perfected sale and purchase

Evidence Page 233

DD-1 Ref. No. ST2-POSTS080-1, To prove that there was a perfected sale and purchase
contained in facsimile/thermal agreement between plaintiff SSANGYONG and defendant
paper with back-up photocopy MCC for the balance of 100 metric tons, apart from the other
order and shipment of 100 metric tons which was delivered
by plaintiff SSANGYONG and paid for by defendant MCC.
DD-2 Signature of defendant To prove that defendant MCC, acting through Gregory Chan,
Gregory Chan, contained in agreed to the sale and purchase of the balance of 100 metric
facsimile/thermal paper with tons, apart from the other order and shipment of 100 metric
back-up photocopy tons which was delivered by plaintiff Ssangyong and paid for
by defendant MCC.102
Significantly, among these documentary evidence presented by respondent, MCC, in its petition before
this Court, assails the admissibility only of Pro Forma Invoice Nos. ST2-POSTS0401-1and ST2-
POSTS0401-2 (Exhibits "E" and "F"). After sifting through the records, the Court found that these
invoices are mere photocopies of their original fax transmittals. Ssangyong avers that these documents
were prepared after MCC asked for the splitting of the original order into two, so that the latter can
apply for an L/C with greater facility. It, however, failed to explain why the originals of these documents
were not presented.
To determine whether these documents are admissible in evidence, we apply the ordinary Rules on
Evidence, for as discussed above we cannot apply the Electronic Commerce Act of 2000 and the Rules on
Electronic Evidence.
Because these documents are mere photocopies, they are simply secondary evidence, admissible only
upon compliance with Rule 130, Section 5, which states, "[w]hen the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the testimony of witnesses in the order stated."
Furthermore, the offeror of secondary evidence must prove the predicates thereof, namely: (a) the loss
or destruction of the original without bad faith on the part of the proponent/offeror which can be
shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent
must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or
destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful
search has been made for the document in the proper place or places. It has been held that where the
missing document is the foundation of the action, more strictness in proof is required than where the
document is only collaterally involved.103
Given these norms, we find that respondent failed to prove the existence of the original fax
transmissions of Exhibits E and F, and likewise did not sufficiently prove the loss or destruction of the
originals. Thus, Exhibits E and F cannot be admitted in evidence and accorded probative weight.
It is observed, however, that respondent Ssangyong did not rely merely on Exhibits E and F to prove the
perfected contract. It also introduced in evidence a variety of other documents, as enumerated above,
together with the testimonies of its witnesses. Notable among them are Pro Forma Invoice Nos. ST2-
POSTS080-1 and ST2-POSTS080-2 which were issued by Ssangyong and sent via fax to MCC. As already
mentioned, these invoices slightly varied the terms of the earlier invoices such that the quantity was
now officially 100MT per invoice and the price reduced to US$1,700.00 per MT. The copies of the said
August 16, 2000 invoices submitted to the court bear the conformity signature of MCC Manager Chan.
Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit "X"), however, is a mere photocopy of its original. But
then again, petitioner MCC does not assail the admissibility of this document in the instant petition.
Verily, evidence not objected to is deemed admitted and may be validly considered by the court in
arriving at its judgment.104 Issues not raised on appeal are deemed abandoned.
As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits "1-A" and "2-C"), which was certified by PCIBank
as a true copy of its original,105 it was, in fact, petitioner MCC which introduced this document in
evidence. Petitioner MCC paid for the order stated in this invoice. Its admissibility, therefore, is not open
to question.
These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-POSTS080-2), along with the other
unchallenged documentary evidence of respondent Ssangyong, preponderate in favor of the claim that
a contract of sale was perfected by the parties.

Evidence Page 234

a contract of sale was perfected by the parties.
This Court also finds merit in the following observations of the trial court:
Defendants presented Letter of Credit (Exhibits "1", "1-A" to "1-R") referring to Pro Forma Invoice for
Contract No. ST2POSTS080-2, in the amount of US$170,000.00, and which bears the signature of
Gregory Chan, General Manager of MCC. Plaintiff, on the other hand, presented Pro Forma Invoice
referring to Contract No. ST2-POSTS080-1, in the amount of US$170,000.00, which likewise bears the
signature of Gregory Chan, MCC. Plaintiff accounted for the notation "1/2" on the right upper portion of
the Invoice, that is, that it was the first of two (2) pro forma invoices covering the subject contract
between plaintiff and the defendants. Defendants, on the other hand, failed to account for the notation
"2/2" in its Pro Forma Invoice (Exhibit "1-A"). Observably further, both Pro Forma Invoices bear the
same date and details, which logically mean that they both apply to one and the same transaction.106
Indeed, why would petitioner open an L/C for the second half of the transaction if there was no first half
to speak of?
The logical chain of events, as gleaned from the evidence of both parties, started with the petitioner and
the respondent agreeing on the sale and purchase of 220MT of stainless steel at US$1,860.00 per MT.
This initial contract was perfected. Later, as petitioner asked for several extensions to pay, adjustments
in the delivery dates, and discounts in the price as originally agreed, the parties slightly varied the terms
of their contract, without necessarily novating it, to the effect that the original order was reduced to
200MT, split into two deliveries, and the price discounted to US$1,700 per MT. Petitioner, however,
paid only half of its obligation and failed to open an L/C for the other 100MT. Notably, the conduct of
both parties sufficiently established the existence of a contract of sale, even if the writings of the
parties, because of their contested admissibility, were not as explicit in establishing a contract.107
Appropriate conduct by the parties may be sufficient to establish an agreement, and while there may be
instances where the exchange of correspondence does not disclose the exact point at which the deal
was closed, the actions of the parties may indicate that a binding obligation has been undertaken.108
With our finding that there is a valid contract, it is crystal-clear that when petitioner did not open the
L/C for the first half of the transaction (100MT), despite numerous demands from respondent
Ssangyong, petitioner breached its contractual obligation. It is a well-entrenched rule that the failure of
a buyer to furnish an agreed letter of credit is a breach of the contract between buyer and seller.
Indeed, where the buyer fails to open a letter of credit as stipulated, the seller or exporter is entitled to
claim damages for such breach. Damages for failure to open a commercial credit may, in appropriate
cases, include the loss of profit which the seller would reasonably have made had the transaction been
carried out.109
- IV -
This Court, however, finds that the award of actual damages is not in accord with the evidence on
record. It is axiomatic that actual or compensatory damages cannot be presumed, but must be proven
with a reasonable degree of certainty.110 In Villafuerte v. Court of Appeals,111 we explained that:
Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss
he suffered. They arise out of a sense of natural justice and are aimed at repairing the wrong done.
Except as provided by law or by stipulation, a party is entitled to an adequate compensation only for
such pecuniary loss as he has duly proven. It is hornbook doctrine that to be able to recover actual
damages, the claimant bears the onus of presenting before the court actual proof of the damages
alleged to have been suffered, thus:
A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he
has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually
be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be
presumed and courts, in making an award must point out specific facts which could afford a basis for
measuring whatever compensatory or actual damages are borne.112
In the instant case, the trial court awarded to respondent Ssangyong US$93,493.87 as actual damages.
On appeal, the same was affirmed by the appellate court. Noticeably, however, the trial and the
appellate courts, in making the said award, relied on the following documents submitted in evidence by
the respondent: (1) Exhibit "U," the Statement of Account dated March 30, 2001; (2) Exhibit "U-1," the
details of the said Statement of Account); (3) Exhibit "V," the contract of the alleged resale of the goods
to a Korean corporation; and (4) Exhibit "V-1," the authentication of the resale contract from the Korean
Embassy and certification from the Philippine Consular Office.

Evidence Page 235

Embassy and certification from the Philippine Consular Office.
The statement of account and the details of the losses sustained by respondent due to the said breach
are, at best, self-serving. It was respondent Ssangyong itself which prepared the said documents. The
items therein are not even substantiated by official receipts. In the absence of corroborative evidence,
the said statement of account is not sufficient basis to award actual damages. The court cannot simply
rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend
on competent proof that the claimant had suffered, and on evidence of, the actual amount thereof.113
Furthermore, the sales contract and its authentication certificates, Exhibits "V" and "V-1," allegedly
evidencing the resale at a loss of the stainless steel subject of the parties' breached contract, fail to
convince this Court of the veracity of its contents. The steel items indicated in the sales contract114 with
a Korean corporation are different in all respects from the items ordered by petitioner MCC, even in size
and quantity. We observed the following discrepancies:
List of commodities as stated in Exhibit "V":

COMMODITY: Stainless Steel HR Sheet in Coil, Slit Edge

SPEC: SUS304 NO. 1
SIZE/Q'TY:
2.8MM X 1,219MM X C 8.193MT
3.0MM X 1,219MM X C 7.736MT
3.0MM X 1,219MM X C 7.885MT
3.0MM X 1,219MM X C 8.629MT
4.0MM X 1,219MM X C 7.307MT
4.0MM X 1,219MM X C 7.247MT
4.5MM X 1,219MM X C 8.450MT
4.5MM X 1,219MM X C 8.870MT
5.0MM X 1,219MM X C 8.391MT
6.0MM X 1,219MM X C 6.589MT
6.0MM X 1,219MM X C 7.878MT
6.0MM X 1,219MM X C 8.397MT
TOTAL: 95.562MT115
List of commodities as stated in Exhibit "X" (the invoice that was not paid):

DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304

SIZE AND QUANTITY:
2.6 MM X 4' X C 10.0MT
3.0 MM X 4' X C 25.0MT
4.0 MM X 4' X C 15.0MT
4.5 MM X 4' X C 15.0MT
5.0 MM X 4' X C 10.0MT
6.0 MM X 4' X C 25.0MT
TOTAL: 100MT116
From the foregoing, we find merit in the contention of MCC that Ssangyong did not adequately prove
that the items resold at a loss were the same items ordered by the petitioner. Therefore, as the claim for
actual damages was not proven, the Court cannot sanction the award.
Nonetheless, the Court finds that petitioner knowingly breached its contractual obligation and

Evidence Page 236

Nonetheless, the Court finds that petitioner knowingly breached its contractual obligation and
obstinately refused to pay despite repeated demands from respondent. Petitioner even asked for
several extensions of time for it to make good its obligation. But in spite of respondent's continuous
accommodation, petitioner completely reneged on its contractual duty. For such inattention and
insensitivity, MCC must be held liable for nominal damages. "Nominal damages are 'recoverable where a
legal right is technically violated and must be vindicated against an invasion that has produced no actual
present loss of any kind or where there has been a breach of contract and no substantial injury or actual
damages whatsoever have been or can be shown.'"117 Accordingly, the Court awards nominal damages
of P200,000.00 to respondent Ssangyong.
As to the award of attorney's fees, it is well settled that no premium should be placed on the right to
litigate and not every winning party is entitled to an automatic grant of attorney's fees. The party must
show that he falls under one of the instances enumerated in Article 2208 of the Civil Code.118 In the
instant case, however, the Court finds the award of attorney's fees proper, considering that petitioner
MCC's unjustified refusal to pay has compelled respondent Ssangyong to litigate and to incur expenses
to protect its rights.
WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLY GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 82983 is MODIFIED in that the award of actual damages is DELETED.
However, petitioner is ORDEREDto pay respondent NOMINAL DAMAGES in the amount of P200,000.00,
and the ATTORNEY'S FEES as awarded by the trial court.
SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ., concur.
Footnotes
1
Penned by Associate Justice Rodrigo V. Cosico, with Associate Justices Danilo B. Pine and Arcangelita
Romilla Lontok, concurring; CA rollo, pp. 120-131.
2
CA rollo, pp. 164-165.
3 Records, p. 2.
4
TSN, June 18, 2003, pp. 7-8.
5 TSN, August 21, 2002, p. 7.
6
Records, p. 198; Exhibit "A."
7 CA rollo, p. 97.
8 TSN, August 21, 2002, p. 18.
9 Records, pp. 336-337; Exhibit "W." The document is an original copy of the fax transmittal in thermal

paper received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a
clearer print of its contents.
10 Records, p. 49.
11 Id. at 336-337; Exhibit "W-1."
12 Id. at 216-217; Exhibits "E-1." The document is an original copy of the fax transmittal in thermal paper

received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
13 Id.; Exhibit "E-2."
14 Id.; Exhibit "E-1."
15 TSN, August 21, 2002, pp. 41-42, 67-68.
16 TSN, October 15, 2003, pp. 89-92.
17 Records, p. 215; Exhibit "E." This is a mere photocopy of the fax transmittal.
18 Id. at 218; Exhibit "F." This is a mere photocopy of the fax transmittal.
19 Id. at 219-220; Exhibit "G." The document is an original copy of the fax transmittal in thermal paper

received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
20 Id.; Exhibit "G-1."
21 Id. at 221; Exhibit "H."
22 Id. at 223; Exhibit "I."
23 Id. at 224; Exhibit "J."
24 Id. at 225; Exhibit "K."
25 Id. at 226; Exhibit "L." The document is a mere photocopy of the original fax message.
26 Id. at 227-228; Exhibit "M." The document is an original copy of the fax transmittal in thermal paper

Evidence Page 237

25
Id. at 226; Exhibit "L." The document is a mere photocopy of the original fax message.
26 Id. at 227-228; Exhibit "M." The document is an original copy of the fax transmittal in thermal paper
received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
27
Id. at 229; Exhibit "N."
28
Id. at 230; Exhibit "O." The document is a mere photocopy of the original letter.
29
Id. at 231; Exhibit "P."
30
Id. at 232-233; Exhibit "Q."
31
Id. at 232.
32 Id. at 338; Exhibit "X." The document is a mere photocopy of the original fax transmittal.
33 Id. at 321; Exhibit "2-C." The document was certified as the true copy of its original by PCIBank.
34 Id. at 318-320; Exhibits "2", "2-A" and "2-B." These documents were certified as true copies of their

originals by PCIBank.
35
Id. at 300-317; Exhibits "1-B" to "1-R."
36 Id. at 378-379; Exhibit "DD." The document is an original copy of the fax transmittal in thermal paper

received by Ssangyong, however, the same is accompanied by a photocopy thereof containing a clearer
print of its contents.
37 Id. at 234; Exhibit "R."
38 Id. at 235; Exhibit "S."
39
Id. at 1-10.
40 Id. at 262-267.
41 Id. at 254.
42 Id. at 275.
43
Id. at 408-412.
44 Id. at 411-412.
45
Id. at 444.
46
CA rollo, pp. 29-49.
47
Id. at 36.
48 Supra note 1.
49
CA rollo, pp. 127-128.
50 Id. at 131.
51 Id. at 160.
52 The firm's name was later changed to Zamora Poblador Vasquez & Bretaña.
53 CA rollo, p. 161.
54 Id. at 140-150.
55 Supra note 2.
56 Rollo, pp. 9-26.
57 Id. at 15.
58 415 Phil. 761 (2001).
59 G.R. No. 146478, July 30, 2004, 435 SCRA 512.
60 Philippine Ports Authority v. Sargasso Construction & Development Corporation, supra, at 527-528.
61 Yuchengco v. Court of Appeals, G.R. No. 165793, October 27, 2006, 505 SCRA 716, 723.
62 396 Phil. 1081 (2000).
63 Maharlika Publishing Corporation v. Tagle, 226 Phil. 456, 463-464 (1986).
64
Entitled "An Act Providing for the Recognition and Use of Electronic Commercial and Non-Commercial
Transactions and Documents, Penalties for Unlawful Use Thereof and For Other Purposes." Approved on
June 14, 2000.
65 Sections 6, 7 and 10 of R.A. No. 8792 read:

Sec. 6. Legal Recognition of Data Messages. Information shall not be denied legal effect, validity or
enforceability solely on the grounds that it is in the data message purporting to give rise to such legal
effect, or that it is merely referred to in that electronic data message.
Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect,
validity or enforceability as any other document or legal writing, and –
(a) Where the law requires a document to be in writing, that requirement is met by an electronic
document if the said electronic document maintains its integrity and reliability and can be authenticated
so as to be usable for subsequent reference, in that –

Evidence Page 238

so as to be usable for subsequent reference, in that –
(i) The electronic document has remained complete and unaltered, apart from the addition of any
endorsement and any authorized change, or any change which arises in the normal course of
communication, storage and display; and
(ii) The electronic document is reliable in the light of the purpose for which it was generated and in the
light of all the relevant circumstances.
(b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the
law simply provides consequences for the document not being presented or retained in its original form.
(c) Where the law requires that a document be presented or retained in its original form, that
requirement is met by an electronic document if –
(i) There exists a reliable assurance as to the integrity of the document from the time when it was first
generated in its final form; and
(ii) That document is capable of being displayed to the person to whom it is to be presented: Provided,
That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities
required in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional equivalent of a written
document under existing laws.
This Act does not modify any statutory rule relating to the admissibility of electronic data messages or
electronic documents, except the rules relating to authentication and best evidence.
Sec. 10. Original Documents. – (1) Where the law requires information to be presented or retained in its
original form, that requirement is met by an electronic data message or electronic document if:
(a) The integrity of the information from the time when it was first generated in its final form, as an
electronic data message or electronic document is shown by evidence aliunde or otherwise; and
(b) Where it is required that information be presented, that the information is capable of being
displayed to the person to whom it is to be presented.
(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the
law simply provides consequences for the information not being presented or retained in its original
form.
(3) For the purposes of subparagraph (a) of paragraph (1):
(a) the criteria for assessing integrity shall be whether the information has remained complete and
unaltered, apart from the addition of any endorsement and any change which arises in the normal
course of communication, storage and display; and
(b) the standard of reliability required shall be assessed in the light of the purpose for which the
information was generated and in the light of all relevant circumstances.
66 A.M. No. 01-7-01-SC, effective on August 1, 2001.
67 Rule 3 of the Rules on Electronic Evidence reads:

RULE 3
ELECTRONIC DOCUMENTS
SECTION 1. Electronic Documents as functional equivalent of paper-based documents. – Whenever a
rule of evidence refers to the term writing, document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an electronic document as defined in these Rules.
SEC. 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner
prescribed by these Rules.
68 Rule 4 of the Rules on Electronic Evidence reads:

RULE 4
BEST EVIDENCE RULE
SECTION 1. Original of an Electronic Document. – An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.
SEC. 2. Copies as equivalent of the originals. - When a document is in two or more copies executed at or
about the same time with identical contents, or is a counterpart produced by the same impression as
the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces the original, such copies
or duplicates shall be regarded as the equivalent of the original.

Evidence Page 239

or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.
69
The Electronic Commerce Act of 2000 provides, in its Section 34, that the DTI [Department of Trade
and Industry], Department of Budget and Management and the Bangko Sentral ng Pilipinas are
empowered to enforce the provisions of the Act and issue implementing rules and regulations
necessary, in coordination with the Department of Transportation and Communications, National
Telecommunications Commission, National Computer Center, National Information Technology Council,
Commission on Audit, other concerned agencies and the private sector, to implement the Act within
sixty (60) days after its approval.
70
On June 12, 1996, the Commission, after consideration of the text of the draft Model Law as revised
by the drafting group, decided to adopt the said law and to recommend that all States give favorable
consideration to the said Model Law on Electronic Commerce when they enact or revise their laws, in
view of the need for uniformity of the law applicable to alternatives of paper-based forms of
communication and storage of information (UNCITRAL Model Law on Electronic Commerce with Guide
to Enactment 1996 with additional article 5 bis as adopted in 1998, United Nations Publication, New
York, 1999).
71 Record of the Senate, Vol. III, No. 61, February 16, 2000, p. 405.
72
R.A. No. 8792 is a consolidation of Senate Bill 1902 and House Bill 9971 (Senate Proceedings, June 8,
2000, p. 90).
73
The Electronic Commerce Act and its Implementing Rules and Regulations, Annotations by Atty. Jesus
M. Disini, Jr., Legislative History by Janette C. Toral, published by the Philippine Exporters Confederation,
Inc. in September 2000.
74 House of Representatives' Transcript of Proceedings, June 5, 2000.
75
<http://www.webopedia.com/TERM/T/telecopy.html> (visited August 27, 2007).
76 UNCITRAL Model Law on Electronic Commerce with Guide to Enactment 1996 with additional article 5

bis as adopted in 1998, United Nations publication, New York, 1999.

77 People v. Purisima, 176 Phil. 186, 204 (1978).
78 De Guia v. Commission on Elections, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 425.
79 III RECORD, SENATE 11th CONGRESS 2nd SESSION 399 (February 16, 2000).
80
Senate Transcript of Proceedings, Vol. II, No. 88, April 3, 2000, pp. 32-37.
81 BLG, Consolidated E-Commerce Statutes, Part II-Electronic Evidence Laws, UEEA, Copyright ©

Carswell, a Division of Thomson Canada Ltd. or its Licensors; <www.westlaw.com> (visited August 27,
2007).
82 In its Guide to Enactment, the UNCITRAL explains the functional-equivalent approach of the Model

Law in this way:

"E. The 'functional-equivalent' approach
"15. The Model Law is based on the recognition that legal requirements prescribing the use of
traditional paper-based documentation constitute the main obstacle to the development of modern
means of communication. In the preparation of the Model Law, consideration was given to the
possibility of dealing with impediments to the use of electronic commerce posed by such requirements
in national laws by way of extension of the scope of such notions as 'writing', 'signature' and 'original',
with a view to encompassing computer-based techniques. Such an approach is used in a number of
existing legal instruments, e.g., article 7 of the UNCITRAL Model Law on International Commercial
Arbitration and article 13 of the United Nations Convention on Contracts for the International Sale of
Goods. It was observed that the Model Law should permit States to adapt their domestic legislation to
developments in communications technology applicable to trade law without necessitating the
wholesale removal of the paper-based requirements themselves or disturbing the legal concepts and
approaches underlying those requirements. At the same time, it was said that electronic fulfillment of
writing requirements might in some cases necessitates the development of new rules. This was due to
one of many distinctions between EDI messages and paper-based documents, namely, that the latter
were readable by the human eye, while the former were not so readable unless reduced to paper or

Evidence Page 240

displayed on a screen.
"16. The Model Law thus relies on a new approach, sometimes referred to as the 'functional equivalent
approach', which is based on an analysis of the purposes and functions of the traditional paper-based
requirement with a view to determining how those purposes or functions could be fulfilled through
electronic-commerce techniques. For example, among the functions served by a paper document are
the following: to provide that a document would be legible by all; to provide that a document would
remain unaltered over time; to allow for the reproduction of a document so that each party would hold
a copy of the same data; to allow for the authentication of data by means of a signature; and to provide
that a document would be in a form acceptable to public authorities and courts. It should be noted that
in respect of all of the above-mentioned functions of paper, electronic records can provide the same
level of security as paper and, in most cases, a much higher degree of reliability and speed, especially
with respect to the identification of the source and content of the data, provided that a number of
technical and legal requirements are met. However, the adoption of the functional-equivalent approach
should not result in imposing on users of electronic commerce more stringent standards of security (and
the related costs) than in a paper-based environment.
"17. A data message, in and of itself, cannot be regarded as an equivalent of a paper document in that it
is of a different nature and does not necessarily perform all conceivable functions of a paper document.
That is why the Model Law adopted a flexible standard, taking into account the various layers of existing
requirements in a paper-based environment: when adopting the "functional-equivalent" approach,
attention was given to the existing hierarchy of form requirements, which provides distinct levels of
reliability, traceability and inalterability with respect to paper-based documents. For example, the
requirement that date be presented in written form (which constitutes a 'threshold requirement') is not
to be confused with more stringent requirements such as 'signed writing,' 'signed original' or
'authenticated legal act'.
"18. The Model Law does not attempt to define a computer-based equivalent to any kind of paper
document. Instead, it singles out basic functions of paper-based form requirements, with a view to
providing criteria which, once they are met by data messages, enable such data messages to enjoy the
same level of legal recognition as corresponding paper documents performing the same function. It
should be noted that the functional-equivalent approach has been taken in articles 6 to 8 of the Model
Law with respect to the concepts of 'writing', 'signature' and 'original' but not with respect to other legal
concepts dealt with in the Model Law. For example, article 10 does not attempt to create a functional
equivalent of existing storage requirements." (UNCITRAL Model Law on Electronic Commerce with
Guide to Enactment 1996 with additional article 5 bis as adopted in 1998, United Nations publication,
New York, 1999.)
83 <http://inventors.about.com/od/bstartinventors/a/fax_machine.htm> (visited August 27, 2007).
84
<http://inventors.about.com/gi/dynamic/offsite.htm?zi=1/XJ&sdn=inventors&zu=http%3A%2F%
2F web-opedia.internet.com%2FTERM%2Ff%2Ffax -machine.html> (visited August 27, 2007).
85 <http://en.wikipedia.org/wiki/Fax_machine> (visited August 27, 2007).
86 338 Phil. 484, 496-497 (1997).
87 Go v. Commission on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, involving the filing of a

withdrawal of certificate of candidacy thru fax, but the original copy thereof was filed on the following
day; see also Justice Cuevas v. Muñoz, 401 Phil. 752 (2000), in which the facsimile transmission of the
request for provisional arrest and other supporting documents was allowed in extradition proceedings;
Heirs of Lourdes Sabanpan v. Comorposa, 456 Phil. 161 (2003), concerning a facsimile signature; and
Cathay Pacific Airways v. Fuentebella, G.R. No. 142541, December 15, 2005, 478 SCRA 97, which involves
a facsimile transmission of a notice of hearing.
88 III RECORD, SENATE 11th CONGRESS 2nd SESSION 781-783 (March 22, 2000).
89 House of Representatives' Transcript of Proceedings, June 5, 2000.
90 III RECORD, SENATE 11th CONGRESS 2nd SESSION 437 (February 21, 2000); III RECORD, SENATE 11th

CONGRESS 2nd SESSION 450-451 (February 22, 2000).

91 Public Schools District Supervisors Association. v. De Jesus, G.R. 157286, June 16, 2006, 491 SCRA 55,

71.
92 Nasipit Lumber Co. v. National Wages and Productivity Commission, 352 Phil. 503, 518 (1998).
93 The Philippine Statistical System (PSS), through the NSCB, created the Task Force to address the

statistical information requirements of the Electronic Commerce Act of 2000. The composition of the

Evidence Page 241

statistical information requirements of the Electronic Commerce Act of 2000. The composition of the
Task Force is as follows: the Department of Trade and Industry as Chair; the NSCB as Vice Chair; and the
Bangko Sentral ng Pilipinas, the Commission on Audit, the Department of Budget and Management, the
Department of Labor and Employment, the Department of Science and Technology, the Department of
Transportation and Communications/National Telecommunications Commission, the National Computer
Center, the National Economic and Development Authority, the National Statistics Office, the Statistical
Research and Training Center, and the Philippine Internet Services Organization, as members.
94
Recommendations of the NSCB Task Force on the Measurement of e-Commerce, November 22, 2006,
p. 5 <http://www.nscb.gov.ph/resolutions/2006/Annex%20BR-16-2006-01.pdf> (visited August 27,
2007).
95 Black's Law Dictionary, 5th ed. (1979).
96 Heirs of Cipriano Reyes v. Calumpang, G.R. No. 138463, October 30, 2006, 506 SCRA 56, 72.
97
Civil Code, Art. 1315.
98 Johannes Schuback & Sons Philippine Trading Corporation v. Court of Appeals, G.R. No. 105387,

November 11, 1993, 227 SCRA 717, 721.

99 San Lazaro Development Corporation v. Court of Appeals, G.R. No. 124242, January 21, 2005, 449

SCRA 99, 111.

100 Civil Code, Art. 1475.
101 San Lazaro Development Corporation v. Court of Appeals, supra note 99, at 113.
102 Records, pp. 193-195 and 332-334.
103
Lee v. People, G.R. No. 159288, October 19, 2004, 440 SCRA 662, 683-684.
104 Interpacific Transit, Inc. v. Aviles, G.R. No. 86062, June 6, 1990, 186 SCRA 385, 390.
105
Under Rule 130, Section 7, a certified true copy is an admissible evidence only when the original
document is a public record.
106
Records, p. 411.
107
Standard Bent Glass Corp. v. Glassrobots Oy, 333 F. 3d 440.
108
Maharlika Publishing Corporation v. Tagle, 226 Phil. 456, 468 (1986), quoting American Jurisprudence
2d., Section 73 (pp. 186-187).
109
Reliance Commodities, Inc. v. Daewoo Industrial Company, Ltd., G.R. No. 100831, December 17,
1993, 228 SCRA 545, 555.
110 Development Bank of the Philippines v. Court of Appeals, 348 Phil. 15, 34 (1998).
111 G.R. No. 134239, May 26, 2005, 459 SCRA 58.
112
Villafuerte v. Court of Appeals, supra, at 69.
113 Id. at 74-75.
114 Records, p. 245.
115 Id. at 243 and 245.
116 Id. at 338.
117 Francisco v. Ferrer, Jr., 405 Phil. 741, 751 (2001).
118 Tanay Recreation Center and Development Corp. v. Fausto, G.R. No. 140182, April 12, 2005, 455

SCRA 436, 457.

The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2007/oct2007/gr_170633_2007.html>

Evidence Page 242

Rule on DNA
Monday, September 21, 2009
6:48 PM

PHILIPPINE JURISPRUDENCE – FULL TEXT

The Lawphil Project - Arellano Law Foundation
A.M. No. 06-11-5-SC October 2, 2007
RULE ON DNA EVIDENCE

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 06-11-5-SC
(2 October 2007)
RULE ON DNA EVIDENCE
RESOLUTION
Acting on the recommendation of the Chairperson and Members of the Subcommittee on Evidence
submitting for the Court’s consideration and approval the proposed Rule on DNA Evidence, the Court
Resolved to APPROVE the same.
This Resolution shall take effect on October 15, 2007 following its publication in a newspaper of general
circulation.
October 2, 2007.
[sgd.]
RENATO S. PUNO
Chief Justice
[sgd.] [sgd.]
LEONARO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
[sgd.] [sgd.]
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice
[sgd.] [sgd.]
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice
[sgd.] [sgd.]
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
Associate Justice Associate Justice
[sgd.] [sgd.]
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
[sgd.] [sgd.]
CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice
[sgd.] [sgd.]
ANTONIO EDUARDO B. NACHURA RUBEN T. REYES
Associate Justice Associate Justice
RULE ON DNA EVIDENCE
SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is

Evidence Page 243

SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is
offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as
special proceedings.
Sec. 2. Application of other Rules on Evidence. – In all matters not specifically covered by this Rule, the
Rules of Court and other pertinent provisions of law on evidence shall apply.
Sec. 3. Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows:
a. “Biological sample” means any organic material originating from a person’s body, even if found in
inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body
fluids, tissues, hairs and bones;
b. “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell
of the body. The totality of an individual’s DNA is unique for the individual, except identical twins;
c. “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information
directly generated from DNA testing of biological samples;
d. “DNA profile” means genetic information derived from DNA testing of a biological sample
obtained from a person, which biological sample is clearly identifiable as originating from that
person;
e. “DNA testing” means verified and credible scientific methods which include the extraction of DNA
from biological samples, the generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the purpose of determining, with
reasonable certainty, whether or not the DNA obtained from two or more distinct biological
samples originates from the same person (direct identification) or if the biological samples
originate from related persons (kinship analysis); and
f. “Probability of Parentage” means the numerical estimate for the likelihood of parentage of a
putative parent compared with the probability of a random match of two unrelated individuals in
a given population.
Sec. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu
proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and notice to the parties upon a showing of the
following:
a. A biological sample exists that is relevant to the case;
b. The biological sample: (i) was not previously subjected to the type of DNA testing now requested;
or (ii) was previously subjected to DNA testing, but the results may require confirmation for good
reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy of integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any
party, including law enforcement agencies, before a suit or proceeding is commenced.
Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section 4 hereof have been
complied with, the court shall –
a. Order, where appropriate, that biological samples be taken from any person or crime scene
evidence;
b. Impose reasonable conditions on DNA testing designed to protect the integrity of the biological
sample, the testing process and the reliability of the test results, including the condition that the
DNA test results shall be simultaneously disclosed to parties involved in the case; and
c. If the biological sample taken is of such an amount that prevents the conduct of confirmatory
testing by the other or the adverse party and where additional biological samples of the same kind
can no longer be obtained, issue an order requiring all parties to the case or proceedings to
witness the DNA testing to be conducted.
An order granting the DNA testing shall be immediately executory and shall not be appealable. Any
petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless
a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as
an automatic admission into evidence of any component of the DNA evidence that may be obtained as a

Evidence Page 244

an automatic admission into evidence of any component of the DNA evidence that may be obtained as a
result thereof.
Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be available, without need of
prior court order, to the prosecution or any person convicted by final and executory judgment provided
that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would
probably result in the reversal or modification of the judgment of conviction.
Sec. 7. Assessment of probative value of DNA evidence. – In assessing the probative value of the DNA
evidence presented, the court shall consider the following:
a. The chair of custody, including how the biological samples were collected, how they were
handled, and the possibility of contamination of the samples;
b. The DNA testing methodology, including the procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and compliance with the scientifically valid
standards in conducting the tests;
c. The forensic DNA laboratory, including accreditation by any reputable standards-setting institution
and the qualification of the analyst who conducted the tests. If the laboratory is not accredited,
the relevant experience of the laboratory in forensic casework and credibility shall be properly
established; and
d. The reliability of the testing result, as hereinafter provided.
The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily.
Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the DNA testing methodology
is reliable, the court shall consider the following:
a. The falsifiability of the principles or methods used, that is, whether the theory or technique can be
and has been tested;
b. The subjection to peer review and publication of the principles or methods;
c. The general acceptance of the principles or methods by the relevant scientific community;
d. The existence and maintenance of standards and controls to ensure the correctness of data
generated;
e. The existence of an appropriate reference population database; and
f. The general degree of confidence attributed to mathematical calculations used in comparing DNA
profiles and the significance and limitation of statistical calculations used in comparing DNA
profiles.
Sec. 9. of DNA Testing Results. – In evaluating the results of DNA testing, the court shall consider the
following:
a. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA
evidence;
b. The results of the DNA testing in the light of the totality of the other evidence presented in the
case; and that
c. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-
paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA
testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is
99.9% or higher there shall be a disputable presumption of paternity.
Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to the Convict. – The convict
or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of
the post-conviction DNA testing are favorable to the convict. In the case the court, after due hearing
finds the petition to be meritorious, if shall reverse or modify the judgment of conviction and order the
release of the convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member
of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and
issue the appropriate orders.
Sec. 11. Confidentiality. – DNA profiles and all results or other information obtained from DNA testing
shall be confidential. Except upon order of the court, a DNA profile and all results or other information
obtained from DNA testing shall only be released to any of the following, under such terms and
conditions as may be set forth by the court:
a. Person from whom the sample was taken;
b. Person from whom the sample was taken;

Evidence Page 245

 a. Person from whom the sample was taken;
b. Person from whom the sample was taken;
c. Lawyers of private complainants in a criminal action;
d. Duly authorized law enforcement agencies; and
e. Other persons as determined by the court.
Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without
the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was
offered, presented or sought to be offered and presented.
Where the person from whom the biological sample was taken files a written verified request to the
court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or
other information obtained from the DNA testing, he same may be disclosed to the persons named in
the written verified request.
Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality,
including all biological samples, DNA profiles and results or other genetic information obtained from
DNA testing. For this purpose, the court may order the appropriate government agency to preserve the
DNA evidence as follows:
a. In criminal cases:
i. for not less than the period of time that any person is under trial for an offense; or
ii. in case the accused is serving sentence, until such time as the accused has served his
sentence;
a. In all other cases, until such time as the decision in the case where the DNA evidence was
introduced has become final and executory.
The court may allow the physical destruction of a biological sample before the expiration of the periods
set forth above, provided that:
a. A court order to that effect has been secured; or
b. The person from whom the DNA sample was obtained has consented in writing to the disposal of
the DNA evidence.
Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and 10 hereof, this Rule shall
apply to cases pending at the time of its effectivity.
Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following publication in a newspaper
of general circulation.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2007/oct2007/am_06_11_5_sc_2007.html>

Evidence Page 246

Ong v. Diaz
Monday, September 21, 2009
6:49 PM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. 171713 December 17, 2007
ESTATE OF ROGELIO G. ONG vs. MINOR JOANNE RODJIN DIAZ, ETC.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 171713 December 17, 2007
ESTATE OF ROGELIO G. ONG, petitioner,
vs.
Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky C. Diaz, respondent.
DECIS ION
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure assailing
(1) the Decision1 of the Court of Appeals dated 23 November 2005 and (2) the Resolution2 of the same
court dated 1 March 2006 denying petitioner’s Motion for Reconsideration in CA-G.R. CV No. 70125.
A Complaint3 for compulsory recognition with prayer for support pending litigation was filed by minor
Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against
Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky
prayed that judgment be rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter.
(b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to
fix monthly support.
(c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.4
As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted.
This developed into friendship and later blossomed into love. At this time, Jinky was already married to a
Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal
Trial Court Judge Panfilo V. Valdez.5
From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane
Subdivision, and later at Capitol Garden, Tarlac City.
From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was
born at the Central Luzon Doctors’ Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid
all the hospital bills and the baptismal expenses and provided for all of minor Joanne’s needs –
recognizing the child as his.
In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne,
falsely alleging that he is not the father of the child.
Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing and refusing to give
support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore
adverted complaint.
After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading
despite repeated motions for extension, prompting the trial court to declare him in default in its Order
dated 7 April 1999. Rogelio’s Answer with Counterclaim and Special and Affirmative Defenses was
received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on
the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in

Evidence Page 247

the complaint.
In its Decision6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural child;
2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further
3. Ordering defendant to pay reasonable attorney’s fees in the amount of P5,000.00 and the cost of the
suit.
On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration
seeking the court’s understanding, as he was then in a quandary on what to do to find a solution to a
very difficult problem of his life.7
On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court
dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions
of Section 6, Rule 37 of the 1997 Rules of Civil Procedure.8
On 16 June 1999, the RTC issued an Order granting Rogelio’s Motion for New Trial:
WHEREFORE, finding defendant’s motion for new trial to be impressed with merit, the same is hereby
granted.
The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999
are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by
defendant at the appropriate stage of the proceedings.
In the meantime defendant’s answer is hereby admitted, subject to the right of plaintiff to file a reply
and/or answer to defendant’s counterclaim within the period fixed by the Rules of Court.
Acting on plaintiff’s application for support pendente lite which this court finds to be warranted,
defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January
15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month
thereafter as regular support pendente lite during the pendency of this case.9
The RTC finally held:
The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin
Diaz.
Since it was duly established that plaintiff’s mother Jinky Diaz was married at the time of the birth of
Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo
and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may
have declared against her legitimacy (Article 167, Ibid).
The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of
the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the
husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the
birth of the child because of –
a) physical incapacity of the husband to have sexual intercourse with his wife;
b) husband and wife were living separately in such a way that sexual intercourse was not possible;
c) serious illness of the husband which prevented sexual intercourse.
It was established by evidence that the husband is a Japanese national and that he was living outside of
the country (TSN, Aug. 27, 1999, page 5) and he comes home only once a year. Both evidence of the
parties proved that the husband was outside the country and no evidence was shown that he ever
arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a relationship with another man before she met the
defendant, there is no evidence that she also had sexual relations with other men on or about the
conception of Joanne Rodjin. Joanne Rodjin was her second child (see Exh. "A"), so her first child, a
certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa K[u]
tsuo.
The defendant admitted having been the one who shouldered the hospital bills representing the
expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father
of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used
to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see
Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave
birth to Joanne.
On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant

Evidence Page 248

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant
Rogelio Ong and it is but just that the latter should support plaintiff.10
On 15 December 2000, the RTC rendered a decision and disposed:
WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of
defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite
dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz
shall have reached majority age.11
Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial
court dated 19 January 2001.12 From the denial of his Motion for Reconsideration, Rogelio appealed to
the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for
decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002.13
During the pendency of the case with the Court of Appeals, Rogelio’s counsel filed a manifestation
informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by
said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong,14 which motion
was accordingly granted by the Court of Appeals.15
In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision
dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is
hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order
directing the parties to make arrangements for DNA analysis for the purpose of determining the
paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories
and experts on the field of DNA analysis.
No pronouncement as to costs.16
Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution
dated 1 March 2006.
In disposing as it did, the Court of Appeals justified its Decision as follows:
In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the
proceedings volunteered and suggested that he and plaintiff’s mother submit themselves to a DNA or
blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not
consider resorting to this modern scientific procedure notwithstanding the repeated denials of
defendant that he is the biological father of the plaintiff even as he admitted having actual sexual
relations with plaintiff’s mother. We believe that DNA paternity testing, as current jurisprudence
affirms, would be the most reliable and effective method of settling the present paternity dispute.
Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal,
the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can
possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant
alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this
action for support.17
Hence, this petition which raises the following issues for resolution:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS RESPONDENT’S
COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED
FAILED TO PROVE THAT ROGELIO G. ONG WAS HER FATHER.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE RESPONDENT AS THE
LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT
FAILED TO REBUT THE PRESUMPTION OF HER LEGITIMACY.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE CASE TO THE COURT A
QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF
ROGELIO G. ONG.18
Petitioner prays that the present petition be given due course and the Decision of the Court of Appeals
dated November 23, 2005 be modified, by setting aside the judgment remanding the case to the trial
court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition,
and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19

Evidence Page 249

and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19
From among the issues presented for our disposition, this Court finds it prudent to concentrate its
attention on the third one, the propriety of the appellate court’s decision remanding the case to the trial
court for the conduct of DNA testing. Considering that a definitive result of the DNA testing will
decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to resolve the first two
issues raised by the petitioner as they will be rendered moot by the result of the DNA testing.
As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of
support in favor of the said minor.
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right
associated with paternity, such as citizenship, support (as in the present case), or inheritance. The
burden of proving paternity is on the person who alleges that the putative father is the biological father
of the child. There are four significant procedural aspects of a traditional paternity action which parties
have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.20
A child born to a husband and wife during a valid marriage is presumed legitimate.21 As a guaranty in
favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides:
Article 167. The children shall be considered legitimate although the mother may have declared against
its legitimacy or may have been sentenced as an adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy. We explained the
rationale of this rule in the recent case of Cabatania v. Court of Appeals22:
The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the
broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded
on the policy to protect the innocent offspring from the odium of illegitimacy.
The presumption of legitimacy of the child, however, is not conclusive and consequently, may be
overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code 23 provides:
Article 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of the physical impossibility of
the husband’s having access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way that access was not possible;
3) By the serious illness of the husband.24
The relevant provisions of the Family Code provide as follows:
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.
There had been divergent and incongruent statements and assertions bandied about by the parties to
the present petition. But with the advancement in the field of genetics, and the availability of new
technology, it can now be determined with reasonable certainty whether Rogelio is the biological father
of the minor, through DNA testing.
DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human
cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA
profile can determine his identity.25
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an
individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual
from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.

Evidence Page 250

from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an
individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human body, the DNA of an
individual’s blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from
buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (Adenine), G (guanine), C (cystosine)
and T (thymine). The order in which the four bases appear in an individual’s DNA determines his or her
physical make up. And since DNA is a double stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives
a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that
differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling,
tests, fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may
proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the
RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used
in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; DNA process;
VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase]
chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most
forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence
sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize
enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2)
samples with a reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or
fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime
scene is compared with the "known" print. If a substantial amount of the identifying features are the
same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or
fingerprint is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these
regions, a person possesses two genetic types called "allele," one inherited from each parent. In [a]
paternity test, the forensic scientist looks at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to
determine which half of the child’s DNA was inherited from the mother. The other half must have been
inherited from the biological father. The alleged father’s profile is then examined to ascertain whether
he has the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types
do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not
excluded as the father.26
In the newly promulgated rules on DNA evidence it is provided:
SEC. 3 Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows:
xxx x
(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information
directly generated from DNA testing of biological samples;
(d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained
from a person, which biological sample is clearly identifiable as originating from that person;
(e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA
from biological samples, the generation of DNA profiles and the comparison of the information obtained
from the DNA testing of biological samples for the purpose of determining, with reasonable certainty,
whether or not the DNA obtained from two or more distinct biological samples originates from the same
person (direct identification) or if the biological samples originate from related persons (kinship
analysis); and
(f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative
parent compared with the probability of a random match of two unrelated individuals in a given
population.
Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the

Evidence Page 251

Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the
definitive key to the resolution of the issue of support for minor Joanne. Our articulation in Agustin v.
Court of Appeals27 is particularly relevant, thus:
Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court
of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we cautioned against the use of DNA
because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant
incriminating acts,verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated
in Tijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]:
x x x Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies,
one copy from the mother and the other from the father. The DNA from the mother, the alleged father
and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should
not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the
results of science when competently obtained in aid of situations presented, since to reject said results
is to deny progress.
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence
came in 2002 with out en banc decision in People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA
192+ where the rape and murder victim’s DNA samples from the bloodstained clothes of the accused
were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether
an association exist(ed) between the evidence sample and the reference sample. The samples collected
(were) subjected to various chemical processes to establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we acquitted the
accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who
(were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the
perpetrators? How we wish we had DNA or other scientific evidence to still our doubts."
In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March 2004, 424 SCRA
277], where the Court en banc was faced with the issue of filiation of then presidential candidate
Fernando Poe, Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and
any physical residue of the long dead parent could be resorted to. A positive match would clear up
filiation or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong weight of DNA
testing...
Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504], we
affirmed the conviction of the accused for rape with homicide, the principal evidence for which included
DNA test results. x x x.
Coming now to the issue of remand of the case to the trial court, petitioner questions the
appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for
DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the
RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged
impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than
real. Petitioner’s argument is without basis especially as the New Rules on DNA Evidence 28 allows the
conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest
in the matter in litigation, thus:
SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu proprio
or on application of any person who has a legal interest in the matter in litigation, order a DNA testing.
Such order shall issue after due hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or

Evidence Page 252

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or
(ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy or integrity of the DNA testing.
From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate biological samples of his DNA.
As defined above, the term "biological sample" means any organic material originating from a person’s
body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva,
and other body fluids, tissues, hairs and bones.29
Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be
available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of
obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,30 citing
Tecson v. Commission on Elections,31 this Court held:
The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277]
likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: "[i]n case proof of
filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical
residue of the long dead parent could be resorted to."
It is obvious to the Court that the determination of whether appellant is the father of AAA’s child, which
may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant
appeal. Under Section 4 of the Rules, the courts are authorized, after due hearing and notice, motu
proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar,
capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of
facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more
appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings,
with due notice to the parties. (Emphasis supplied.)
As we have declared in the said case of Agustin v. Court of Appeals32:
x x x [F]or too long, illegitimate children have been marginalized by fathers who choose to deny their
existence. The growing sophistication of DNA testing technology finally provides a much needed
equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA
testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA
testing has finally evolved into a dependable and authoritative form of evidence gathering. We
therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, the instant petition is DENIEDfor lack of merit. The Decision of the Court of Appeals dated
23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez,, Nachura, Reyes, JJ., concur.
Footnotes
1 Penned by Associate Justice Martin S. Villarama, Jr. with Associate Justices Edgardo F. Sundiam and

Japar B. Dimaampao concurring. Rollo, p. 27-43.

2 Rollo, pp. 44-46.
3 Docketed as Civil Case No. 8799; id. at 47-50.
4 Id. at 48-49.
5 Id. at 27.
6
Penned by Acting Presiding Judge Victor T. Llamas, Jr.; rollo, p. 57-60.
7 Id. at 28-29.
8 SEC. 6. Effect of granting of motion for new trial. – If a new trial is granted in accordance with the

provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material
and competent to establish the issues, shall be used at the new trial without retaking the same.

Evidence Page 253

and competent to establish the issues, shall be used at the new trial without retaking the same.
9
Rollo, p. 31.
10 Id. at 61-62.
11
Id. at 62.
12
Id. at 35.
13
Id. at 37.
14
Id. at 135.
15
Id. at 38.
16 Id. at 42-43.
17 Id. at 42.
18 Id. at 125.
19
Id. at 23.
20
Herrera v. Alba, G.R. No. 148220, 15 June 2005, 460 SCRA 197, 204.
21 Art. 164 of the Family Code.
22
G.R. No. 124814, 21 October 2004, 441 SCRA 96, 104-105; Concepcion v. Court of Appeals, G.R.
123450, 31 August 2005, 468 SCRA 438, 447-448.
23 Article 166 of the Family Code has a similar provision.
24 Liyao, Jr. v. Tanhoti-Liyao, 428 Phil. 628, 640-641 (2002).
25
Herrera v. Alba, supra note 20 at 209.
26 Id. at 204-211.
27 G.R. No. 162571, 15 June 2005, 460 SCRA 315, 325-327.
28 A.M. No. 06-11-5-SC, 15 October 2007.
29
Section 3(a) of the Rules on DNA Evidence, id.
30
G.R. No. 172607, 26 October 2007.
31
468 Phil. 421 (2004).
32
Supra note 27 at 339.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2007/dec2007/gr_171713_2007.html>

Evidence Page 254

Notes
Wednesday, October 07, 2009
1:24 PM

Sec. 14. Evidence of good character of witness - Evidence of the good character of a WITNESS
Is NOT ADMISSIBLE until such character has been impeached

Cf. R130.51
Character evidence
Section 51. Character evidence not generally admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent
to the moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish
in any reasonable degree the probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

Summary of rules

a. in criminal cases, the prosecution may not at the outset prove the bad moral character of the accused which is
pertinent to the moral trait involved in the offense charged. If the accused, however, in his defense attempts to
prove his good moral character, then the prosecution can introduce evidence of such bad moral character at the
rebuttal stage.

b. Also in criminal cases, the good or bad moral character of the offended party may always be proved by either
party as long as such evidence tends to establish the probability or improbability of the offense charged.

c. In civil cases, the moral character of either party thereto cannot be proved unless it s pertinent to the issue of
character involved in a case.

d. In both civil and criminal cases, the bad moral character of a witness may always be proved by either party,
but not evidence of h good moral character, unless it has been impeached.

- The prohibition against the prosecution initially attacking the character of the accused is intended to avoid unfair
prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of
bad character.
- With respect to the accused, evidence must be “pertinent to the moral trait in the offense charged” e.g. in
prosecution for estafa, perjury or false testimony wherein the person’s moral trait for honesty or probity is
involved.
- With respect to the offended person, it is sufficient that such character evidence “may establish the probability
or improbability of the offense charged,” as in prosecutions for rape or consented abduction wherein the victim’s
chastity may be questioned, and in prosecutions for homicide wherein the pugnacious, quarrelsome or trouble-
seeking character of the victim is proper subject for inquiry.
- With respect to witnesses, such character evidence must refer to his “general reputation for truth, honesty or
integrity,” that is, affecting his credibility
- Proof of the bad character of the victim in a murder case is not admissible if the crime was committed through
treachery or premeditation.
- Bad moral character of a victim in a rape case is not admissible if the crime was committed by violence or
intimidation.
- In civil cases, for character evidence of a party to be admissible, the issue involved must be character, i.e. civil
action for damages arising from libel, slander or seduction.

Section 15 - EXCLUSION AND SEPARATION OF WITNESSES

On any trial or hearing,
the judge may exclude from the court
any witness not at the time under examination,
so that he (the excluded witness) may not hear the testimony of other witnesses.
The judge may also cause witnesses
to be kept separate
and to be prevented from conversing with one another
until all shall have been examined.

Power of exclusions apply only to witnesses and not to parties in the civil case

Evidence Page 255

Parties have a right to be present at the trial
» Either by themselves or by their counsels
» Since they have such right, they cannot be divested thereof by an exclusion order
Paez v Berenguer (8 Phil 457): A party to an action has a right to be present in court while his case is being
tried, and the rule authorizing the exclusion of witnesses during trial cannot be understood to extend to him

If witness violates the order of exclusion, court may bar him from testifying or give little weight to his testimony
» Aside from his liability for contempt
People v Lua Chu (56 Phil 44): It is within the power of the trial judge to refuse to order the exclusion of the
principal witness of the government during the hearing of a criminal case and it may not, on that count alone,
be considered as an abuse of his discretion

Evidence Page 256

Thursday, October 15, 2009
6:04 PM

RULE ON EXAMINATION OF A CHILD WITNESS .

Section 1. Applicability of the Rule.— Unless otherwise provided, this Rule
shall govern the examination of child witnesses who are victims of crime,
accused of a crime, and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child witnesses.
.
Sec. 2. Objectives.— The objectives of this Rule are to create and maintain an
environment that will allow children to give reliable and complete evidence,
minimize trauma to children, encourage children to testify in legal
proceedings, and facilitate the ascertainment of truth.
.
Sec. 3. Construction of the Rule.— This Rule shall be liberally construed to
uphold the best interests of the child and to promote maximum
accommodation of child witnesses without prejudice to the constitutional
rights of the accused.
Sec. 4. Definitions.—
(a) A “child witness” is any person who at the time of giving testimony
is below the age of eighteen (18) years. In child abuse cases, a child
includes one over eighteen (18) years but is found by the court as
unable to fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.
(b) “Child abuse” means physical, psychological or sexual abuse and
criminal neglect as defined in Republic Act No. 7610 and other related
laws.
(c) “Facilitator” means a person appointed by the court to pose
questions to a child.
(d) “Record regarding a child” or “record” means any photograph,
videotape, audiotape, film, handwriting, typewriting, printing,
electronic recording, computer data or printout, or other
memorialization, including any court document, pleading, or any copy
or reproduction of any of the foregoing, that contains the name,
description, address, school or any other personal identifying
information about a child or his family and that is produced or
maintained by a public agency, private agency or individual.
(e) A “guardian ad litem” is a person appointed by the court where the
case is pending for a child who is a victim of, accused of, or a witness to
a crime to protect the best interests of the said child.
(f) A “support person” is a person chosen by the child to accompany
him to testify at or attend a judicial proceeding or deposition to provide
emotional support for him.
(g) “Best interests of the child” means the totality of the circumstances
and conditions as are most congenial to the survival, protection, and
feelings of security of the child and most encouraging to his physical,
psychological, and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and
development of the child.

Evidence Page 257

 development of the child.
(h) “Developmental level” refers to the specific growth phase in which
most individuals are expected to behave and function in relation to the
advancement of their physical, socio-emotional, cognitive, and moral
abilities.
(i) “In-depth investigative interview” or “disclosure interview” is an
inquiry or proceeding conducted by duly trained members of a multi-
disciplinary team or representatives of law enforcement or child
protective services for the purpose of determining whether child abuse
has been committed.
Sec. 5. Guardian ad litem.—
.
(a) The court may appoint a guardian ad litem for a child who is a victim of, accused
of, or a witness to a crime to promote the best interests of the child. In making the
appointment, the court shall consider the background of the guardian ad litem and his
familiarity with the judicial process, social service programs, and child development,
giving preference to the parents of the child, if qualified. The guardian ad litem may
be a member of the Philippine Bar. A person who is a witness in any proceeding
involving the child cannot be appointed as a guardian ad litem.
.
(b) The guardian ad litem:
.
(1) shall attend all interviews, depositions, hearings, and trial proceedings in
which a child participates;
.
(2) shall make recommendations to the court concerning the welfare of the child;
.
(3) shall have access to all reports, evaluations, and records necessary to
effectively advocate for the child, except privileged communications;
.
(4) shall marshal and coordinate the delivery of resources and special services to
the child;
.
(5) shall explain, in language understandable to the child, all legal proceedings,
including police investigations, in which the child is involved;
.
(6) shall assist the child and his family in coping with the emotional effects of
crime and subsequent criminal or non-criminal proceedings in which the child is
involved;
.
(7) may remain with the child while the child waits to testify;
..
(8) may interview witnesses; and
.
(9) may request additional examinations by medical or mental health
professionals if there is a compelling need therefor.
.
(c) The guardian ad litem shall be notified of all proceedings but shall not participate
in the trial. However, he may file motions pursuant to Sections 9, 10, 25, 26, 27 and
31(c). If the guardian ad litem is a lawyer, he may object during trial that questions
asked of the child are not appropriate to his developmental level.
.
(d) The guardian ad litem may communicate concerns regarding the child to the court
through an officer of the court designated for that purpose.
.

Evidence Page 258

.
(e) The guardian ad litem shall not testify in any proceeding concerning any
information, statement, or opinion received from the child in the course of serving as
a guardian ad litem, unless the court finds it necessary to promote the best interests of
the child.
.
(f) The guardian ad litem shall be presumed to have acted in good faith in compliance
with his duties described in Sub-section (b).

.
Sec. 6. Competency.— Every child is presumed qualified to be a witness. However,
the court shall conduct a competency examination of a child, motu proprio or on
motion of a party, when it finds that substantial doubt exists regarding the ability of
the child to perceive, remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
.
(a) Proof of necessity.— A party seeking a competency examination must present
proof of necessity of competency examination. The age of the child by itself is not a
sufficient basis for a competency examination.

(b) Burden of proof.— To rebut the presumption of competence enjoyed by a child,

the burden of proof lies on the party challenging his competence.
(c) Persons allowed at competency examination.— Only the following are allowed to
attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be fully evaluated
in his absence.
(d) Conduct of examination.— Examination of a child as to his competence shall be
conducted only by the judge. Counsel for the parties, however, can submit questions
to the judge that he may, in his discretion, ask the child.
(e) Developmentally appropriate questions.— The questions asked at the competency
examination shall be appropriate to the age and developmental level of the child; shall
not be related to the issues at trial; and shall focus on the ability of the child to
remember, communicate, distinguish between truth and falsehood, and appreciate the
duty to testify truthfully.
(f) Continuing duty to assess competence.— The court has the duty of continuously
assessing the competence of the child throughout his testimony.
Sec. 7. Oath or affirmation.— Before testifying, a child shall take an oath or
affirmation to tell the truth.
Sec. 8. Examination of a child witness.— The examination of a child witness
presented in a hearing or any proceeding shall be done in open court. Unless the
witness is incapacitated to speak, or the question calls for a different mode of answer,
the answers of the witness shall be given orally.
The party who presents a child witness or the guardian ad litem of such child witness
may, however, move the court to allow him to testify in the manner provided in this
Rule.
Sec. 9. Interpreter for child.—
(a) When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the child can understand and
who understands the child may be appointed by the court, motu proprio or upon
motion, to interpret for the child.

Evidence Page 259

motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only person who can serve
as an interpreter for the child, he shall not be disqualified and may serve as the
interpreter of the child. The interpreter, however, who is also a witness, shall testify
ahead of the child.
(c) An interpreter shall take an oath or affirmation to make a true and accurate
interpretation.
Sec. 10. Facilitator to pose questions to child.—
(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines
that the child is unable to understand or respond to questions asked. The facilitator
may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher,
religious leader, parent, or relative.
(b) If the court appoints a facilitator, the respective counsels for the parties shall pose
questions to the child only through the facilitator. The questions shall either be in the
words used by counsel or, if the child is not likely to understand the same, in words
that are comprehensible to the child and which convey the meaning intended by
counsel.
(c) The facilitator shall take an oath or affirmation to pose questions to the child
according to the meaning intended by counsel.
Sec. 11. Support persons.—
(a) A child testifying at a judicial proceeding or making a deposition shall have the
right to be accompanied by one or two persons of his own choosing to provide him
emotional support.
(1) Both support persons shall remain within the view of the child during his
testimony.
(2) One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the view
of the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the hand of the child or take
other appropriate steps to provide emotional support to the child in the course of
the proceedings.
(4) The court shall instruct the support persons not to prompt, sway, or
influence the child during his testimony.
(b) If the support person chosen by the child is also a witness, the court may
disapprove the choice if it is sufficiently established that the attendance of the support
person during the testimony of the child would pose a substantial risk of influencing
or affecting the content of the testimony of the child.
(c) If the support person who is also a witness is allowed by the court, his testimony
shall be presented ahead of the testimony of the child.
Sec. 12. Waiting area for child witnesses.— The courts are encouraged to provide a
waiting area for children that is separate from waiting areas used by other persons.
The waiting area for children should be furnished so as to make a child comfortable.
Sec. 13. Courtroom environment.— To create a more comfortable environment for
the child, the court may, in its discretion, direct and supervise the location, movement
and deportment of all persons in the courtroom including the parties, their counsel,
child, witnesses, support persons, guardian ad litem, facilitator, and court
personnel. The child may be allowed to testify from a place other than the witness
chair. The witness chair or other place from which the child testifies may be turned
to facilitate his testimony but the opposing party and his counsel must have a frontal
or profile view of the child during the testimony of the child. The witness chair or
other place from which the child testifies may also be rearranged to allow the child to
see the opposing party and his counsel, if he chooses to look at them, without turning
his body or leaving the witness stand. The judge need not wear his judicial robe.
Nothing in this section or any other provision of law, except official in-court

Evidence Page 260

identification provisions, shall be construed to require a child to look at the accused.
Accommodations for the child under this section need not be supported by a finding
of trauma to the child.
Sec. 14. Testimony during appropriate hours.— The court may order that the
testimony of the child should be taken during a time of day when the child is well-
rested.
Sec. 15. Recess during testimony.—
The child may be allowed reasonable periods of relief while undergoing direct, cross,
re-direct, and re-cross examinations as often as necessary depending on his
developmental level.
Sec. 16. Testimonial aids.— The court shall permit a child to use dolls, anatomically-
correct dolls, puppets, drawings, mannequins, or any other appropriate
demonstrative device to assist him in his testimony.
Sec. 17. Emotional security item.— While testifying, a child shall be allowed to have
an item of his own choosing such as a blanket, toy, or doll.
Sec. 18. Approaching the witness.— The court may prohibit a counsel from
approaching a child if it appears that the child is fearful of or intimidated by the
counsel.
Sec. 19. Mode of questioning.— The court shall exercise control over the questioning
of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that
questions are stated in a form appropriate to the developmental level of the child; (3)
protect children from harassment or undue embarrassment; and (4) avoid waste of
time.
The court may allow the child witness to testify in a narrative form.
Sec. 20. Leading questions.— The court may allow leading questions in all stages of
examination of a child if the same will further the interests of justice.
Sec. 21. Objections to questions.— Objections to questions should be couched in a
manner so as not to mislead, confuse, frighten, or intimidate the child.
Sec. 22. Corroboration.— Corroboration shall not be required of a testimony of a
child. His testimony, if credible by itself, shall be sufficient to support a finding of
fact, conclusion, or judgment subject to the standard of proof required in criminal
and non-criminal cases.
Sec. 23. Excluding the public.— When a child testifies, the court may order the
exclusion from the courtroom of all persons, including members of the press, who do
not have a direct interest in the case. Such an order may be made to protect the right
to privacy of the child or if the court determines on the record that requiring the child
to testify in open court would cause psychological harm to him, hinder the
ascertainment of truth, or result in his inability to effectively communicate due to
embarrassment, fear, or timidity. In making its order, the court shall consider the
developmental level of the child, the nature of the crime, the nature of his testimony
regarding the crime, his relationship to the accused and to persons attending the trial,
his desires, and the interests of his parents or legal guardian. The court may, motu
proprio, exclude the public from the courtroom if the evidence to be produced during
trial is of such character as to be offensive to decency or public morals. The court
may also, on motion of the accused, exclude the public from trial, except court
personnel and the counsel of the parties.
Sec. 24. Persons prohibited from entering and leaving courtroom.— The court may
order that persons attending the trial shall not enter or leave the courtroom during
the testimony of the child.
Sec. 25. Live-link television testimony in criminal cases where the child is a victim or
a witness.—
(a) The prosecutor, counsel or the guardian ad litem may apply for an order that the
testimony of the child be taken in a room outside the courtroom and be televised to
the courtroom by live-link television.
Before the guardian ad litem applies for an order under this section, he shall consult

Evidence Page 261

Before the guardian ad litem applies for an order under this section, he shall consult
the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel
regarding the necessity of applying for an order. In case the guardian ad litem is
convinced that the decision of the prosecutor or counsel not to apply will cause the
child serious emotional trauma, he himself may apply for the order.
The person seeking such an order shall apply at least five (5) days before the trial
date, unless the court finds on the record that the need for such an order was not
reasonably foreseeable.
(b) The court may motu proprio hear and determine, with notice to the parties, the
need for taking the testimony of the child through live-link television.
(c) The judge may question the child in chambers, or in some comfortable place other
than the courtroom, in the presence of the support person, guardian ad litem,
prosecutor, and counsel for the parties. The questions of the judge shall not be related
to the issues at trial but to the feelings of the child about testifying in the courtroom.
(d) The judge may exclude any person, including the accused, whose presence or
conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link television
and stating the reasons therefor. It shall consider the following factors:
(1) The age and level of development of the child;
(2) His physical and mental health, including any mental or physical disability;
(3) Any physical, emotional, or psychological injury experienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse party;
(7) His reaction to any prior encounters with the accused in court or elsewhere;
(8) His reaction prior to trial when the topic of testifying was discussed with him
by parents or professionals;
(9) Specific symptoms of stress exhibited by the child in the days prior to
testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and the attitude of the members of his
family regarding the events about which he will testify; and
(12) Other relevant factors, such as court atmosphere and formalities of court
procedure.
(f) The court may order that the testimony of the child be taken by live-link television
if there is a substantial likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as the case may be. The
trauma must be of a kind which would impair the completeness or truthfulness of the
testimony of the child.
(g) If the court orders the taking of testimony by live-link television:
(1) The child shall testify in a room separate from the courtroom in the presence
of the guardian ad litem; one or both of his support persons; the facilitator and
interpreter, if any; a court officer appointed by the court; persons necessary to
operate the closed-circuit television equipment; and other persons whose
presence are determined by the court to be necessary to the welfare and well-
being of the child;
(2) The judge, prosecutor, accused, and counsel for the parties shall be in the
courtroom. The testimony of the child shall be transmitted by live-link television
into the courtroom for viewing and hearing by the judge, prosecutor, counsel for
the parties, accused, victim, and the public unless excluded.
(3) If it is necessary for the child to identify the accused at trial, the court may
allow the child to enter the courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify the accused by observing
the image of the latter on a television monitor.
(4) The court may set other conditions and limitations on the taking of the

Evidence Page 262

 (4) The court may set other conditions and limitations on the taking of the
testimony that it finds just and appropriate, taking into consideration the best
interests of the child.
(h) The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject to a
protective order as provided in Section 31(b).
Sec. 26. Screens, one-way mirrors, and other devices to shield child from accused.—
(a) The prosecutor or the guardian ad litem may apply for an order that the chair of
the child or that a screen or other device be placed in the courtroom in such a manner
that the child cannot see the accused while testifying. Before the guardian ad litem
applies for an order under this Section, he shall consult with the prosecutor or counsel
subject to the second and third paragraphs of Section 25(a) of this Rule. The court
shall issue an order stating the reasons and describing the approved courtroom
arrangement.
(b) If the court grants an application to shield the child from the accused while
testifying in the courtroom, the courtroom shall be arranged to enable the accused to
view the child.
Sec. 27. Videotaped deposition.—
(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a
deposition be taken of the testimony of the child and that it be recorded and preserved
on videotape. Before the guardian ad litem applies for an order under this Section, he
shall consult with the prosecutor or counsel subject to the second and third
paragraphs of Section 25(a).
(b) If the court finds that the child will not be able to testify in open court at trial, it
shall issue an order that the deposition of the child be taken and preserved by
videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to
deposition testimony or evidence, or parts thereof, and the grounds for the objection
shall be stated and shall be ruled upon at the time of the taking of the deposition. The
other persons who may be permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by the court to be necessary to
the welfare and well-being of the child;
(6) One or both of his support persons, the facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape equipment.
(d) The rights of the accused during trial, especially the right to counsel and to
confront and cross-examine the child, shall not be violated during the deposition.
(e) If the order of the court is based on evidence that the child is unable to testify in
the physical presence of the accused, the court may direct the latter to be excluded
from the room in which the deposition is conducted. In case of exclusion of the
accused, the court shall order that the testimony of the child be taken by live-link
television in accordance with Section 25 of this Rule. If the accused is excluded from
the deposition, it is not necessary that the child be able to view an image of the
accused.
(f) The videotaped deposition shall be preserved and stenographically recorded. The
videotape and the stenographic notes shall be transmitted to the clerk of the court
where the case is pending for safekeeping and shall be made a part of the record.
(g) The court may set other conditions on the taking of the deposition that it finds just
and appropriate, taking into consideration the best interests of the child, the
constitutional rights of the accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be subject to a protective

Evidence Page 263

(h) The videotaped deposition and stenographic notes shall be subject to a protective
order as provided in Section 31(b).
(i) If, at the time of trial, the court finds that the child is unable to testify for a reason
stated in Section 25(f) of this Rule, or is unavailable for any reason described in
Section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into
evidence the videotaped deposition of the child in lieu of his testimony at the
trial. The court shall issue an order stating the reasons therefor.
(j) After the original videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly discovered evidence. The
court may order an additional videotaped deposition to receive the newly discovered
evidence.
Sec. 28. Hearsay exception in child abuse cases.— A statement made by a child
describing any act or attempted act of child abuse, not otherwise admissible under the
hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding
subject to the following rules:
(a) Before such hearsay statement may be admitted, its proponent shall make known
to the adverse party the intention to offer such statement and its particulars to
provide him a fair opportunity to object. If the child is available, the court shall,
upon motion of the adverse party, require the child to be present at the presentation
of the hearsay statement for cross-examination by the adverse party. When the child
is unavailable, the fact of such circumstance must be proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court shall consider
the time, content and circumstances thereof which provide sufficient indicia of
reliability. It shall consider the following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the declarant child
and witness;
(6) Cross-examination could not show the lack of knowledge of the declarant
child;
(7) The possibility of faulty recollection of the declarant child is remote; and
(8) The circumstances surrounding the statement are such that there is no
reason to suppose the declarant child misrepresented the involvement of the
accused.
(c) The child witness shall be considered unavailable under the following situations:
(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness,
or will be exposed to severe psychological injury; or
(2) Is absent from the hearing and the proponent of his statement has been
unable to procure his attendance by process or other reasonable means.
(d) When the child witness is unavailable, his hearsay testimony shall be admitted
only if corroborated by other admissible evidence.
Sec. 29. Admissibility of videotaped and audiotaped in-depth investigative or
disclosure interviews in child abuse cases.— The court may admit videotape and
audiotape in-depth investigative or disclosure interviews as evidence, under the
following conditions:
(a) The child witness is unable to testify in court on grounds and under conditions
established under Section 28 (c).
(b) The interview of the child was conducted by duly trained members of a
multidisciplinary team or representatives of law enforcement or child protective
services in situations where child abuse is suspected so as to determine whether child
abuse occurred.
(c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of all individuals present and

Evidence Page 264

 (c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of all individuals present and
at all times includes their images and voices;
(2) the statement was not made in response to questioning calculated to lead the
child to make a particular statement or is clearly shown to be the statement of
the child and not the product of improper suggestion;
(3) the videotape and audiotape machine or device was capable of recording
testimony;
(4) the person operating the device was competent to operate it;
(5) the videotape or audiotape is authentic and correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child shall be available at trial for
examination by any party. Before the videotape or audiotape is offered in evidence,
all parties shall be afforded an opportunity to view or listen to it and shall be
furnished a copy of a written transcript of the proceedings.
The fact that an investigative interview is not videotaped or audiotaped as required by
this Section shall not by itself constitute a basis to exclude from evidence out-of-court
statements or testimony of the child. It may, however, be considered in determining
the reliability of the statements of the child describing abuse.
.
Sec. 30. Sexual abuse shield rule.—
.
(a) Inadmissible evidence.— The following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse:
.
(1) Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
.
(2) Evidence offered to prove the sexual predisposition of the alleged victim.
.
(b) Exception.— Evidence of specific instances of sexual behavior by the alleged
victim to prove that a person other than the accused was the source of semen, injury,
or other physical evidence shall be admissible.
.
A party intending to offer such evidence must:
(1) File a written motion at least fifteen (15) days before trial, specifically
describing the evidence and stating the purpose for which it is offered, unless the
court, for good cause, requires a different time for filing or permits filing during
trial; and
(2) Serve the motion on all parties and the guardian ad litem at least three (3)
days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers and
afford the child, his guardian ad litem, the parties, and their counsel a right to attend
and be heard. The motion and the record of the hearing must be sealed and remain
under seal and protected by a protective order set forth in Section 31(b). The child
shall not be required to testify at the hearing in chambers except with his consent.
Sec. 31. Protection of privacy and safety.—
(a) Confidentiality of records.— Any record regarding a child shall be confidential
and kept under seal. Except upon written request and order of the court, a record
shall only be released to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court.

Evidence Page 265

 (6) Other persons as determined by the court.
(b) Protective order.— Any videotape or audiotape of a child that is part of the court
record shall be under a protective order that provides as follows:
(1) Tapes may be viewed only by parties, their counsel, their expert witness, and
the guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by any person mentioned in
Sub-section (a) to any other person, except as necessary for the trial.
(3) No person shall be granted access to the tape, its transcription or any part
thereof unless he signs a written affirmation that he has received and read a
copy of the protective order; that he submits to the jurisdiction of the court with
respect to the protective order; and that in case of violation thereof, he will be
subject to the contempt power of the court.
(4) Each of the tape cassettes and transcripts thereof made available to the
parties, their counsel, and respective agents shall bear the following cautionary
notice:
“This object or document and the contents thereof are subject to a protective
order issued by the court in (case title), (case number). They shall not be
examined, inspected, read, viewed, or copied by any person, or disclosed to any
person, except as provided in the protective order. No additional copies of the
tape or any of its portion shall be made, given, sold, or shown to any person
without prior court order. Any person violating such protective order is subject
to the contempt power of the court and other penalties prescribed by law.”
(5) No tape shall be given, loaned, sold, or shown to any person except as
ordered by the court.
(6) Within thirty (30) days from receipt, all copies of the tape and any
transcripts thereof shall be returned to the clerk of court for safekeeping unless
the period is extended by the court on motion of a party.
(7) This protective order shall remain in full force and effect until further order
of the court.
(c) Additional protective orders.— The court may, motu proprio or on motion of any
party, the child, his parents, legal guardian, or the guardian ad litem, issue additional
orders to protect the privacy of the child.
(d) Publication of identity contemptuous.— Whoever publishes or causes to be
published in any format the name, address, telephone number, school, or other
identifying information of a child who is or is alleged to be a victim or accused of a
crime or a witness thereof, or an immediate family of the child shall be liable to the
contempt power of the court.
(e) Physical safety of child; exclusion of evidence.— A child has a right at any court
proceeding not to testify regarding personal identifying information, including his
name, address, telephone numbe r, school, and other information that could endanger
his physical safety or his family. The court may, however, require the child to testify
regarding personal identifying information in the interest of justice.
(f) Destruction of videotapes and audiotapes.— Any videotape or audiotape of a child
produced under the provisions of this Rule or otherwise made part of the court record
shall be destroyed after five (5) years have elapsed from the date of entry of
judgment.
(g) Records of youthful offender.— Where a youthful offender has been charged
before any city or provincial prosecutor or before any municipal judge and the
charges have been ordered dropped, all the records of the case shall be considered as
privileged and may not be disclosed directly or indirectly to anyone for any purpose
whatsoever.
Where a youthful offender has been charged and the court acquits him, or dismisses
the case or commits him to an institution and subsequently releases him pursuant to
Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as
privileged and may not be disclosed directly or indirectly to anyone except to

Evidence Page 266

 privileged and may not be disclosed directly or indirectly to anyone except to
determine if a defendant may have his sentence suspended under Article 192 of P. D.
No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to
enforce his civil liability, if said liability has been imposed in the criminal action. The
youthful offender concerned shall not be held under any provision of law to be guilty
of perjury or of concealment or misrepresentation by reason of his failure to
acknowledge the case or recite any fact related thereto in response to any inquiry
made to him for any purpose.
“Records” within the meaning of this Sub-section shall include those which may be in
the files of the National Bureau of Investigation and with any police department
or government agency which may have been involved in the case. (Art. 200, P. D. No.
603)
Sec. 32. Applicability of ordinary rules.— The provisions of the Rules of Court on
deposition, conditional examination of witnesses, and evidence shall be applied in a
suppletory character.
Sec. 33. Effectivity.— This Rule shall take effect on December 15, 2000 following its
publication in two (2) newspapers of general circulation.

Pasted from <http://www.chanrobles.com/childwitnessexamination.htm>

Evidence Page 267

notes: last day…mamamatay na ako!!!
Thursday, October 15, 2009
6:31 PM
Rules on Electronic Evidence (REE)
Functional equivalence
Non-discrimination

Section 1: scope:
-electronic document (ED)
-electronic data message (EDM)

Section 2: cases covered

Civil actions
Civil proceedings
Quasi-judicial
Administrative

Section 3:
-Supplemented: by rules of court

When it comes to admissibility:

-still Rules of court

When it comes to AUTHENTICATION:

-REE

*but REE also provides rules of admissibility: BER

Functional equivalent doctrine:

Rule 4.1

Rule of non-discriminate: we don't discriminate: deemed to include an electronic document if refers to writing, document….
-still preserve privileged nature even if became electronic

ED vs. EDM
EDM: 4 verb, 3 adverb
ED: 7 verb, 1 adverb (electronically)

Rule 4: BER
R4.1: when regarded as functional equivalent:
*printout
*output readable by sight or other means + it could reflect the data accurately

Can the printout be also readable by sight…?

Oo. Basta dapat it must be something that must be READ = DOCUMENT (WRITTEN expression)

When you say writing, does it have to be in a piece of paper (printout and output)?
VAA: readable by sight or by other means
e.g. laptop screen, brail
…readable by your eyes

COPY equivalent of the original

*SAME IMPRESSION AS THE ORIGINAL
*SAME MATRIX
*BY MECAHNICAL/ELECTRONIC RERECORDING
*BY CHEMICAL REPRODUCTION
*BY OTHER EQUIVALENT TECHNIQUES WHICH ACCURATELY REPRODUCES THE ORIGINAL

Which one is broader:

EDM: Information - BROADER!!!
ED: Information and representation, provided…3 things it creates

e.g. the video of Hayden Kho in USB

-EDM
-is it ED? It can prove and affirm a fact
…that is why ED is interchangeable with EDM

No definition of what is electronic! MCC gives clues to what is electronic

MCC industrial Sales
F: original pro-forma invoices and photocopy of the invoice sent through fax by MCC (not paid by Samyong)

Evidence Page 268

 F: original pro-forma invoices and photocopy of the invoice sent through fax by MCC (not paid by Samyong)
-Samyong had 2 kinds of evidences: the originally faxed invoices and the photocopy - but they did not present both!!!
-when something is faxed to you, there's an "original" from the main source (the person who sent the information)
I: WON the fax copies (the ones received by Sanyong) are electronic documents under REE
(MCC argues that ephemeral electronic messages or communications include a telecopy, and those documents are telecopies)
VAA: Argument on it being ephemeral is out of place: it is not ephemeral!!!

H: FAX COPIES ARE NOT ELECTRONIC DATA MESSAGE NOR ELECTRONIC DOCuMENTS
Congress: wants the REE to cover paperless transactions
1. RA 8792: covers electronic commercial transaction
-this was discussed because the allegation was that this involved a electronic transaction
-discussion of history of the law: law is based on UNCITRAL MODEL LAW
-it was deleted, but was re-included in the IRR: (definition of a fax)
-but this was deleted in the REE!
Facsimile: tele-copy - you send a copy through a telephone line

What's wrong if the IRR included it back?

IRR should not go beyond the law it seeks to implement, therefore, VOID!

2. The law wanted to cover only paperless transactions

-facsimile machine:
*scan the image
*it would be transcoded through the modem
*then it would be sent using the cable
*the receiver would receive a printout

When it was scanned, in effect what did it do?

DIGITIZATION: converting the object scanned into bits and digits

"It works by digitizing an image—dividing it into a grid of dots. Each dot is either on or off, depending on whether it is black or white.
Electronically, each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine t ranslates a picture
into a series of zeros and ones (called a bit map) that can be transmitted like normal computer data. On the receiving side, a fax machine
reads the incoming data, translates the zeros and ones back into dots, and reprints the picture. A fax machine is essentially an image
scanner, a modem and a computer printer combined into a highly specialized package. "
-uses binary system
-the bits are the one transported through the phone line…

*the thing received in the other side was not ED , even if it became digitized…?
If you use a digital camera, it takes an image and stores it…
If you go through the ultrasound, whether you print the picture of the baby or not…
If you go through the scanner in the airport, nothing is inputted but there's a machine in a software
…all of these are EDs, but why are electronic and fax where not?
These all were created electronically. A fax came from the piece of paper, its contents were converted to digital information.
-it appears that if something from the outside world is recorded and digitized DIRECTLY to something, converted to bits etc, i t is ED. But if
it uses something like a paper to record the information or contents from the outside world, and then convert the information from the
medium, i.e. the paper, it is not ED…

VAA: does not think it's sound

e.g. if there's a tape and you record something from the radio in the tape, then convert it to digital file through wires bla h blah…
It appears that this is not an ED since you use a medium to record the information!!! (CONVERSION THEORY)

Strict interpretation of MCC: MCC only applies to pieces of paper because the aim of the law is to exclude paperless transactions from the
scope of the law...

Can the pro-forma invoice "copy" (the one received by Sanyong - court said that it was a copy because the original was in the Philippines)
be admissible under any other rule aside from REE?
VAA: still the original because it is what Ssanyong received! The issue is WHAT SSANYONG RECEIVED! The contents of what was r eceived!!!

Rule 5: Authentication of ED: "private electronic document" (not defined, so does this mean that if PUBLIC electronic document, no need
to authenticate? Why?)
1. Digitally signed: refers to system: ASSYMETRIC or PUBLIC CRYPTOSYSTEM
Is a Digital signature an electronic signature?
YES. Includes an electronic signature
-but sabi to authenticate, DIGITAL SIGNATURE LANG gagamitin!
Assymetric or public cryptosystem: two keys
-the system of DS implies sending: but do you have to send it for digital signature to appear?

Digital signature > applied to an electronic document through a PRIVATE KEY (applied from a certificate of authority)> then it is encrypted,
cannot be read WHY ENCRIPT? So that it would be secured when sent!!! How to decrypt it: by applying the PUBLIC KEY (which cor responds
to the private key; it is published in the website of the Certificate of Authority together with your name)

Evidence Page 269

 Assymetric: uses a key pair (private and public key)

Shell: the most basic computer in the computer network; from which the programs in the network…

2. Evidence that other appropriate security procedures or devices as may be AUTHORIZED BY THE SC
3. Evidence showing integrity and

RULE 8 - exception to hearsay…

What are business records
(b) "Business records" include records of any business, institution, association, profession, occupation, and calling of ever y kind, whether
or not conducted for profit, or for legitimate or illegitimate purposes.

Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses,
made by electronic, optical or other similar means
at or near the time of …
or from transmission or supply of information … (to whom? Interpretation 1: the encoder would provide the information…)
by a person with knowledge thereof, and

e.g. ENCODE
Secretary encoded the transaction between her boss and another businessman after the transaction
-she has personal knowledge of the transaction
-interpretation 1: the information was CREATED when the secretary encoded the document which became the business record. It
becomes hearsay because when the business record would be presented before the court, it is hearsay because the secretary is not
presented before the court

EMAIL
The sender of the email supplies the information. But the information is just temporarily supplied (when you're online).
So the email (the one online) is the evidence itself, you can present it before the court and it would be an exception to hea rsay

e.g. what about the receipt in a department store… pasok sha sa "at…the time of transaction"
- Could it be "near the time of the transaction" but if it is so, the encoder must be the one who was involved or who has knowl edge of the
transaction…

-the business record should be testified on by the CUSTODIAN or other QUALIFIED WITNESS

WHEN PRESUMPTION OVERCOME (sabi ni ma'am, should not be "presumption" but ADMISSIBILITY):
*source (the encoder/information-provider) is untrustworthy
*method or circumstances of preparation, transmission …

EXAMINATION OF WITNESS:
-possibility of a witness testifying electronically…
REQUIREMENTS OF AN ELECTRONIC TESTIMONY

Is an email document (not the email message)automatically an ED?

Under MCC, it is not: if it was scanned piece of paper or photograph! (as long as no conversion made)

Note: basta 2 theory under MCC

1. Paper-based theory: as long as it is paperbased…plus converted
2. Conversion theory (strict theory): as long as it is converted…

EPHEMERAL EVIDENCE
"Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, st reaming
video, and other electronic forms of communication the evidence of which is not recorded or retained.
Sa AUDIO, VIDEO and SIMILAR EVIDENCE:
-are these ELECTRONIC audio, video…
YES. Under REE eh…
• Why was it separately treated eh di naman pala ephemeral ang video and audio (kasi nga pede naman i -record eh)

VAA: Rule 11 gives you a rule with respect only to ephemeral evidence!!!
As long as video or audio are electronic, the rules of electronic document apply!

*technology develops so fast that REE becomes obsolete even before it was enforced!!!

NUEZ vs. APAO

-used text messages as evidence to show extortion

NPC vs. CODILLA

Evidence Page 270

 NPC vs. CODILLA
-photocopies are not electronic documents in REE
-photocopies of handwritten documents…
"By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically receiv ed, recorded,
transmitted, stored, processed, retrieved or produced. "
VAA: when you photocopy, exposure to light lang ng chemicals

RULE On EXAMINATION OF A CHILD WITNESS

-aims for the examination of the child witness to be child-friendly
*aids, courtroom procedure

Example of persons who would help the child

*Facilitator: pose questions to a child
*Interpreter
*Support person (maximum of 2)
*Guardian

Who must testify ahead?

If witness din sila: interpreter and support person

Techniques to help a child

1. Court atmosphere (SEC13)
2. Hearsay statement: basta may application
What form: in depth investigative interview…right after child abuse - not yet during a case...
(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding
conducted by duly trained members of a multi-disciplinary team or representatives of law
enforcement or child protective services for the purpose of determining whether child abuse has
been committed.
-hearsay…
3. Testimonial aids (SEC16)
4. Iba naman EMOTIONAL SECURITY ITEM
5. Leading questions allowed
6. Child allowed to narrate (narrative)

Sec30: Sexual abuse shield rule

a. Previous sexual behavior: part 2 of RIAA
b. Sexual predisposition: refers to promiscuity, liberated: prevent undue prejudice

DNA EVIDENCE
-establishes:
-IDENTITY
-Kinship

3 rules of Kinship
*If exclude the putative parent from paternity: CONCLUSIVE proof of non -paternity
*If DNA test results' value is less than 99.9%: CORROBORATIVE EVIDENCE of paternity
*If DNA test results' value is 99.9% or greater: DISPUTABLE presumption of paternity

DNA
-it is unique to a person
-biological sample: from an organic source (living part of your body)

DNA TESTING
GR: with court order
X: by government agencies
-post conviction DNA testing: only if it would result in the reversal or modification of the judgment of conviction

EXERCISES: The midterms!!!P was an abusive policeman who was also a wife -batterer. One day while his wife W was talking to Mrs. G on
the cellphone he barked his usual orders for an immediate meal. When he heard W murmur; ''O, mare sige na ang aga aga pero m ay
sumpong yata si compare me.' P slid into a fitful rage and pinted his gun at W, who then began to scream in terror. Begging P repeatedly
not to hurt her, not t shoot her, saying 'P maawa ka, wagg mo ko saktan, wag mo ko barilin' to which P heatedly responded wi th
recriminatins about her disloyal whistleblowing to G. Unbenknown to P, G was talking to W on her (G's) speakerphone, such th at her G's
law stydet daughter LS was hearing everything. LS immediately switched on her audio casstte recorder and caught the continui ng harange
on tape. Unfortunately in her panic W, tried to shield herself with her arms which P misinterpreted as intending to grapple with the gun
so he swung at the arms of W. The gun accidentlly went off, killing W instantly. LS shut off the tape at once and she rushe d to the
residence of P and W.
At the trial against P for murder, the prosecution was trying to present the testimony o G that W repeatedly begged in terror 'wag mo ko
saktan' to show P's intent to kill. However

1) The defense objects on the ground of hearsay in that W's words constitute an out of court statement, being offered by the person

Evidence Page 271

 1) The defense objects on the ground of hearsay in that W's words constitute an out of court statement, being offered by the person
other than the declarant to prove the truth of such statement. The prosecution replies that thyese are not hearsay in that they are
IRS as indicia of a state of mind of W. The defense argues that even if they show W's SOM, it is irrelevant/ Rule on defense
objections, prosecution replies, defense arguments
SOM so not hearsay
2) Assume that the facts are modified as follows: W in fact grappled with P for the gun because W thought P would shoot her thenW
accidentally shot P. At the trial W presents G and LS and the tape to show self-defense, will your answers change
For self-defense: should prove the existence of the gun, the provocation…
-hearsay sha basta, but would fall under RES GESTAE (both part 1 and 2)
3) Defense also objects on the ground of RIAA in that the rights of P may not be prejudiced by the extra-judicial declaration of W
RIAA does not apply because it doesn't involve an admission

2. In the middle of 2008, C semt 18 year old S a demand letter, askin ghte latter to vacate the apartelle unit that he S and his father F had
been occupuing for three years before F died in early 2007 for the reasn that F had already sold the same to him C since earl y 2006. In his
reply leteer, S stated that the alleged 2006 deed of sale is a forgery and tha the unit subject thereof was duly inherited by him.

C filed an action to recover possession based on the alleged sale, attaching an alleged copy thereof to the complaint, and pr esenting the
original of said alleged deed of sale during the pre -trial. In his answer, S specifically denied the athenticity and due execution of the said
deed under oath, alleging that the same was falsifified and that C is a liar. C died before the could testify.

Would you have any objection/ if at the trial.

a. W the wife if C comes home from abroad and testifies on the signature of C on the deed of sale as well as the payments she ma de thereon
to F
-no objections
-not under Marital privilege (130.22) nor 130.24
b. A notary public testifies, indentifying the signatures of C and F on the deed of sale
-notary public not covered by privileged communication prohibition under R130.24(b)

3. When A died, he left behind three minor legitimate children, W, X, and Y and on e adult illegitimate child Z. Z instituted sp ecial proceedgins
for the partition of A;s estate and, pendente lite, his appointment as administrator. W X Y opposed in their capacity as legi tiamte children.

Upon Z's presentation of evidence at the trial, W X Y objected to--

i. Any and all testimony from Z regarding any alleged extra0judicial act or declaration offered to show that Z was a'S illegitimate child by
reason of DMS
-DMS does not apply. Partition is not a "claim or demand" upon the estate of the deceased

ii. Testimony by D, lng time driver of A to the effect that one day in the recent past, during breakfast, A just bowed his head a nd remained
silent when his youngest child Y (whom Z admits in his pleadings is a legitimate child) confronted and asked him (a) whether or not it is
true that he A has an illegitimate child by the name of Z, on the ground that Rule 130.39 refers to acts declarations, not om issions, and
likewise invoking the requirements of evidence aliunde under the same rule.
-obiter: This rule is actually governed by admissions by silence "who does or says nothing"
-R130.39: does not apply because you must show evidence aliunde to show relationship before showing it…

On new year's eve, congressman V was a visitor in the household C. After downing several drinks, V became so unruly that he e nded up
smashing the crystal collection of C. It turned out that V had taken shabu earlier such that he was gloriously hihg.

Unfrotunaltely in his glorious rampage, V had cut himself with a 5000$ broken bottle in the neck, such that he was rshed to t he hospital.
Before the octor would sew his gaping wound, V had to tell the anaestjesiologist A that he had just imbibed drugs & alcohol. (samplex)
-already in the samplex. Would blacken the reputation…

Capt. Marlon Mendoza question… COMELEC Commissioner Virgilio Garcilliano during the 2004 pre -election period…
"Aprub na 'yong budget na P300 M na binigay ni Bong Pineda para siguraduhin ang panalo ni GMA"
If MM were to be presented by the prosecution in crresponding criminal cases agaisnt VG…would you object to its admissibility ?
SAGOT!!! It is an admission (the statement itself shows that he received something + act of toasting….)
-it the other officials were also impleaded, RIAA would apply but this would fall under exceptions: acts during the conspiracy !

Zuce example:
a. Hearsay but falls under exemption: R130.38 (declaration against interest - he would be liable for bribery) - In the case of Bernal, the victim
was the person whose interest was declared against!
-the testimony (declaration) is simply the mode by which you declare something against interest
VAA: hearsay under R130.38 also includes actions and documents, not only declarations

Accused A, B and C were detained at the city jail during their PI for illegal recruitment. While there, police got B and C to point to A as the
illegal recruier-employer, on which occasion, A just bowed his head and kept silent. At the trial, the prosecution will present B and C to
relate to the foregoing. Admissible?
Since PI, pede shang di magsalita because the accused has rights to remain silent during PI.

Evidence Page 272

Since PI, pede shang di magsalita because the accused has rights to remain silent during PI.

1.a. Right before one hearing during the trial itself, outside the courtroom, B and C again expressly pointed to A in front o f media
personnel, A simply turned away and avoided the cameras. Admissible?
Is this admission by silence? No. He is not bound to give a statement!

Accused A B and C were accused of murder. During trial, A sought and successfully got to be discharged as state witness, after executing
an affidavit… basta B and C who were impleaded in an affidavit
Affidavit was already done DURING TRIAL. You only need counsel during custodial investigation.
-hearsay ung affidavit, made out of court.
-RIAA: but conspiracy if proven should be an exception

#3: not valid, thus incompetent thus inadmissible

Note; only victim can invoke it

On ZONA:
-if search NOT in plain view: incompetent
If in plain view: fruit of the poisonous tree
If you were asked to sign the sachet, you are pinpointed so custodial investigation na.

On H and W carnival…C was made sisi…W had "confessed" that C killed H.

-not RIAA. W did not admit anything.
-if the affidavit presented, not W. Inadmissible. Hearsay.

Evidence Page 273