5-batch-evidence-complete.pdf

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.'

ESTRADA v. DESIERTO Nota Bene: This case is already the resolution no facts were further discussed in this case.

A man's acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.

ISSUE:

ADOPTIVE ADMISSION

WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;

Next, It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a party's reaction to a statement or action by another person when it is reasonable to treat the party's reaction as an admission of something stated or implied by the other person.

HELD: HEARSAY EVIDENCE Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence.

In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of "dignified exit or resignation." Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioner's silence on this and other related suggestions can be taken as an admission by him.

SC ruled that, we are unpersuaded. To begin with, the Angara Diary is not an out of court statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. The diary was attached as part of the annexes of Memorandum of private respondents Romeo T. Capulong. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part of the diary, published on February 5, 2001, and the third part, published on February 6, 2001. It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately failed to do so.

RES INTER ALIOS ACTA RULE Then, Petitioner further contends that the use of the Angara Diary against him violated the rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz:"The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided." Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent.

Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered by the hearsay rule. Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. There are three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2) absence of demeanor evidence, and (3) absence of the oath. Not all hearsay evidence, however, is inadmissible as evidence.

Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacañang Palace.Thus, according to the Angara Diary,the petitioner told Secretary Angara: "Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin." (Since the start of the campaign, Ed, you have been the only one I've listened to. And now at the end, you still are.)" This statement of full trust was made by the petitioner after Secretary Angara briefed him about the progress of the first negotiation.True to this trust, the petitioner had to ask Secretary Angara if he would already leave Malacañang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: "Ed, kailangan ko na bang umalis? (Do I have to leave now?)" Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in the crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is bound by the acts and declarations of Secretary Angara. Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal (petitioner).

A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him." It has long been settled that these admissions are admissible even if they are hearsay. This is because the party's declaration has generally the probative value of any other person's assertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the party's statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, the continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponent's own declaration, and 'he does not need to cross-examine himself.

INDEPENDENTLY RELEVANT STATEMENTS Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which

The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) are circumstantial evidence of the facts in issue. As aforediscussed, the Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioner's intent to resign. They are admissible and they are not covered by the rule on hearsay.

because, although he did not dissuade them, neither did he request his mother to talk to complainants in order to settle the case. After trial, the court convicted Godoy in both cases and imposed the capital punishment of death. By reason of the nature of the penalty imposed, these cases were elevated to the SC on automatic review.

PEOPLE v. GODOY

ISSUE:

FACTS:

Whether the offer to compromise, made in behalf and without the participation of Godoy, constituted as an implied admission of guilt.

Accused-appellant Danny Godoy was charged with rape and kidnapping with serious illegal detention. The complainant, Mia Taha, was her student in Physics at the Palawan National School (PNS).

HELD:

According to complainant Mia Taha, Godoy first raped her at the boarding house of her cousin Casantosan. She was very frightened because a knife was continually pointed at her. She also could not fight back nor plead with appellant not to rape her because he was her teacher and she was afraid of him. She was threatened not to report the incident to anyone or else she and her family would be killed.

NO, it did not constitute as an implied admission of guilt. The prosecution insists that the offer of compromise made by appellant is deemed to be an admission of guilt. This inference does not arise in the instant case. In criminal cases, an offer of compromise is generally admissible as evidence against the party making it. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, no compromise whatever may be entered into as regards the penal action. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom.

The following morning, January 22, 1994, Mia went home to her parents' house at Ipilan, Brooke's Point. Godoy arrived at the house of her parents and asked permission from the latter if he could accompany her to solicit funds because she was a candidate for "Miss PNS Pulot." When her parents agreed, she was constrained to go with Godoy. She was forced to ride the jeep because appellant threatened to kill her if she would not board the vehicle. The jeep drop them off at a hotel, Sunset Garden. She claims that she was constantly being raped in the hotel. The next morning Godoy brought her to the house of his friend at Edward's Subdivision where she was raped by him three times. She was likewise detained and locked inside the room and tightly guarded by appellant. After two days, or on January 27, 1994, they left the place because Godoy came to know that Mia had been reported and indicated as a missing person in the police blotter. They went to see a certain Naem from whom appellant sought help. On that same day, she was released but only after her parents agreed to settle the case with appellant.

A primary consideration here is that the evidence for the defense overwhelmingly proves appellant's innocence of the offense charged. Further, the supposed offer of marriage did not come from appellant but was actually suggested by a certain Naem, who is an imam or Muslim leader and who likewise informed appellant that he could be converted into a Muslim so he could marry complainant. As a matter of fact, when said offer was first made to appellant, he declined because of the fact that he was already married. On top of these, appellant did not know, not until the trial proper, that his mother actually paid P30,000.00 for the settlement of these cases. Complainant's own mother, Helen Taha, testified that present during the negotiations were herself, her husband, Mia, and appellant's mother. Appellant himself was never present in any of said meetings.

Later, Fruit Godoy, the wife of Godoy offered P50,000.00 for the settlement of the case. On their part, her husband insisted that they just settle, hence all three of them, Adjeril, Helen and Mia Taha, went to the Office of the Provincial Prosecutor where they met with the mother of appellant who gave them P30,000.00. Adjeril and Helen Taha subsequently executed an affidavit of desistance in Criminal Case No. 7687 for kidnapping pending in the prosecutor's office, which was sworn to before Prosecutor II Chito S. Meregillano. Helen Taha testified that she agreed to the settlement because that was what her husband wanted. Mia Taha was dropped from the school and was not allowed to graduate. Her father died two months later, supposedly because of what happened.

It has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution. In another case, this Court ruled that no implied admission can be drawn from the efforts to arrive at a settlement outside the court, where the accused did not take part in any of the negotiations and the effort to settle the case was in accordance with the established tribal customs, that is, Muslim practices and traditions, in an effort to prevent further deterioration of the relations between the parties.

Contentions of the Accused: Godoy claims that he and Mia were lovers, notwithstanding the fact that he was married. Several persons even witnessed this illicit relationship of Godoy and Mia.

PEOPLE v. DE GUZMAN

Godoy consulted a certain Naem who is an "imam." Naem suggested that appellant marry complainant in Muslim rites but appellant refused because he was already married. It was eventually agreed that Naem would just mediate in behalf of appellant and make arrangements for a settlement with Mia's parents. Later that day, Naem went to see the parents of Mia at the latter’s house.

FACTS: Gilda Ambray was on her way home from work. She was at the gate of Meadow Wood Sub., Bacoor, Cavite, around 8:45 p.m. waiting for a tricycle ride. She noticed the accused Gener De Guzman whom she recognized very well because the guardhouse was well-lit, and she had been a passenger before. She approached to asked him some questions. After asking questions, she left and started to walk. Gener then mounted his motorcycle and offered her a ride, to which she agreed. Gener then took the a

During his detention, he came to know, through his mother, that an affidavit of desistance was reportedly executed by complainants. However, he claims that he never knew and it was never mentioned to him, not until the day he testified in court, that his mother paid P30,000.00 to Mia's father

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) different route. Gilda noticed and this frightened her, but she concealed her fear. When they reached Phase II of the same subdivision, Gener told Gilda to push the tricycle. She alighted from the tricycle and walked. After taking only 10 steps, Gener hugged her from behind. She tried to shout but the Gener threatened her. He then dragged her to a vacant lot ten meters away from the unfinished house. Gil fought to free herself, but Gener push and slapped her. Here, Gener commanded her to raise her T-shirt, which she oblingingly followed out of fear. Gener removed her bra and started kissing her breast. Gil shouted for help again. She shouted "Saklolo! Tulungan ninyo ako," but the accused covered her mouth. Gener held her hand tightly and positioned himself on top of her. He unzipped her pants and pulled it down her knees. Gener then tried to insert his penis into her, but failed because she struggled and fought back. As Gilda became too weak to struggle, Gener was able to finally consummate his dastardly desire. He then pulled out his penis and "fingered" her private organ for a short while. When Gilda arrived home, she told her mother and her husband, Aquilino Flores Ambray, that she was raped by the accused, Gener.

to him during cross-examination. The re-direct examination serves the purpose of completing the answer of a witness, or of adding a new matter which has been omitted, or of correcting a possible misinterpretation of testimony. On direct examination, Gilda categorically declared that the accused tried to thrice insert his penis into her vagina. He failed in the first and second attempts because she struggled, but succeeded on the third because she was already weak. While it may be true that on cross-examination she testified that she was raped once, yet on re-direct examination she said that she was raped three times, no inconsistency at all may be deduced therefrom. There was merely confusion as to the legal qualification of the three separate acts, i.e., Gilda's answers were conclusions of law. A witness is not permitted to testify as to a conclusion of law, among which, legal responsibility is one of the most conspicuous. A witness, no matter how skillful, is not to be asked or permitted to testify as to whether or not a party is responsible to the law. Law in the sense here used embraces whatever conclusions belonging properly to the court.

She proceeded to the NBI for a medico-legal examination. Dr. Valentin Bernales, a medico-legal officer of the NBI, conducted the examination on Gilda. Dr. Bernales opined that the physical injuries sustained by Gilda resulted from force applied to her, while the presence of human spermatozoa in Gilda's genitals indicated recent sexual intercourse.

Moreover, she rejected the plea for forgiveness sought by the accused's parents, wife, and children, then suffered the travails of a public trial which necessarily exposed her to humiliation and embarrassment by unraveling the details of the rape and enduring a cross-examination which sought to discredit her. Any scintilla of doubt both as to the identification of the accused and as to his guilt was dissolved by the overtures of his parents, wife, children and sister-in-law on pleading for forgiveness from Gilda. The accused did not disown their acts, which were testified to by his kumadre, Resurreccion Talub Quiocho, and Gilda herself. He chose not to deny their testimony. Finally, despite the unequivocal pronouncement by the trial court that his guilt was "strongly established by the acts of his parents, wife and relatives, who had gone to the house of the victim to ask her forgiveness and to seek a compromise," the accused dared not assign that finding and conclusion as an error and his Appellant's Brief is conspicuously silent thereon. Indubitably then, the accused was a party to the decision to seek for forgiveness, or had prior knowledge of the plan to seek for it and consented to pursue it, or confirmed and ratified the act of his parents, wife, children and sister-in-law.

The trial court found the accused guilty beyond reasonable doubt of the crime of rape. It gave full gave weight to the testimony of Gilda Ambray because "without doubt, the complainant had endured the rigors of recalling her harrowing ordeal and had vividly, credibly and candidly portrayed in detail how she was raped by the accused. The accused appealed from the trial court's judgment of conviction. ISSUE: Whether Gilda’s testimony is credible, since only she and the accused witnessed the incident when it happened.

A plea for forgiveness may be considered as analogous to an attempt to compromise. In criminal cases, except those involving quasi-offense (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. No one would ask for forgiveness unless he had committed some wrong, for to forgive means to absolve, to pardon, to cease to feel resentment against on account of wrong committed; give up claim to requital from or retribution upon (an offender).

HELD: A meticulous assessment of Gilda's testimony demonstrates beyond doubt the truthfulness of her story, which she narrated in a categorical, straightforward and candid manner. Further strengthening her credibility in recounting her ordeal at the hands of the accused was her conduct immediately after the sexual assault. The quickness and spontaneity of these deeds manifested the natural reactions of a woman who had just undergone sexual molestation against herself, and evinced by her instant resolve to denounce the beast who criminally abused and ravished her, and to protect her honor.

SAN MIGUEL v. KALALO FACTS:

This Court has repeatedly held that no complainant would admit that she has been raped, make public the offense, allow the examination of her private parts, undergo the troubles and humiliation of public trial and endure the ordeal of testifying to all its gory details if she had not in fact been raped.

Respondent Kalalo has been a dealer of beer products of petitioner SMC. As respondent's business grew and the volume of deliveries increased, it became very difficult to keep track of the transactions between them. She requested regular statements of account from petitioner, but it failed to comply.

The accused's contention that it was highly incredible that there was force or intimidation since the assailant committed three acts of sexual intercourse with Gilda in three hours, deserves scant consideration. Gilda explained in her re-direct examination that the three hours mentioned in her crossexamination referred to the time which elapsed from the moment she was at the gate of Meadow Wood Subdivision and until she reported the incident to Tony Antonio. The principal object of re-direct examination is to prevent injustice to the witness and the party who has called him by affording an opportunity to the witness to explain the testimony given on cross-examination, and to explain any apparent contradiction or inconsistency in his statements, an opportunity which is ordinarily afforded

In 2000, SMC's agent required Kalalo to issue several post-dated checks to cope with the probable increase in orders during the busy Christmas season. Respondent complied with the request; but after making several cash payments and returning a number of empty beer bottles and cases, she noticed that she still owed petitioner a substantial amount. She insisted that SMC provide her with a detailed Statement of Account, but it failed to do so. To protect her rights, she ordered her bank to stop payment on the last 7 checks. SMC sent her a demand letter for the value of the dishonored checks amounting to

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) P921,215. In face of constant threats made by the agents of SMC, Kalalo's counsel submitted a proposal by way of Compromise Agreement to settle the said obligation.

with rashes on her thighs and stomach which she allegedly contracted from one of the children. AAA opened the envelope and counted fifteen (15) tablets inside.

It appears SMC did not accept the proposal. It filed a complaint against respondent for violating the Bouncing Checks Law. During trial, after tallying all cash payments and funded checks and crediting all returned empty bottles and cases, the Statement of Account showed that the net balance owed to petitioner was P71,009. The MeTC rendered a decision ordering respondent to pay to petitioner P71,009. Petitioner appealed the civil aspect of the decision claiming that it is entitled to the larger amount of P921,215.

As instructed by appellant, AAA took all the tablets. A few minutes later, she felt weak and fell down. Suddenly, she realized that appellant was dragging her to the spouses' bed and armed with a hunting knife, raped her there. Appellant threatened to kill her should she report the incident to her parents. AAA did not say a word about the incident. She continued serving the Yparraguirres for one month before leaving them to return to her mother's house in Barrio YYY. Her mother found AAA in a state of shock. She was brought to the Municipal Health Officer by her mother for examination. Upon the Municipal Health Officer's advice, AAA was confined at the Davao City Mental Hospital for observation and treatment. After a week of treatment, AAA began to talk and revealed that she was raped by appellant.

Petitioner's argument: Respondent unequivocally admitted her liability to SMC duly assisted by her counsel in her offer of Compromise Agreement. Respondent's Offer of Compromise may be received in evidence as an implied admission of guilt. ISSUE:

Accused-appellant pled not guilty to the crime charged. He claimed that on the night of the alleged rape he was selling fish at the public market.

Whether the Offer of Compromise can be admitted as evidence of Kalalo's unequivocal admission of her liability to SMC

The trial court found accused-appellant guilty and sentenced him to reclusion perpetua.

HELD:

ISSUES:

NO. The letter does not contain an express acknowledgment of liability. At most, it was an acknowledgment of receipt of the statement of account.

I. Whether the accused is guilty of the crime of rape. II. Whether the offer of the wife of the accused to the victim’s mother to drop the case can be used as evidence.

The fact that respondent made a compromise offer to petitioner cannot be considered as admission of liability. As the Court explained in the case of Pentagon Steel Corporation v CA, that since the law favors settlement of controversies out of court, a person is entitled to "buy his or her peace" without danger of being prejudiced in case his or her efforts fail. Offers for compromise are irrelevant because they are not intended as admissions by parties making them. It is made with a view to avoid controversy and save the expense of litigation.

HELD: I. YES, the accused is guilty of rape. The prosecution evidence rests mainly on the testimony of AAA which is credible, reliable and trustworthy. AAA testified in a straightforward, spontaneous and candid manner and never wavered even on cross-examination and rebuttal. The inconsistencies in her testimony are minor which tend to buttress, rather than weaken, the conclusion that her testimony was not contrived.

Respondent’s Offer of Compromise may not be received in evidence as admission of guilt. Sec 27, Rule 130 of the Revised Rules on Evidence provides:

The delay in filing the complaint does not in any way affect AAA's credibility. She was afraid of appellant's threat to her life. The complaint was filed three months after AAA told her mother of the incident, and three months is not too long a period to file a complaint for rape.

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 compromise by the accused may be received in evidence as an implied admission of guilt.

AAA was a seventeen-year old barrio lass and a high school dropout. She was also the breadwinner of the family. It is hard to believe that AAA would fabricate a story of defloration, open herself to public trial and place her family, who depended on her, in a very humiliating and compromising situation for no reason at all.

In this case, the Offer of Compromise was made prior to the filing of the criminal complaint against her. The Offer of Compromise was clearly not made in the context of a criminal proceeding, and therefore, cannot be considered as an implied admission of guilt.

II. YES, the compromise offer can be used as evidence. There is evidence that after AAA revealed the rape to her mother, appellant's wife, Mary Ann Yparraguirre, offered the victim's mother money to dissuade her from filing the complaint.

PEOPLE v. YPARRAGUIERRE FACTS:

As pointed out by appellant, no criminal complaint had been filed at the time the compromise offer was made. Nevertheless, the rape incident was already known to appellant's wife. Mary Ann herself testified that BBB told her about it on November 3, 1990, the day when Mary Ann first offered the money.

Accused-appellant Crispin Yparraguirre was charged with the crime of rape. The prosecution established that AAA was a housemaid of appellant and his wife; AAA was cooking porridge for the spouses' two children. Accused-appellant arrived from work and found the two children asleep. He approached AAA and gave her a small white envelope said to contain medicine for her skin disease. AAA was afflicted

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) An offer to compromise does not require that a criminal complaint be first filed before the offer can be received in evidence against the offeror. What is required is that after committing the crime, the accused or his representative makes an offer to compromise and such offer is proved.

NO. We agree with petitioner's contention that, for a perfected contract of sale or contract to sell to exist in law, there must be an agreement of the parties, not only on the price of the property sold, but also on the manner the price is to be paid by the vendee.

The positive identification of accused-appellant as the rapist prevails over his defense of alibi. It was not physically impossible for appellant to have been at the scene of the crime. The public market was merely a ten-minute walk from their rented room and during work breaks, appellant would sometimes go home to bring food to his children.

There is no factual and legal basis for the CA ruling that, based on the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and the other lot buyers, respondents were obliged to pay the P278,448.00 with pre-computed interest of 12% per annum in 120-month installments.

BANK OF COMMERCE v. MANALO

Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the "corresponding contract of conditional sale" were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque. They likewise failed to prove such allegation in this Court.

FACTS: XEI, as vendor, and The Overseas Bank of Manila (OBM), as vendee, executed a "Deed of Sale of Real Estate" over some residential lots in the subdivision, including Lot 1, Block 2 and Lot 2, Block 2. The transaction was subject to the approval of the Board of Directors of OBM. Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM. XEI contracted Manalo’s services who was engaged in the business of drilling deep water wells and installing pumps, to install a water pump at Ramos’(President of XEI) residence.

The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties.

Manalo then proposed to XEI, through Ramos, to purchase a lot in, and offered as part of the downpayment the P34, 887.66 owed him to which XEI through Ramos agreed. Manalo spouses then chose to reserve Lots1 and 2 which was confirmed by Ramos.

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 a 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.

They then agreed on a price and the proper downpayment. A corresponding Contract of Conditional Sale would then be signed on or before December 31, 1972, but if the selling operations of XEI will resume after December 31, 1972, the balance of the down payment would fall due then, and the spouses would sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling operations. However, they failed to agree on the terms of payment (mode and timeline of payment).

However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question.

When the present owner of the properties refused to honor the earlier contract between spouses Manalo and XEI, Manalo instituted an action for specific performance. In its Answer to the complaint, the defendant claimed that it had no record of any contract to sell executed by it or its predecessors.

Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prove that the trial court admitted the said deeds as part of the testimony of respondent Manalo, Jr.

During the trial, the plaintiffs adduced in evidence the separate Contracts of Conditional Sale executed between XEI and Alberto Soller; Alfredo Aguila, and Dra. Elena Santos-Roque to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots. RTC ruled in favor of Manalo spouses. On appeal, the CA affirmed the RTC decision and agreed to the existence of the contract to sell. Boston Bank filed a motion for the reconsideration of the decision alleging that there was no perfected contract to sell the two lots, as there was no agreement between XEI and the respondents on the manner of payment as well as the other terms and conditions of the sale. However, the appellate court denied the motion.

Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion.

ISSUE: Whether petitioner or its predecessors-in-interest, the XEI or the OBM, as seller, and the respondents, as buyers, forged a perfect contract to sell over the property; HELD:

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) (B) Whether AAVA would be bound by admissions made by ALI based on alleged acts in (3) and (4) above.

THE LEARNING CHILD v. AYALA ALABANG Theme: Admission by a co-partner or agent (e.g. “other person jointly interested with the party”)

HELD:

FACTS:

(A)

These are consolidated cases concerning a parcel of land sold by Ayala Land, Inc. (ALI) which was eventually transferred to the herein Spouses Alfonso. A Deed of Restrictions was annotated in the title to the land issued to the spouses Alfonso, as had been required by ALI, which indicated that: 2.2 USE AND OCCUPANCY - The property shall be used exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school, which may include such installations as an office for school administration, playground and garage for school vehicles.

NO. As to alleged acts stated in (1) and (2), cannot be interpreted as a form of estoppel. As previously mentioned, the two-classroom restriction is not imposed in the Deed of Restrictions but rather in MMC Ordinance No. 81-01. The alleged assent of AAVA to the construction of additional classrooms is not at all inconsistent with the provisions of the Deed of Restrictions, which merely limit the use of the subject property "exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school...." The circumstances around the enumerated acts of AAVA also show that there was no intention on the part of AAVA to abrogate the Deed of Restrictions nor to waive its right to have said restrictions enforced. Frank Roa’s signature in the Site Development Plan came with the note: "APPROVED SUBJECT TO STRICT COMPLIANCE OF CAUTIONARY NOTICES APPEARING ON THE PLAN AND TO RESTRICTIONS ENCUMBERING THE PROPERTY REGARDING THE USE AND OCCUPANCY OF THE SAME."

ALI turned over the right and power to enforce the restrictions on the properties in the Ayala Alabang Village, including the above restrictions, to the association of homeowners therein called the Ayala Alabang Village Association (AAVA). In 1989, the spouses Alfonso opened The Learning Child Center Pre-school (TLC) on the lot, a preparatory school which initially consisted of nursery and kindergarten classes. However, TLC was subsequently expanded to include a grade school program, the School of the Holy Cross, which provided additional grade levels as the pupils who initially enrolled advanced.

The Site Development Plan itself was captioned "The LEARNING CHILD PRE-SCHOOL," showing that the approval was for the construction of a pre-school, not a grade school. AAVA’s letter dated March 20, 1996 contained an even more clear cut qualification; it expressly stated that the approval is "subject to the conditions stipulated in the Deed of Restrictions covering your above-mentioned property, which states, among others, that the property shall be used exclusively for the establishment and maintenance thereon of a PREPARATORY (NURSERY AND KINDERGARTEN) SCHOOL."

AAVA protested against this development and wrote the TLC and the spouses Alfonso, requesting them to comply with the Deed of Restriction, ordering them to desist from operating the grade school and from operating the preparatory school in excess of the two classrooms allowed by MMC Ordinance No. 81-01.

(B)

TLC and the spouses Alfonso’s main argument against the enforcement of the Deed of Restrictions on their property is that AAVA had allegedly set aside the said restriction by different admissions and by virtue of the doctrine of estoppel through the following acts:

YES, ALI’s statements if damaging would be binding on AAVA. ALI is jointly interested with AAVA in an action to enforce the Deed of Restrictions, and is therefore covered under the following exception to the res inter alios acta rule: 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.

1. AAVA Village Manager Frank Roa admitted before the trial court that AAVA had previously approved the proposed construction of a school building with 24 classrooms, which approval is further evidenced by a stamp mark of AAVA on the Site Development Plan with the signature of Frank Roa himself. 2. While the case was submitted for resolution with the CA, AAVA, through its president Jesus M. Tañedo, authorized through a letter the construction of a new "school building extension."

The Deed of Restriction expressly states that: "compliance with the said restrictions… may be enjoined and/or enforced by Court action by Ayala Corporation [refers to ALI] and/or the Ayala Alabang Village Association, their respective successors and assigns, or by any member of the Ayala Alabang Village Association." Thus, ALI is a person jointly interested with the party (AAVA).

3. ALI itself requested the reclassification of the subject property as institutional, as allegedly proven by the testimony of then Municipal Planning and Development Officer Engineer Hector S. Baltazar 4. ALI assented to the reclassification of the subject property to institutional, as shown by its letter dated July 24, 1991.

NONETHELESS, the acts of ALI are not at all damaging to the position of AAVA. The act in number (3) concerns the alleged assent of ALI to the reclassification of the subject property as institutional which, as already ruled, does not amount to a nullification of the Deed of Restrictions. As regards the act in number (4), the statement in ALI’s July 24, 1991 letter that it believes the expansion of TLC is a "worthy undertaking," ALI’s purported assent came with

ISSUES: (A) Whether AAVA is estopped in enforcing the Deed of Restrictions based on the alleged acts on (1) and (2) above.

6

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) conditions: i.e. that the concurrence of not only the AAVA Board but also of the residents of the Village be also sought. However, majority of AAVA’s members voted to ratify the Board of Governors’ resolutions that the Deed of Restrictions should be upheld. Therefore, the conditions for ALI’s approval of the alteration of the Deed of Restrictions, namely the concurrence of the AAVA Board and the approval of the affected residents of the village, were clearly not met.

the Philippines. They asserted that though MBMI owns 40% of the shares of PLMC (which owns 5,997 shares of Narra), 40% of the shares of MMC (which owns 5,997 shares of McArthur) and 40% of the shares of SLMC (which, in turn, owns 5,997 shares of Tesoro), the shares of MBMI will not make it the owner of at least 60% of the capital stock of each of petitioners. They added that the best tool used in determining the nationality of a corporation is the "control test," embodied in Sec. 3 of RA 7042 or the Foreign Investments Act of 1991.

Thus, the “admissions” of ALI did not affect AAVA as contemplated under the exceptions of the res inter alios acta rule.

POA issued a Resolution disqualifying petitioners from gaining MPSAs. Aggrieved by the Resolution and Order of the POA, McArthur and Tesoro filed a joint Notice of Appeal and Memorandum of Appeal with the Mines Adjudication Board (MAB) while Narra separately filed its Notice of Appeal and Memorandum of Appeal.

NOTE: The main issue in the case is not evidence-related. The decision discussed the conflict between the non-impairment clause (the conditions imposed in the Deed of Restriction in this case) and the exercise of police power by the state (exercised through the Municipality of Muntinlupa in reclassifying the land into “institutional” which was argued to have made the conditions in the Deed ineffectual). But just in case it will be asked during the recitations, in summary, the Court held that as much as possible, both must be reconciled. If it is possible to give effect to both, such as when the exercise of police power through a zoning ordinance was not meant to affect the existing property rights of the parties, then reconciliation should be done. But if they are really inconsistent with each other, the valid exercise of police power must be upheld even if it works to affect obligations and legal relations between the parties in violation of the non-impairment clause.

The MAB issued an Order finding the appeal meritorious and reversed and set aside the Resolution of the Panel of Arbitrators. The CA rendered a Decision, the dispositive of which reads: The findings of the Panel of Arbitrators of the Department of Environment and Natural Resources that respondents McArthur, Tesoro and Narra are foreign corporations is upheld and, therefore, the rejection of their applications for Mineral Product Sharing Agreement should be recommended to the Secretary of the DENR. In determining the nationality of petitioners, the CA looked into their corporate structures and their corresponding common shareholders. Using the grandfather rule, the CA discovered that MBMI in effect owned majority of the common stocks of the petitioners as well as at least 60% equity interest of other majority shareholders of petitioners through joint venture agreements. The CA found that through a "web of corporate layering, it is clear that one common controlling investor in all mining corporations involved x x x is MBMI." Thus, it concluded that petitioners McArthur, Tesoro and Narra are also in partnership with, or privies-in-interest of, MBMI.

NARRA NICKEL v. REDMONT CONSOLIDATED FACTS: Respondent Redmont Consolidated Mines Corp. (Redmont), a domestic corporation organized and existing under Philippine laws, took interest in mining and exploring certain areas of the province of Palawan. After inquiring with the DENR, it learned that the areas where it wanted to undertake exploration and mining activities where already covered by Mineral Production Sharing Agreement (MPSA) applications of petitioners Narra, Tesoro and McArthur.

Petitioner’s contention: Petitioners question the CA’s use of the exception of the res inter alios acta or the "admission by copartner or agent" rule and "admission by privies" under the Rules of Court in the instant case, by pointing out that statements made by MBMI should not be admitted in this case since it is not a party to the case and that it is not a "partner" of petitioners.

Redmont filed before the Panel of Arbitrators (POA) of the DENR three (3) separate petitions for the denial of petitioners’ applications for MPSA. In the petitions, Redmont alleged that at least 60% of the capital stock of McArthur, Tesoro and Narra are owned and controlled by MBMI Resources, Inc. (MBMI), a 100% Canadian corporation. Redmont reasoned that since MBMI is a considerable stockholder of petitioners, it was the driving force behind petitioners’ filing of the MPSAs over the areas covered by applications since it knows that it can only participate in mining activities through corporations which are deemed Filipino citizens. Redmont argued that given that petitioners’ capital stocks were mostly owned by MBMI, they were likewise disqualified from engaging in mining activities through MPSAs, which are reserved only for Filipino citizens.

Petitioners claim that before the above-mentioned Rule can be applied to a case, "the partnership relation must be shown, and that proof of the fact must be made by evidence other than the admission itself."49 Thus, petitioners assert that the CA erred in finding that a partnership relationship exists between them and MBMI because, in fact, no such partnership exists. Petitioners claim that the CA erred in applying Sec. 29, Rule 130 of the Rules by stating that "by entering into a joint venture, MBMI have a joint interest" with Narra, Tesoro and McArthur. They challenged the conclusion of the CA which pertains to the close characteristics of "partnerships" and "joint venture agreements." Further, they asserted that before this particular partnership can be formed, it should have been formally reduced into writing since the capital involved is more than three thousand pesos (PhP 3,000). Being that there is no evidence of written agreement to form a partnership between petitioners and MBMI, no partnership was created.

In their Answers, petitioners averred that they were qualified persons under Section 3(aq) of Republic Act No. (RA) 7942 or the Philippine Mining Act of 1995 which provided: “… Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit…” Additionally, they stated that their nationality as applicants is immaterial because they also applied for Financial or Technical Assistance Agreements (FTAA) for Tesoro and Narra, which are granted to foreignowned corporations. Nevertheless, they claimed that the issue on nationality should not be raised since McArthur, Tesoro and Narra are in fact Philippine Nationals as 60% of their capital is owned by citizens of

ISSUE: The Court of Appeals erred when it applied the exceptions to the res inter alios acta rule.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) HELD:

Elsa was wounded when she bowed her head to avoid the tear gas. Col then instructed her to open the vault of the pawnshop but Elsa informed him that she does not know the combination lock. Elsa tried offering him money but Col dragged her towards the back door by holding her neck and pulling her backward. Before they reached the door, Elsa saw Bokingco open the screen door and heard him tell Col: "tara, patay na siya." Col immediately let her go and ran away with Bokingco. Elsa proceeded to Apartment No. 3. Thereat, she saw her husband lying on the floor, bathed in his own blood.

NO. A partnership is defined as two or more persons who bind themselves to contribute money, property, or industry to a common fund with the intention of dividing the profits among themselves. On the other hand, joint ventures have been deemed to be "akin" to partnerships since it is difficult to distinguish between joint ventures and partnerships. Thus: [T]he relations of the parties to a joint venture and the nature of their association are so similar and closely akin to a partnership that it is ordinarily held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to and substantially the same, if not exactly the same, as those which govern partnership. In fact, it has been said that the trend in the law has been to blur the distinctions between a partnership and a joint venture, very little law being found applicable to one that does not apply to the other.

Bokingco admitted that he conspired with Col to kill Pasion and that they planned the killing several days before because they got "fed up" with Pasion. Bokingco defended himself by saying that Pasion who was drunk at the time went to his room and asked him aws he was not at the construction site, he said he just stayed at his room for the whole day prompting Pasion to hit him in the head. This caused Bokingco to take a hammer and hit Pasion. He then fled the scene and was captured in Mindanao. He admitted that he harbored ill-feelings against Pasion.

Though some claim that partnerships and joint ventures are totally different animals, there are very few rules that differentiate one from the other; thus, joint ventures are deemed "akin" or similar to a partnership. In fact, in joint venture agreements, rules and legal incidents governing partnerships are applied.

Col confirmed that he was one of the construction workers employed by Pasion. He however resigned on 26 February 2000 because of the deductions from his salary. He went home to Cainta, Rizal, where he was apprehended and brought to Camp Olivas. Upon reaching the camp, he saw Bokingco who pointed to him as the person who killed Pasion. He insisted that he doesn’t know Bokingco very well.

Accordingly, culled from the incidents and records of this case, it can be assumed that the relationships entered between and among petitioners and MBMI are no simple "joint venture agreements." As a rule, corporations are prohibited from entering into partnership agreements; consequently, corporations enter into joint venture agreements with other corporations or partnerships for certain transactions in order to form "pseudo partnerships."

Trial court found the two guilty of murder with the presence of two aggravating circumstance of NIGHTTIME and ABUSE OF CONFIDENCE. Penalty given was death. Court of Appeals affirmed the ruling. There sentence was downgraded to reclusion perpetua ISSUE:

Obviously, as the intricate web of "ventures" entered into by and among petitioners and MBMI was executed to circumvent the legal prohibition against corporations entering into partnerships, then the relationship created should be deemed as "partnerships," and the laws on partnership should be applied. Thus, a joint venture agreement between and among corporations may be seen as similar to partnerships since the elements of partnership are present.

1) Whether the qualifying circumstances were properly appreciated to convict appellant Bokingco of murder and 2) Whether appellant Col is guilty beyond reasonable doubt as a co-conspirator.

Considering that the relationships found between petitioners and MBMI are considered to be partnerships, then the CA is justified in applying Sec. 29, Rule 130 of the Rules by stating that "by entering into a joint venture, MBMI have a joint interest" with Narra, Tesoro and McArthur.

HELD: There is no question that Bokingco attacked and killed Pasion. Bokingco made two (2) separate and dissimilar admissions: first, in his extrajudicial confession taken during the preliminary investigation where he admitted that he and Col planned the killing of Pasion; and second, when he testified in open court that he was only provoked in hitting Pasion back when the latter hit him in the head. On the basis of his extrajudicial confession, Bokingco was charged for murder qualified by evident premeditation and treachery.

PEOPLE v. BOKINGCO FACTS: The accused Bokingco and Col killed Noli Pason (Noli) using a claw hammer with treachery and evident premeditation. Bokingco enetered a guilty plea while Col opted for a not guilty plea. Bokingco confessed to the crime during the pre-trial.

Discussion on Treachery For treachery to be appreciated, the prosecution must prove that at the time of the attack, the victim was not in a position to defend himself, and that the offender consciously adopted the particular means, method or form of attack employed by him. Nobody witnessed the commencement and the manner of the attack. While the witness Vitalicio managed to see Bokingco hitting something on the floor, he failed to see the victim at that time. Bokingco admitted in open court that he killed Pasion. Treachery cannot be appreciated to qualify the crime to murder in the absence of any proof of the manner in which the aggression was commenced.

Pasion was the employer of the killers. He employed them to construct an apartment building, Dante Vitalico was the brother in law of Pasion. He was a witness to the crime and was himself attacked by Bokingco but was able to save himself with the help of another worker. Both victims were brought to the hospital but Pasion already expired. Elsa the wife of Pasion testified that she was in the master’s bedroom on the second floor of the house when she heard banging sounds and her husband’s moans. She immediately got off the bed and went down. Before reaching the kitchen, Col blocked her way. Elsa asked him why he was inside their house but Col suddenly ran towards her, sprayed tear gas on her eyes and poked a sharp object under her chin.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) As to Evident Premeditation

and conclusions are not supported by the evidence on record, or 2) when certain facts of substance and value likely to change the outcome of the case have been overlooked by the lower court, or 3) when the assailed decision is based on a misapprehension of facts. The second exception obtains in this case.

To warrant a finding of evident premeditation, the prosecution must establish the confluence of the following requisites: (a) the time when the offender was determined to commit the crime; (b) an act manifestly indicating that the offender clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. It is indispensable to show how and when the plan to kill was hatched or how much time had elapsed before it was carried out. In the instant case, no proof was shown as to how and when the plan to kill was devised. Bokingco admitted in court that he only retaliated when Pasion allegedly hit him in the head. Despite the fact that Bokingco admitted that he was treated poorly by Pasion, the prosecution failed to establish that Bokingco planned the attack.

Indeed, in order to convict Col as a principal by direct participation in the case before us, it is necessary that conspiracy between him and Bokingco be proved. As a rule, conspiracy must be established with the same quantum of proof as the crime itself and must be shown as clearly as the commission of the crime. The finding of conspiracy was premised on Elsa’s testimony that appellants fled together after killing her husband and the extrajudicial confession of Bokingco. Nobody witnessed the commencement of the attack. Col was not seen at the apartment where Pasion was being attacked by Bokingco. In fact, he was at Elsa’s house and allegedly ordering her to open the pawnshop vault,

Happening during the preliminary investigation. Based on the testimony of Elsa, Col sprayed something in her eye when she ran to check what was making a strange sound in the masters bedroom. She was then asked to give the password of the vault and a sharp object was poked under her chin. At most, Col’s action can be equated as attempted robbery. Elsa testified that she heard Bokingco call out to Col that Pasion had been killed and that they had to leave the place. This does not prove that they acted in concert towards the consummation of the crime. It only proves, at best, that there were two crimes committed simultaneously and they were united in their efforts to escape from the crimes they separately committed.

It was during the preliminary investigation that Bokingco mentioned his and Col’s plan to kill Pasion. Bokingco’s confession was admittedly taken without the assistance of counsel in violation of Section 12, Article III of the 1987 Constitution, which provides: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco had already killed Pasion even before he sought Col. Their moves were not coordinated because while Bokingco was killing Pasion because of his pent-up anger, Col was attempting to rob the pawnshop.1

xxxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Rule in Evidence In as much as Bokingco’s extrajudicial confession is inadmissible against him, it is likewise inadmissible against Col, specifically where he implicated the latter as a cohort. Under Section 28, Rule 130 of the Rules of Court, the rights of a party cannot be prejudiced by an act, declaration or omission of another. Res inter alios acta alteri nocere non debet. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused, and is considered as hearsay against them.

In the instant case, the extrajudicial confession is inadmissible against Bokingco because he was not assisted at all by counsel during the time his confession was taken before a judge. The finding that nighttime attended the commission of the crime is anchored on the presumption that there was evident premeditation. Having ruled however that evident premeditation has not been proved, the aggravating circumstance of nighttime cannot be properly appreciated. There was no evidence to show that Bokingco purposely sought nighttime to facilitate the commission of the offense.

An exception to the res inter alios acta rule is an admission made by a conspirator. Section 30, Rule 130 of the Rules of Court provides that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against the co-conspirator provided that the conspiracy is shown by evidence other than by such act or declaration.49 In order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that first, the conspiracy be first proved by evidence other than the admission itself; second, the admission relates to the common object; and third, it has been made while the declarant was engaged in carrying out the conspiracy. As we have previously discussed, we did not find any sufficient evidence to establish the existence of conspiracy. Therefore, the extrajudicial confession has no probative value and is inadmissible in evidence against Col.

Abuse of confidence could not also be appreciated as an aggravating circumstance in this case. Taking into account that fact that Bokingco works for Pasion, it may be conceded that he enjoyed the trust and confidence of Pasion. However, there was no showing that he took advantage of said trust to facilitate the commission of the crime. Ruling on Bokingco (downgraded to Homicide) A downgrade of conviction from murder to homicide is proper for Bokingco for failure of the prosecution to prove the presence of the qualifying circumstances.

Bokingco’s judicial admission exculpated Col because Bokingco admitted that he only attacked Pasion after the latter hit him in the head.

Ruling as to Col (Acquitted)

All told, an acquittal for Col is in order because no sufficient evidence was adduced to implicate him.

The trial court pinned Col as conspirator. This Court is well aware of the policy to accord proper deference to the factual findings of the trial court, owing to their unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude under grueling examination. However, this rule admits of exceptions, namely: 1) when the trial court’s findings of facts

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) CITY OF MANILA v. DEL ROSARIO

GEVERO v. IAC

FACTS:

FACTS:

This case is about an action to recover the possession of two lots in Tondo currently occupied by defendants, del Rosario. The City of Manila introduced oral evidence to prove that they own the lots.

Del Monte Corporation acquired a parcel of land, Lot No. 2476, from Luis Lancero in September 15 1964, evidenced by a Deed of Absolute Sale. Before that Luis had acquired the property from Ricardo Guerero, also evidenced by a Deed of Sale executed by the latter. The sale was annotated on the certificate of title covering the said parcel of land. The lot, at that time was named under Teodorica Babangha, the mother of Ricardo, and her six children, including Ricardo.

The first witness testified that he did not know if the land belonged to the city. The second witness said that land was formerly part of Plaza Divisoria which belonged to the Central Government (not the city) and he did not know who owns it now. The third witness, Villegas, testified that the land belonged to the city and was previously part of the Gran Divisoria. He learned this information from the oldest residents of that part of the city. The fourth witness, Roco, testified Lorenzo del Rosario had paid 100 pesos to his brother (Roco’s). It appeared that Lorenzo sold it to defendant Jacinto.

When Teodorica died in 1966 (already after the sale of Luis to Del Monte), her heirs instituted partition proceedings on the subject property. The result was that that the subject property was divided among the heirs including Ricardo. Del Monte filed a petition for quieting of title and/or annulment of partition contending that they are the owners of the land in question and that the partition has prejudiced their right over the land. They said that they checked the title of Luis Lancero in the Register of Deeds and found that it was intact. Del Monte claims it is a buyer in good faith.

The other two witnesses, Modesto Reyes and Lorenzo del Rosario said nothing as to the ownership of the land as they simply testified as to the authenticity of some of the documents. Lorenzo del Rosario admitted the authenticity of the two documents containing the offer to purchase the land from the city. He admitted that he signed the first document which consisted the offer because he thought that the land was owned by the city. However, he was informed that the land was owned by Roco. He also stated that he signed the second document as advised by Hererra to avoid litigation with the city.

As evidence, the heirs of Teodorica showed, among others an affidavit executed by Luis Lancero named “Settlement to Avoid Litigation”, dated 1968. The contents of which shows that Luis Lancero had recognized the fatal defect in the deed of sale executed in his favor by Ricardo Gevero.

It was also stated in the case that Lorenzo signed the first document before he acquired the property from Roco and the second document was signed after he had transferred the land to the defendant Jacinto.

ISSUE: Whether or not the declaration of Luis Lancero acknowledging the fatal defect of the deed of sale in his favor in the “Settlement to Avoid Litigation” should be considered evidence against Del Monte.

ISSUE:

HELD:

Whether the testimony of the third witness, Villegas, is admissible.

NO. It is a basic rule of evidence that the right of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28. Rule 130, Rules of Court). This particular rule is embodied in the maxim "res inter alios acta alteri nocere non debet." Under Section 31, Rule 130, Rules of Court ", 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." It is however stressed that the admission of the former owner of a property must have been made while he was the owner thereof in order that such admission may be binding upon the present owner. Hence, Lanceros' declaration or acts of executing the 1968 document have no binding effect on Del Monte, the ownership of the land having passed to Del Monte in 1964 (Lancero-Del Monte Deed of Absolute Sale).

HELD: Villega’s testimony was merely hearsay. It consisted of what he had learned from some of the oldest residents in that section of the city. His testimony was introduced by the plaintiff apparently for the purpose of proving that the city was generally considered the owner of the land, drawing from this fact the presumption of actual ownership under paragraph 11, section 334, of the Code of Civil Procedure. Such testimony, however, does not constitute the "common reputation" referred to in the section mentioned. "common reputation," as used in that section, is equivalent to universal reputation. The testimony of this witness is not sufficient to establish the presumption referred to.

US v. PINEDA

On the 2 documents FACTS:

Whatever statements Lorenzo del Rosario might have made in the documents mentioned, they are not binding upon the defendant, because, under section 278 of the Code of Civil Procedure, "where one derives title to real property from another, the declaration, act, or omission of the latter, in relation to the property, is evidence against the former only when made while the latter holds the title.

Pineda was a registered pharmacist and was an owner of a drug store. Santos presented a prescription for medicine for his sick horses. The prescription specifically read “POTASSIUM CHLORATE”. After it was prepared he used it on 2 horses which were sick. Shortly thereafter they died. When he had the medicine checked with the Bureau of Science, they found out that the medicine contained “BARIUM CHLORATE”. Two chemist also went to the drug store and bought the same packages at the instance of Santos and the same happened. They were given Barium Chlorate. (Barium chlorate is a poison, potassium chlorate is not.)

On the map The map was not proven during trial. The only witness examined regarding it was the city attorney. He was unable to say who made it or who caused it to be made, or when it was made. He said only that he believed the map had been drawn in the month of July 1880, or prior to May 1893. Neither this nor his statement that the map was found among the archives of the city of Manila is of itself sufficient to show that the map is authentic. No one appears to certify as to its correctness.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) ISSUE:

PEOPLE v. IRANG

Whether the court may admit the testimony of Drs. Pena and Darjuan as to their purchase of potassium chlorate which turned out to be poison.

FACTS:

HELD:

Between 7 and 8 o'clock on the night of November 9, 1935, seven individuals with with bolos, went to the house of the spouses Perfecto Melocotones and Maximiniana Vicente.

The lower court in admitting the testimony of the chemist Peña and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What appellant is here relying on is the maxim res inter alois acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence is intensified, and fraudulent intent may even be evidence of negligence than the frequency of accidents. The United States Supreme Court has held that:

Some of them approached Perfecto and ordered him to bring out his money but before he could do so, he was attacked with bolos until he fell to the floor. Another armed with a gun approached Maximiniana and struck her in the face with the butt of his gun making her lose her consciousness. Upon regaining consciousness she saw her husband already dead. She was ordered to bring out the money and jewelry. She turned over P70 in cash and jewelry valued at P200. During the short space of time that she was turning over the money and jewelry, she looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. That same night the house of Juana de la Cruz was assaulted by malefactors who had been firing shots before arriving at and going up the house. All of them had white stripes upon their faces. Juana de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid and was dressed in a maongcolored suit.

"On the trial of a criminal case where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.

After the malefactors left the Melocontes’ house, their son Toribio, who had seen the assailants but without recognizing them, immediately reported the matter to the municipal authorities and to the constabulary who went to the crime scene without loss of time. Maximiniana informed Lt. Alejandre of the persons identifying marks. Afterwards, two arrested group of persons were brought to her so that she could identify the malefactor but to no avail. Later on, another group was presented wherein she identified the herein accused-appellant Benjamin Irang as the one who had struck her with the butt of his gun and demanded the delivery of her money and jewelry. Juana de la Cruz also recognized Benjamin Irang, through his pockmarks and scar on his left eyelid, as one of the men who had gone up to her house that same night.

"Whenever the necessity arises for a resort to circumstancial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored. "Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant." As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name."

Upon arrest, a testimonial affidavit in tagalog was allegedly executed by Irang admitting to the crime. However, the Irang interposed an alibi as his defense alleging that he was in his rice field washing a fishing basket and went home around 8PM. He also alleged that he was not present during the execution of the affidavit and neither the contents thereof were true and that he merely affixed his thumbmark for fear of the soldiers.

Where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facie negligence, placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate" , and expect to escape responsibility on a plea of mistake. His mistake, under the most favorable aspect for himself, was negligence.

ISSUE: Whether accused-appellant Benjamin Irang was identified as one of those who assaulted the house of Perfecto Melocotones, killed him and robbed is wife Maximiniana Vicente of money and jewelry?

A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs in unimportant, if under all the circumstances the fact of occurrence is attributable to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggist and the position of the made unlawful is the giving of a false name to the drug asked for.

HELD: YES, the testimony of Juana dela Cruz to the effect that her house, situated only about one hundred meters from that of Perfecto Melocotones, was assaulted that same night by some malefactors with white stripes on their faces, and that one of them, with pockmarks on his face and a scar on his left eyelid and dressed in a maong-colored suit, who later turned out to be herein accused-appellant,, opened her box, indirectly corroborates Maximiana Vicente’s testimony that the man of the same description was the one who went to her house and demanded delivery of her money and jewelry, having recognized him later to be the accused-appellant.

In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) While evidence of another crime, is as a rule not admissible in prosecution for robbery, it is admissible when it tends to identify defendant as perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime charged, or when it is evidence of a circumstance connected with the crime.

then happened wherein Clemente was allegedly struck by one Margarito Mediavilla, and Severino was hit in the back by a bolo blow. The defense attempted to prove that Severino was of a quarrelsome disposition, provoking, irascible, and fond of starting quarrels in the municipality. The RTC adjudged Clemente Babiera, Justo Babiera, and Dominga Bores guilty of the crime of murder, the first as principal, and the last two as accomplices.

The affidavit executed by Irang cannot be considered involuntary and therefore is admissible against the person making it since it was categorically denied by Lt. Alejandre and Sgt. Lubrico of the Constabulary. It was likewise contradicted by the clerk of court who asked him whether he understood Tagalog and read to him the document and asked him whether he had anything to add, in which Irang affixed his thumbark upon it after answering that he had nothing more to say.

ISSUE: Whether the imputation of the defense with regards the character of Severino is admissible in evidence. HELD:

The defense of the accused is an alibi and has for its purpose to show that he could not have been at the scene of the crime between 7 and 8 o'clock at night because he was in another place about seven kilometers away at that time. This defense of alibi is contradicted by the above stated testimony of Juana de la Cruz and by Irang’s own admission under oath.

NO. While it is true that when the defense of the accused is that he acted in self-defense, he may prove the deceased to have been of a quarrelsome, provoking and irascible disposition, the proof must be of his general reputation in the community and not of isolated and specific acts.

PEOPLE v. BABIERA

Another doctrine with regards ante mortem declaration of the deceased

FACTS:

Although said statement in itself is inadmissible as an ante-mortem declaration, inasmuch as there is nothing to show that at the time he made it Severino Haro knew or firmly believed that he was at the point of death, nevertheless, having ratified its contents a week later when he was near death as a result of his wounds, said declaration is admissible as a part of that which he made ante-mortem. “A statement made under circumstances which would not render it admissible as a dying declaration becomes admissible as such, it is held, if approved or repeated by the declarant after he had abandoned all hope of recovery.”

Justo Babiera sold two parcels of land to Basilio Copreros with the right of repurchase, but having failed to repurchase them within the period stipulated, the title thereto was consolidated in the purchaser, who leased them to Severino Haro. Justo Babiera resorted to every lawful means to regain possession of said two parcels of land, but he failed. The prosecution’s version:

US v. MERCADO

On the day of the incident, Severino visited his land with three companions. When he arrived, he was told by Fermin Bruces, Severino’s copartner, that he had found Clemente Babiera’s, son of Justo Babiera, cow grazing on the land. Severino informed Clemente of what his cow had done and told him to take better care of his animal and not to let it run loose. Severino then ordered Fermin to take the cow where the Babiera family lived. Severino and his companions made use of a torch when they were making their way back to town because it was already dark. When they were on the road near Rosendo Paycol’s house, Clemente suddenly sprang from the cogon grass, went after Severino and struck him with his bolo in the back. When Severino turned to see who attacked him, Severino received another bolo blow in the forehead.

FACTS: The defendants in this case were charged with the crime of coaccion (translates to coercion): That the said accused on December 22, 1911, in the municipality of Baliuag, Province of Bulacan, P. I., did willfully and criminally, without legitimate authority therefor, and by means of violence or force employed upon the person of Claro Mercado, prevent the latter from rendering aid to Maria R. Mateo in order that Santiago Mercado might at his pleasure maltreat the said Maria R. Mateo, in violation of law."

Then, Dominga Bores, Clemente’s partner, and Justo appeared, and pinned down Severino. Severino’s companions were not able to help him because of the threat from Clemente. When the assailants already departed, Severino’s companions were directed to bring him to town. They were able to bring Severino to the hospital. Severino made a sworn statement before the deputy fiscal about the incident. This sworn statement was ratified by him before the same deputy fiscal when he was near death.

They were then found guilty of the crime charged. During trial, Mr. Ricardo Gonzalez Lloret, attorney for the private prosecutor, asked the witness for the defense, the said Santiago Mercado, who is mentioned in the complaint presented in said cause, the following question:

The defense’s version:

To this question, the defendant Tomas Mercado objected on the ground that the question was impertinent. Mr. Lloret explained the purpose of his question by saying:

"How many times have you been convicted of assault upon other persons?"

Clemente was in the house of one Oper, when Justo arrived, and later on, Severino, who at once said to him, “Clemente, why do you leave your cow loose?” Clemente denied the imputation, but Severino insisted and the latter added that the cow had damaged his plantation. Severino charged him of 2 pesos for the damage, however Clemente told him that he had no money. Clemente told Severino that he will pay on the following day. At about 7pm, Clemente saw Buenaventura Cabalfin leading his cow, and Severino and his companions followed. Clemente asked them why they are taking the cow away when they already have an agreement with regards the payment of the damaged plantation. A commotion

"I wish to demonstrate that he has a pugnacious disposition. I have had occasion to defend him in various causes for assault." The defendants contended that the character of the witness, Santiago Mercado, has an intimate relation or may have a strong relation with the facts being investigated in the present cause,” but this objection was overruled.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The only argument which the appellant presents in support of his assignment of error is that the question had no relation to the question which was being discussed by the court and did not tend to show that the defendants were either guilty or not guilty of the crime charged; that questions tending to disclose the character of a witness are immaterial.

answer and the ruling of the court upon the same did not affect prejudicially the interests of the defendants. Errors committed by the trial court, which are not prejudicial to the rights of the parties, should be disregarded by the court. In our opinion the evidence clearly shows that the witness committed the assault to which reference is made in the complaint in the present cause. Whether he had committed other assaults or not was a matter of no importance in the present action. The admission or rejection, therefore, of the proof to which such question related could in no way prejudice the rights of the defendants.

In reply to the argument of the appellant, the Attorney-General contends that the question was a proper question, because it tended to impugn the credibility of the witness and that such questions were for that purpose material and pertinent. It will be remembered that the complaint charged that on the occasion when the alleged crime was committed Santiago Mercado was attempting to and did assault and illtreat one Maria R. Mateo. In answer to said question, the witness admitted that complaint had been presented against him for the offense of assault and battery.

GONZALES v. PEOPLE FACTS:

ISSUE:

Petitioner was charged with arson for allegedly burning two-storey residential building to which he pleaded not guilty.

Whether the witness should be impeached due to the character of the witness.

The prosecution presented eyewitness Carlos C. Canlas, owner of the two-storey building testifying that at about 9:30 p.m. he was watching television in his room when his daughter called his attention to check the commotion in an adjacent room. On his way to the room rented by Gonzales, he smelled gas. He saw Gonzales ignite a flame and throw it on a pile of clothes in the middle of the living room where Gonzales had also placed an LPG tank. Fire quickly spread to the other parts of the building.

HELD: The prosecution, to show the circumstances under which the crime charged here was actually committed, showed that this witness, Santiago Mercado, had assaulted and illtreated Maria R. Mateo, under the circumstances described in the complaint. That was an important fact. If the said assault did not actually take place, then the theory of the prosecution must fail. If there was no assault or attempted assault, there was no occasion for the alleged interference on the part of the said Claro Mercado to prevent it, and the probability of the guilt of the defendants is greatly lessened.

The prosecution also presented two tenants, Villaflor and Simpao, as witnesses. Villaflor testified that he heard Gonzales and his aunt quarreling before the fire. He said he heard Gonzales yell "Susunugin ko itong bahay na ito!" Alarmed, he went to the Barangay Hall to report the incident but immediately went back to his place when someone informed him his house was on fire. Simpao testified that he saw the fire coming from Gonzales's room. He added that Gonzales was laughing while the building was burning.

If the witness who had committed the alleged assault, had assaulted other persons and had been prosecuted therefor, may that fact be considered by the court in weighing the proof and in testing the credibility of the witness? It was an important fact to prove that Santiago Mercado, at the time and place mentioned in the complaint, had assaulted or attempted to assault or illtreat Maria R. Mateo, to show that there was occasion for the interference of Claro Mercado.

The testimonies were corroborated by P01 Mendoza, who testified that when he and his fellow officer arrived at the crime scene, Gonzales admitted responsibility for the fire. On the other hand, Gonzales averred that the fire was caused by faulty electrical wiring. He testified that he was napping inside his room when he was awakened by heat beside his bed. The room was on fire. He shouted for help and Canlas tried to help him but they failed to extinguish it. Gonzales denied he and his aunt were quarreling that evening before the fire started. As his aunt was partly deaf, he said he had to speak in a loud voice. He averred that he merely asked his aunt to buy food because they ran out of LPG. Gonzales said that when he met PO1 Mendoza, he explained that he noticed the fire had started in his room. He sought police protection from his neighbors who accused him of starting it.

A witness cannot be impeached by the party against whom he has been called, except by showing (a)

that he has made contradictory statements; or

(b)

by showing that his general reputation for truth, honesty, or integrity is bad. (Sec. 342, Act No. 190.)

The question to which the defendant objected neither attempted to show that the witness had made contradictory statements nor that his general reputation for truth, honesty, or integrity was bad. While you cannot impeach the credibility of a witness, except by showing that he has made contradictory statements or that his general reputation for truth, honesty, or integrity is bad, yet, nevertheless, you may show by an examination of the witness himself or from the record of the judgment, that he has been convicted of a high crime. (Sec. 342, Act No. 190.)

The defense presented a Physical Science Report prepared by a Police Inspector showing that the ashes obtained from the burnt premises were negative of any flammable substance. RTC convicted petitioner. The CA sustained the conviction holding that the denial of Gonzales cannot prevail over the positive identification of a witness, that the prosecution established circumstantial evidence sufficient to support the conviction of the accused beyond reasonable doubt, and that although there were discrepancies in the testimony of Canlas and his affidavits, the discrepancies did not necessarily discredit him because affidavits taken ex parte are generally considered to be inferior to the testimony given in open court. Moreover, the Court of Appeals held that the alleged discrepancies pertain to minor matters negated any suspicion that the testimony was perjured and rehearsed.

In the present case, the other offense to which the question above related was not a high crime, as that term is generally used, and we assume that the phrase "high crime," as used in section 342, is used in its ordinary signification. High crimes are generally defined as such immoral and unlawful acts as are nearly allied and equal in guilt to felonies.

In this petition for review, petitioner argues that the trial court and the appellate court erred in giving credence to the testimony of prosecution witness Canlas. He claims that the sworn statements of Canlas before the investigating officer of the fire department and before the city prosecutor were inconsistent.

We believe that the objection to the above question was properly interposed and should have been sustained. If there was proof enough adduced during the trial of the cause, excluding the particular proof brought out by this question to show that the defendants are guilty of the crime, then the question and

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Petitioner cites People v. Salik Magonawal, where the material discrepancies between the court testimony and prior statements of a witness at a preliminary investigation made the testimony incredible.

counsel of Kenrick) testified that he prepared Kenrick’s answer and transmitted an unsigned draft to Mr. Ong (Kenrick’s President). He further stated that the the signature in the answer was not his and he authorized no one to sign in his behalf and he did not know who signed the answer.

The OSG contends that the discrepancies in the testimonies of the witnesses and their sworn statements were not substantial to warrant a review of the findings of fact of the trial court. The OSG asserts that the testimony of Canlas in court clarified, corroborated and complemented his affidavit. Likewise, the testimony of the other prosecution witnesses corroborated Canlas's testimony

When the Republic found out about this, they promptly filed an urgent motion to declare Kenrick in default for failure to file a valid answer since it was an unsigned pleading which in effect is a mere scrap of paper and produced no legal effect pursuant to Sec. 3 Rule 7 of the Rules of Court. ISSUE:

ISSUE:

Whether Kenrick should be declared in default.

Whether the discrepancies in the affidavit and the court testimonies of a witness are sufficient to exculpate Gonzales of the crime of arson.

HELD: YES, Kenrick must be declared in default for failure to file a valid answer since only the signature of either the party himself or his counsel operates to validly convert a pleading from one that is unsigned to one that is signed. Moreover, a counsel's authority and duty to sign a pleading are personal to him. He may not delegate it to just any person. The blanket authority Garlitos’ entrusted to just anyone was void. There was no way it could have been cured or ratified by his subsequent acts.

HELD: NO. In the prosecution for arson, proof of the crime charged is complete where the evidence establishes the corpus delicti and the identity of the defendant as the one responsible for the crime. In arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. Even the uncorroborated testimony of a single eyewitness, if credible, is enough to prove the corpus delicti and to warrant conviction. When these are present, the only issue is the credibility of the witness. Whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight considering that affidavits taken ex parte are inferior to testimony in court, the former being almost invariably incomplete and oftentimes inaccurate, sometimes from partial suggestions and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected circumstances necessary for his accurate recollection of the subject.

However, even if Kenrick is declared in default for failure to file a valid answer, Kenrick adopted the statement of Garlitos, thereby making it its own admission. A party may, by his words or conduct, voluntarily adopt or ratify another's statement. Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. This is the essence of the principle of adoptive admission. An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. By adoptive admission, a third person’s statement becomes the admission of the party embracing or espousing it. This may occur when a party:

The eyewitness positively identified Gonzales as the culprit who caused the fire. Both the trial and appellate courts found the testimony of eyewitness Canlas credible. As a general rule, when the findings of both courts are in agreement, this Court will not reverse their findings of fact. The findings of the Physical Science Report is a negative evidence and taken together with the bare denial of petitioner, supported only with testimonies of relatives, constitute inferior evidence as against the circumstantial evidence coupled with the positive identification of the accused as the perpetrator of the offense by a credible witness.

a) b) c) d)

REPUBLIC v. KENRICK DEVELOPMENT CORPORATION

e)

Expressly agrees to or concurs in an oral statement made by another Hears a statement and later on essentially repeats it Utters an acceptance or builds upon the assertions of another Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other maker Reads and signs a written statement made by another

In the case at bar, Kenrick built its case on the pronouncement of Atty. Garlitos and they neither deny nor contradicted his statements. Kenrick completely adopted Garlitos’ statements as its own. The adoptive admission constituted a judicial admission which was conclusive on it. Therefore, it does not matter if Garlitos’ statements were done in the blue ribbon committee hearing and it was not subject to cross-examination because Kenrick adopted them anyway.

FACTS: Kenrick built a concrete perimeter fence around parcels of land behind the Civil Aviation Traininger Center of the Air Transportation Office. As a result of this, ATO was dispossessed of huge tracts of land. Kenrick, on the other hand, claimed that the land was theirs, showing a TCT issued in its name which was sold to it by Alfonso Concepcion. The Registrar of Deeds had no record of such TCT nor of its ascendant TCT.

CIVIL SERVICE COMMISSION v. BELAGAN When the credibility of a witness is sought to be impeached by proof of his (in this case, her) reputation, the reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation arose or at the time of the trial and prior thereto, not at a period remote from the commencement of the suit. This is because a person of derogatory character or reputation can still change or reform himself.

By virtue of a report, OSG filed a complaint for revocation, annulment and cancellation of certificates of title against Kenrick et al and an Answer was filed by the latter. During the pendency of the case, the Senate Blue Ribbon Committee conducted a hearing in aid of legislation on the matter of land registration and titling. During the hearing, Atty. Garlitos (former

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) FACTS:

2. YES, since the testimony of Magdalena is found to be credible, Belagan is guilty. However, the penalty of removal from the position was modified to a 1 year suspension due to some mitigating circumstances enumerated in the Uniform Rules on Administrative Cases in the Civil Service.

Dr. Belagan is a Superintendent of DECS. Magdalena Gapuz is the founder/directress of the Mother and Child Learning Center. Ligaya Ligaw is a public-school teacher. The latter two filed cases of sexual indignities and harassment, sexual harassment and various malfeasances.

PEOPLE v. LEE

Magalena alleges that she was applying for a permit to operate a pre-school. During the inspection of the pre-school, Belagan placed his arms around her shoulders and kissed her cheeks. When she followed up her application, Belagan replied, “Mag-date muna tayo.”

FACTS: Accused-appellant Noel Lee was convicted of the crime of murder for the death of Joseph Marquez. On appeal, accused-appellant assailed the credibility of Herminia Marquez, the mother of the victim and the lone prosecution eyewitness. In her affidavit, Herminia declared that while she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The hand and the gun came out of a hole in the window, i.e., "butas ng bintana." On cross-examination, Herminia stated that she saw a hand holding a gun in the open window, i.e., "bukas na bintana." According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by her statement on the witness stand.

On the other hand Ligaya alleges that on four different occasions, respondent touched her breasts, kissed her cheek, touched her groins, embraced her from behind and pulled her close to him, his organ pressing the lower part of her back. The DECS Secretary found Dr. Belagan guilty. However dismissed Ligaya’s complaint. CA then dismissed Magdalena’s Complaint stating that she is an unreliable witness. Her character being questionable having been previously charged with 22 offenses before the MTC and 23 complaints before the barangay captains of brgy. Silang and Hillside in Baguio. The CA stated that “Given her aggressiveness and propensity for trouble, she is not one whom any male would attempt to steal a kiss.”

Moreover, accused-appellant alleges that the victim had a bad reputation in their neighborhood as a thief and drug addict and that he may have been shot by any of the persons from whom he had stolen. As proof of the victim’s bad character, accused-appellant presented Herminia's letter to the City Mayor seeking his assistance for the victim's rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote such letter to the Mayor but denied anything about her son's thievery.

ISSUES: 1.

Is Magdalena a reliable witness?

2.

'Is Dr. Belagan guilty?

ISSUES: 1.

HELD: 1.

2.

YES, even if Magalena is the offended party, she testified on her behalf which makes her subject to questions on her credibility. However, rules on character evidence provision pertain only to criminal cases, not to administrative offenses. Even if it is applicable to admin cases, only character evidence that would establish the probability or improbability of the offense charged may be proved. Character evidence must be limited to the traits and characteristics involved in the type of offense charged. In this case, no evidence bearing on Magdalena’s chastity. What were presented were charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Regarding Magdalena’s credibility as a witness, the charges and complaints against her happened way back in the70s and 80s while the act complained of happened in 1994, thus, the said charges are no longer reliable proofs of Magdalena’s character or reputation. Evidence of one’s character or reputation must be confined to a time not too remote from the time in question. In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. “It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform.” The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility.

Does the inconsistency between the testimony of the witness in open court and her sworn statement affect her credibility as a witness? Is the proof of the victim's bad moral character relevant to determine the probability or improbability of the killing?

HELD:

But more than anything else, Magdalena testified in a straightforward, candid and spontaneous manner. Her testimony is replete with details, such as the number of times she and respondent inspected the pre-school, the specific part of the stairs where respondent kissed her, and the matter about her transient boarders during summer. Magdalena would not have normally thought about these details if she were not telling the truth.

1.

NO. Between Herminia's testimony in open court and her sworn statement, any inconsistency therein does not necessarily discredit the witness. Affidavits are generally considered inferior to open court declarations because affidavits are taken ex-parte and are almost always incomplete and inaccurate. Oftentimes, they are executed when the affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident that transpired. They are usually not prepared by the affiant himself but by another who suggests words to the affiant, or worse, uses his own language in taking the affiant's statements.

2.

NO. Character evidence is governed by Section 51, Rule 130 of the Revised Rules on 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." In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceased's aggression; and (2) as evidence of the state of mind of the accused. The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. When the evidence tends to prove self-defense, the known violent

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.

Cantillas executed an Affidavit of Desistance on the ground that he was no longer interested in prosecuting the case. The Deputy Ombudsman’s Ruling: Found Mendoza, Erederos and Alingasa guilty of grave misconduct.

In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceased's drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victim's bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation.

The CA’s Ruling: CA granted the respondents petition and reversed the Deputy Ombudsman’s joint decision in the administrative aspect. The Deputy Ombudsman moved for the reconsideration of the decision, but the CA denied the motion. The Deputy Ombudsman also argues that his joint decision was not solely based on the complainants affidavits since he also took into account the NBI/Progress report, which uncovered the alleged anomalies. He posits that these pieces of evidence, taken together, more than satisfy the required quantum of proof to hold the respondents administratively liable for grave misconduct.

Moreover, proof of the victim's bad moral character is not necessary in cases of murder committed with treachery and premeditation. While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123 ), such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary. This rule does not apply to cases of murder.

ISSUE: Whether the CA committed a reversible error in dismissing the administrative charge against the respondents. HELD: NO. It is well settled that findings of fact by the Office of the Ombudsman are conclusive when supported by substantial evidence. Their factual findings are generally accorded with great weight and respect, if not finality by the courts, by reason of their special knowledge and expertise over matters falling under their jurisdiction.

In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the attack ensured his death without risk to the assailant. The presence of this aggravating circumstance negates the necessity of proving the victim's bad character to establish the probability or improbability of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder.

In the present case, the CA found no substantial evidence to support the conclusion that the respondents are guilty of the administrative charges against them. Mere allegation and speculation is not evidence, and is not equivalent to proof. Since the Deputy Ombudsman’s findings were found wanting by the CA of substantial evidence, the same shall not bind this Court. The Deputy Ombudsman’s appreciation of evidence

PRIMO MIRO v. MENDOZA, et al.

The Deputy Ombudsman found the respondents guilty of grave misconduct based on the affidavits submitted by the complainants and the NBI/Progress report. In giving credence to the affidavits, the Deputy Ombudsman ruled that the complainants have amply established their accusations by substantial evidence.

FACTS: Mendoza, along with the other respondents, were administratively (Grave Misconduct) and criminally (Anti Graft and Corrupt Practices Act) charged which arose from the alleged anomalies in the distribution at the LTO Cebu of confirmation certificates, an indispensable requirement in the processing of documents for the registration of motor vehicle with the LTO.

The CA’s appreciation of evidence The CA, on the other hand, reversed the Deputy Ombudsman s findings and ruled that no substantial evidence exists to support the latter’s decision as the affidavits upon which said decision was based are hearsay evidence. It found that the affidavits lack the important element of personal knowledge and were not supported by corroborating evidence.

In their complaints, the new complainants commonly alleged that they had to pay P2,500.00 per pad to Alingasa before they could be issued confirmation certificates by the LTO Cebu. Alingasa would give her collections to Erederos and to Mendoza. When they protested, Erederos and Alingasa pointed to Mendoza as the source of the instructions. They were also told that the confirmation certificates processed during the previous administration would no longer be honored under Mendoza s administration; hence, they had to buy new sets of confirmation certificates to process the registration of their motor vehicles with the LTO.

We agree with the CA. The findings of fact of the Deputy Ombudsman are not supported by substantial evidence on record. Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness.

The NBI/Progress report submitted to the LTO Manila also revealed that the confirmation certificates were given to the representatives of car dealers, who were authorized to supply the needed data therein. In the Requisition and Issue Voucher, it was Roque who received the forms. On August 19, 2002,

It is a basic rule in evidence that a witness can testify only on the facts that he knows of his own personal knowledge, i.e. those which are derived from his own perception. A witness may not testify on what he

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) merely learned, read or heard from others because such testimony is considered hearsay and may not be received as proof of the truth of what he has learned, read or heard. Hearsay evidence is evidence, not of what the witness knows himself but, of what he has heard from others; it is not only limited to oral testimony or statements but likewise applies to written statements, such as affidavits.

In a document denominated as Affidavit which was subscribed and sworn to before Clerk of Court II on July 26, 2002, the victim’s son Arnel gave a statement in a question and answer style that herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father. In another Affidavit which was subscribed and sworn to also before the same Clerk of Court, Mirasol also gave a statement in a question and answer style that her father uttered that herein petitioners shot him.

The affidavits show that the complainants lack personal knowledge of the participation of Mendoza and Erederos in the allegedly anomalous act. These affidavits indicate that the complainants have commonly noticed and witnessed the anomalous sale transaction concerning the confirmation certificates. Without going into details, they uniformly allege that to secure the confirmation certificates, an amount of P2,500.00 would be paid to Alingasa, an LTO personnel, "who will remit her collections to a certain Marilyn Mendoza vda. Erederos, a niece and the Secretary of the Regional Director, Porferio Mendoza.” While the payment to Alingasa might be considered based on personal knowledge, the alleged remittance to Erederos and Mendoza -on its face - is hearsay.

At the witness stand, Mirasol echoed her father’s declaration that Badjing and Amado shot him. Arnel substantially corroborated Mirasol’s statement. Upon the other hand, petitioners gave their side of the case as follows: Petitioner Ariate, a barangay tanod of Bunga, declared that Barangay Kagawad Omboy Roz (Roz) woke him up at 3:00 a.m. of July 1, 2002 and informed him that the victim was shot. He and Roz thus borrowed a tricycle, proceeded to the crime scene and, along with others, brought the victim to the hospital where he was pronounced dead on arrival. Ariate submitted himself to a paraffin test and tested negative for gunpowder residue/nitrates. Petitioner Geraldo declared that he slept in his house located also in Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002 and woke up at 4:00 a.m. the following day. At 6:30 a.m., on seeing many people in the vicinity of the 45-meter away house of one Josita Bongabong where the victim’s body was found, he inquired and learned that the victim was shot. Policemen subsequently went to his house and advised him to take a paraffin test. He obliged and was tested at the PNP Crime Laboratory and was found negative for gunpowder residue/nitrates.

The records show that not one of the complainants actually witnessed the transfer of money from Alingasa to Erederos and Mendoza. That the complainants alleged in the preface of their affidavits that they "noticed and witnessed" the anomalous act complained of does not take their statements out of the coverage of the hearsay evidence rule. Their testimonies are still "evidence not of what the witness knows himself but of what he has heard from others. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. Non-hearsay v. legal hearsay, distinction: The difference between these two classes of utterances lies in the applicability of the rule on exclusion of hearsay evidence. The first class, i.e. the fact that the statement was made, is not covered by the hearsay rule, while the second class, i.e. the truth of the facts asserted in the statement, is covered by the hearsay rule. Pedroza's allegation belongs to the first class; hence, it is inadmissible to prove the truth of the facts asserted in the statement.

Finding for the prosecution, the trial court convicted petitioners. The CA affirmed the decision of the Trial Court as to the conviction of the accused. Petitioners’ Contention:

We additionally note that the affidavits were never identified by the complainants. All the allegations contained therein were likewise uncorroborated by evidence, other than the NBI/Progress report.

Petitioners disagreed with the ruling of the CA that it is not necessary that the victim further identify that Badjing was in fact Jesus Geraldo or that Amado was Amado Ariate because, it is the obligation of the prosecution to establish with moral certainty that indeed the persons they identified as the as the assailant of Arthur O. Ronquillo were really the ones who perpetrated the crime. Admittedly, prosecution witnesses were able to identify positively herein petitioners as the alleged assailants of Arthur O. Ronquillo. But said identification is based on the assumption that they were the very same BADJING AMADO and/or BADJING AND AMADO referred to by their deceased father in his dying declaration.

Conclusion: Based on these rulings, the Deputy Ombudsman failed to establish the elements of grave misconduct. To reiterate, no substantial evidence exists to show that Erederos and Mendoza received collected payments from Alingasa. Their involvement or complicity in the allegedly anomalous scheme cannot be justified under the affidavits of the complainants and the NBI/Progress report, which are both hearsay. With respect to Alingasa, in view of the lack of substantial evidence showing that she personally demanded the payment of P2,500.00 – a crucial factor in the wrongdoing alleged – we find that the elements of misconduct, simple or grave, to be wanting and unproven.

What the Honorable Court of Appeals failed to consider is that, just because the victim declared that it was BADJING AMADO and/or BADJING AND AMADO who shot him does not necessarily follow that herein petitioners were really the perpetrators in the absence of proof that the BADJING referred to by him is Jesus Geraldo and that the AMADO is Amado Ariate. It would have been a different story had the prosecution witnesses been eyewitnesses because proof that the BADJING AMADO and/or BADJING AND AMADO referred to by the victim and the persons identified by the prosecution witnesses are the same is unnecessary.

ARIATE v. PEOPLE FACTS: Petitioners Jesus Geraldo and Amado Ariate were charged with Homicide. On July 1, 2002, the wife of Arthur Ronquillo, daughter Mirasol, and son Arnel, among other persons, being informed of the shooting of Arthur Ronquillo (the victim), found him not far from his residence, lying on his side and wounded. Although gasping for breath, he was able to utter to Mirasol, within the hearing distance of Arnel that he was shot by Badjing and Amado. Petitioners who were suspected to be the Badjing and Amado responsible for the shooting of the victim were subjected to paraffin tests at the Philippine National Police Crime Laboratory in Butuan City.

ISSUE: Whether the identities of the accused-appellants as the alleged assailants have been adequately established as per evidence on record. HELD: NO. [Petitioners were acquitted of the charge of Homicide.]

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The trial court relied on the dying declaration of the victim as recounted by his daughter Mirasol and corroborated by his son Arnel.

PEOPLE v. DE JOYA FACTS:

A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarants death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarants death.

On or about January 31, 1978, in Baliuag, Bulacan, accused De Joya take, carry and cart away 2 rings, 1 necklace and 1 piece of earring, belonging to Arnedo Valencia and Eulalia Diamse, to their damage and prejudice in the sum of P500.00. The son of sps. Arnedo Valencia and Hermania Salac-Valencia, Alvin when arrived home saw his grandmother lying down prostrate and drenched with her own blood. He immediately ran towards her and asked her: “Apo, apo, what happened?,” Eulalia the victim, held the hands of Alvin and said: “Si Paqui”. After saying these words, she let go of Alvin’s hand and passed away. Thus, accused was convicted before the RTC with the crime of robbery with homicide.

There is no dispute that the victim’s utterance to his children related to the identities of his assailants. As for the victims consciousness of impending death, it is not necessary to prove that he stated that he was at the brink of death; it suffices that, judging from the nature and extent of his injuries, the seriousness of his condition was so apparent to him that it may safely be inferred that such ante mortem declaration was made under consciousness of an impending death. The location of the victim’s two gunshot wounds, his gasping for breath, and his eventual death before arriving at the hospital meet this requirement.

Appellant’s argument: The lower court erred in concluding that appellant was guilty beyond reasonable doubt of the crime charged.

It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front, the post-mortem examination report having merely stated that the points of entry of the wounds were at the right lumbar area and the right iliac area.

ISSUE: Whether the dying statement made by the victim to Alvin is admissible. HELD:

At all events, even if the victims dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance.

NO. It has been held that a dying declaration to be admissible must be complete in itself. The declaration of the deceased was incomplete, it was cut off by death before she could convey a complete or sensible communication to Alvin.

In convicting petitioners, the trial court, as stated earlier, relied on the testimony of the victim’s daughter Mirasol, which was corroborated by her brother Arnel, that the Badjing and Amado mentioned by the victim as his assailants are herein petitioners whom they claimed to know because they live in the same barangay. The Court of Appeals believed too the siblings testimonies, holding that: It is not necessary that the victim further identify that Badjing was in fact Jesus Geraldo or that Amado was Amado Ariate. There was never an issue as to the identity of the accused. There was no other person known as Badjing or Amado in their neighborhood or in their barangay. Accused-appellants never presented any proof that a person in their locality had the same aliases or names as they. It is not uncommon that even an eight-year-old child can identify that Jesus Geraldo was known as Badjing and that Amado Ariate was Amado.

It is not disputed that “Paqui” is the nickname of appellant Pioquinto de Joya (accused). However, the words “Si Paqui” do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either; a) the subject of a sentence or b) the object of the verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of the verb, we must note once more that no verb was asked by Alvin: “Apo, Apo, what happened? “Alvin’s question was not: “Apo, apo, who did this to you?” A dying declaration to be admissible must be complete in itself. To be complete it does not mean that the declarant must recite everything but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. And the reason which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented from saying all that he wished to say, what he did say might have qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes that basis upon which dying declarations are received.

Contrary, however, to the immediately-quoted ruling of the appellate court, it is the prosecution, not petitioners, which had the burden of proving that petitioners were, at the material time, the only ones in the barangay who bore such nicknames or aliases. This, the prosecution failed to discharge. When there is doubt on the identity of the malefactors, motive is essential for their conviction. The Court notes that in their affidavits supporting the criminal complaint, the victim’s wife and children Mirasol and Arnel proffered not knowing any possible motive for petitioners to shoot the victim. At the trial, no evidence of any motive was presented by the prosecution. Petitioners’ defense of denial and alibi thus assumes importance.

FUENTES v. CA FACTS:

Specifically with respect to petitioner Ariate, the victim’s wife admitted that Ariate accompanied her family in bringing the victim to the hospital. While non-flight does not necessarily indicate innocence, under the circumstances obtaining in the present case, Ariate’s spontaneous gesture of immediately extending assistance to the victim after he was advised by the Barangay Kagawad of the victims’ fate raises reasonable doubt as to his guilt of the crime charged.

Malaspina with his companion went to a benefit dance. He was called by Alejandro Fuentes Sr. an was stabbed with a hunting knife in his abdomen. Before he succumbed to the gaping wound on his abdomen he muttered that Alejandro stabbed him. Then he died. Alejandro claims, on the other hand, that it was his cousin Zoilo Fuentes Jr., aka “Jonie” who knife Malaspina. He averred that Jonie admitted spontaneously that he stabbed Malaspina because after a

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) boozing match before the latter untied his gloves and punched him. He would make much of the alleged confession of Zoilo, since it is a declaration against the interest and therefore an exemption to the hearsay rule. The so-called confession of Zoilo was allegedly given to Felicisimo Fuentes the uncle of Alejandro (the petitioner) an Zoila who in turn relayed the matter to P/Sgt. Benamin Conde, Jr. Felicisimo testified that Zoil confessed that he killed Malaspina in retaliation; that he even showed him the knofe he used and asked his help in finding a lawyer, in securing bail and, if possible, in working out a settlement with the relatives of the deceased.

parents; and that he is occupying the ground floor upon the instruction of his father, Florentino, with respondent’s full knowledge. During trial Prudencio presented as evidence the Tax Delcarations and Affidavit executed by Florentino Parel declaring that the house is owned by Prudencio. RTC: Ruled in favor of Parel. The subject property is owned in common by Florentino Parel and Prudencio. Respondent failed to show proof of any contract, written or oral that Florentino is not coowner or mere lessee, he also failed to disprove t that petitioner’s father contributed his own funds to finance the construction of the house; that respondent did not question (1) the fact that it was the deceased Florentino who administered the construction of the house as well as the one who supplied the materials; and (2) the fact that the land was in Florentino’s possession created the impression that the house indeed is jointly owned by respondent and Florentino. It also questioned the fact that it was only after 15 years that respondent asserted his claim of sole ownership of the subject house;

ISSUE: Whether the alleged declaration against interest is admissible in this case? HELD: NO. One of the recognized exemptions to the hearsay rule is that pertaining to declarations made against interest. (Sec. 38 of Rule 130 of the Rules of Court). The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. There are three essential requirements for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; (c) the circumstances must render it improbable that a motive to testify exist.

As to evidentiary matters: RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the property all in respondent’s name since tax declarations are not conclusive proof of ownership. It rejected the affidavit executed by Florentino declaring the house as owned by respondent saying that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement addressed to the late Florentino by the City Treasurer concerning the property’s tax assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for being hearsay.

In this case, the declaration against penal interest attributed to Zoilo Fuentes, Jr. is no admissible in evidence as an exception to the hearsay rule. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of Alejandro, the accused-appellant and his uncle Felicisimo.

CA: Reversed RTC decision. Parel failed to formally offer in evidence any documentary evidence, there is nothing to refute the evidence offered by respondent. It ruled that the trial court’s statement that the Parels occupancy of the house is due to a special power of attorney executed by his parents most specially the deceased Florentino Parel who is in fact a co-owner of said building" is wanting of any concrete evidence on record; that said power of attorney was never offered, hence, could not be referred to as petitioner’s evidence to support his claim; that except for the bare testimonies of Candelario Regua, the carpenter-foreman, that it was Florentino who constructed the house and Corazon Garcia, the former barangay captain, who testified that the lot was allocated to petitioner’s father, there was no supporting document which would sufficiently establish factual bases for the trial court’s conclusion; and that the rule on offer of evidence is mandatory.

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant us not “unable to testify”. There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 8 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. PAREL v. PRUDENCIO FACTS: Prudencion is the owner of a two-storey residential house located at Forbes Park; such property was constructed solely from his own funds. He commenced construction of the said house in 1972 until its completion three years later. When the second floor was habitable on 1973, he allowed Petitioner’s parents (Florentino and Susan Parel) to move therein while the construction of the ground floor was ongoing so that someone could supervise and safeguard the materials; when the second floor was done in 1975, Prudencio allowed the spouses Parel and their children to transfer and temporarily reside thereat; it was done out og sheer magnanimity as the Parel’s have no house of their own and since Prudencio’s wife is the older sister of Florentino. The Prudencio migrated to US.

The CA found the affidavit dated September 24, 1973 of Florentino, petitioner’s father, stating that he is not the owner of the subject house but respondent, as conclusive proof of respondent’s sole ownership of the subject house as it is a declaration made by Florentino against his interest. ISSUE: Whether Parel was able to prove by preponderance of evidence that his father was a co-owner of the subject two-storey residential house.

However, when it is about Prudencio’s retirement he wrote the Parels to vacate the place aw they will be staying back there; however without respondents knowledge, the Parels has already occupied the ground floor of and refused to vacate the house despite repeated demand; this cause Prudencio to file a action for recovery of possession. Respondent also asked petitioner for a monthly rental.

HELD: NO. As to the Affidavit Executed by Florentino Parel:

Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of the said residential house, the upper story belongs to respondent while the ground floor pertains to petitioner’s

Section 38 of Rule 130 of the Rules of Court provides:

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) SEC. 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the 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.

On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant was playing at the Freedom Square inside the public market of San Carlos City when appellant, a 170-pound, 53 year old market watchman at the time, held her by the hand and took her upstairs to the second floor of the public market building which houses some government offices and which at the time was expectedly deserted. Thereafter, appellant ordered complainant to lie down, and when she refused he pushed her down on the floor. Appellant then tried to insert his penis into her vagina but it did not penetrate fully before he ejaculated.

The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest. Florentino. categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his children’s interests as his heirs.

On April 20, 1988, at about 7:00 o'clock in the evening complainant was sitting at the Freedom Square when appellant approached her and told her to go with him upstairs. Complainant refused but appellant shoved her towards the stairs, held her by the left arm, and brought her to the upper floor near the civic center. Appellant inserted his penis into complainant's vagina but it took sometime before his organ could penetrate the girl. When it did, complainant felt excruciating pain and begged appellant to stop. Appellant just ignored her and continued on without saying anything. And after appellant had withdrawn his sex organ, complainant discovered that her vagina was bleeding. Appellant then stood up and told her not to tell anybody about it. Then appellant gave her P 2.00 and left.

A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. Notably, during Florentino’s lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latter’s will and held that the remedy of respondent was to file an action for ejectment.

Plaintiff’s Contention: CRISTINA DEANG y VILLAROSA alleged that the accused raped her twice, that she is below twelve (12) years of age, against her will and without her consent. Accused Contention: the accused-appellant contends that the offended party's actual age at the time of the alleged incidents of rape was not establisher with certainty, hence, it was error on the part of the trial court to convict the accused-appellant of statutory rape as defined and penalized under paragraph 3, Article 335 of the Revised Penal Code.

The house which petitioner claims to be co-owned by his late father had been consistently declared for taxation purposes in the name of respondent, and this fact, taken with the other circumstances abovementioned, inexorably lead to the conclusion that respondent is the sole owner of the house subject matter of the litigation. Thus having established the claim of ownership, the burden of evidence is shifted to the Parels to prove that his father was a co-owner.

Time and again we have held that the gravamen of the offense of statutory rape as provided under Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below twelve years old. (People v. Edgardo Puedan y Lalongisip, G.R. No. 92586, April 26, 1991 citing People v. Villegas, Jr., 127 SCRA 195, 200 [1984]; People v. Mangalino, 182 SCRA 329 [1990] citing People v. San Buenaventura, 164 SCRA 150 [1988] and People v. Villegas, Jr., supra). Hence, the only elements of statutory rape are: (1) that the offender had carnal knowledge of a woman; and (2) that such woman is under twelve (12) years of age.

As to the failure of Parel to formally offer the evidence: 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.

ISSUE: Petitioner insists that although his documentary evidence were not formally offered, the same were marked during the presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v. Borja. Such reliance is misplaced. In Bravo Jr., the court allowed evidence on minority by admitting the certified true copy of the birth certificate attached to a motion for bail even if it was not formally offered in evidence due to the fact that the birth certificate was properly filed in support of a motion for bail to prove petitioner’s minority which was never challenged by the prosecution and it already formed part of the records of the case.

Whether or not the accused is guilty of statutory rape HELD: The testimonies of the prosecution witnesses, the offended party herself and her maternal grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not constitute hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the hearsay rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. Under Section 40 of the said Rule, it is provided, in part, that:

In this case, the records show that although petitioner’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same. Thus, the CA did not consider the documentary evidence presented by petitioner.

SEC. 40. — Family reputation or tradition regading pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. ...

PEOPLE v. ALEGADO FACTS: The accused-appellant stands charged and convicted of two counts of rape by the Regional Trial Court.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The word pedigree under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred and the names of the relatives.

Martin Guerrero died. Subsequently, petitioners filed an action for reconveyance claiming that they are entitled to inherit one-half of the property in question by right of representation. Tedoro Domingo however, attacks the legitimacy of Hermogenes.

In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:

During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with documentary evidences offered to prove petitioners’ filiation to their father and their aunt. Petitioners thereafter rested their case and submitted a written offer of the exhibits.

... [D]eclarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth (See Sec. 33, Rule 130 Revised Rules of Court now Sec. 39, Rule 130 under the new Rules). Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. (Wigmore on Evidence, Sec. 1420)

Subsequently, private respondent Teodora Domingo filed a Demurrer to Plaintiff’s Evidence on the ground that petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero. The trial court dismissed the complaint for reconveyance. Respondent Court of Appeals upheld the dismissal, declaring that the documentary evidence presented by herein petitioners, such as the baptismal certificates, family picture, and joint affidavits are all inadmissible and insufficient to prove and establish filiation. Hence, this appeal.

In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the victim's age is beyond question. The said provision contains three requisites for its admissibility, namely: (1) that there is controversy in respect to the pedigree of any of the members of a family; (2) that the reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and (3) that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. All these preconditions are obtaining in the case at bar considering that the date of birth of the rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a child to school upon reaching the age of seven) existed long before the rape case was filed; and that the witness testifying to the said tradition is the maternal grandfather of the rape victim.

ISSUES:

It is long-settled, as early as in the cases of U.S. v. Bergantino, that the testimony of a person as to his age is admissible although hearsay and though a person can have no personal knowledge of the date of his birth as all the knowledge a person has of his age is acquired from what he is told by his parents (U.S. vs. Evangelista, 32 Phil. 321, 326 [1951] – he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an assertion of family tradition (Gravador v. Mamigo, 20 SCRA 742) ... (Rollo, p. 93-94)

1.

Whether or not a third person (private respondent Teodora), not the father nor an heir, may attack the legitimacy of the petitioners.

2.

Whether or not petitioners failed to meet the quantum of proof required by Article 172 of the Family Code to establish legitimacy and filiation

3.

Whether or not the petitioners are entitled to inherit one-half of the property in question by right of representation.

HELD:

Inasmuch as the accused-appellant failed to present contrary evidence to dispute the prosecution's claim that the victim in this case was below twelve (12) years old at the time of the rape incidents under consideration, the SC affirm the trial court's finding that the victim in these rape cases was under twelve years of age. TISON v. CA FACTS: The petitioners Corazon Tison and Rene Dezoller are niece and nephew of the deceased Tedora Dezoller Guerrero, who appears to be the sister of their father Hermogenes Dezoller. Teodora Dezoller Guerrero died on March 5, 1983 without any ascendant or descendant, and was survived only by her husband, Martin Guerrero, and herein petitioners. Petitioners' father, Hermogenes, died on October 3, 1973, hence they seek to inherit from Teodora Dezoller Guerrero by right of representation. The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse Martin executed an Affidavit of Extrajudicial Settlement adjudicating unto himself, allegedly as sole heir, the land in dispute. Martin sold the lot to private respondent Teodora Domingo and thereafter, a TCT was issued in the latter’s name.

1.

NO. Private respondent is not the proper party to impugn the legitimacy of herein petitioners. There is no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate.

2.

YES. With regard to legitimacy, both the trial court and CA overlooked the universally recognized presumption on legitimacy. Well settled is the rule that the issue of legitimacy cannot be attacked collaterally. Only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral and economic interest involved. It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none - even his heirs - can impugn legitimacy. Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests not on herein petitioners who have the benefit of the presumption in their favor, but on private respondent who is disputing the same. The presumption of legitimacy is so strong that it is clear that its effect is to shift the burden of persuasion to the party claiming illegitimacy. And in order to destroy the presumption, the party against whom it operates must adduce substantial and credible evidence to the contrary. Where there is an entire lack of competent evidence to the contrary, and unless or until it is rebutted, it has been held that a presumption may stand in lieu of evidence and support a finding or decision. When private respondent opted not to present countervailing evidence to overcome the presumption, by merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth of such fact. With regard to their filiation to Teodora Guerrero, the primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora’s niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the ROC, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon. Of the four, only (3) remains disputable, so the question remains if the evidence was enough to corroborate w/ each other. Court holds that all the evidence presented, can be deemed to have sufficiently established the relationship between the declarant and herein petitioners. This is in consonance with the rule that a prima facie showing is sufficient and that only slight proof of the relationship is required. 3.

 

Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and set up a counterclaim for damages and attorney's fees. He did not testify because of his advanced age, but Vicente Toring took the stand to resist Teopista's claim. Contentions of Casimiro: 

The following provisions of the Civil Code provide for the manner by which the estate of the decedent shall be divided in this case, to wit:



“Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.” “Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under Article 1001.”

ISSUE:

“Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.”

HELD:

Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that Teopista's father was not Casimiro but a carpenter named Ondoy, who later abandoned her. Vicente said that it was Ondoy who sold a lot to Teopista, and for a low price because she was his half sister. It was also he who permitted Lolito to build a house on Casimiro's lot. This witness stressed that when Casimiro was hospitalized, Teopista never once visited her alleged father.

Whether Teopista was able to prove her filiation pursuant to Section 39 of Rule 130 on “Acts or Declarations About Pedigree.”

YES. Although Teopista has failed to show that she was in open and continuous possession of the status of an illegitimate child of Casimiro, we find that she has nevertheless established that status by another method.

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was automatically reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal partnership. Applying the aforequoted statutory provisions, the remaining half shall be equally divided between the widower and herein petitioners who are entitled to jointly inherit in their own right. Hence, Martin Guerrero could only validly alienate his total undivided three-fourths (3/4) share in the entire property to herein private respondent. Resultantly, petitioners and private respondent are deemed co-owners of the property covered by the Transfer Certificate of Title in the proportion of an undivided one-fourth (1/4) and threefourths (3/4) share thereof, respectively.

An illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court.14 The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza, that Teopista was the daughter of the defendant." It should have probed this matter further in light of Rule 130, Section 39, of the Rules of Court, providing as follows:

MENDOZA v. CA FACTS:

Sec. 39. — Act or declarations 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 facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

Teopista Toring Tufiacao, the herein private respondent claims that she is the illegitimate daughter of Casimiro Mendoza. She alleged that she was born to Brigida Toring, who was then single, and Casimiro, married at that time to Emiliana Barrientos. She averred that Casimiro recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a recognized illegitimate child. Contentions of Teopista: 

visit him at his house. Lolito Tufiacao, son of Teopista, corroborated his mother and said he considered Casimiro his grandfather because Teopista said so. Gaudencio, a cousin of Casimiro, testified that he knew Brigida Toring because she used to work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Isaac, the nephew of Casimiro, testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him.

Teopista testified that it was her mother who told her that her father was Casimiro. She called him Papa Miroy. She lived with her mother because Casimiro was married but she used to

The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set the record straight, we will stress that it was only Isaac Mendoza who testified on this question of pedigree, and he

22

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) did not cite Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter.15

Before the scheduled hearing, the heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed an opposition to respondent's petition for letters of administration.

Such acts or declarations may be received in evidence as an exception to the hearsay rule because "it is the best the nature of the case admits and because greater evils are apprehended from the rejection of such proof than from its admission.16 Nevertheless, precisely because of its nature as hearsay evidence, there are certain safeguards against its abuse. Commenting on this provision, Francisco enumerates the following requisites that have to be complied with before the act or declaration regarding pedigree may be admitted in evidence:

They averred that respondent is not a child or an acknowledged natural child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name. To support his claim, respondent submitted a machine copy of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Civil Registrar of Iloilo City. To prove the existence and authenticity, respondent presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City. Respondent also offered in evidence a photograph showing him and his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead body.

1. The declarant is dead or unable to testify. 2. The pedigree must be in issue.

Petitioners claimed that Certificate of Live Birth No. 477 is spurious. The same does not contain the signature of the late Juan C. Locsin. 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 was recorded on a December 1, 1958 revised form.

3. The declarant must be a relative of the person whose pedigree is in issue. 4. The declaration must be made before the controversy arose. 5. The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration.

RTC granted the petition. CA affirmed in toto. ISSUE:

All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs.18

Whether the documents presented by respondent is genuine. HELD: Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil Register), the records of births from all cities and municipalities in the Philippines are officially and regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil Registrars. With respect to Local Civil Registries, access thereto by interested parties is obviously easier.

The said declarations have not been refuted. Casimiro could have done this by deposition if he was too old and weak to testify at the trial of the case.

The event about which she testified on March 7, 1994 was the record of respondent's birth which took place on October 22, 1956, on 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that time was Emilio G. Tomesa. 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 impressions of the existing records in that Office.

If we consider the other circumstances narrated under oath by the private respondent and her witnesses, such as the financial doles made by Casimiro to Brigida Toring, the hiring of Teopista's husband to drive the passenger truck of Casimiro, who later sold the vehicle and gave the proceeds of the sale to Teopista and her husband, the permission he gave Lolito Tufiacao to build a house on his land after he found that the latter was living on a rented lot, and, no less remarkably, the joint savings account Casimiro opened with Teopista, we can reasonably conclude that Teopista was the illegitimate daughter of Casimiro Mendoza.

The variance has to be clarified in more persuasive and rational manner. In this regard, we find Vencer's explanation not convincing. It does not satisfactorily explain how a Revised Form dated December 1, 1958 could have been used on January 30, 1957 or almost (2) years earlier.

SOLINAP v. LOCSIN JR.

Also, 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 City.

FACTS: On November 11, 1991, or eleven (11) months after Juan "Jhonny" Locsin, Sr. died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed with the RTC of Iloilo City, a "Petition for Letters of Administration".

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.

He alleged, among others, that he is an acknowledged natural child of the late Juan C. Locsin and that he is the only surviving legal heir of the decedent.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) 3.

JISON v. CA FACTS: Francisco Jison had an affair with Esperanza Amolar, who is a nanny of his daughter. The result of the affair was Monina Jison. Francisco supported Monina by giving her allowances and spent for the education. Monina enjoyed the continuous implied recognition as an illegitimate child of Francisco. Monina petitioned to the court for her recognition to be an illegitimate child of Francisco but Francisco denied such claim. Trial Court denied the petition but was later on reversed by the Court of Appeals.

The various notes and letters written by the relatives of Francisco cannot be admitted for under the Rule 130, Section 39, the documents cannot be admitted, there being no showing that the declarants were dead or unable to testify, neither was the relationship between the declarants and Molina shown by evidence other than the documents in question. The documents cannot also be shown to be one of those under Rule 130, Section 40 since the scope of the enumeration is limited to objects known as “family possessions” and the notes and letters are plainly cannot be considered as family possessions.

Complainant’s Contention: In support of her claim as an illegitimate child, she had 11 witnesses, including herself, testifying to the circumstances in which she was impliedly recognize as a child of Francisco and documentary evidence such as baptismal certificate and school records. Monina contends that when she executed the Exhibit P, she was under duress since she had no money. Respondent’s Contention: In support of his denial of Monina’s claim, Francisco presented his depositions before a RTC judge and 6 other witnesses. He claims that Monina isn’t her daughter since it was impossible to have sexual relations with Esperanza Amolar. He denied that he was giving support to Monina and he was just being kind to the family of their former employees. He discredited some of the witnesses of Monina by saying that they were fired from their jobs and it was impossible for them to know Monina. The testimony of his witnesses, some of which being employees of the hacienda, centered on the claim that they didn’t know Monina. Francisco also presented Exhibit P in which Monina attest that Fransciso is not her father.

4.

3.

4.

FACTS: Whether it was possible for Francisco to have sexual relations of Monina’s mother? Whether CA erred in reversing the Trial Court’s finding that the testimonial evidence of paternity and filiation is not clear and convincing? Whether CA erred in giving credence to documentary evidence presented by Monina as evidence of filiation considering that some are hearsay, self-serving and cannot bind the petitioner under the basic rules of evidence? Whether CA erred in interpreting the Exhibit P

Rafael Ferrer y Viademonte and Maria Angelina Ferrer y Viademonte filed a complaint praying for the rendition of a final judgment declaring that Rosa Matilde Viademonte y Gonzales, their mother, had the right to succeed to the inheritance left by Isabel Gonzales in the same proportion and capacity as the other four children of the latter. They claim that they are the surviving heirs of Rosa and they complained that their mother Rosa was left out from the estate of Isabel. They alleged that Isabel Gonzales was married, first, to Ramon Martinez Viademonte, Sr. and from this marriage two children, named Ramon and Rosa Matilde survived and that after the death of Ramon Martinez Viademonte Sr., Isabel contracted a second marriage with Joaquin de Inchausti whom she had three children- Clotilde, Rafael and Joaquin.

HELD: 1.

2.

NO. If indeed Monina isn’t Francisco’s illegitimate daughter, it would have been unnecessary for him to have gone to such great lengths in order that Monina denounce her filiation. Hence, coupled with the assessment of the credibility of the testimonial evidence of the parties, it is evident that the standard to contradict a notarial document, clear and convincing evidence, has been met by Monina. FERRER v. DE YNCHAUSTI

ISSUES: 1. 2.

YES. Francisco’s lack of participation and in the preparation of the baptismal certificates and school records renders these documents incompetent to prove paternity, the former being competent merely to prove administration of the sacrament of baptism on the date so specified. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. However, despite the inadmissibility of the school records per se to prove paternity, they may be admitted as part of Monina’s testimony to corroborate her claim that Francisco spend for her education.

YES. In this case, Monina’s mother could no longer testify as to the fact of intercourse, as she had, unfortunately, passed away long before the institution of the complaint for recognition. But this does not mean that Monina could no longer prove her filiation. The fact of her birth and her parentage may be established by evidence other than the testimony of her mother.

Respondents, on the other hand, denied that the said Rosa Matilde was a daughter of Isabel Gonzales and Ramon Martinez Viademonte, Sr. One of the evidences presented by the defendant was the day-book kept by Ramon Martinez Viademonte, Jr., which contained an entry that on such date, a three-year old girl name Rosa, of unknown parents was merely delivered to his mother, Isabel and ,therefore, wasn’t the latter’s child.

YES. We readily conclude that the testimonial evidence offered by Monina, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with Francisco, coupled with the testimonies of her witnesses overwhelmingly established the facts that: (1) Francisco is Monina’s father; (2) Francisco recognized Monina as his child through overt acts by sending her to school, paying for her tuition and other school expenses, giving her allowances, recommending her employment, letting her stay in one of his residences and many others; and (3) Such recognition has been consistently shown and manifested throughout the years publicly, spontaneously, continuously and in an uninterrupted manner.

This was objected by the counsel of the plaintiffs alleging that it has not been proven that the entries in said book were made at the same time that those events occurred; that the witness who identified it did not see Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that even if were so, still the writing contained in the book, being a mere memorandum of an interested party, cannot be admitted at the trial.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) ISSUE:

Commissioner of Immigration: to support his contention that Florencio Mallare is not a Filipino, he presented:

Whether the day-book is admissible in evidence. a)

Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of to the effect that Florencio and his brothers and sisters had failed to establish their claim to Philippine citizenship;

b)

Exhibit "C", the death certicate of Esteban, wherein he was reported to be of Chinese nationality;

c)

Exhibits "D", "E", "F" and "G", the birth certificates of Florencio, his brothers and sisters, stating that their father was a Chinese citizen, born in Amoy, China, and wherein respondent was reported to be a Chinese, born in Macalelon, Quezon;

d)

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

e)

Exhibit "N", Florencio's alien certificate of registration.

HELD: YES. Based on provisions of section 298, No. 13 of the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree. The law does not require that the entries in the said booklet be made at the same time as the occurrence of those events; hence, the written memorandum in the same is not subject to the defect attributed to it. The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose handwriting he was familiar with, and the testimony of this witness contains some reference to a member of the family, now dead, and concerning the family genealogy of the same. IN RE: MALLARE

Florencio: Submitted pieces of evidence, which included the declarations of the following residents of Macalelon, Quezon:

Reputation has been held admissible as evidence of age, birth, race, or race ancestry, and on the question of whether a child was born alive.

a)

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

b)

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

c)

Salomon Gimenez, 75 years old and former mayor of Macalelon, who declared having known Esteban Mallare; that in the elections of 1925, when Esteban campaigned for a rival candidate against him, he (the witness) wanted to seek for Esteban's disqualication; that he sought the counsel of Judge Gaudencio Eleazar (a relative of the witness), who advised him that a disqualification move would not prosper because Esteban's mother was not married to Esteban's Chinese father; that as of 1940, when witness was municipal mayor, there were only about 3,000 residents in Macalelon.

d)

Joaquin Enobal, 69 years old, who declared that he was a classmate and playmate of Esteban Mallare, whose house was only about ve houses away from theirs; that he had not seen the husband of Ana Mallare; that Ana was a Tagalog who had lived in Macalelon.

FACTS: An investigation of the matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar, was held, for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines. Investigation by SC’s Legal Officer Investigator: a decision was rendered by this Court by preponderance of evidence, that Mallare's father, Esteban, was a Chinese up to his death; and his mother admittedly being a Chinese, respondent is likewise a Chinese national. Consequently, Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to him. Respondent: After denial of motion for reconsideration, Florencio petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the introduction of which could alter the decision previously promulgated. The evidence proposed to be presented consisted of: 1.

2.

An entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Esteban Mallare (respondent's father) is the natural son of Ana Mallare, a Filipina; and Testimonies of certain persons who has a known Esteban Mallare and his mother during their lifetime.

ISSUE: Whether the declarations by the witnesses were admissible in evidence.

Thus, the Court Resolved to set aside the decision declaring him excluded from the practice of law and to grant the reopening and new trial prayed for. The proofs taken at the original investigation shall not be retaken, but considered as part of the evidence in the new trial.

HELD: YES. The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a

25

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare. Reputation has been held admissible as evidence of age, birth, race, or race ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family - the reason for the distinction is the public interest that is taken in the question of the existence of marital relations.

The insurance companies alleged that the fire was caused by members of the Communist Party of the Philippines/New People’s Army (CPP/NPA). The following documents were presented by petitioner to support its claim: police blotter of the burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding the incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB, fire investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III Leonardo Rochas.

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

The testimonies of Lt. Col. Nicolas Torres and SPO3 Leonardo Rochar were limited to the fact that an investigation was conducted and in the course of the investigation they were informed by bystanders that "heavily armed men entered the transmitter house, poured gasoline in it and then lighted it. After that, they went out shouting "Mabuhay ang NPA". The persons whom they investigated and actually saw the burning of the station were not presented as witnesses. ISSUES:

The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog (and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of evidentiary value. The declarations were not only based on the reputation in the community regarding her race or raceancestry, which is admissible in evidence, but they must have certain factual basis. For it must be realized that in this Philippine society, every region possesses certain characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same region even from the way the latter speaks.

1. 2. 3. 4.

Considering that the witnesses testified having known, and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should receive a high degree of credibility. Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship. Neither could any act taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled.

Whether the testimonies of Lt. Col. Nicolas Torres and SPO3 Rochar are admissible as evidence. Whether the admission made in a letter by a certain Celso Magsilang, who claims to be a member of NPA, is admissible as evidence. Who among the parties in the insurance contract has the burden of proof. Whether the ff. documentary evidence are admissible: (1) the police blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire Investigation Report.

HELD: 1.

NO. First of all, Lt. Col. Torres was presented as an ordinary witness only and not an expert witness. Hence, his opinion on the identity or membership of the armed men with the CPPNPA is not admissible in evidence. Second, the testimonies of these two witnesses are hearsay. A witness can testify only to those facts which he knows of his personal knowledge, which means those facts which are derived from his perception. A witness may not testify as to what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. At best, the testimonies of SFO III Rochar and Lt. Col. 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.

2.

NO. Being an admission of person which is not a party to the present action, the letter made by Celso Magsilang is inadmissible in evidence under Section 22, Rule 130 of the Rules of Court. An admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action

3.

Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the plaintiff, the burden of proof never parts. For the defendant, an affirmative defense is one which is not a denial of an essential ingredient in the plaintiff’s cause of action, but one which, if established, will be a good defense – i.e. an "avoidance" of the claim.

DBP POOL v. RMN FACTS: Radio Mindanao Network, Inc. (RMN), owns several broadcasting stations all over the country. In the evening of July 27, 1988, RMN’s radio station located in SSS Building, Bacolod City, was razed by fire causing damage in the amount of P1,044,040.00. RMN tried to recover insurance benefits from DBP Pool of Accredited Insurance Companies and Provident Insurance Corporation as these two companies insured the transmitter equipments, generating sets, furnitures, fixtures and other transmitter facilities of RMN. However, both companies denied the claims out of these insurance policies since they alleged that the cause of loss was an excepted peril under condition no. 6 (c) and (d), which provides: “6. This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following consequences, namely: (c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil war. (d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power”

26

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) In insurance cases, where a risk is excepted by the terms of a policy which insures against other perils or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk, and from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in the policy has the burden of proving that the loss comes within the purview of the exception or limitation set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability.

ISSUE: Whether the fax is admissible as res gestae? HELD: The fax is not admissible. To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances.

Consequently, it is sufficient for private respondent to prove the fact of damage or loss. Once respondent makes out a prima facie case in its favor, the duty or the burden of evidence shifts to petitioner to controvert respondent’s prima facie case. In this case, since petitioner alleged an excepted risk, then the burden of evidence shifted to petitioner to prove such exception. It is only when petitioner has sufficiently proven that the damage or loss was caused by an excepted risk does the burden of evidence shift back to respondent who is then under a duty of producing evidence to show why such excepted risk does not release petitioner from any liability. Unfortunately for petitioner, it failed to discharge its primordial burden of proving that the damage or loss was caused by an excepted risk.

Assuming that petitioner’s negligence—which allegedly caused the ship to deviate from its course—is the startling occurrence, there is no showing that the statements contained in the fax messages were made immediately after the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be admitted as part of the res gestae of the first kind. Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.

YES. Being entries in official record, these are considered as exceptions to the hearsay rule. Nevertheless, as noted by the CA, none of these documents categorically stated that the perpetrators were members of the CPP/NPA. All these documents show that indeed, the "suspected" executor 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. Thus, the petition is dismissed.

Petitioner’s alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine whether the fax messages were made simultaneously with the purported equivocal act.

TALIDANO v. FALCON MARITIME For evidence to be admitted as res gestae evidence, either of the two instances of res gestae: spontaneous acts or verbal acts, must concur. Absent either, there is no other way for evidence to be considered res gestae.

Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained such information only from the Japanese port authorities. Verily, the messages can be characterized as double hearsay.

FACTS: Petitioner was an employee of Falcon Maritime and was employed as a second maritime officer. He claimed that he had been discriminated against and maltreated several times by his Korean supervisor. This prompted him to send a letter of complaint to the International Transport Federation.

CANQUE v. CA FACTS:

This allegedly caused resentment from the chief officer and petitioner was later on dismissed. Petitioner filed an action for illegal dismissal.

Petitioner Canque is a contractor doing business under the name and style RDC Construction. She had contracts with the government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road; and (c) the asphalting of Babag road in Lapu-lapu City. In connection with these projects, petitioner entered into two contracts with private respondent Socor Construction Corporation.

Cuyuga, the private respondent who had dismissed petitioner, countered that petitioner voluntarily disembarked from the vessel after being warned several times that he may be dismissed of incompetence and insubordination. He claimed that on one occasion, due to petitioner’s absence, the ship had encroached on the maritime lane of another ship, almost causing the ships to collide. Such incident was evidenced by a fax message.

The first contract (Exh. A), provided: The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows: 1. SCOPE OF WORK:

Petitioner claimed that such fax message was inadmissible as being self-serving and that it should have been the ship logbook that was submitted as evidence to prove such incident. Respondents claimed that the fax was admissible as res gestae.

a. The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact Item 310 and Item 302;

The fax was the main evidence used to validate petitioner’s dismissal.

b. That Contractor shall provide the labor and materials needed to complete the project;

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only (P8,000.00) per Metric Ton of Item 302.

transactions to which they refer, by a person deceased, outside of the Philippines

d. That the Contractor shall pay the Sub-Contractor the volume of the supplied Item based on the actual weight in Metric Tons delivered, laid and compacted and accepted by the MPWH;

be received as prima facie evidence, if such person made the entries in his

or unable to testify, who was in a position to know the facts therein stated, may

professional capacity or in the performance of duty and in the ordinary or regular

e. The construction will commence upon the acceptance of the offer.

course of business or duty.

The second contract (Exh. B) stated: The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the consideration hereinafter named. hereby agree as follows:

-and that although the entries cannot be considered an exception to the hearsay rule, it may be admitted under Rule 132, Section 10 which provides:

1. SCOPE OF WORK:

SEC. 10. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution.

a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to the jobsite … c. That the Contractor shall pay the Supplier the volume of the supplied items on the actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days after the submission of the bill; SOCOR sent Canque a bill containing a revised computation, (P299, 717.75) plus interest at the rate of 3% a month, representing the balance of petitioner's total account for materials delivered and services rendered by private respondent under the two contracts. RDC refused to pay the amount, claiming that SOCOR failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance of the government.

ISSUES: (1) Whether the entries in the Book of Collectible Accounts (Exh. K) constitute competent evidence to show such delivery.

SOCOR brought suit in the RTC to recover from Canque the said amount and interest. (2) Whether the entries may be admitted as evidence under Rule 132, Sec.10. Canque disputed the correctness of the bill considering that the deliveries were not signed and acknowledged by the checkers. And that she had already paid SOCOR 1.4 M but the latter has not issued any receipt for said payments. During the trial, SOCOR, as plaintiff, presented its vice-president, Sanchez, and Aday, its bookkeeper. Canque’s evidence consisted of her lone testimony.

(3) Does this mean that there is no competent evidence of SOCOR’s claim? HELD: (1) NO, the entries do not constitute competent evidence.

RTC rendered its decision ordering Canque to pay SOCOR the sum plus interest at 12% per annum and costs. On appeal, CA affirmed and upheld the trial court’s reliance on SOCOR’s Book of Collectible Accounts (Exhibit K) on the basis of Rule 130 Sec. 37 of the ROC. Case was elevated to the SC.

The admission in evidence of entries in corporate books requires the satisfaction of the following conditions:

CANQUE’s arguments:

1. 2. 3. 4.

- the presentation of the delivery receipts duly accepted by the MPWH ( Ministry of Public Works and Highways) is required under the contracts and is a condition precedent for her payment of the amount claimed by SOCOR;

5.

-that the entries in SOCOR’s Book of Collectible Accounts cannot take the place of the delivery receipts and that such entries are mere hearsay and thus inadmissible

The person who made the entry must be dead, outside the country or unable to testify; The entries were made at or near the time of the transactions to which they refer; The entrant was in a position to know the facts stated in the entries; The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and The entries were made in the ordinary or regular course of business or duty

The business entries in question (Exh. K) do not meet the first and third requisites. Dolores Aday, who made the entries, was presented by private respondent to testify on the account of RDC Construction. It was in the course of her testimony that the entries were presented and marked in evidence. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court.

SOCOR’s argument: - cites Rule 130 Section 37, arguing that the entries in the question constitute “entries in the course of business” sufficient to prove deliveries made for the government projects. This provision reads: Entries in the course of business. — Entries made at, or near the time of the

Moreover, Aday admitted that she had no personal knowledge of the facts constituting the entry. She said she made the entries based on the bills given to her. But she has no knowledge of the truth or falsity

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) of the facts stated in the bills. The person, therefore, who has personal knowledge of the facts stated in the entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the company's project engineer. The entries made by Aday show only that the billings had been submitted to her by the engineer and that she faithfully recorded the amounts stated therein in the books of account. Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts and on the dates indicated was a fact that could be established by the project engineer alone who, however, was not presented during trial.

ordered Gurimbao to shove and throw dirty and oily water at the port of Japan. The latter protested since such act is against the laws of Japan. However, the cadet/apprentice insisted on his orders so Gurimbao complied with it. Having finished his job, Gurimbao sought the aid of Macatuno to approach the cadet/apprentice about his “improper and unauthorized act.” When the two Filipinos approached the cadet/apprentice, the latter reacted violently so Macatuno LEB “pushed” the latter twice on his chest while Gurimbao “mildly hit his arm.” The captain witnessed the altercation and entered the incident in the tanker’s logbook. He summoned the two Filipinos at his cabin. The captain told them to pack their things as their services are being terminated. As a consequence, the two were repatriated to the Philippines where they lodged complaints for illegal dismissal with the POEA. Petitioners contend that the two Filipinos had been delinquent on board the vessel as shown by the records of the captain’s logbook The POEA found that the private respondents Macatuno and Gurimabao’s dismissals were illegal. The NLRC affirmed the decision of the POEA. Hence, the instant petition.

(2) Entries in Exh. K does not constitute evidence. SOCOR’s counsel offered Exhibit K for the purpose of showing the amount of Canque’s indebtedness. This is also the purpose for which its admission is sought as a memorandum to refresh the memory of Dolores Aday as a witness. Be that as it may, Exh. K does not itself constitute evidence. As explained in Borromeo v. Court of Appeals: Under the above provision (Rule 132, §10), the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified 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.

ISSUE: Whether or not the dismissal was illegal? HELD: The Court upheld the decision of the NLRC in finding that the private respondents were illegally dismissed. Petitioners did not submit as evidence to the POEA the logbook itself but was merely a typewritten collation of excerpts from what could be the logbook. Hence as the typewritten excerpts from then “logbook” were the only pieces of evidence presented by petitioners to support the dismissal of private respondent have no probative value at all, petitioners’ cause must fail. We agree with petitioners that the ship captain's logbook is a vital evidence as Article 612 of the Code of Commerce requires him to keep a record of the decisions he had adopted as the vessel's head. Thus, in Haverton Shipping Ltd. v. NLRC, the Court held that a copy of an official entry in the logbook is legally binding and serves as an exception to the hearsay rule. However, the Haverton Shipping ruling does not find unqualified application in the case at bar. In said case, an investigation of the incident which led to the seamen's dismissal was conducted before he was dismissed. Consequently, the facts appearing in the logbook were supported by the facts gathered at the investigation. In this case, because no investigation was conducted by the ship captain before repatriating private respondent, 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. Moreover, what was presented in the Haverton Shipping case was a copy of the official entry from the logbook itself. In this case, 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.

As the entries in question (Exh. K) were not made based on personal knowledge, they could only corroborate Dolores Aday's testimony that she made the entries as she received the bills. (3) The answer is in the negative. Aside from Exh K, SOCOR presented documents which are SOCOR Billings under the account of RDC Construction. These billings were presented and duly received by the authorized representatives of Canque. The circumstances obtaining in the case at bar clearly show that for a long period of time after receipt thereof, RDC never manifested its dissatisfaction or objection to the aforestated billings submitted by plaintiff. Neither did defendant immediately protest to plaintiff's alleged incomplete or irregular performance. Indeed, while Canque had previously paid SOCOR about P1,400,000.00 for deliveries made in the past, she did not show that she made such payments only after the delivery receipts had been presented by private respondent. On the other hand, it appears that Canque was able to collect the full amount of project costs from the government, so that she would be unjustly enriched at the expense of SOCOR if she is not made to pay what is her just obligation under the contracts. WHEREFORE, the decision of the Court of Appeals is AFFIRMED.

(In relation to evidence, the evidence submitted was not the logbook itself but a typewritten collation of excerpts from what could be a logbook)

WALLEM MARITIME v. NLRC FACTS:

NORTHWEST AIRLINES v. CHIONG Joselito Macatuno, private respondent, was a seaman on board the M/T Fortuna of Liberian registry. He was hired by Wallem Ship Managament Ltd. Thru its manning agent Wallem Maritime Services Inc., Macatuno’s contract of employment covers 10 months. While the vessel was berthed at the port of Kawasaki, Japan, an altercation took place between Macatuno and Gurimbao, a fellow Filipino against a cadet/apprentice officer of the same nationality as the captain of the vessel. The cadet/apprentice

FACTS: Philimare Shipping, as the authorized Philippine agent of TransOcean Lines, hired respondent Steven Chiong as Third Engineer of TransOcean’s vessel M/V Elbia at the San Diego, California Port. Philimare

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) purchased for Chiong a Northwest plane ticket for San Diego, California with a departure date of April 1, 1989 from Manila.

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". [Rule 130, Section 43, Revised Rules of Court]

On April 1, 1989, Chiong arrived at the Manila International Airport (MIA), 3 hours before his flight. Marilyn Calvo, Philimare’s Liaison Officer, met Chiong at the departure gate. When Chiong went to the check-in counter, the Northwest personnel informed him that his name did not appear in the computer’s list of confirmed departing passengers. It appears that Chiong’s name was crossed out and substituted with "W. Costine" in Northwest’s Air Passenger Manifest. Ultimately, Chiong was not allowed to board Northwest Flight No. 24 bound for San Diego that day and, consequently, was unable to work at the M/V Elbia by April 1, 1989 (California, U.S.A. time).

Otherwise stated, in order to be admissible as entries in the course of business, it is necessary that: (a) the person who made the entry must be dead or unable to testify; (b) the entries were made at or near the time of the transactions to which they refer; (c) the entrant was in a position to know the facts stated in the entries; (d) the entries were made in his professional capacity or in the performance of a duty; and (e) the entries were made in the ordinary or regular course of business or duty.

As such, Chiong filed a Complaint for breach of contract of carriage before the RTC.

Tested by these requirements, we find the manifest and passenger name record to be mere hearsay evidence. While there is no necessity to bring into court all the employees who individually made the entries, it is sufficient that the person who supervised them while they were 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. In the case at bench, while MENDOZA was the supervisor on-duty on April 1, 1989, he has no personal knowledge of the entries in the manifest since he did not supervise the preparation thereof. More importantly, no evidence was presented to prove that the employee who made the entries was dead nor did the defendant-appellant set forth the circumstances that would show the employee’s inability to testify.

In its Answer, Northwest contradicted the claim that it breached its contract of carriage with Chiong, reiterating that Chiong had no cause of action against it because per its records, Chiong was a "no-show" passenger for Northwest Flight No. 24 on April 1, 1989. After trial, the RTC ruled in favor of Chiong.The RTC ruled that the evidence adduced by the parties supported the conclusion that Chiong was deliberately prevented from checking-in and his boarding pass unjustifiably withheld to accommodate an American passenger by the name of W. Costine. On appeal, the CA affirmed in toto the ruling of the RTC.

PATULA v. PEOPLE

Thus, Northwest elevated the case to the SC via a petition for review on certiorari under Rule 45.

FACTS:

Contentions of Northwest: 



Patula was charged with estafa. She pleaded not guilty to the offense charged in the information. However, no stipulation of facts was had at the pre-trial and she did not avail herself of plea-bargaining.

The CA erred in ruling that Northwest’s Exhibits "2" and "3," the Flight Manifest and the Passenger Name Record, respectively, were hearsay evidence and ought to be excluded from the records.

The Prosecution’s first witness was Lamberto Go, who testified that he was the branch manager of Footlucker’s Chain of Stores, Inc. He said that Patula was an employee of Footlucker’s, starting as a saleslady in 1996 until she became a sales representative. He testified that at first, her volume of sales was quite high, but later on dropped. This led him to confront her, to which she responded that the business was slow. He summoned the accounting clerk to verify and found that there were erasures on some collection receipts.

Chiong, as a "no-show" passenger on April 1, 1989, already defaulted in his obligation to abide by the terms and conditions of the contract of carriage and as such, Northwest could not have been in breach of its reciprocal obligation to transport Chiong.

In sum, Northwest insists that Chiong’s testimony is a complete fabrication, supposedly demonstrated by the following: (1) Chiong’s seaman service record book reflects that he left the Philippines after April 1, 1989, specifically on April 17, 1989, to board the M/V Elbia, and was discharged therefrom upon his personal request; (2) the Information filed against Chiong for False Testimony; and (3) the Flight Manifest and the Passenger Name Record both indicate that he was a "no-show" passenger.

Prosecution’s other witness, Karen Guivencan, the store’s auditor, declared that Go had requested her to audit Patula after some customers had told him that they had already paid their accounts but the office ledger had still reflected outstanding balances for them. She discovered in the course of her audit that the amounts appearing on the original copies of receipts in the possession of around 50 customers varied from the amounts written on the duplicate copies of the receipts Patula submitted to the office.

ISSUE:

During Guivencan’s stint as a witness, the prosecution marked the ledgers of Patula’s various customers allegedly with discrepancies as Exhibits B to YY and their derivatives, inclusive. Only 49 of the ledgers were formally offered and admitted by the RTC because the 50th ledger could no longer be found.

Whether the Flight Manifest and the Passenger Name Record offered by Northwest as evidence were hearsay evidence.

In the course of her direct-examination, Patula’s counsel interposed a continuing objection on the ground that the figures entered and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court. With that, he did not anymore crossexamine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information.

HELD: YES. The RTC and CA correctly excluded these documents as hearsay evidence. We quote with favor the CA’s holding thereon, thus: As a rule, "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,

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The Prosecution then formally offered its documentary exhibits, including Exhibits B to YY and their derivatives, inclusive, the confirmation sheets used by Guivencan in auditing the accounts served by Patula and Guivencan’s so-called Summary (Final Report) of Discrepancies.

Section 20. Proof of private documents. – Before any private document as authentic is received in evidence, its due execution and authenticity must be proved either: (a) (b)

RTC rendered a decision finding Patula guilty of estafa. ISSUE: 1. 2.

Any other private document need only be identified as that which it is claimed to be. Whether the RTC gravely erred in admitting evidence of the falsification of the duplicate receipts despite the information not alleging the falsification; Whether the ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) were admissible as evidence of Patula’s guilt for estafa as charged despite their not being duly authenticated; and Whether Guivencan’s testimony on the ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) to prove petitioner’s misappropriation or conversion was inadmissible for being hearsay

In the present case, Go’s attempt at authentication of the signature of Patula on the receipt immediately fizzled out after the Prosecution admitted that the document was a mere machine copy, not the original. Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a later date the originals of the receipt however, the promise was not even true; because almost in the same breath, the Prosecution offered to authenticate the signature of Patula on the receipts through a different witness (though then still unnamed). As matters turned out in the end, the effort to have Go authenticate both the machine copy of the receipt and the signature of petitioner on that receipt was wasteful because the machine copy was inexplicably forgotten and was no longer even included in the Prosecution’s Offer of Documentary Evidence.

HELD: 1.

Testimonial and documentary evidence, being hearsay, did not prove Patula’s guilt beyond reasonable doubt

It is true that the original of the receipt was subsequently presented as Exhibit B through Guivencan. However, the Prosecution did not establish that the signature appearing on Exhibit B was the same signature that Go had earlier sought to identify to be the signature of Patula on the machine copy.

On his part, Go essentially described for the trial court the various duties of Patula as Footlucker’s sales representative. On her part, Guivencan conceded having no personal knowledge of the amounts actually received by Patula from the customers or remitted by Patula to Footlucker’s. This means that persons other than Guivencan prepared Exhibits B to YY and their derivatives, inclusive, and that Guivencan based her testimony on the entries found in the receipts supposedly issued by Patula and in the ledgers held by Footlucker’s corresponding to each customer, as well as on the unsworn statements of some of the customers.

In her case, Guivencan’s identification of Patula’s signature on two receipts based alone on the fact that the signatures contained the legible family name of Patula was ineffectual. She could not honestly identify Patula’s signature on the receipts either because she lacked familiarity with such signature, or because she had not seen Patula affix her signature on the receipts.

Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of Patula’s misappropriation or conversion through cross-examination by Patula. The denial of that opportunity rendered the entire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused.

CALTEX v. AFRICA FACTS: On 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Petitioners, owners of the neighboring houses, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire.

Under Section 36 of Rule 130, Rules of Court, a witness can testify only to those facts that she knows of her personal knowledge, that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information.

There were reports conducted by Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines: 1. Police Department report: —

Based on the foregoing considerations, Guivencan’s testimony as well as Exhibits B to YY, and their derivatives inclusive, must be entirely rejected as proof of petitioner’s misappropriation or conversion. 2.

By anyone who saw the document executed or written; or By evidence of the genuineness of the signature or handwriting or the maker

A stranger lighted a cigarette and threw the burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed.

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

2. The Fire Department report: — the complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood contained cigarettes and matches, installed between the gasoline pumps and the underground tanks.

There is no question that Exhibits B to YY and their derivatives were private documents because private individuals executed or generated them for private or business purposes or uses. Authentication of Private Documents: (Section 20, Rule 132 of the Rules of Court)

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) 3. Captain Tinio of AFP

assaulted and stabbed to death Jaime A. Tonog. The trial court convicted the accused as charged and sentenced him to life imprisonment and to pay the heirs of the victim.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the gasoline station and what the chief of the fire department had told him on the same subject.

Evidence of the Prosecution: A fistfight ensued between Jaime Tonog on one hand and the accused Ricardo San Gabriel together with "Ramon Doe" on the other. The fight was eventually broken up when onlookers pacified the protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were back with bladed weapons. They approached Tonog surreptitiously, surrounded him and simultaneously stabbed him in the stomach and at the back, after which the assailants ran towards the highway leaving Tonog behind on the ground. He was then brought to Mary Johnston Hospital where he was pronounced dead on arrival.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This ruling is now assigned as error. One of the contentions was that in any event the said reports, without further testimonial evidence on their contents, are admissible for it fall under the exception to the hearsay rule under section 35 of Rule 123, now Rule 130 which provides that "entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

Contention of the Accused: ISSUE: He testified that he saw Tonog drunk; Tonog even attempted to box him but he parried his blow; Tonog continued walking but when he chanced upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon fought back but was subdued by his bigger assailant so the former ran towards the highway; when Tonog met a certain "Mando" he boxed the latter who however fought back despite his (accused) warning not to; at this moment he saw Ramon return with a bolo on hand; he warned Ramon not to fight but his advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when "Mando" saw what happened he ("Mando") pulled out his knife and also stabbed Tonog at the back; Ramon and "Mando" then fled towards the highway.

Whether the certain reports on the fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines are admissible under (now) Rule 130 Section 44. HELD: NO, the reports do not constitute as entries in the official records. There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).

Gabriel leans heavily on the Advance Information Sheet prepared by Pat. Steve Casimiro which did not mention him at all and named only "Ramon Doe" as the principal suspect. Gabriel claimed that he even stayed with the victim and called out the latter's companions to bring him to the hospital. ISSUE: Whether the Advance Information Sheet constitutes an exception to the hearsay rule, hence, admissible?

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation nor was is acquired by them through official information. As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not, give any reason as to the origin of the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record.

HELD: NO, the Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in evidence three (3) requisites must concur: (a) The entry was made by a police officer or by another person specially enjoined by law to do so;

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so.

(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,

PEOPLE v. GABRIEL

(c) The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

FACTS:

In the case at bar, the public officer who prepared the document had no sufficient and personal knowledge of the stabbing incident. Any information possessed by him was acquired from Camba (an alleged eyewitness) which therefore could not be categorized as official information because in order to

Ricardo San Gabriel was charged with murder in an Information alleging that on 26 November 1989, armed with a bladed weapon, in conspiracy with "Ramon Doe," with treachery, and intent to kill, he

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) be classified as such the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for the record. In the case of Camba, he was not legally so obliged to give such statements.

the BIR records submitted by the respondent immaterial, self-serving, and therefore insufficient to prove that the assessment notice was mailed and duly received by the petitioner. CA Ruling:

The Advance Information Sheet was prepared by the police officer only after interviewing Camba. The accused then could have compelled the attendance of Camba as a witness. The failure to exert the slightest effort to present Camba on the part of the accused should militate against his cause.

In reversing the CTA decision, the Court of Appeals found the evidence presented by the respondent to be sufficient proof that the tax assessment notice was mailed to the petitioner; therefore the legal presumption that it was received should apply.

Moreover, the accused enumerates discrepancies in the testimonies of the prosecution witnesses. Thus, according to him, it was testified that the victim was stabbed by the accused at the back but failed to point out its precise location. The stabbing admittedly occurred at around seven o'clock in the evening but the Advance Information Sheet reported "6:30 p.m." One witness testified that the fistfight was only between the victim and "Ramon Doe," while another reported that it involved the victim, "Ramon Doe" and the accused. Furthermore, the accused did not offer any information regarding the person and circumstances of "Mando." Up to this date "Mando" remains a myth. Not a single witness was presented by the defense to prove who "Mando" was, nor even a hint of his personal circumstances.

ISSUE: Whether respondent’s right to assess petitioners alleged deficiency income tax is barred by prescription. HELD: This Court finds the instant Petition meritorious. Under Section 203 of the National Internal Revenue Code (NIRC), respondent had three (3) years from the last day for the filing of the return to send an assessment notice to petitioner. In the case of Collector of Internal Revenue v. Bautista, this Court held that an assessment is made within the prescriptive period if notice to this effect is released, mailed or sent by the CIR to the taxpayer within said period. Receipt thereof by the taxpayer within the prescriptive period is not necessary. At this point, it should be clarified that the rule does not dispense with the requirement that the taxpayer should actually receive, even beyond the prescriptive period, the assessment notice which was timely released, mailed and sent.

The discrepancies do not militate against the fact firmly established by the prosecution that Tonog was stabbed at the back by the accused and by "Ramon Doe" in the abdomen. Any discordance noted is so minor and insignificant that no further consideration is essential. The most honest witnesses make mistakes sometimes, but such innocent lapses do not necessarily impair their credibility. The testimony of a witness must be considered and calibrated in its entirety and not by truncated portions thereof or isolated passages therein. The presence of the accused in the vicinity even after the commission of the crime does not in any way extricate him from his dilemma. Certainly, it is no proof of his innocence.

In Protectors Services, Inc. v. Court of Appeals, this Court ruled that when a mail matter is sent by registered mail, there exists a presumption, set forth under Section 3(v), Rule 131 of the Rules of Court, that it was received in the regular course of mail. The facts to be proved in order to raise this presumption are: (a) that the letter was properly addressed with postage prepaid; and (b) that it was mailed. While a mailed letter is deemed received by the addressee in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee.

Hence, the decision of the court a quo in criminal case convicting accused-appellant Ricardo San Gabriel Y Ortiz of murder is affirmed. The penalty of life imprisonment however is modified to reclusion perpetua, while the award of Php 30,000.00 as indemnity is increased to Php 50,000.00 conformably with existing jurisprudence. BARCELONA v. COMMISSIONER OF BIR FACTS:

In the present case, petitioner denies receiving the assessment notice, and the respondent was unable to present substantial evidence that such notice was, indeed, mailed or sent by the respondent before the BIRs right to assess had prescribed and that said notice was received by the petitioner. The respondent presented the BIR record book where the name of the taxpayer, the kind of tax assessed, the registry receipt number and the date of mailing were noted. The BIR records custodian, Ingrid Versola, also testified that she made the entries therein. Respondent offered the entry in the BIR record book and the testimony of its record custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules of Court, which states that:

Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a corporation engaged in the trading of securities. Petitioner filed its Annual Income Tax Return for taxable year 1987. After an audit investigation, respondent Commissioner of Internal Revenue (CIR) issued an assessment for deficiency income tax arising from the disallowance of the item on salaries, bonuses and allowances as part of the deductible business expense since petitioner failed to subject the salaries, bonuses and allowances to withholding taxes. This assessment was covered by Formal Assessment Notice dated 1 February 1991, which, respondent alleges, was sent to petitioner through registered mail on 6 February 1991. However, petitioner denies receiving the formal assessment notice.

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.

On 17 March 1992, petitioner was served with a Warrant of Distraint and/or Levy to enforce collection of the deficiency income tax for the year 1987. Petitioner filed a formal protest, but the respondent denied the protest with finality. Then, petitioner filed a petition for review with the CTA.

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

CTA Ruling: The CTA ruled that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption. It reasoned that the direct denial of the petitioner shifts the burden of proof to the respondent that the mailed letter was actually received by the petitioner. The CTA found

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) In this case, the entries made by Ingrid 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 transcript of stenographic notes 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. Hence, Rule 130, Section 44 finds no application in the present case. Thus, the evidence offered by respondent does not qualify as an exception to the rule against hearsay evidence. Furthermore, independent evidence, such as the registry receipt of the assessment notice, or a certification from the Bureau of Posts, could have easily been obtained. Yet respondent failed to present such evidence.

braking action could not cope with the inertia and failed to gain sufficient traction. As a consequence, the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo Cargo Truck, causing damage to the latter in the amount of PhP20,000. Respondents also controverted the results of the Police Report, asserting that it was based solely on the biased narration of the Nissan Bus driver. Malayan Insurance presented the testimony of its lone witness, a motor car claim adjuster, who attested that he processed the insurance claim of MLFC and verified the documents submitted to him. Respondents, on the other hand, failed to present any evidence.

In the case of Nava v. Commissioner of Internal Revenue, this Court stressed on the importance of proving the release, mailing or sending of the notice.

The trial court ruled in favor of Malayan Insurance and declared respondents liable for damages. However, on appeal, CA reversed and set aside the Decision of the trial court and ruled in favor of respondents. CA held that the evidence on record has failed to establish not only negligence on the part of respondents, but also compliance with the other requisites and the consequent right of Malayan Insurance to subrogation. It noted that the police report, which has been made part of the records of the trial court, was not properly identified by the police officer who conducted the on-thespot investigation of the subject collision. Thus, as a reviewing body, it cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document, much less accord it evidentiary value.

In the present case, the evidence offered by the respondent fails to convince this Court that Formal Assessment Notice was released, mailed, or sent before the lapse of the period of limitation upon assessment and collection prescribed by Section 203 of the NIRC. Such evidence, therefore, is insufficient to give rise to the presumption that the assessment notice was received in the regular course of mail. Consequently, the right of the government to assess and collect the alleged deficiency tax is barred by prescription. MALAYAN INSURANCE v. REYES

Malayan Insurance filed its MR, arguing that a police report is a prima facie evidence of the facts stated in it. Further, respondents are deemed to have waived their right to question its authenticity and due execution for they never questioned the presentation of the report in evidence.

FACTS: At around 5 o'clock in the morning, an accident occurred at the corner of EDSA and Ayala Avenue, Makati City, involving four (4) vehicles, to wit: 1. 2. 3. 4.

CA denied the MR. Hence, Malayan Insurance filed the instant petition.

an Isuzu Tanker a Mitsubishi Galant (insured by Malayan) a Nissan Bus operated by Aladdin Transit a Fuzo Cargo Truck (negligent)

ISSUES: 1.

Based on the Police Report, the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus on their right side shortly before the vehicular incident. All three (3) vehicles were at a halt along EDSA facing the south direction when the Fuzo Cargo Truck simultaneously bumped the rear portion of the Mitsubishi Galant and the rear left portion of the Nissan Bus. Due to the strong impact, these two vehicles were shoved forward and the front left portion of the Mitsubishi Galant rammed into the rear right portion of the Isuzu Tanker.

2. 3.

Whether the police report is admissible even if the police investigator who prepared the same did not actually testify in court. Whether the evidence to support the claim for gross negligence is sufficient. Whether the subrogation of Malayan Insurance is impaired and or deficient.

HELD: 1.

Previously, Malayan Insurance issued Car Insurance Policy in favor of First Malayan Leasing and Finance Corporation (MLFC), insuring the Mitsubishi Galant. Having insured the vehicle, Malayan Insurance paid the damages sustained by MLFC amounting to PhP700,000.

Yes, the police report is admissible. Under the rules of evidence, a witness can testify only to those facts which the witness knows of his or her personal knowledge, that is, which are derived from the witness' own perception. At the same time, a witness may not testify on matters which he or she merely learned from others either because said witness was told or read or heard those matters. Such testimony is considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay rule.

Maintaining that it has been subrogated to the rights and interests of MLFC by operation of law, Malayan Insurance sent several demand letters to respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes (Reyes), the registered owner and the driver, respectively, of the Fuzo Cargo Truck, requiring them to pay the amount it had paid to MLFC. When respondents refused to settle their liability, Malayan Insurance filed a complaint for damages for gross negligence.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements.

Respondents asserted that they cannot be held liable for the vehicular accident, since its proximate cause was the reckless driving of the Nissan Bus driver. They alleged that the speeding bus, coming from the service road of EDSA, maneuvered its way towards the middle lane without due regard to Reyes' right of way. When the Nissan Bus abruptly stopped, Reyes stepped hard on the brakes but the

There are several exceptions to the hearsay rule under the Rules of Court, among which are entries in official records.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Section 44, Rule 130 provides:

explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.

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.

The following are the requisites in order for the doctrine of res ipsa loquitur to apply: 1. 2.

Requisites for the admissibility in evidence, as an exception to the hearsay rule of entries in official records, thus: 1. 2. 3.

3.

that the entry was made by a public officer or by another person specially enjoined by law to do so; that it was made by the public officer in the performance of his or her duties, or by such other person in the performance of a duty specially enjoined by law; and that the public officer or other person had sufficient knowledge of the facts by him or her stated, which must have been acquired by the public officer or other person personally or through official information.

4.

The defendant's negligence is presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant 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. It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established.

In this case, the presentation of the police report itself is admissible as an exception to the hearsay rule even if the police investigator who prepared it was not presented in court, as long as the above requisites could be adequately proved. There is no dispute that SPO1 Dungga, the on-the-spot investigator, prepared the report, and he did so in the performance of his duty. However, what is not clear is whether SPO1 Dungga had sufficient personal knowledge of the facts contained in his report. Thus, the third requisite is lacking. However, respondents failed to make a timely objection to the police report's presentation in evidence; thus, they are deemed to have waived their right to do so. As a result, the police report is still admissible in evidence. 2.

the accident was of a kind which does not ordinarily occur unless someone is negligent; the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. (no contributory negligence) the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident. (added by jurisprudence, originally there are only 3 reqs)

In this case, aside from the statement in the police report, none of the parties disputes the fact that the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. Respondents, however, point to the reckless driving of the Nissan Bus driver as the proximate cause of the collision, which allegation is totally unsupported by any evidence on record. And assuming that this allegation is, indeed, true, it is astonishing that respondents never even bothered to file a cross-claim against the owner or driver of the Nissan Bus.

Yes, the evidence is sufficient applying the doctrine of res ipsa loquitur. Since Reyes, the driver of the Fuzo Cargo truck, bumped the rear of the Mitsubishi Galant, he is presumed to be negligent unless proved otherwise. In this case, respondents failed to present any evidence to overturn the presumption of negligence. Even if we consider the inadmissibility of the police report in evidence, still, respondents cannot evade liability by virtue of the res ipsa loquitur doctrine. 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 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 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.

Further, all the requisites for the application of the rule of res ipsa loquitur are present. The Fuzo Cargo Truck would not have had hit the rear end of the Mitsubishi Galant unless someone is negligent. Also, the Fuzo Cargo Truck was under the exclusive control of its driver, Reyes. Even if respondents avert liability by putting the blame on the Nissan Bus driver, still, this allegation was self-serving and totally unfounded. Finally, no contributory negligence was attributed to the driver of the Mitsubishi Galant. Consequently, all the requisites for the application of the doctrine of res ipsa loquitur are present, thereby creating a reasonable presumption of negligence on the part of respondents. 3.

The doctrine is based on necessity where the necessary evidence is absent or not available. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. It proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendant's negligence is beyond plaintiff's power.

Validity of Subrogation Malayan Insurance contends that there was a valid subrogation, as evidenced by the claim check voucher and the Release of Claim and Subrogation Receipt presented. Respondents, however, claim that the documents presented by Malayan Insurance do not indicate certain important details that would show proper subrogation. Respondents had all the opportunity, but failed to object to the presentation of its evidence. Thus, respondents are deemed to have waived their right to make an objection.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any

The rule is that failure to object to the offered evidence renders it admissible, and the court cannot, on its own, disregard such evidence. When a party desires the court to reject the

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) evidence offered, it must so state in the form of a timely objection and it cannot raise the objection to the evidence for the first time on appeal. Because of a party's failure to timely object, the evidence becomes part of the evidence in the case. Thereafter, all the parties are considered bound by any outcome arising from the offer of evidence properly presented.

Exhibit F — quotation of prices issued by Seafgear Sales, Inc. on January 21, 1987 to Del Rosario showing that two (2) rolls of nylon rope would cost P140,000.00; two (2) rolls of nylon rope, P42,750.00; one (1) binocular, P1,400.00, one (1) compass, P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197,150.00;

In this case, claim check voucher and the Release of Claim and Subrogation Receipt presented by Malayan Insurance are already part of the evidence on record, and since it is not disputed that the insurance company, indeed, paid PhP700,000 to MLFC, then there is a valid subrogation in the case at bar. The payment by the insurer to the insured operates as an equitable assignment to the insurer of all the remedies that the insured may have against the third party whose negligence or wrongful act caused the loss. The right of subrogation is not dependent upon, nor does it grow out of, any privity of contract. It accrues simply upon payment by the insurance company of the insurance claim. The doctrine of subrogation has its roots in equity. It is designed to promote and to accomplish justice; and is the mode that equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, ought to pay.

Exhibit H — price quotation issued by Seafgear Sales, Inc. dated April 10, 1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts 100md x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md x 100mtrs., P146,500 and bañera (tub) at P65.00 per piece or a total of P414,065.00. In this case, actual damages were proven through the sole testimony of private respondent's general manager and certain pieces of documentary evidence. Except for Exhibit B where the value of the 1,050 bañeras of fish were pegged at their September 1977 value when the collision happened, the pieces of documentary evidence proffered by private respondent with respect to items and equipment lost show similar items and equipment with corresponding prices in early 1987 or approximately ten (10) years after the collision. Noticeably, petitioner did not object to the exhibits in terms of the time index for valuation of the lost goods and equipment. In objecting to the same pieces of evidence, petitioner commented that these were not duly authenticated and that the witness (Del Rosario) did not have personal knowledge on the contents of the writings and neither was he an expert on the subjects. Clearly ignoring petitioner's objections to the exhibits, the lower court admitted these pieces of evidence and gave them due weight to arrive at the award of P6,438,048.00 as actual damages. The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private respondent did not present any other witnesses especially those whose signatures appear in the price quotations that became the bases of the award.

PNOC SHIPPING v. CA FACTS: In the early morning of September 21, 1977, the M/V Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with the vessel Petroparcel, which was later on acquired by PNOC. After investigation was conducted by the Board of Marine Inquiry, it rendered a decision finding Petroparcel at fault. Based on this finding by the Board and after unsuccessful demands on petitioner, private respondent sued Petroparsel.

ISSUE: Whether the price quotation exhibits presented should be admitted as evidence to prove actual damages

After trial, the lower court rendered its decision in favor of the plaintiff and against the defendant PNOC. In arriving at the above disposition, the lower court cited the evidence presented by private respondent consisting of the testimony of its general manager and sole witness, Edilberto del Rosario. As to the award of P6,438,048.00 in actual damages, the lower court took into account the following pieces of documentary evidence that private respondent offered during trial:

HELD:

Exhibit B — a document titled "Marine Protest" executed by Delfin Villarosa, Jr. on September 22, 1977 stating that as a result of the collision, the M/V Maria Efigenia XV sustained a hole at its left side that caused it to sink with its cargo of 1,050 bañeras valued at P170,000 00;

Price quotations are ordinary private writings which under the Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations.

NO. As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available.

Exhibit C — a quotation for the construction of a 95-footer trawler issued by Isidoro A. Magalong of I. A. Magalong Engineering and Construction on January 26, 1987 to Del Rosario showing that construction of such trawler would cost P2,250,000.00;

Section 36, Rule 130 of the Revised Rules of Court provides that a witness can testify only to those facts that he knows of his personal knowledge. For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of P6,438,048 00 should be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by independent evidence. Moreover, because he was the owner of private respondent corporation whatever testimony he would give with regard to the value of the lost vessel, its equipment and cargoes should be viewed in the light of his self-interest therein. His testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence considering his familiarity thereto. However, his valuation of such equipment, cargo and the vessel itself should not be accepted as gospel truth. The documentary evidence presented to support Del Rosario's claim as regards the amount of losses must be examined.

Exhibit D — pro forma invoice issued by E.D. Daclan of Power Systems, Incorporated on January 20, 1987 to Del Rosario showing that two (2) units of CUMMINS Marine Engine model would cost P1,160,000.00; Exhibit E — quotation of prices issued by Scan Marine Inc. on January 20, 1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video Sounder, Model FCV-501 would cost P45,000.00 so that the two units would cost P145,000.00;

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The price quotations presented as exhibits partake of the nature of hearsay evidence considering that the persons who issued them were not presented as witnesses. Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand. Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule. On this point, the Court believes that the exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule 130.

however, that (1) technically petitioner sustained injury but which, unfortunately, was not adequately and properly proved, and (2) this case has dragged on for almost two decades, an award of P2,000.000.00 in favor of private respondent as and for nominal damages is in order.

It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like" under Section 45, Rule 130 of the Revised Rules on Evidence. Under Section 45 of the aforesaid Rule, a document is a commercial list if:

Petitioners, thru their mother Celestina Daldo (the guardian ad litem), sued respondent Tan for acknowledgment and support in a civil case. After petitioners had already presented oral and documentary evidence and were about to rest their case, they moved to dismiss the foregoing civil case upon the ground that the parties had come to an amicable settlement, and prayed that the same be dismissed with prejudice and without recourse of appeal.

TAN v. CA FACTS:

(1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation;

On the same day however, Celestina Daldo subscribed to an affidavit stating that Tan is not the father her said minor children but another person whose name I cannot divulge; and that she prepared the affidavit to record what is true and to correct what misinterpretation may arise in the future. Acting on the said motion, the CFI dismissed the case.

(3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation.

Months later, petitioners, thru their grandfather, commenced the present action before the Juvenile & Domestic Relations Court for acknowledgment and support, involving the same parties, cause of action and subject matter. But the Judge dismissed the case on the ground of res judicata. Petitioners moved to reconsider and successfully obtained a favorable judgment. Tan appealed before the CA which, in turn, decided a ruling in favor of Tan denying the admissibility of petitioner’s witnesses’ testimony in the former case. Petitioners argued the admissibility of said evidence.

Based on the above requisites, Exhibits B, C, D, E, F and H are not "commercial lists" for these do not belong to the category of "other published compilations" under Section 45. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned." The exhibits mentioned are mere price quotations issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation." These are simply letters responding to the queries of Del Rosario.

Furthermore, the witnesses at the former trial were subpoenaed by the Juvenile & Domestic Relations Court a number of times. These witnesses did not appear to testify. ISSUE: Are the witnesses' testimonies in the former trial within the coverage of the rule of admissibility intended for witnesses of the class unable to testify?

To be sure, letters and telegrams are admissible in evidence but these are, however, subject to the general principles of evidence and to various rules relating to documentary evidence.

HELD:

Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. Thus, a letter may be offered in evidence and admitted as such but its evidentiary weight depends upon the observance of the rules on evidence. Accordingly, the author of the letter should be presented as witness to provide the other party to the litigation the opportunity to question him on the contents of the letter. Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has no probative value. Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay evidence.

NO. SEC. 41. Testimony at a former trial. — The testimony of a witness deceased or out of the Philippines, or unable to testify, given in a former case between the same parties, relating to the same matter, the adverse party having had an opportunity to cross-examine him, may be given in evidence.

Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private respondent of any redress for the loss of its vessel. Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every case where property right has been invaded. Under Article 2223 of the Civil Code, "the adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns." Considering the fact,

Here, the witnesses in question were available. Only, they refused to testify. No other person that prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those unable to testify.

These witnesses are not dead. They are not outside of the Philippines. They cannot also be categorized as those who are unable to testify. The subsequent failure or refusal to appear thereat at the second trial or hostility since testifying at the first trial 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.

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 prosecution of their cases. Petitioners failed to avail of these remedies, went ahead and submitted their case.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) To follow strictly the law of admissibility of testimony in former trials, is to permit party litigants to buy witnesses to dissuade them from testifying again. Nothing extant in the record will as much as intimate that respondent was responsible for the non-appearance of these witnesses. There is danger in this case because 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.

brought. Counsel for Calaunan wanted to adopt in the civil case, the TSNs and documents from the criminal case. But since the same were not brought to the trial court, counsel for petitioners compromised that said TSNs and documents could be offered by counsel for respondent as rebuttal evidence. Petitioner Manliclic and bus conductor Oscar Buan testified. The TSN of the testimony of Donato Ganiban, investigator of the PRBLI, was marked and allowed to be adopted in the civil case on the ground that he was already dead.

MANLICLIC v. CALAUNAN 

An objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive.



A failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law.



Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.

Respondent further marked, among other documents, as rebuttal evidence, the TSNs of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case. According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. The Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not move, meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit bus from behind.

FACTS: At around 6:00 to 7:00 o’clock in the morning, respondent Calaunan, together with Marcelo Mendoza, was on his way to Manila, on board an owner-type jeep. The Philippine Rabbit Bus was also bound for Manila. At Kilometer 40 of the North Luzon Expressway, the two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the jeep to move to the shoulder on the right and then fall on a ditch with water resulting to more damage. The bus veered to the left and stopped 7 to 8 meters from point of collision.

Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this Court in the instant case.

Calaunan suffered minor injuries while his driver was unhurt. A criminal case was filed before the RTC, charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries. Respondent then filed a complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City. The criminal case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos.

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

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

RTC Decision: In favor of respondent Calaunan and against petitioners Manliclic and PRBLI. CA Decision: CA found no reversible error in the decision of the trial court and affirmed it in all respects. ISSUES:

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

1. WHETHER THE TSN’s AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE SHOULD BE ADMITTED IN EVIDENCE SUBJECT TO PETITIONER'S CONTENTION THAT THERE WAS A FAILURE OF RESPONDENT TO COMPLY WITH SECTION 47, RULE 130, ROC. 2. WHAT IS THE EFFECT OF MANLICLIC'S ACQUITTAL TO THE CIVIL CASE? Held:

The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, to bring the stenographic notes of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in said case, together with other documentary evidence marked therein.

1. For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify;

Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the court and identified the TSNs of the three witnesses and other pertinent documents he had

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests;

2. Since the civil case is one for quasi delict, Manliclic’s acquittal does not affect the case. Manliclic and PRBLI are still liable for damages. A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime – a distinction exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extracontractual under the Civil Code. It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict.

(c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case.

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

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

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

Although the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. An objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. A failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, it may be admitted and considered as sufficient to prove the facts therein asserted. Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.

FRANCISCO v. PEOPLE FACTS: Francisco was charged with the Anti-Fencing Law. Jewelry was sold to him which was stolen by Pacita Linghon, the househould helper of Jovita Rodriguez. Pacita had access to the room of Jovita and her husband because she cleans it periodically. Sometime in October 1991, Pacita asked her brother to sell some pieces of jewelry supposedly owned by her friend. And then again on Nov. 1991 sold some earrings.

PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the testimonies of plaintiff’s witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor.

When Jovita was asked to be a sponsor at a wedding, she was surprised to find that her jewelry box was empty. She then filed a case for theft against Pacita. She stole: pair of earrings, white gold bracelet, diamond ring, 1 ring with diamond. Total worth was 655k. Pacita gave a sworn statement that she sold the jewelries to Francisco. Pacita was charged with qualified theft (Case no. 2005). The petitioner denied knowing Pacita. He was invited for questioning and eventually was found guilty beyond reasonable doubt for violating the Anti-Fencing Law.

It is too late for petitioner PRBLI to raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs. For failure to object at the proper time, it waived its right to object that the TSNs did not comply with Section 47.

ISSUES:

Petitioners also contended that the documents in the criminal case should not have been admitted in the civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such contention to be untenable. Though said section speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled.

1.

Whether evidence offered was admissible.

2.

Whether evidence was sufficient to convict petitioner.

HELD: 1.

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Most evidence offered were inadmissible.

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) First, Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial court. Strangers to a case are not bound by the judgment of said case.

The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong),an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around. The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk. Kunnong looked for Tagitis and even sent a text message to the latter's Manila-based secretary who did not know of Tagitis' whereabouts and activities either; she advised Kunnong to simply wait.

Second, The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and cross-examine a witness against him. Third, however, is admissible, The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacitas declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-examine Pacita on the truth of what she told the policemen.

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis' fellow student counselor at the IDB, reported Tagitis' disappearance to the Jolo Police Station More than a month later (on December 28, 2007),the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla. The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP);Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG);Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to aspetitioners].

Fourth, On the other hand, the testimony of Macario during the preliminary investigation of Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution and was cross-examined on his testimony during the preliminary investigation.

After reciting Tagitis' personal circumstances and the facts outlined above, the petition went on to state:

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the preliminary investigation and trial in the court a quo. 2.

xxx xxx xxx 7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

NO.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to anchor a judgment of conviction, it is required that such testimony must be credible and reliable. There were a lot of inconsistencies in Macario’s testimony during the preliminary investigation and changed again during trial on examination; and it pertained to material points rather than minor points (e.g. selling ring in 1992 instead of originally in 1991). In this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked;

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be concluded that the accused should have known that the property sold to him were stolen. This requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends on the value of the property; otherwise, the court will fix the value of the property at P5.00, conformably to our ruling in People v. Dator.

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known to be fighting against the government; 13. [Respondent],on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband;

GEN. AVELINO RAZON v. TAGITIS, ET. AL In cases governed by the rules of writ of Amparo, even hearsay evidence is admissible given the nature of the proceedings. Technical rules of evidence do not strictly apply given the nature of the proceedings.

14. All of these efforts of the [respondent] did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men;

FACTS:

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) 15. According to reliable information received by the [respondent],subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; CSEHcT

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to "specify" her allegations, "particularly paragraph 15 of the petition". The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis". The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report" that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is under custodial investigation" for being a liaison for "J.I. or Jema'ah Islamiah"

18. Instead of helping the [respondent],she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the [petitioners'] refusal to help and provide police assistance in locating her missing husband 21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent],informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands;

She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential report" at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he was under custodial investigation.

22. The unexplained uncooperative behavior of the [petitioners] to the [respondent's] request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and custody of [respondent's] husband, Engr. Tagitis;

The respondent also narrated her encounter with Col. Kasim, as follows: On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis.

On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to file their verified return within seventytwo (72) hours from service of the writ. In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis' alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. The petitioners then submitted their respective affidavits denying such allegations.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that he'll do the best he can to help me find my husband.

Since the disappearance of Tagistis * was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao — as the officer in command of the area of disappearance — to form TASK FORCE TAGITIS.

On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups],one of which he mentioned in the report was OMAR PATIK and a certain SANTOS — a Balik Islam.

Task Force Tagitis On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS. The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the disappearance of Tagitis. As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us.

On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis' disappearance

He asked a favor to me that "Please don't quote my Name! Because this is a raw report".He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband

Testimonies for the Respondent

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) because he has aliments * and he recently took insulin for he is a diabetic patient.

First, there may be a deliberate concealment of the identities of the direct perpetrators. Experts note that abductors are well organized, armed and usually members of the military or police forces, thus:

In my petition for writ of amparo, I emphasized the information that I got from Kasim.

The victim is generally arrested by the security forces or by persons acting under some form of governmental authority. In many countries the units that plan, implement and execute the program are generally specialized, highlysecret bodies within the armed or security forces. They are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police forces. These authorities take their victims to secret detention centers where they subject them to interrogation and torture without fear of judicial or other controls.

THE CA RULING On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances. The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondent's testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis' abduction came from no less than the military — an independent agency of government. The CA thus greatly relied on the "raw report" from Col. Kasim's asset, pointing to the CIDG's involvement in Tagitis' abduction. The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col. Kasim's subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis.

In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives. We have had occasion to note this difficulty in Secretary of Defense v. Manalo when we acknowledged that "where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise". Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance — i.e.,the corpus delicti or the victim's body — is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun. The problem for the victim's family is the State's virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez that inherent to the practice of enforced disappearance is the deliberate use of the State's power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.

THE PETITION In this Rule 45 appeal questioning the CA's March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.

Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred. "Deniability" is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victim's human rights.

ISSUE: Whether hearsay evidence is admissible in a petition for writ of Amparo HELD:

Evidence and Burden of Proof in Enforced Disappearances Cases

Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance

Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden of proof the parties to the case carry, as follows:

Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter.

Section 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

These difficulties largely arise because the State itself — the party whose involvement is alleged — investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold.

xxx xxx xxx Section 17. Burden of Proof and Standard of Diligence Required. — The parties shall establish their claims by substantial evidence.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

In concluding that the disappearance of Manfredo Velasquez (Manfredo) was carried out by agents who acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida Velasquez, the victim's sister, who described Manfredo's kidnapping on the basis of conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces. The IACHR likewise considered the hearsay testimony of a second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed or evade responsibility or liability. Section 18. Judgment. — ...If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account.

These characteristics — namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) — reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required — the duty of public officials and employees to observe extraordinary diligence — point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason — i.e.,to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim's constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond.

In this case, Strictly speaking, we are faced here with a classic case of hearsay evidence — i.e., evidence whose probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).

In the seminal case of Velasquez Rodriguez, the IACHR — faced with a lack of direct evidence that the government of Honduras was involved in Velasquez Rodriguez' disappearance — adopted a relaxed and informal evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it can be proven that the government carries out a general practice of enforced disappearances and the specific case can be linked to that practice. The IACHR took note of the realistic fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It held:

To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to acknowledge — as the petitioners effectively suggest — that in the absence of any direct evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the Amparo Rule — despite its terms — is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably present inAmparo situations, particularly in extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility that these difficulties demand.

130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts. 131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis supplied]

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) that this witness was not given ample opportunity, by a reading to him of his declarations before the court of the justice of the peace, to explain the discrepancies noted by counsel for the accused. The mere presentation of Exhibit 1, without said declaration having been read to the witness while he testified in the Court of First Instance, is no ground for impeaching his testimony. (U. S. vs. Baluyot, 40 Phil., 385, 406.)

PEOPLE v. RESABAL FACTS: In the early morning of April 25, 1926, one Primo Ordiz died at his own home in the barrio of Bogo, municipality of Maasin, Leyte, by means of a shot from a ‘Smith’ 38 caliber revolver which inflicted a sharp wound in the left lung, which in turn caused an internal hemorrhage as appears from the death certificate, marked Exhibit A.

The defense also impeaches Carmelo Ordiz's testimony considering the invitation which the accused extended to him as improbable, knowing that he was a cousin of the deceased Primo Ordiz. Under ordinary circumstances, such an attitude would appear improbable, but not so if it is considered that the accused invited the witness in the belief that the latter was still an enemy of the deceased, on account of certain disagreements they had over some land.

The judge who tried the case, convicted the Accused Resabal for the crime of Murder. Glicerio Orit testified that on the morning of April 25, 1926, the accused, armed with a revolver, invited him to Primo Ordiz's house in order to kill the latter, and on arriving at said house, the accused went into the ground, approached one of the windows of the house less than a meter and a half in height, opened it and looked in. At that moment the witness left the place, and at a distance of 15 brazas heard an explosion. Glicerio Orit's testimony as to the explosion is corroborated by the declaration of the boy Jose Ordiz, who slept with his uncle Primo Ordiz, to the effect that early in the morning of that day he was awakened by the noise of an explosion and saw his uncle Primon Ordiz vomiting blood and unable to speak.

The defense also contends that the conduct of the accused in going with his family to the deceased's house on the morning of April 25, 1926, helping in the preparations for the burial, is incompatible with his being a criminal. It is, indeed, an old belief that the fear of the suspected party to touch the corpse was a sign of guilt. But experience has shown that some criminals have gone to the extreme that the accused did, to avoid all suspicion of guilt. The evidence in the record shows that guilt of the accused beyond a reasonable doubt, and he deserves the penalty provided for in article 403 of the Penal Code. The crime committed is murder, qualified by treachery for, in the commission of the crime, the accused employed ways, means, and forms that tended directly and especially to assure, it, without risk to his person from any defense the assaulted party might make.

Carmelo Ordiz testified, furthermore, that on the night of April 24, 1926, the accused believing him to be still an enemy of the deceased Primo Ordiz, and showing him the revolver Exhibit B, invited him to accompany him to do away with Primo Ordiz. On the other hand, the witness Vicente Ambalong corroborates Glicerio Orits testimony to the effect that early in the morning of April 25, 1926, the accused went to the house where the latter was sleeping to awaken him, and that he then saw the accused on the staircase, calling to said Glicerio Orit.

PEOPLE v. CORTEZANO FACTS:

According to the evidence presented by the prosecution, the motive behind the incident was an earlier disagreement between the deceased Ordiz and Resabal. The carabao of Resabal destroyed some coconut trees belonging to the deceased. Resabal requested the deceased to return the carabao that was under his care, but the deceased refused to do so before he was paid the value of the trees destroyed. This naturally produced resentment, which, among country people, is sufficient cause for the commission of the act charged in the information.

At 7:00 in the evening of May 30, 1998, Roderick Valentin, and his younger brother, Jerny, were going to fetch water from a well in Daligan, Bonawon on board a banca. Suddenly, a beam of light fell on Roderick and was shot; within seconds, the light shifted to Jerny. Another shot was fired, but it did not hit him. Jerny got hold of his flashligt and beamed it on the approaching banca, where he and his wounded brother immediately recognized Cortezano. Alarmed that he had been recognized and identified, Cortezano hurriedly left the scene. Jerny then started paddling the banca towards the direction of their house to get help for Roderick.

Contention of Resabal: The trial court erred in not ignoring Glicerio Orit's testimony, and in not acquitting the accused Alejo Resabal on the ground of reasonable doubt.

Jimmy Valentin, father of Roderick and Jerny, heard Jerny repeatedly screaming that Roderick had been shot by Cortezano. They immediately transferred Roderick to a rented motorized banca to bring him to the nearest hospital. Roderick, while being transported to the hospital and prior to expiring, repeatedly screamed that he had been shot by Cortezano; this was heard by Jimmy Valentin, father of Roderick, and Jerny.

ISSUE: Whether the testimonies of prosecution witnesses Glicerio Orit and Carmelo Ordiz are credible.

Accused-appellant Job Cortezano was convicted of murder by the Regional Trial Court of Camarines Sur, and was sentenced to suffer the penalty of reclusion perpetua.

HELD: YES. The defense argues that Glicerio Orit is not a credible witness, because of his having been excluded from the information to be used as a witness for the prosecution; and, because, moreover, of the contradiction in his testimony at the preliminary investigation and during the trial. We are of the opinion that the mere fact of having been excluded from the information to be used as a witness for the Government, does not prevent this witness from telling the truth in this case, especially in the absence of proof showing the interest he might possibly have in testifying against the accused. Neither is the apparent contradiction which may be noted in his declarations before the court of the justice of the peace, and before the court of first instance sufficient to discredit his testimony, for the simple reason

In convicting Cortezano, the trial court lent much weight to Jerny Valentin's eyewitness account of the events and his identification of Cortezano as the perpetrator. The trial court held that Jerny Valentin, who was then 13 years old, delivered a straightforward, unshaken and convincing narrative of the incident about the shooting of his brother, Roderick Valentin by accused-appellant. Secondly, Jerny's testimony was corroborated by the dying declaration of the victim, Roderick.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Accused’s Contention:

accused-appellant. He claims that the dying declaration is a mere concoction employed to implicate him just because he closely resembles the real perpetrator.

In his appeal before the Court, Cortezano contended that the trial court gravely erred in giving credence to the identification made by prosecution witness Jerny Valentin and in considering the alleged dying declaration of the deceased victim. Appellant assailed the eyewitness testimony of Jerny Valentin as being riddled with inconsistencies and implausibilities. He posited that it is contrary to normal human behavior for a perpetrator to come near his victim after shooting, when the natural instinct of a gunman would be to flee and escape detection or identification.

Accused-appellant's contentions are bereft of merit. In the parallel case of People v. Lapay, we held that "delay in revealing the names of the malefactors does not, by itself, impair the credibility of the prosecution witnesses and their testimonies." Time and again, this Court has ruled that "the nondisclosure by the witness to the police officers of accused-appellant's identity immediately after the occurrence of the crime is not entirely against human experience.

ISSUE:

BARTOLOME v. IAC

Whether Cortezano’s contention is correct that it is contrary to normal human behavior fo perpetrator to come near his victim after shooting, when the natural instinct of a gunman would be to flee and escape detection or identification.

FACTS: This is a dispute over a property between heirs of Epitacio Bartolome Batara married to Maria Gonzales (Resureccion Bartolome et al) and heirs of Doroteo Bartolome (Bernabe Bartolme et al).

HELD:

The Director of Lands instituted cadastral proceedings over the land involved herein (Cadastral Case No. 53). Both parties filed their respective answers in the Cadastral Case. From then on, no further proceedings were held in the cadastral case.

NO. The Court disagrees with Cortezano’s contention. There is no standard form of behavior among perpetrators of crimes. Some may flee from the crime scene, while others may approach the fallen victim to check on his condition or to see the job done. Still others go to take a look at the victim out of sheer morbid curiosity. There is nothing that precludes a gunman from going to his prey after shooting, especially when he does not expect resistance from the victim.

No hearing was conducted in the case until 1974. Ursula Cid presented at the trial three deeds of sale, including a deed (exhibit 4) executed by Maria Gonzales on February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the latter 772 square meters of land for P103.75.

In the instant case, after having fired two shots, one for each of the Valentin brothers, in quick succession, it would not be contrary to known human behavior for accused-appellant to go to the banca, perhaps to ensure the success of his handiwork. Except for the Valentin brothers and accused-appellant himself, the place was deserted. It was dark, and therefore, he had no fear of being identified, much less apprehended. He only fled after Jerny's flashlight beamed on him and he realized his intended victims were not only alive, but were well enough to recognize him. Accused-appellant's actuations, as testified to by Jerny, are much in accordance with the behavior of most assailants. There is nothing implausible or incredible in Jerny's testimony on this matter.

Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which apparently serves as a cover page. The two other pages contain the handwritten document in Ilocano stating that in consideration of the amount of P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid. The third sheet or page 2 thereof contains a warranty against eviction and other disturbances with the last three lines indicating the date of the execution of the instrument. The mentioned piece of land is the one being claimed by Resurreccion Bartolome. However, the lower court ruled that it has "no probative value as the same is incomplete and unsigned."

Cortezano also points out that Jerny gave a different account of the events that fateful night in his sworn statement, casting doubt on the veracity of his testimony in court. It is well-established that inconsistencies between testimony given in open court and sworn statements given to investigators do not necessarily discredit the witness since ex-parte affidavits are seldom complete.

Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing the lower court, the appellate court held that the deeds of sale presented by Ursula Cid are ancient documents under Section 22, Rule 132 of the Rules of Court. It also ruled that Ursula Cid's continuous possession of the lot from its acquisition and her exercise of rights of ownership over it vested her with the legal presumption that she possessed it under a just title.

It is clear that while the pertinent portion of his sworn statement was read to Jerny, counsel for the defense failed to call his attention to the alleged discrepancy in order to elicit a response from him. Considering that the sworn statement was written in English, a language that Jerny admittedly could not understand, a cursory reading of that portion of the sworn statement naturally failed to impress upon Jerny the fact that his testimony differed from his extrajudicial statement.

According to Dominador Bartolome, he first saw Exhibit 4 in the possession of his mother, Ursula Cid, when he was just eleven years old. He noticed that the document had a fourth page containing the signature of Maria Gonzales and that all four pages were sewn together. However, when the document was entrusted to him by his mother in 1947 as he was then representing the family in litigation concerning the land, the document's fourth page was already missing. He stated that his mother told him that the fourth page was lost during the Japanese occupation while they were evacuating from Davao City.

We have uniformly held that previous extrajudicial statements cannot be employed to impeach the credibility of a witness unless his attention is first directed to the discrepancies, and he must then be given an opportunity to explain them. It is only when the witness cannot give a reasonable explanation that he shall be deemed impeached.

Dominador Bartolome also presented in court a sworn statement in Ilocano executed by Ursula Cid on February 19, 1937. In her statement, Ursula Cid declared that the sale of the lot to her and her husband by Maria Gonzales was evidenced by a written instrument; that the land had been transferred in the name of her husband; that she had been paying taxes therefor, and that they had been in continuous possession of the land for more than twenty years.

Accused-appellant also assails the trial court's reliance on Roderick's dying declaration. He insists that the dying declaration is a mere product of the Valentins' afterthought, considering that when Jimmy reported the crime to the police authorities on May 31, 1998, he stated that the assailant was unidentified. Jimmy's reason, that he had a headache at that time, is a lame excuse, according to

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Rule 132 of the Rules of Court provides:

Petitioner is a holder of a credit card and claims that when he presented his credit card in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by the respondent bank.

Sec. 22. Evidence of execution not necessary. — Where 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.

To prove that respondent blacklisted his credit card, Petitioner presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency with the signature of one Victrina Elnado Nubi which shows that his card in question was “DECL OVERLIMIT” or declared over the limit.

ISSUE: Whether the provisions of Rule 132 on ancient documents are applicable with respect to Exhibit 4.

The Regional Trial Court rendered its decision dismissing petitioner’s complaint for lack of merit. It held that as between the computer print-out presented by petitioner and the Warning Cancellation Bulletins presented by respondent, the latter had more weight as their due execution and authenticity was duly established by respondent.

HELD: NO. We agree with the appellate court that the first two requirements ordained by Section 22 are met by Exhibit 4. It appearing that it was executed in 1917, Exhibit 4 was more than thirty years old when it was offered in evidence in 1983. It was presented in court by the proper custodian thereof who is an heir of the person who would naturally keep it. However, the Court of Appeals failed to consider and discuss the third requirement; that no alterations or circumstances of suspicion are present.

Upon motion for reconsideration, the decision was reversed. Judge De la Peña ruled that the computer print-out was printed out by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testify as she was in a foreign country and cannot be reached by subpoena. The same took judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, therefore the print-out can be received as prima facie evidence of the dishonor of petitioner’s credit card.

Admittedly, on its face, the deed of sale appears unmarred by alteration. We hold, however, that the missing page has nonetheless affected its authenticity. Indeed, its importance cannot be overemphasized. It allegedly bears the signature of the vendor of the portion of Lot No. 11165 in question and therefore, it contains vital proof of the voluntary transmission of rights over the subject of the sale. Without that signature, the document is incomplete. Verily, an incomplete document is akin to if not worse than a document with altered contents.

On appeal, the Court of Appeals ruled that the computer print-out is an electronic document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence or under Section 20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Petitioner, however, failed to prove its authenticity, thus it must be excluded.

Moreover, there is a circumstance which bothers the Court and makes the genuineness of the document suspect. If it is really true that the document was executed in 1917, Ursula Cid would have had it in her possession when she filed her answer in Cadastral Case No. 53 in 1933. Accordingly, she could have stated therein that she acquired the portion in question by purchase from Maria Gonzales. But as it turned out, she only claimed purchase as a mode of acquisition of Lot No. 11165 after her sister-in-law, Maria J. Bartolome and the other descendants of Doroteo Bartolome sought intervention in the case and demanded their rightful shares over the property.

ISSUE: Whether the “On Line Authorization Report” is an electronic document and properly authenticated to be admitted as evidence? HELD:

All these negate the appellate court's conclusion that Exhibit 4 is an ancient document. Necessarily, proofs of its due execution and authenticity are vital. Under Section 21 of Rule 132, the due execution and authenticity of a private writing must be proved either by anyone who saw the writing executed, by evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. The testimony 34 of Dominador Bartolome on Exhibit 4 and Ursula Cid's sworn statement in 1937 do not fall within the purview of Section 21. The signature of Maria Gonzales on the missing fourth page of Exhibit 4 would have helped authenticate the document if it is proven to be genuine. But as there can be no such proof arising from the signature of Maria Gonzales in the deed of sale, the same must be excluded.

NO. As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by petitioner. Petitioner puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to petitioner by Ingtan Agency, to prove that his credit card was dishonored for being blacklisted. On said print-out appears the words “DECL OVERLIMIT”. The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It provides that whenever any 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.

The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby adjudicated in favor of the heirs of Epitacio Batara who are herein represented by Resurreccion Bartolome while the remaining area of Lot No. 11165 is hereby adjudicated in favor of the heirs of Doroteo Bartolome.

Petitioner, who testified on the authenticity did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out.

AZNAR v. CITIBANK FACTS:

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by petitioner in this case, the authentication of the computer print-out would still be found wanting.

Teodoro belatedly filed the verification and certificate against forum shopping, hence, the Heirs filed a MTD on the ground that Teodoro should have filed the certificate against forum shopping simultaneously with the petition which is a mandatory requirementof SC Admin. Circular 04-94 and that any violation thereof shall be a cause for dismissal of application upon motion and after hearing.

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.

Opposing the MTD, Teodoro argued that the heir’s application of Motion to Dismiss was field out of time. She argued that failure to comply with the Circular was not willful, deliberate or intentional. The MTD was deemed waived for failure of petitioners to file the same during the earlier stages of the proceedings The MTC denied the MTD Application.

Petitioner claims that his testimony complies with par. (c), i.e., it constitutes the “other evidence showing integrity and reliability of Exh. “G” to the satisfaction of the judge.” The Court is not convinced. Petitioner’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability.

The Heirs then filed an appeal with the RTC-Virac, which dismissed the appeal for lack of merit and affirmed in toto the MTC Decision.The Heirs filed a MR but was denied.

Later, the MTC ordered the confirmation and registration of the land in Teodoro’s name having presented sufficient title thereto.

The Heirs then filed a Petition for Review with the CA, which dismissed the same. The Heirs filed a MR but the same was denied.

Petitioner merely mentioned in passing how he was able to secure the print-out from the agency. Petitioner also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by petitioner, its business address was not reflected in the print-out.

ISSUE: Whether the certification of non-forum shopping subsequently submitted 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.

Indeed, petitioner failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true.

HELD:

HEIRS OF ARCILLA v. TEODORO

The certification of non-forum shopping executed in a foreign country is not covered by Section 24, Rule 132 of the Rules of Court.

FACTS: Ma. Lourdes A. Teodoro initially filed with the RTC-Virac, Catanduanes an application for land registration of two parcels located at Barangay San Pedro, Virac, Catanduanes.

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 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.

These are denominated as Lot Nos. 525-A and 525-B. She alleged that, with the exception of the commercial building constructed thereon, she purchased the lots from her father Pacifico Arcilla by a Deed of Sale dated December 9, 1966. Prior thereto, Pacifico acquired the lots by partition of the estate of his father, Jose evidenced by an ExtrajudicialSettlement of Estate. There is also an Affidavit of Quit-Claim in favor of Pacifico, executed by the Heirs of Vicente , brother of Pacifico The case was transferred to MTC-Virac in view of the expanded jurisdiction of said court under R.A. 7691. In their Opposition, moving to dismiss the application of Teodoro and seeking their declaration as true and absolute owners pro-indiviso and the registration and issuance of corresponding certificate of title in their names, the Heirs contended that they are the owners pro-indiviso of the lots including the building and other improvements thereon by virtue ofinheritance from their deceased parents, spouses Vicente and Josefa.

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. 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.

Contrary to the claim of Teodoro, the lots were owned by their father, Vicente, having purchased the same from a certainManuel Sarmiento c. Vicente's ownership is evidenced by several tax declarations. They and their predecessors-in-interest had been in possession of the lots since 1906.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) Thus, Section 24, Rule 132 of the Rules of Court now reads as follows:

Kummers, as well as the corroborative testimony of the other witnesseses, led the RTC to find both Leticia and Johan guilty beyond reasonable doubt of the crime charged. However, Johan being a minor was released on recognizance and was able to travel abroad. Only Leticia appealed.

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)

ISSUE: Whether the prosecution’s evidence was sufficient to sustain the conviction of Leticia. HELD: YES. The petition is devoid of merit. On the admissibility of the paraffin test results without proof of due execution and authenticity

Section 19(a) of the same Rule provides:

The chemistry report showing a positive result of the paraffin test is a public document. As a public document, the rule on authentication does not apply. It is admissible in evidence without further proof of its due execution and genuineness; the person who made the report need not be presented in court to identify, describe and testify how the report was conducted. Moreover, 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 stated therein under Section 19(a) of Rule 132. Thus, notwithstanding the fact that it was Captain Benjamin Rubio who was presented in court to identify the chemistry report and not the forensic chemist who actually conducted the paraffin test on the petitioner, the report may still be admitted because the requirement for authentication does not apply to public documents.

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.

The Court noted that while indeed the positive finding of gunpowder residue does not conclusively show that the petitioner indeed fired a gun, the finding nevertheless serves to corroborate the prosecution eyewitnesses’ testimony that the Kummers shot the victim. Furthermore, while it is true that cigarettes, fertilizers, urine or even a match may leave traces of nitrates, experts confirm that these traces are minimal and may be washed off with tap water, unlike the evidence nitrates left behind by gunpowder.

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.

As to the variance between the eyewitnesses’ testimonies in open court and their affidavits This does not affect their credibility. The Court has consistently held that inconsistencies between the testimony of a witness in open court and the statements in his sworn affidavit, referring only to minor and collateral matters, do not affect his credibility and the veracity and weight of his testimony as they do not touch upon the commission of the crime itself. Slight contradictions, in fact, even serve to strengthen the credibility of the witnesses, as these may be considered as badges of truth rather than indicia of bad faith; they tend to prove that their testimonies have not been rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for no person has perfect faculties of senses or recall.

KUMMER v. PEOPLE FACTS: Leticia Kummer and her son and co-accused Friedrich Johan Kummer were charged with homicide for the death of Jesus Mallo. The prosecution alleged that Mallo was shot and killed after he knocked at the front door on the house of the Kummers with a stone and identified himself by saying, “Auntie, ako si Boy Mallo.”

A close scrutiny of the records reveals that Malana and Cuntapay positively and firmly declared in open court that they saw Leticia and Johan shoot Mallo. The inconsistencies in their affidavit, they reasoned, were due to the oversight of the administering official in typing the exact details of their narration. Nonetheless, the critical point is the positive identification of Leticia and Johan as the perpetrators, not the minor inconsistencies in their testimonies which carry no direct bearing on the crucial issue of the identity of the perpetrator of the crime.

On the other hand, the Kummers’ version was that they were awakened by the sound of stones being thrown at their house, a gun report, and the banging at their door. Believing that the noise was caused by the members of the New People’s Army prevalent in their area, Johan got a .38 cal. gun from the drawer and fired it twice outside to scare the people causing the disturbance. However, the noise continued and this prompted Johan to get the shotgun placed beside the door and to fire it. The noise thereafter stopped and they all went back to sleep.

As to the issue that the writer of the decision was not the judge who heard the testimonies It is sufficient that the judge, in deciding the case, must base her ruling completely on the records before her, in the way that appellate courts do when they review the evidence of the case raised on appeal. Thus, a judgment of conviction penned by a different trial judge is not erroneous if she relied on the records available to her.

The testimonies of prosecution eyewitnesses Cuntapay and Malana who both testified that the petitioner shot Mallo, coupled by the positive findings of gunpowder nitrates on the hands of the

48

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) On the alleged failure of the prosecution to cite the petitioner’s motive in killing the victim

Juan Limpin and the spouses Ambrosia Guevarra and Damaso Cabais, another deed of partition in the Pampango dialect "wherein the fishpond in question was adjudicated to Alberta Guevarra. As a consequence, Original Certificate of Title No. 794 was issued to spouses Alberta Guevarra and Juan Limpin. The spouses Juan Limpin and Alberta Guevarra sold the fishpond in question to Inocencio Songco under the deed entitled "Escritura de Venta Absoluta" which was duly registered in the Office of the Registry of Deeds. As a result of the sale, Transfer Certificate of Title No. 794 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."

Motive gains importance only when the identity of the assailant is in doubt. The prosecution does not need to prove the motive of the accused when the latter has been identified as the author of the crime. HEIRS OF LACSA v. CA FACTS: This petition which originated with the Regional Trial Court involves two (2) cases, namely: Civil Case No. G-1190 and Civil Case No. G-1332.

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.

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.

The Court of Appeals affirmed the decision of the lower court Petitioner’s contention: Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule" provided in Sec. 22, Rule 132 of the Rules of Court.

Civil Case No. G-1332 is an action also by herein petitioners against private respondents before the same lower court for cancellation of title, ownership with damages and preliminary injunction; that the herein private respondents and their predecessors-in-interest, thru stealth, fraud and other forms of machination, succeeded in occupying or possessing the fishpond of the said parcel of land, and later 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, by presenting to the Register of Deeds of Pampanga certain forged and absolutely simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and 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.

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. Thus, according to petitioners, "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. ISSUE: Whether CA erred in applying the “ancient document rule”1 on the questioned documents entitled “Traduccion Al Castellano de la Escritura de Particion Extrajudicial" and "Escritura de Venta Absoluta"

Private respondents denied the material allegations of both complaints and alleged as special and affirmative defenses, petitioners' lack of cause of action, for the reason that Original Certificate of Title No. RO-1038 (11725) was merely a reconstituted copy issued in April 1983 upon petitioners' expedient claim that the owner's duplicate copy thereof had been missing when the truth of the matter was that OCT No. RO-1038 (11725) in the name of Demetria 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.

HELD: NO. 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. The first document, entitled 'Traduccion Al Castellano de la Escritura de Particion Extrajudicial" was executed on 7 April 1923 whereas the second document, 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

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" wherein the fishpond in question was adjudicated to Alberta Guevarra and which deed was duly registered in the Office of the Registry of Deeds. Aside from the "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" written in the Spanish language, the spouses Alberta Guevarra and

1

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.

49

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) was issued by the Archives division, Bureau of Records Management of the Department of General Services.

HELD: NO, the denial of the Director is not a denial of the procedural due process on the part of the petitioner. The only purpose in calling Ong Su as a rebuttal witness was to find whether he has the judicial authority to use the name “Mariano Ong.” However, it was ruled that counsel of petitioner had already extensively cross-examined Ong Su as to a citizenship, alien certificate of registration and the other name Mariano Ang. It seems immaterial whether or not Ong Su has judicial authority to use Mariano Ang as an alias. There is evidence that even before the last World War, the trademark 'Valentine' and design had been used under the name of either Ong Su or Mariano Ang.

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.

On calling Ernesto Duran as rebuttal witness, petitioner called him to prove there was a confusion among consumers or buyers of sugar caused by the alleged sorority of the "Victorias" and "Valentine" trademarks. The presentation of Emesto T. Duran as rebuttal witness was objected to by counsel of the respondent because the evidence sought to be elicited from Duran did not directly contradict the testimony of witness Chicano. The objection was sustained by the hearing officer whose ruling was subsequently confer by the Director of Patents. Petitioner made a formal offer of the testimony of Dura which was denied by the hearing officer. (Please check the full text on the transcript of how counsel of petitioner formally offered the testimony. Medyo taas sya.)

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.

In view of the foregoing, there was no violation of the procedural due process. On the trademark

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 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.

The contention that the trademark of Victorias is an index of origin is not tenable. The petitioner has not shown that the design portion of the mark has been so used that purchasers recognize the design, standing alone, as indicating goods coming from the registrant. As correctly stated by the Director of Patents, common geometric shapes such as diamonds ordinarily are not regarded as indicia of origin for goods to which the remarks are applied unless they have acquired a secondary meaning. And there is no evidence that the diamond design in the trademark of the petitioner has acquired a secondary meaning with respect to its sugar business. The word "Victorias" is what Identifies the sugar contained in the bag as the product of the petitioner. Indeed, the petitioner has advertised its sugar in bags marked "Victorias" with oval, hexagor. and other designs.

VICTORIAS MILLING COMPANY v. ONG SU FACTS: Victorias Milling Company filed with the Philippine Patents Office a petition to cancel the registration of the Ong Su trademark, “Valentine.” It was contended by Victorias that its trademark and the diamond design has become distinctive of its suger long before respondent used its trademark. It submitted that the its trademark is an index of origin.

The evidence is that Ong Su has been using his trademark since prior to the last World War and he obtained the registration thereof on June 20, 1961. Vijandre declared that the petitioner started to use its trademark only in 1947. Said trademark was registered on November 9, 1961. It cannot be said, therefore, that the respondent Ong Su imitated the trademark of the petitioner.

Petitioner’s witness testified that Victorias Milling Company has used the trademark since 1947 and that he came to know of the trademark of “Valentine” only in 1962. He said that the wordings and the design of the bags are practically the same. On the other hand, Ong Su contended that he was already using the trademark even before WWII and he just registered it in 1962. His witness, , Chicano, said that he never came across a situation where there was a confusion between the two. He also found that the diamond design was common in combination with other words used as trademarks as background or to enhance their appearance.

YU v. CA FACTS: On 15 March 1994, Viveca Lim Yu (private respondent) brought against her husband, Philip Sy Yu (petitioner), an action for legal separation and dissolution of conjugal partnership on the grounds of marital infidelity and physical abuse. The case was filed before the RTC of Pasig. During trial, private respondent Lim Yu moved for the issuance of a subpoena duces tecum and ad testificandum, to certain officers of Insular Life Assurance Co. Ltd. to compel production of the insurance policy and application of a person suspected to be petitioner’s illegitimate child.

During the hearing with the Patents Office, the Director prevented the testimonies of Ong Su and witness Ernesto Duran as rebuttal witness for petitioner. The latter submits that they were denied of their procedural due process because of this.

The trial court denied the motion, It ruled that the insurance contract is inadmissible evidence in view of Circular Letter No. 11-2000, issued by the Insurance Commission which presumably prevents insurance companies/agents from divulging confidential and privileged information pertaining to insurance policies. It added that the production of the application and insurance contract would violate Article

ISSUE: Whether petitioner was denied procedural due process.

50

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) 280 of the Civil Code and Section 5 of the Civil Registry Law, both of which prohibit the unauthorized identification of the parents of an illegitimate child. Private respondent sought reconsideration of the Order, but the motion was denied by the trial court.

of the petition for certiorari she filed before the Court of Appeals. It did not in any way render the said petition moot. ABARQUEZ v. PEOPLE

On appeal to the CA, private respondent was merely seeking the production of the insurance application and contract, and was not yet offering the same as part of her evidence. Thus, it declared that petitioner’s objection to the admission of the documents was premature, and the trial court’s pronouncement that the documents are inadmissible, precipitate. ISSUES:  

FACTS: The trial court found Coverdale Abarquez y Evangelista ("Abarquez") guilty beyond reasonable doubt as an accomplice in the crime of homicide, which decision was affirmed by the Court of Appeals. The two crimes charged against him was:

Whether an insurance policy and its corresponding application form can be admitted as evidence to prove a party’s extra-marital affairs in an action for legal separation;

1st: Homicide the killing of Ricardo Bello via two stab wounds, hitting with a gun at the back of the body together with Alberto Villanueva

Whether the CA committed an error of judgment in denying petitioner’s Motion.

2nd: Attempted Homicide holding Jose Umali and stabbing him causing slight injury together with the same criminal as was indicted on the first offense.

HELD: The insurance application and the insurance policy were yet to be presented in court, much less formally offered before it. In fact, private respondent was merely asking for the issuance of subpoena duces tecum and subpoena ad testificandum when the trial court issued the assailed Order. Even assuming that the documents would eventually be declared inadmissible, the trial court was not then in a position to make a declaration to that effect at that point. Thus, it barred the production of the subject documents prior to the assessment of its probable worth. As observed by petitioners, the assailed Order was not a mere ruling on the admissibility of evidence; it was, more importantly, a ruling affecting the proper conduct of trial.

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.

Excess of jurisdiction refers to any act which although falling within the general powers of the judge is not authorized and is consequently void with respect to the particular case because the conditions under which he was only authorized to exercise his general power in that case did not exist and therefore, the judicial power was not legally exercised.Thus, in declaring that the documents are irrelevant and inadmissible even before they were formally offered, much less presented before it, the trial court acted in excess of its discretion.

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.

Anent the issue of whether the information contained in the documents is privileged in nature, the same was clarified and settled by the Insurance Commissioner’s opinion that the circular on which the trial court based its ruling was not designed to obstruct lawful court orders. Hence, there is no more impediment to presenting the insurance application and policy. Sec.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.

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.

It is thus apparent that before tender of excluded evidence is made, the evidence must have been formally offered before the court. And before formal offer of evidence is made, the evidence must have been identified and presented before the court. While private respondent made a “Tender of Excluded Evidence,” such is not the tender contemplated by the above-quoted rule, for obviously, the insurance policy and application were not formally offered much less presented before the trial court. At most, said “Tender of Excluded Evidence” was manifestation of an undisputed fact that the subject documents were declared inadmissible by the trial court, even before these were presented during trial. It was not the kind of plain, speedy and adequate remedy which private respondent could have resorted to instead

Winfred Evangelista10 ("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. ISSUE: WON the prosecution was able to establish the guilt of the accused beyond reasonable doubt in giving more credence to the testimony of the prosecution witness.

51

EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) HELD:

HEIRS OF REYES v. CA

The petition is meritorious.

FACTS:

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. This case is an exception to the rule.

The case stemmed from the action for partition and accounting filed by the children of the siblings of the late Eustaquia Reyes against Magno Sarreal, Anatalia Reyes and Gloria Reyes-Paulino, Eustaquia's husband and nieces, respectively, in relation to a parcel of land situated in Balintawak, Quezon City, with an area of 7,484 square meters originally owned by Eustaquia under TCT No. 26031 which was inherited by her prior to her marriage to Magno Sarreal.

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.

On June 5, 1963, Eustaquia leased a portion of the property to ACME for a period of 20 years commencing June 1, 1963. The lease contract provided that ACME as the lessee shall have the right to build, construct and place additional improvements within the property during the term of the lease subject to the condition, among others, that upon the expiration of such term, the ownership of all the improvements found within the leased property would automatically be transferred to the lessor without need for reimbursement.The contract was thumbmarked by Eustquia as the lessor and also signed by Magno Sarreal indicating his marital consent.

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, 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.

On January 24, 1979, Eustaquia purportedly sold the property to private respondents Anatalia Reyes and Glora Reyes-Paulino in a notarized document entitled “Patuluyang Pagbibili ng Lupa” (Deed of Absolute Sale). In the second paragraph of the deed, Eustaquia expressly stated that the property was paraphernal or exclusive in character and did not belong to the conjugal partnership because it formed part of her inheritance. Accordingly, it was only her signature and thumbmark which appeared on the deed. Anatalia and Gloria subsequently divided the property between themselves and registered their respective shares under their own names.

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.2

Eustaquia died of natural causes on May 7, 1987.

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.

On May 17, 1993, the children of the siblings of Eustaquia who predeceased her filed a complaint with the Regional Trial Court (RTC) of Quezon City for partition and accounting with receivership against Magno Sarreal and private respondents herein, Anatalia Reyes and Gloria Reyes-Paulino. They allegedly just discovered that the property was clandestinely, fraudulently and unlawfully divided between private respondents who caused its registration in their names under TCT Nos. 272976 and 272977 by means of simulated or fictitious and unlawful conveyances. They contended that, not having waived or repudiated their lawful shares and participation in the property, they are co-owners of the resulting subdivision lots with private respondents, the same being held in trust by the latter for the co-ownership. Similarly, the rents from the market stalls on the property belong not only to private respondents but also to them and private respondents should be made to account for all rents received from the date of Eustaquia's death. They further prayed that the property be placed under receivership pending the resolution of the case.

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

Private respondents filed a joint answer to the complaint claiming, among others, that 1) the complaint does not state any cause of action; 2) they are the owners in fee simple of the property under TCT Nos. 272977 and 272976; 3) complainants are not compulsory heirs of Eustaquia; and 4) the title to the property has been transferred in the names of private respondents pursuant to a valid sale long before the death of Eustaquia.

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. Hence:

A separate answer was filed on behalf of Magno Sarreal by his purported guardian ad litem and natural daughter, Aida Sarreal, which admitted virtually all the allegations of the complaint except the portion which stated that the property belonged exclusively to Eustaquia. It alleged that the property, while originally paraphernal, became conjugal in character because of "the improvements introduced therein from the income of the spouses and/or from the income or fruits of their separate properties."

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 crime charged is found lacking.

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EVIDENCE | 5TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018) On December 12, 1994, Magno died and was substituted as defendant by Celerina Sarreal Kamantigue, his sister, and Aida Sarreal. During pre-trial, the parties agreed that the sole issue to be resolved in the case was whether the sale of the property to private respondents was simulated or fictitious.

had already sold the land, on January 24, 1979, to private respondents. Hence, the transfer of the ownership of the building from the lessee to the lessor could not convert the land into conjugal property since the land itself no longer belonged to one of the spouses at that time.

On September 11, 1996, petitioners' separate applications for receivership were denied. Thereafter, trial ensued. Petitioners presented as witnesses Celerina Sarreal Kamantigue, Monico Reyes Palmario and Aida Sarreal. The sole witness for the defense, on the other hand, was private respondent Gloria ReyesPaulino.

The RTC did not rely solely upon the improvements introduced by ACME in ruling that the property became conjugal. As mentioned above, it likewise gave full faith and credence to the testimony of Monico Reyes Palmario who testified that there were houses and buildings that were constructed on the property prior to the purported sale to private respondents. The CA, however, held otherwise, stating that the testimony of private respondent Gloria Reyes-Paulino was more credible.

RTC ruled in favor of the heirs (petitioners) based on the lack of consent of Eustaquia’s husband, the property being a conjugal one. However, upon appeal to the CA, the decision was reversed. The CA pointed out that during pre-trial, the parties agreed that the sole issue that would limit or control the course of the trial was whether the conveyance of the property to private respondents was simulated or fictitious. The CA ruled that the burden of proof, which rested upon complainants in this instance, was not met, after finding that the testimonies of the complainants' two witnesses to the effect that private respondents had no means or source of income that would enable them to buy the property and that they merely lived with the spouses Eustaquia and Magno Sarreal during their lifetime were mere generalities and fell short of the "clear, convincing and more than merely preponderant evidence necessary to overcome the notarized deed of sale." The CA, moreover, found the testimony of private respondent Gloria Reyes-Paulino more convincing in that she was able to establish she was earning an income and that she lived with her husband independently of the spouses Eustaquia and Magno.

Applying the well-known test of credibility called the actor's rule, it is the witness whose action is more closely connected to the point at issue that should be given more credence. In the present case, the RTC gave credence to the testimony of petitioner Monico Reyes Palmario, who claimed he worked as carpenter on the property in question, and there were houses and buildings constructed on the property including a knitting factory. The CA, however, sustained the testimony of private respondent Gloria Reyes-Paulino, who rented from the spouses Eustaquia and Magno one of the "houses" or apartments, and lived therein, and who testified that these houses and buildings were on a different property. As between these two witnesses, the latter is more reliable since her act of renting and living in one of the "houses "or apartments makes her the actor more closely related to the point at issue, i.e., whether or not the houses were on the property in question. For while a carpenter would not concern himself with the title of the property, a lessee would normally look into the title covering the property leased, including its precise location or boundaries, and in fact Gloria Reyes-Paulino testified that the lot on which the house she rented was found had a separate title.

ISSUE: Whether there was a valid conveyance of the property to Anatalia and Gloria (private respondents).

Accordingly, when Eustaquia sold the property, it was still paraphernal, as she correctly repeatedly emphasized in the deed of sale "'paraphernal or exclusive property' ko, at hindi 'conjugal' naming magasawa; ito ay aking minana o isang inheritance property.'" As such, the consent of Magno was not required and the sale cannot be held invalid on the basis of its absence. Resultantly, when Eustaquia died on May 7, 1987, the plaintiffs, including the surviving husband, Magno Sarreal, could no longer inherit the property from her since she was then not anymore the owner thereof.

HELD: YES, there was a valid conveyance of the property. While it is true that the determination of issues at a pre-trial conference bars the consideration of other questions on appeal, such rule, however, is not to be applied with rigidity and admits of certain exceptions. The issue on the nature of the property was embodied in the pleadings filed by the parties subsequent to the complaint and was actively litigated by them without any objection on the part of private respondents. In view thereof, the latter are deemed to have given their implied consent for the RTC to try this issue. In the present case, the CA considered only the improvements introduced by ACME during the subsistence of the latter's lease to determine whether the property became conjugal. It ruled in the negative after concluding that these improvements were not at the partnership's expense, but rather at the expense of the lessee. It is argued by private respondents that the improvements made by ACME did not transform the character of the property from being paraphernal into being conjugal. The statutory requirement set forth under Article 158 of the Civil Code 31 is that the improvements have to be made or undertaken at the expense of the conjugal partnership. Under the terms of the lease agreement, the lessee was allowed to build on the property at its own expense, subject to the condition that after the termination of the lease, ownership over the same would inure to the benefit of the lessor. The Supreme Court agrees that the expense incurred by ACME in constructing the buildings on Eustaquia's property cannot be construed as being converted into an expense taken against the civil fruits of the property by virtue of the lease. Rather, under the terms of the lease contract, it was the building itself that would inure to the lessor as fruits but only at the end of the lease period on June 1, 1983. At that time, however, Eustaquia

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