Hearsay Rule.docx

HEARSAY RULE Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (1) Any evidence, oral or documentary, is hearsay if its probative value is not based on probative knowledge of the witness but on the knowledge of some other person not on the witness stand. (2) Such evidence is excluded because the party against whom it is presented is deprived of his right and opportunity to cross-examine the persons to whom the statements or writings are attributed. If a party does not object to hearsay evidence, the same is admissible, as party can waive his right to cross-examine [People v. Ola]. Repeated failure to cross-examine is an implied waiver of said right. [Savory Luncheonette v. Lakas ng Manggagawang Pilipino] (3) Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and, as opposed to direct primary evidence, the latter always prevails [People v. Valero] (4) Hearsay testimony of a child describing any act or attempted act of sexual abuse may now be admitted in any criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. [Sec. 28, Rule on Examination of a Child Witness] (5) The exceptions to the hearsay rule (Secs. 37-47) are warranted by the necessity for such evidence and/or on the assumption that, in the ordinary course of events, the same are trustworthy. (6) A witness may testify to the statements made by a person if, for instance, the fact that such statements were made by the latter would indicate the latter’s mental state or physical condition (doctrine of independently relevant statements), i.e. independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. Some examples of the second class of statements: a. Showing his state of mind (mental condition, knowledge, belief, intention, ill-will, and other emotions); b. Showing his physical condition, as illness and the like; c. From which an inference may be made as to the state of mind of another (knowledge, belief, motive, good or bad faith, etc.,) of the latter; d. Which may identify the date, place, and person in question; e. Showing the lack of credibility of a witness (Estrada v. Desierto, et al.) PATULA V. PEOPLE (ESTAFA): In the course of Guivencan’s direct-examination, petitioner’s counsel interposed a continuing objection on the ground that the figures entered in Exhibits B to YY and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court. With that, petitioner’s counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information. Guivencan conceded having no personal knowledge of the amounts actually received by petitioner from the customers or remitted by petitioner 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 petitioner and in the ledgers held by Footlucker’s corresponding to each customer, as well as on the unsworn statements of some of the customers. 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 petitioner’s misappropriation or conversion through cross-examination by petitioner. The denial of that opportunity rendered thee ntire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. To elucidate why the Prosecution’s hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of Court, a rule that states that 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. IN PATULA, WHY DIDN’T THE LAWYER FILE A DEMURRER TO EVIDENCE: kasi madedelay lang if nagdemurrer siya tapos na-deny….. FACTS 1. Petitioner was charged with estafa under an information filed in the Regional Trial Court (RTC) in Dumaguete City a. The accused, a saleswoman of Footlucker’s Chain of Stores, Inc., Dumaguete City, misappropriated, misapplied, and converted the proceeds of sales amounting to Php131, 286.97 for her own use to the detriment of her employer.

2. Petitioner pled not guilty to the offense charged in the information. At pre-trial, no stipulation of facts was had, and petitioner did not avail herself of plea bargaining. 3. FIRST WITNESS: LAMBERTO GO (BRANCH MANAGER) a. Petitioner was an employee of Footlucker’s, starting as a saleslady in 1996 until she became a sales representative; b. As a sales representative she was authorized to take orders from wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them; c. She could issue and sign official receipts of Footlucker’s for the payments, which she would then remit; d. She would then submit the receipts for the payments for tallying and reconciliation; e. At first her volume of sales was quite high, but later on dropped, leading him to confront her; that she responded that business was slow; that he summoned the accounting clerk to verify; f. The accounting clerk discovered erasures on some collection receipts; that he decided to subject her to an audit by company auditor Karen Guivencan; g. He learned from a customer of petitioner’s that the customer’s outstanding balance had already been fully paid although that balance appeared unpaid in Footlucker’s records; and that one night later on, petitioner and her parents went to his house to deny having misappropriated any money of Footlucker’s and to plead for him not to push through with a case against her, promising to settle her account on a monthly basis; and that she did not settle after that, but stopped reporting to work i. On March 7, 2002, Go’s cross examination, re-direct examination and re-cross examination were completed. 4. SECOND WITNESS: KAREN GUIVENCAN (AUDITOR) a. Go had requested her to audit petitioner after some customers had told him that they had already paid their accounts but the office ledger had still reflected outstanding balances for them; b. She first conducted her audit by going to the customers in places from Mabinay to Zamboanguitain Negros Oriental, and then in Siquijor; c. 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 petitioner submitted to the office; that upon completing her audit, she submitted to Go a written report denominated as “List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly Verified March 16-20, 1997” marked as Exhibit A; and d. Based on the report, petitioner had misappropriated the total amount of P131,286.92 5. During Guivencan’s stint as a witness, the Prosecution marked the ledgers of petitioner’s various customers allegedly with discrepancies as Exhibits B to YY and their derivatives, inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second that identified the invoices by the number, a third that stated the debit, a fourth that noted the credit (or the amounts paid), and a fifth that summed the balances (debit minus credit). Only 49 of the ledgers were formally offered and admitted by the RTC because the 50th ledger could no longer be found. 6. In the course of Guivencan’s direct-examination,petitioner’s counsel interposed a continuing objection on the ground that the figures entered in Exhibits B to YY and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court a. With that, petitioner’s counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information. 7. The prosecution then formally offered its documentary exhibits, inclusive the confirmations sheets used by Guivencan in auditing the accounts served by petitioner, and Guivencan’s so-called Summary (Final Report) of Discrepancies 8. After the Prosecution rested its case, the Defense decided not to file a demurrer to evidence although it had manifested the intention to do so, and instead rested its case. The Prosecution and Defense submitted their respective memoranda, and submitted the case for decision 9. RTC: Petitioner guilty beyond reasonable doubt of estafa PETITIONER insists that the RTC’s judgment “grossly violated [her] Constitutional and statutory right to be informed of the nature and cause of the accusation against her because, while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented against her and upon which her conviction was based, was falsification, an offense not alleged or included in the Information under which she was arraigned and pleaded not guilty,” and that said judgment likewise “blatantly ignored and manifestly disregarded the rules on admission of evidence in that the documentary evidence admitted by the trial court were all private documents, the due execution and authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence.”

SUPREME COURT: THE PETITION IS MERITORIOUS 1. FAILURE OF INFORMATION TO ALLEGE FALSIFICATION DID NOT VIOLATE PETITIONER’S RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION a. The importance of the proper manner of alleging the nature and cause of the accusation in the information should never be taken for granted by the State. An accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. b. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information filed against him. c. ELEMENTS OF ESTAFA i. That the offender received money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; ii. That the offender misappropriated or converted such money, goods or other personal property, or denied his part in its receipt; iii. That the misappropriation or conversion or denial was to the prejudice of another; and iv. That the offended party made a demand on the offender for the delivery or return of such money, goods or other personal property d. According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. i. She committed the falsification in order to conceal her misappropriation or conversion. Considering that the falsification was not an offense separate and distinct from the estafa charged against her, the Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her e. RTC: It would seem that the accused is of the idea that because the crime charged in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents, the prosecution could not prove falsification. Such argumentation is not correct. Since the information charges accused only of misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the Court holds that there is no necessity of alleging the falsification in the Information as it is not an element of the crime charged. Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex crime of Estafa Through Falsification of Documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. However, if the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company 2. Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of petitioner for the estafa charged in the information? a. To establish the elements of estafa earlier mentioned, the Prosecution presented the testimonies of Go and Guivencan, and various documents consisting of: (a) the receipts allegedly issued by petitioner to each of her customers upon their payment, (b) the ledgers listing the accounts pertaining to each customer with the corresponding notations of the receipt numbers for each of the payments, and (c) the confirmation sheets accomplished by Guivencan herself b. The problem with the prosecution’s evidence is that only Guivencan testified on the entries which effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioner’s misappropriation or conversion through crossexamination by petitioner. 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. c. To elucidate why the Prosecution’s hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of Court, a rule that states that 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. d. In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony then depends not upon the veracity of the witness but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness and cannot, therefore, be cross-examined. i. Thus, the rule against hearsay testimony rests mainly on the ground that there was no opportunity to cross-examine the declarant. The testimony may have been given under oath and before a court of justice, but if it is offered against a party who is afforded no opportunity to cross-examine the witness, it is hearsay just the same e. Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assert or becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies that he heard the accused say that the complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief, but merely to show that the accused uttered those words. This kind of utterance is hearsay in character but is not legal hearsay. The distinction is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies f. To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a dispute while also safeguarding a party’s right to cross-examine her adversary’s witness, the Rules of Court offers two solutions. The first solution is to require that all the witnesses in a judicial trial or hearing be examined only in court under oath or affirmation. g. The second solution is to require that all witnesses be subject to the cross-examination by the adverse party. (Section 6, Rule 132 of the Rules of Court) h. 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 3. LACK OF PROPER AUTHENTICATION RENDERED EXHIBITS B TO YY AND THEIR DERIVATIVES INADMISSIBLE AS JUDICIAL EVIDENCE a. 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. Considering that none of the exhibits came under any of the four exceptions, they could not be presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to their authentication in the manner provided in Section20 of Rule 132 b. The Prosecution attempted to have Go authenticate the signature of petitioner in various receipts c. As the excerpts indicate, Go’s attempt at authentication of the signature of petitioner on the receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1) 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 with serial number FLDT96 No. 20441 and other receipts. But that promise was not even true, because almost in the same breath the Prosecution offered to authenticate the signature of petitioner 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 with serial number FLDT96 No. 20441 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. d. Guivencan exclusively relied on the entries of the unauthenticated ledgers to support her audit report on petitioner’s supposed misappropriation or conversion, revealing her lack of independent knowledge of the veracity of the entries, as the following excerpts of her testimony show e. Go and Guivencan had not themselves seen the execution or signing of the documents,the Prosecution surely did not authenticate Exhibits B to YY and their derivatives conformably with the

aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft of probative value as evidence i. MALAYAN INSURANCE V. PNWC: Under Section 20, Rule 132, Rules of Court, before a private document is admitted in evidence, it must be authenticated either by the person who executed it, the person before whom its execution was acknowledged, any person who was present and saw it executed, or who after its execution, saw it and recognized the signatures, or the person to whom the parties to the instruments had previously confessed execution thereof. 4. THE LEDGERS CANNOT BE CONSIDERED AS ENTRIES IN THE REGULAR COURSE OF BUSINESS (130.43) a. The requisites were not met b. The Court has to acquit petitioner for failure of the State to establish her guilt beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge must rigidly test the State’s evidence of guilt in order to ensure that such evidence adhered to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. The failure of the judge to do so herein nullified the guarantee of due of process of law in favor of the accused, who had no obligation to prove her innocence. Her acquittal should follow. Petitioner: Cirse Francisco “Choy” Torralba Respondents: People of the Philippines Concept: Object Evidence; Hearsay Brief Facts: Torralba allegedly made libelous utterances against the Hontanosas, to the effect that they were traitors and collaborators. An information for libel was filed against Torralba. During trial, tape recordings purportedly capturing the libelous utterances were presented as evidence. However, the operator of the tape recorder, the adopted daughter of Lim, never appeared in court to authenticate the recordings. (Lim had admitted that he did not know how to operate the tape recorder and so requested either his adopted daughter or his maid to do so.) Although initially the tape recordings were only provisionally admitted, subject to presentation of Lim’s adopted daughter for proper authentication, eventually the RTC admitted them into evidence. The RTC convicted Torralba for libel, which was subsequently affirmed on appeal by the CA. The Supreme Court granted Torralba’s petition for review on certiorari and acquitted him – the SC held that the tape recordings should not have been admitted into evidence. Doctrine: For a tape recording to be admissible in evidence and given probative value: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. Rationale for requisites: address criticism of susceptibility to tampering of tape recordings. SPS. VILLORIA V. CAI: In its Comment, CAI claimed that Spouses Viloria’s allegation of bad faith is negated by its willingness to issue new tickets to them and to credit the value of the subject tickets against the value of the new ticket Fernando requested. CAI argued that Spouses Viloria’s sole basis to claim that the price at which CAI was willing to issue the new tickets is unconscionable is a piece of hearsay evidence – an advertisement appearing on a newspaper stating that airfares from Manila to Los Angeles or San Francisco cost US$818.00 (NOT FOR JUNE 1999, BUT FOR SEPTEMBER 2000). There is also no showing that Spouses Viloria were discriminated against in bad faith by being charged with a higher rate. The only evidence the petitioners presented to prove that the price of a round trip ticket between Manila and Los Angeles at that time was only $856.00 is a newspaper advertisement for another airline company, which is inadmissible for being “hearsay evidence, twice removed.” Newspaper clippings are hearsay if they were offered for the purpose of proving the truth of the matter alleged. [N]ewspaper articles amount to “hearsay evidence, twice removed” and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated FACTS On April 3, 2006, the Regional Trial Court of Antipolo City, Branch 74 (RTC) rendered a Decision, giving due course to the complaint for sum of money and damages filed by petitioners against respondent Continental Airlines, Inc. (CAI)

1. On or about July 21, 1997 and while in the United States, Fernando purchased for himself and his wife, Lourdes, two (2) round trip airline tickets from San Diego, California to Newark, New Jersey on board Continental Airlines. 2. Fernando purchased the tickets at US$400.00 each from a travel agency called “Holiday Travel” and was attended to by a certain Margaret Mager (Mager). According to Spouses Viloria, Fernando agreed to buy the said tickets after Mager informed them that there were no available seats at Amtrak, an intercity passenger train service provider in the United States. 3. Per the tickets, Spouses Viloria were scheduled to leave for Newark on August 13, 1997 and return to San Diego on August 21, 1997. 4. Subsequently, Fernando requested Mager to reschedule their flight to Newark to an earlier date or August 6, 1997. 5. Mager informed him that flights to Newark via Continental Airlines were already fully booked and offered the alternative of a round trip flight via Frontier Air. Since flying with Frontier Air called for a higher fare of US$526.00 per passenger and would mean traveling by night, Fernando opted to request for a refund. 6. Mager, however, denied his request as the subject tickets are non-refundable and the only option that Continental Airlines can offer is the re-issuance of new tickets within one (1) year from the date the subject tickets were issued. Fernando decided to reserve two (2) seats with Frontier Air. 7. As he was having second thoughts on traveling via Frontier Air, Fernando went to the Greyhound Station where he saw an Amtrak station nearby. Fernando made inquiries and was told that there are seats available and he can travel on Amtrak anytime and any day he pleased. Fernando then purchased two (2) tickets for Washington, D.C. 8. From Amtrak, Fernando went to Holiday Travel and confronted Mager with the Amtrak tickets, telling her that she had misled them into buying the Continental Airlines tickets by misrepresenting that Amtrak was already fully booked. Fernando reiterated his demand for a refund but Mager was firm in her position that the subject tickets are non-refundable. 9. Upon returning to the Philippines, Fernando sent a letter to CAI on February 11, 1998, demanding a refund and alleging that Mager had deluded them into purchasing the subject tickets 10. In a letter dated February 24, 1998, Continental Micronesia informed Fernando that his complaint had been referred to the Customer Refund Services of Continental Airlines at Houston, Texas. 11. In a letter dated March 24, 1998, Continental Micronesia denied Fernando’s request for a refund and advised him that he may take the subject tickets to any Continental ticketing location for the re-issuance of new tickets within two (2) years from the date they were issued. Continental Micronesia informed Fernando that the subject tickets may be used as a form of payment for the purchase of another Continental ticket, albeit with a re-issuance fee 12. On June 17, 1999, Fernando went to Continental’s ticketing office at Ayala Avenue, Makati City to have the subject tickets replaced by a single round trip ticket to Los Angeles, California under his name. Therein, Fernando was informed that Lourdes’ ticket was non-transferable, thus, cannot be used for the purchase of a ticket in his favor. He was also informed that a round trip ticket to Los Angeles was US$1,867.40 so he would have to pay what will not be covered by the value of his San Diego to Newark round trip ticket. 13. In a letter dated June 21, 1999, Fernando demanded for the refund of the subject tickets as he no longer wished to have them replaced. In addition to the dubious circumstances under which the subject tickets were issued, Fernando claimed that CAI’s act of charging him with US$1,867.40 for a round trip ticket to Los Angeles, which other airlines priced at US$856.00, and refusal to allow him to use Lourdes’ ticket, breached its undertaking under its March 24, 1998 letter 14. On September 8, 2000, Spouses Viloria filed a complaint against CAI, praying that CAI be ordered to refund the money they used in the purchase of the subject tickets with legal interest from July 21, 1997 and to pay P1,000,000.00 as moral damages, P500,000.00 as exemplary damages and P250,000.00 as attorney’s fees 15. CAI’s defenses: (a) Spouses Viloria have no right to ask for a refund as the subject tickets are nonrefundable; (b) Fernando cannot insist on using the ticket in Lourdes’ name for the purchase of a round trip ticket to Los Angeles since the same is non-transferable; (c) as Mager is not a CAI employee, CAI is not liable for any of her acts; (d) CAI, its employees and agents did not act in bad faith as to entitle Spouses Viloria to moral and exemplary damages and attorney’s fees. 16. RTC: its April 3, 2006 Decision, holding that Spouses Viloria are entitled to a refund in view of Mager’s misrepresentation in obtaining their consent in the purchase of the subject tickets a. Citing Articles 1868 and 1869 of the Civil Code, the RTC ruled that Mager is CAI’s agent, hence, bound by her bad faith and misrepresentation. As far as the RTC is concerned, there is no issue as to whether Mager was CAI’s agent in view of CAI’s implied recognition of her status as such in its March 24, 1998 letter. b. Furthermore, the RTC ruled that CAI acted in bad faith in reneging on its undertaking to replace the subject tickets within two (2) years from their date of issue when it charged Fernando with the amount of US$1,867.40 for a round trip ticket to Los Angeles and when it refused to allow Fernando to use Lourdes’ ticket

17. COURT OF APPEALS: reversed the RTC’s April 3, 2006 Decision, holding that CAI cannot be held liable for Mager’s act in the absence of any proof that a principal-agent relationship existed between CAI and Holiday Travel. According to the CA, Spouses Viloria, who have the burden of proof to establish the fact of agency, failed to present evidence demonstrating that Holiday Travel is CAI’s agent. Furthermore, contrary to Spouses Viloria’s claim, the contractual relationship between Holiday Travel and CAI is not an agency but that of a sale. a. The CA also ruled that refund is not available to Spouses Viloria as the word “non-refundable” was clearly printed on the face of the subject tickets, which constitute their contract with CAI. Therefore, the grant of their prayer for a refund would violate the proscription against impairment of contracts. b. Finally, the CA held that CAI did not act in bad faith when they charged Spouses Viloria with the higher amount of US$1,867.40 for a round trip ticket to Los Angeles. According to the CA, there is no compulsion for CAI to charge the lower amount of US$856.00, which Spouses Viloria claim to be the fee charged by other airlines. The matter of fixing the prices for its services is CAI’s prerogative, which Spouses Viloria cannot intervene SUPREME COURT 1. PRINCIPAL-AGENT RELATIONAHIP EXISTS BETWEEN CAI AND HOLIDAY TRAVEL a. RALLOS V. FELIX GO CHAN AND SONS REALTY: Out of the above given principles, sprung the creation and acceptance of the relationship of agency whereby one party, called the principal (mandante), authorizes another, called the agent (mandatario), to act for and in his behalf in transactions with third persons. The essential elements of agency are: (1) there is consent, express or implied of the parties to establish the relationship; (2) the object is the execution of a juridical act in relation to a third person; (3) the agent acts as a representative and not for himself, and (4) the agent acts within the scope of his authority. Agency is basically personal, representative, and derivative in nature. The authority of the agent to act emanates from the powers granted to him by his principal; his act is the act of the principal if done within the scope of the authority. Qui facit per alium facit se. "He who acts through another acts himself." b. The first and second elements are present as CAI does not deny that it concluded an agreement with Holiday Travel, whereby Holiday Travel would enter into contracts of carriage with third persons on CAI’s behalf. The third element is also present as it is undisputed that Holiday Travel merely acted in a representative capacity and it is CAI and not Holiday Travel who is bound by the contracts of carriage entered into by Holiday Travel on its behalf. The fourth element is also present considering that CAI has not made any allegation that Holiday Travel exceeded the authority that was granted to it. In fact, CAI consistently maintains the validity of the contracts of carriage that Holiday Travel executed with Spouses Viloria and that Mager was not guilty of any fraudulent misrepresentation. That CAI admits the authority of Holiday Travel to enter into contracts of carriage on its behalf is easily discernible from its February 24, 1998 and March 24, 1998 letters, where it impliedly recognized the validity of the contracts entered into by Holiday Travel with Spouses Viloria. When Fernando informed CAI that it was Holiday Travel who issued to them the subject tickets, CAI did not deny that Holiday Travel is its authorized agent. c. Estoppel bars CAI from making such denial. Prior to Spouses Viloria’s filing of a complaint against it, CAI never refuted that it gave Holiday Travel the power and authority to conclude contracts of carriage on its behalf. As clearly extant from the records, CAI recognized the validity of the contracts of carriage that Holiday Travel entered into with Spouses Viloria and considered itself bound with Spouses Viloria by the terms and conditions thereof; and this constitutes an unequivocal testament to Holiday Travel’s authority to act as its agent. This Court cannot therefore allow CAI to take an altogether different position and deny that Holiday Travel is its agent without condoning or giving imprimatur to whatever damage or prejudice that may result from such denial or retraction to Spouses Viloria, who relied on good faith on CAI’s acts in recognition of Holiday Travel’s authority. Estoppel is primarily based on the doctrine of good faith and the avoidance of harm that will befall an innocent party due to its injurious reliance, the failure to apply it in this case would result in gross travesty of justice d. As categorically provided under Article 1869 of the Civil Code, “[a]gency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.” e. As categorically provided under Article 1869 of the Civil Code, “[a]gency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.” 2. IN ACTIONS BASED ONQUASI-DELICT, A PRINCIPAL CAN ONLY BE HELD LIABLE FOR THE TORT COMMITTED BY ITS AGENTS’S EMPLOYEES IF IT HAS BEEN ESTABLISHED BY PREPONDERANCE OF EVIDENCE THAT THE PRINCIPAL WAS ALSO AT FAULT OR NEGLIGENT OR THAT THE PRINCIPAL EXERCISE CONTROL AND SUPERVISION OVER THEM

a. Spouses Viloria’s cause of action on the basis of Mager’s alleged fraudulent misrepresentation is clearly one of tort or quasi-delict, there being no pre-existing contractual relationship between them. Therefore, it was incumbent upon Spouses Viloria to prove that CAI was equally at fault. b. However, the records are devoid of any evidence by which CAI’s alleged liability can be substantiated. Apart from their claim that CAI must be held liable for Mager’s supposed fraud because Holiday Travel is CAI’s agent, Spouses Viloria did not present evidence that CAI was a party or had contributed to Mager’s complained act either by instructing or authorizing Holiday Travel and Mager to issue the said misrepresentation. c. It may seem unjust at first glance that CAI would consider Spouses Viloria bound by the terms and conditions of the subject contracts, which Mager entered into with them on CAI’s behalf, in order to deny Spouses Viloria’s request for a refund or Fernando’s use of Lourdes’ ticket for the re-issuance of a new one, and simultaneously claim that they are not bound by Mager’s supposed misrepresentation for purposes of avoiding Spouses Viloria’s claim for damages and maintaining the validity of the subject contracts. It may likewise be argued that CAI cannot deny liability as it benefited from Mager’s acts, which were performed in compliance with Holiday Travel’s obligations as CAI’s agent. d. However, a person’s vicarious liability is anchored on his possession of control, whether absolute or limited, on the tortfeasor. Without such control, there is nothing which could justify extending the liability to a person other than the one who committed the tort. 3. EVEN ON ASSUMPTION THAT CAI MAY BE HELD LIABLE FOR THE ACTS OF MAGER, STILL THE SPOUSES VILORIA ARE NOT ENTITLED TO REFUND. MAGER’S STATEMENT CANNOT BE CONSIDERED A CAUSAL FRAUD THAT WOULD JUSTIFY THE ANNULMENT OF THE SUBJECT CONTRACTS THAT WOULD OBLIGE CAI TO INDEMNIFY THE SPOUSES AND RETURN THE MONEY THEY PAID FOR THE SUBJECT TICKETS a. Article 1390, in relation to Article 1391 of the Civil Code, provides that if the consent of the contracting parties was obtained through fraud, the contract is considered voidable and may be annulled within four (4) years from the time of the discovery of the fraud. Once a contract is annulled, the parties are obliged under Article 1398 of the same Code to restore to each other the things subject matter of the contract, including their fruits and interest. b. On the basis of the foregoing and given the allegation of Spouses Viloria that Fernando’s consent to the subject contracts was supposedly secured by Mager through fraudulent means, it is plainly apparent that their demand for a refund is tantamount to seeking for an annulment of the subject contracts on the ground of vitiated consent. c. Whether the subject contracts are annullable, this Court is required to determine whether Mager’s alleged misrepresentation constitutes causal fraud. Similar to the dispute on the existence of an agency, whether fraud attended the execution of a contract is factual in nature and this Court, as discussed above, may scrutinize the records if the findings of the CA are contrary to those of the RTC. d. Under Article 1338 of the Civil Code, there is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. In order that fraud may vitiate consent, it must be the causal (dolo causante), not merely the incidental (dolo incidente), inducement to the making of the contract. e. SAMSON V. CA: defines fraud as a deception employed by one party prior to or simultaneous to the contract in order to secure the consent of the other f. Also, fraud must be serious and its existence must be established by clear and convincing evidence. As ruled by this Court in Sierra v. Hon. Court of Appeals, et al., mere preponderance of evidence is not adequate g. After meticulously poring over the records, this Court finds that the fraud alleged by Spouses Viloria has not been satisfactorily established as causal in nature to warrant the annulment of the subject contracts. i. In fact, Spouses Viloria failed to prove by clear and convincing evidence that Mager’s statement was fraudulent. Specifically, Spouses Viloria failed to prove that (a) there were indeed available seats at Amtrak for a trip to New Jersey on August 13, 1997 at the time they spoke with Mager on July 21, 1997; (b) Mager knew about this; and (c) that she purposely informed them otherwise. ii. This Court finds the only proof of Mager’s alleged fraud, which is Fernando’s testimony that an Amtrak had assured him of the perennial availability of seats at Amtrak, to be wanting. iii. As CAI correctly pointed out and as Fernando admitted, it was possible that during the intervening period of three (3) weeks from the time Fernando purchased the subject tickets to the time he talked to said Amtrak employee, other passengers may have cancelled their bookings and reservations with Amtrak, making it possible for Amtrak to accommodate them. Indeed, the existence of fraud cannot be proved by mere speculations and conjectures. Fraud is never lightly inferred; it is good faith that is. Under

the Rules of Court, it is presumed that "a person is innocent of crime or wrong" and that "private transactions have been fair and regular." 4. ASSUMING THE CONTRARY, SPOUSES VILORIA ARE NEVERTHELESS DEEMED TO HAVE RATIFIED THE SUBJECT CONTRACTS. a. Even assuming that Mager’s representation is causal fraud, the subject contracts have been impliedly ratified when Spouses Viloria decided to exercise their right to use the subject tickets for the purchase of new ones. Under Article 1392 of the Civil Code, “ratification extinguishes the action to annul a voidable contract.” b. Art. 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with knowledge of the reason which renders the contract voidable and such reason having ceased, the person who has a right to invoke it should execute an act which necessarily implies an intention to waive his right. i. Implied ratification may take diverse forms, such as by silence or acquiescence; by acts showing approval or adoption of the contract; or by acceptance and retention of benefits flowing therefrom c. In doing so, Spouses Viloria are actually asking for a rescission of the subject contracts based on contractual breach. Resolution, the action referred to in Article 1191, is based on the defendant’s breach of faith, a violation of the reciprocity between the parties and in Solar Harvest, Inc. v. Davao Corrugated Carton Corporation, this Court ruled that a claim for a reimbursement in view of the other party’s failure to comply with his obligations under the contract is one for rescission or resolution d. Accordingly, by pursuing the remedy of rescission under Article 1191, the Vilorias had impliedly admitted the validity of the subject contracts, forfeiting their right to demand their annulment. A party cannot rely on the contract and claim rights or obligations under it and at the same time impugn its existence or validity. Indeed, litigants are enjoined from taking inconsistent positions 5. CONTRACTS CANNOT BE RESCINDED FOR A SLIGHT CASUAL BREACH a. According to Spouses Viloria, CAI acted in bad faith and breached the subject contracts when it refused to apply the value of Lourdes’ ticket for Fernando’s purchase of a round trip ticket to Los Angeles and in requiring him to pay an amount higher than the price fixed by other airline companies. b. In its March 24, 1998 letter, CAI stated that “non-refundable tickets may be used as a form of payment toward the purchase of another Continental ticket for $75.00, per ticket, reissue fee ($50.00, per ticket, for tickets purchased prior to October 30, 1997).” c. Clearly, there is nothing in the above-quoted section of CAI’s letter from which the restriction on the non-transferability of the subject tickets can be inferred. In fact, the words used by CAI in its letter supports the position of Spouses Viloria, that each of them can use the ticket under their name for the purchase of new tickets whether for themselves or for some other person. d. Moreover, as CAI admitted, it was only when Fernando had expressed his interest to use the subject tickets for the purchase of a round trip ticket between Manila and Los Angeles that he was informed that he cannot use the ticket in Lourdes’ name as payment. e. CAI’S REFUSAL HOWEVER TO ACCEPT LOURDES’ TICKET FOR THE PURCHASE OF A NEW TICKET FOR FERNANDO IS ONLY A CAUSAL BREACH i. The endorsability of the subject tickets is not an essential part of the underlying contracts and CAI’s failure to comply is not essential to its fulfillment of its undertaking to issue new tickets upon Spouses Viloria’s surrender of the subject tickets. This Court takes note of CAI’s willingness to perform its principal obligation and this is to apply the price of the ticket in Fernando’s name to the price of the round trip ticket between Manila and Los Angeles. CAI was likewise willing to accept the ticket in Lourdes’ name as full or partial payment as the case may be for the purchase of any ticket, albeit under her name and for her exclusive use. In other words, CAI’s willingness to comply with its undertaking under its March 24, 1998 cannot be doubted, albeit tainted with its erroneous insistence that Lourdes’ ticket is nontransferable. ii. Moreover, Spouses Viloria’s demand for rescission cannot prosper as CAI cannot be solely faulted for the fact that their agreement failed to consummate and no new ticket was issued to Fernando. Spouses Viloria have no right to insist that a single round trip ticket between Manila and Los Angeles should be priced at around $856.00 and refuse to pay the difference between the price of the subject tickets and the amount fixed by CAI. The petitioners failed to allege, much less prove, that CAI had obliged itself to issue to them tickets for any flight anywhere in the world upon their surrender of the subject tickets. In its March 24, 1998 letter, it was clearly stated that “[n]on-refundable tickets may be used as a form of payment toward the purchase of another Continental ticket” and there is nothing in it suggesting that CAI had obliged itself to protect Spouses Viloria from any fluctuation in the prices of tickets

or that the surrender of the subject tickets will be considered as full payment for any ticket that the petitioners intend to buy regardless of actual price and destination. The CA was correct in holding that it is CAI’s right and exclusive prerogative to fix the prices for its services and it may not be compelled to observe and maintain the prices of other airline companies 6. There is also no showing that Spouses Viloria were discriminated against in bad faith by being charged with a higher rate. The only evidence the petitioners presented to prove that the price of a round trip ticket between Manila and Los Angeles at that time was only $856.00 is a newspaper advertisement for another airline company, which is inadmissible for being “hearsay evidence, twice removed.” Newspaper clippings are hearsay if they were offered for the purpose of proving the truth of the matter alleged. a. FERIA V. CA: [N]ewspaper articles amount to “hearsay evidence, twice removed” and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated 7. The records of this case demonstrate that both parties were equally in default; hence, none of them can seek judicial redress for the cancellation or resolution of the subject contracts and they are therefore bound to their respective obligations thereunder. a. Therefore, CAI’s liability for damages for its refusal to accept Lourdes’ ticket for the purchase of Fernando’s round trip ticket is offset by Spouses Viloria’s liability for their refusal to pay the amount, which is not covered by the subject tickets. Moreover, the contract between them remains, hence, CAI is duty bound to issue new tickets for a destination chosen by Spouses Viloria upon their surrender of the subject tickets and Spouses Viloria are obliged to pay whatever amount is not covered by the value of the subject tickets. PEOPLE V. CUSI (Robbery in band with homicide): During the trial, and while Sgt. Lurio Baño, of the Police Force of Digos, Davao, was testifying as a prosecution witness regarding the extrajudicial concession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. The question involved herein is one purely of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca hail mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, We believe that the question pro-pounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. FACTS

In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lurio Baño, of the Police Force of Digos, Davao, was testifying as a prosecution witness regarding the extrajudicial concession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the

names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. The prosecuting officer's motion for reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the above mentioned ruling of the respondent judge be declared erroneous and for a further order directing said respondent judge to allow witness Bano to answXZer the question in full. SUPREME COURT The question involved herein is one purely of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 1778). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca hail mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, We believe that the question pro-pounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. On the other hand, the fact which the prosecuting officer intended to establish would seem to be relevant to explain why the police force of the place where the offense was committed subsequently questioned and investigated the persons allegedly named by Puesca. ESTRADA V. DESIERTO: FROM JUSTICE KAPUNAN’S SEPARATE OPINION: Reliance on the Angara Diary to establish the "intent" or "state of mind" of petitioner is improper since the contents thereof have not been duly established as facts and are therefore hearsay. In any case, the circumstances under which petitioner allegedly manifested his intention to resign were, at best, equivocal. The "circumstances" mentioned in the diary refer to, among others, the incidents when petitioner allegedly expressed his worry about the swelling crowd at EDSA; when he proposed a snap election where he would not be a candidate; when he made no objection to the suggestion for a graceful and dignified exit, but would have a 5-day grace period to stay in the palace; when he entered into negotiations for a peaceful and orderly transfer of power and to guarantee the safety of petitioner and his family; and when he uttered the following: "Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga (I am very tired. I don't want any more of this - it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I want to clear my name, then I will go." The negotiations were, however, aborted, according to the Angara diary, by respondent Arroyo's oath-taking. The incidents described in the Angara diary tell a story of desperation, duress and helplessness surrounding petitioner, arguing eloquently against the idea of intent and voluntariness on his part to leave the Presidency. In any event, since the conditions proposed for his resignation were not met, the act did not come to reality. RELEVANT DISCUSSION FROM THE APRIL 2001 DECISION: 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. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule: "Wigmore, after pointing out that the party's declaration has generally the probative value of any other person's asssertion, 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, he 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 crossexamine because it is the opponent's own declaration, and `he does not need to cross examine himself.' Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick) According to Morgan: `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 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.' 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. (U.S. vs. Ching Po, 23 Phil. 578, 583)." The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and "Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this - it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go." We noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not to resign has wilted. 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.[13] Jones explains that the "basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made."[14] To use the blunt language of Mueller and Kirkpatrick, "this process of attribution is not mumbo jumbo but common sense."[15] 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. 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. 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.)"[17] 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?)"[18] 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). Jones very well explains the reasons for the rule, viz: "What is done, by agent, is done by the principal through him, as through a mere instrument. So, whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his principal and admissible in evidence against such principal.” 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 are circumstantial evidence of the facts in issue. The second class includes the following:[21]

a.

Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness. Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence: "§ 1088. Mental State or Condition - Proof of Knowledge.- There are a number of common issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to the general exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity." 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. This has long been a quiet area of our law on evidence and petitioner's attempt to foment a belated tempest cannot receive our imprimatur. FACTS On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. 1. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a sixyear term commencing on June 30, 1998. 2. Petitioner’s sharp descent from power started on October 4, 2000. Ilocos Sur Governos, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords 3. The next day, October 5, 2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." a. He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. b. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation. 4. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the exposé of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. 5. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern two days later, the CBCP did the same then former Pres. Aquino also demanded that ERAP make the supreme sacrifice (FVR also joined the pandemonium) 6. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services and later asked for petitioner's resignation. However, petitioner strenuously held on to his office and refused to resign. 7. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8. On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry 9. On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino

10. On November 13, House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. a. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella b. On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding 11. On December 7, the impeachment trial started. a. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. b. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000 12. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading 13. January 16, 2001: by a vote of 11-10 the senator-judges ruled against the opening of the second envelop which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President 14. The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. 15. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal 16. Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion. 17. January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. 18. On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine 19. In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government." 20. A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement. 21. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacañang's Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez 22. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. 23. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace

24. ERAP’S PRESS STATEMENT: ….. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society…. 25. ERAP’S SIGNED LETTER: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. 26. On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency. 27. Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys 28. Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo a. US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government 29. On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives. The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines." It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution." 30. On January 26, the respondent signed into law the Solid Waste Management Act. A few days later, she also signed into law the Political Advertising Ban and Fair Election Practices Act 31. On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. the next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmeña voted "yes" with reservations, citing as reason therefore the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent 32. On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. 33. After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. 34. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. 35. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 14671015, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." 36. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." (PANGANIBAN AND DAVIDE INHIBITED THEMSELVES) SUPREME COURT 1. WHETHER OR NOT THE CASES AT BAR INVOLVE A POLITICAL QUESTION a. NO b. BAKER V. CARR: Prominent on the surface on any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or

the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretions; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of `political questions', not of `political cases c. TANADA V. CUENCO: political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." d. Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. and related cases to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. i. EDSA 1: EXTRACONSTITUTIONAL; the exercise of the people power of revolution which overthrew the whole government (POLITICAL QUESTION) ii. EDSA 2: INTRACONSTITUTIONAL; an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President (LEGAL QUESTION) e. The indispensability of the people's freedom of speech and of assembly to democracy is now selfevident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus." f. In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society." In Hague v. Committee for Industrial Organization, this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all." g. SUBAYCO V. SANDIGANBAYAN: "... it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." h. MARBURY V. MADISON: it is emphatically the province and duty of the judicial department to say what the law is… 2. WHETHER OR NOT PETITIONER RESIGNED AS PRESIDENT a. YES, PETITIONER RESIGNED AS PRESIDENT. (SC USED THE TOTALITY TEST) b. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment i. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. c. In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the Afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. d. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer (ANGARA GAVE HIM 2 SUGGESTIONS: DIGNIFIED EXIT/RESIGNATION the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time.)

e. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power." There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. f. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. g. P’s AYOKO NA STATEMENT is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." " Ayoko na" are words of resignation. h. The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. i. According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further refined. It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. j. According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further refined. It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. i. WHEN THEY LEARNED THAT THE SC RECOGNIZED GMA AS PRESIDENT, THEY DECIDED TO DELETE THE PROVISION ON RESIGNATION 1. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provision on security, at least, should be respected. k. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the past tense. It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited l. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019. UNTENABLE. In the deliberations, there was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code 3. WHETHER OR NOT PETITIONER IS ONLY TEMPORARY UNABLE TO ACT AS PRESIDENT. a. NO.

b. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability. c. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as President of the Philippines. Following Tañada v. Cuenco, we hold that this Court cannot exercise its judicial power for this is an issue "in regard to which full discretionary authority has been delegated to the Legislative x x x branch of the government." 4. WHETHER OR NOT THE PETITIONER ENJOYS IMMUNITY FROM SUIT. ASSUMING HE ENJOYS IMMUNITY, THE EXTENT OF IMMUNITY. a. HE DOES NOT b. Forbes, etc. vs. Chuoco tiaco and Crossfield: The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary cannot do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more that it can a member of the Philippine Commission or the Philippine Assembly. Public policy forbids it.,Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he cannot be said to have exercise discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as GovernorGeneral but as a private individual, and, as such, must answer for the consequences of his act." c. The 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. THE 1987 CONSTITUTION did not re-enact the executive immunity provision of the 1973 Constitution d. We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." e. Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him

f.

In re: Saturnino Bermudez: "incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. g. SCOPE OF IMMUNITY: They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser h. US CASES: the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. 5. WHETHER OR NOT THE PROSECUTION OF PETITIONER ESTRADA SHOULD BE ENJOINED DUE TO PREJUDICIAL PUBLICITY a. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases b. The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat c. The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc. d. PEOPLE V. TEEHANKEE, JR. and LARRANAGA V. CA: Then and now, we now rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. e. WEBB V. DE LEON: The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers - have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. f. THUS, there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof CORNEJO V. SANDIGANBAYAN(ESTAFA): Anent petitioner's objection to the admis-sibility of Exhibit B, the certification issued by Pasay City Engineer Jesus Reyna to the effect that petitioner was not authorized to inspect and inves-tigate privately-owned buildings, We find no rever-sible error, much less grave abuse of discretion on the part of the trial court in admitting the same. It must be noted that Exhibit B was not presented as an independent evidence to prove the want of authority of petitioner to inspect and in-vestigate privately-owned buildings, but merely as part of the testimony of the complainant that such certification was issued in her presence and the declaration of Assistant Pasay City Engineer Ceasar Contreras that the signature appearing there-on was that of Engineer Reyna. Where the statement or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that such statements were actually made or such writings were executed, such evidence is not covered by the hearsay rule. Besides, the finding of the trial court that petitioner had no authority to conduct ins-pections and investigations of privately-owned buildings was reached, not solely on the basis of Exhibit B, but principally from a consideration and study of Section 18 of R.A. No. 5185, the law which first allowed the city governments to create the position of City Public Works Supervisor, in relation to P.D. No. 549, which placed the city public works supervisors under the supervision of the city engineers.

FACTS 1. For already more than 14 years, complainant Beth Chua had been renting the premises at 105 Moana Street, Pasay City, owned by one Crisanto Bautista, which she devoted as a residence and a sari-sari store. 2. In the morning of December 11, 1979, accused Alfredo R. Cornejo, Sr. [hereinafter referred to as accused Engineer], then a City Public Works Supervisor in Pasay City, called at the store of complainant looking for a woman who supposedly called him up from there. 3. In the course of his conversations with complainant, during which he introduced himself to be connected with the City Engineer's Office, accused Engineer represented to complainant that he was empowered to inspect private buildings and that, pursuant to the Building Code, the Metro Manila Commission requires that the floor area of all houses be measured, a service for which a fee of P3.00 per square meter is charged, but that, if said service is undertaken by him, the charge would be only P0.50 per square meter. 4. In addition, said accused assured complainant that, while her premises were under investigation, she could not be ejected despite the pending ejectment suit against her. 5. Although she initially entertained doubts about the personality of accused Engineer, complainant eventually believed him not only because he talked nicely but also because he warned her that unless she complies with said requirements, she could be liable for the penal sanctions under the Building Code. 6. Complainant was thus prevailed upon to agree that the required service be undertaken by accused Engineer for which she would pay from P300.00 to P400.00 and, since the entire procedure had to be done step by step, she would have to initially pay P150.00 for the measurement and the preparation of the Floor plan of the house. 7. As agreed with accused Engineer, at 3:00 o'clock in the afternoon of that day, accused Rogelio Alzate Cornjeo [hereinafter referred to as accused Draftsman], nephew of accused Engineer, together with one Conrado Ocampo, showed up at Complainant's place and made measurements therein. However, because complainant was short of funds, she was able to deliver to accused Draftsman only P100.00 out of the P150.00 agreed upon with accused Engineer. For that amount, accused Draftsman issued complainant a receipt [Exh. A] and at the same time asked her to sign a bunch of blank forms and other papers which he took back. 8. The following morning, December 12, 1979, because complainant saw accused Engineer go to the house of her neighbor, a Mrs. Dalisay Bernal, complainant asked the latter what said accused was there for and she was told that he went there also for the same purpose. 9. Since Mrs. Bernal shared the doubts previously entertained by her, the two of them decided to see Barangay Captain Carmen Robles about the matter. 10. With the Barangay Captain, complainant and Mrs. Bernal then went to the Pasay City Hall where they saw City Engineer Jesus I. Reyna who told them that accused Engineer was not authorized to conduct inspection and investigation of privately-owned buildings - a fact later confirmed by a certification issued to that effect by said City Engineer [Exhibit B]. 11. With this discovery, the matter was reported to the Intelligence and Special Operations Group, Pasay City Police. 12. It developed that in the morning of December 14, 1979, Conrado Ocampo called on complainant at the instance of accused Engineer to collect the balance of P50.00 but complainant did not then pay him. a. Instead, she asked that accused Engineer be the one to pick up the money that afternoon because she wanted to ask him something. This was brought to the attention of Captain Manuel Malonzo of the ISOG who caused the statement of complainant to be taken by then Police Sergeant Nicanor del Rosario [Exhibit C] and an entrapment was planned. 13. With money consisting of two 20-pesos bill and one 10 peso bill previously xerox-copied to be used by complainant as pay-off money [Exhibits E and E-1], an ISOG team composed of Sgt. Del Rosario, Sgt. Pablo Canlas and Pfc. Anacleto Lacad and Pascual de la Cruz, repaired to the vicinity of complainant's store. 14. At about 1:00 o'clock that afternoon, accused Engineer showed up at complainant's store and, there, complainant handed to him an envelope containing the pay-off money which he received. As said accused was in the act of placing the envelope in his attache case, the police accosted him and took the money from him. 15. Thereafter, said accused was taken to the Police Headquarters, together with complainant whose supplementary statement [Exhibit D] was taken. In due course, with the evidence gathered, as well as the statements of accused Engineer, the police officers and other witnesses, the case was referred to the City Fiscal of Pasay City. [Exhibit F]" 16. The judgment of conviction was based on the findings of the trial court that petitioner Cornejo employed criminal deceit in falsely holding himself out as duly authorized by reason of his office to inspect and investigate privately-owned buildings, by which misrepresentation he was able to inveigle complainant to agree to have the floor area of her house and store measured and to have a plan thereof drawn by the petitioner for a fee less than that supposedly officially charged for said service. Petitioner (APART FROM AN APPEAL) filed a supplemental petition with a special prayer for the remand of the case to the court a quo on the ground that he was deprived of his constitutional right to due process as 1] there was no

preliminary investigation actually conducted by the Tanodbayan Special Prosecutor; 2] the Sandiganbayan should have granted his motion for reconsideration which is allegedly highly meritorious; 3] the Information is utterly defective; 4] the prosecution is politically-motivated and stage-managed to ease him out as a possible mayoralty candidate against the son of then Pasay City Mayor Pablo Cuneta; and, 5] the pendency of Civil Case No. 6302-P before the CFI of Rizal, Pasay City, a petition filed by petitioner to have his duties as City Public Works Supervisor defined, constitutes a prejudicial question to the case at bar SUPREME COURT 1. RE PETITIONER’S CONTENTION THAT FROM THE testimony of complainant Beth Chua, petitioner would conclude that the gravamen of the charge was not proved because the person sought to be defrauded did not fall prey to the alleged fraudulent acts or misrepresentations and that the money was in fact paid for services rendered by Rogelio Alzate Cornejo (you admitted to Atty. Villa in his question that you agreed to pay the sum of P150.00 for the preparation of a plan and sketch to this other accused, Rogelio Alzate y Cornejo. In other words, the P/150.00 which you agreed to pay was in payment of Rogelio Alzate's work in preparing the plan) a. ARGUMENT UNWARRANTED. b. The testimony of complainant Beth Chua should be taken in its entirety. Not to be overlooked is her categorical statement that although she initially entertained doubts as to the personality of the petitioner and the veracity of his representations, she finally believed him because he talked nicely and also because he warned her that unless she complied with the purported requirements of the Metro Manila Commission, she could be liable for the penal sanctions under the Building Code. She further stated that she believed petitioner's statement that having her store measured and a plan thereof made would prevent her eviction from the subject premises c. Complainant had no reason to have such work undertaken and in the process, incur expenses, other than her belief in and reliance on petitioner's misrepresentations. Otherwise stated, if complainant did not believe petitioner's misrepresentations, she would not have agreed to said advice. Thus, it was precisely petitioner's misrepresentations that induced complainant to part with her money. d. That actual services were performed cannot exculpate petitioner because said services rendered were an integral part of the modus operandi, without which petitioner would have no reason to obtain money from the complainant. These services likewise served as a smokescreen to prevent the complainant from realizing that she was being swindled. 2. Anent petitioner's objection to the admissibility of Exhibit B, the certification issued by Pasay City Engineer Jesus Reyna to the effect that petitioner was not authorized to inspect and investigate privately-owned buildings a. THE SC AGREES WITH THE RTC, SUCH IS ADMISSIBLE b. It must be noted that Exhibit B was not presented as an independent evidence to prove the want of authority of petitioner to inspect and investigate privately-owned buildings, but merely as part of the testimony of the complainant that such certification was issued in her presence and the declaration of Assistant Pasay City Engineer Ceasar Contreras that the signature appearing thereon was that of Engineer Reyna. c. Where the statement or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that such statements were actually made or such writings were executed, such evidence is not covered by the hearsay rule. d. Besides, the finding of the trial court that petitioner had no authority to conduct inspections and investigations of privately-owned buildings was reached, not solely on the basis of Exhibit B, but principally from a consideration and study of Section 18 of R.A. No. 5185, the law which first allowed the city governments to create the position of City Public Works Supervisor, in relation to P.D. No. 549, which placed the city public works supervisors under the supervision of the city engineers. i. Accused Engineer's insistent claim that he had that authority is futile. As aforesaid, the pertinent law is explicit that the functions of a city public works supervisor, as the title of the office clearly suggests, refer only to the supervision of public works and, for this purpose, this means 'public works and public highways projects financed out of local funds'. This statutory specification of duties can not be varied by the mere certification presented by said accused that he ‘is a duly accredited employee of this Office [of the City Engineer] and is entitled to all assistance and courtesies in the performance of his duties' [Exhibit 10]. 3. Petitioner further attempts to convince Us that he was induced and instigated by complainant and the police to commit the crime charged. The facts of the case do not support such assertion. When petitioner returned to complainant's house on the day he was arrested, he had already committed the deceit punished by law and had effectively defrauded complainant of her money. His act of going to complainant's house was a mere continuation of the unlawful scheme, already consummated within the contemplation of the law, so that the strategy employed by the police in affecting his arrest was a clear case of entrapment, which is recognized as a lawful means of law enforcement

4. Worthy of note is the fact that except for a fleeting reference to the pendency of Civil Case No. 6302-P of the then CFI of Rizal, Pasay City as constituting a prejudicial question to the present prosecution, the other grounds cited in petitioner's supplemental petition were neither discussed nor elaborated on in his brief. PRHC V. FIREMATIC: The appellate court likewise agreed with Firematic that the documents presented in evidence by PRHC to prove that the pumps supplied by Technotrade were not genuine "Peerless" pumps are inadmissible for being hearsay. According to the CA, it is possible that it was not the appellant but Technotrade that was guilty of fraud in supplying dubious pumps to PRHC. In this case, petitioner relied on the principle of estoppel by silence, as well as on Letter No. L/93-272[63] and Letter No. L/94-043[64] of Connel Bros. to prove that the fire pumps, which respondent supplied and installed, were not genuine. However, petitioner failed to present the signatory of the letters (E.L. Sta. Maria, Jr.) to testify on the veracity of the contents of the letters; thus, respondent was not given the opportunity to cross-examine him. It also appears that the person who signed the letters had no personal knowledge of the facts stated therein, as he claimed that he had been "verbally advised" that the manufacturer of Peerless pumps never had direct negotiation with Technotrade, and as such, the latter is not a dealer of the pumps. Wellentrenched is the rule that a private certification is hearsay where the person who issued the same was never presented as a witness. The same is true of letters. While hearsay evidence may be admitted because of lack of objection by the adverse party's counsel, it is nonetheless without probative value. Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for cross-examination. The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value. ESTOPPEL IN PAIS ALSO INAPPLICABLE. Acording to respondent's Managing Director Jojie S. Gador, she did not completely keep silent on petitioner's accusation. She testified that when petitioner refused to pay respondent, she went to the Fire Department of the City of Pasig and made an inquiry regarding the fire incident that took place at the Tektite project FACTS 1. DECEMBER 12, 1989: PHRC (OWNER) entered into a Construction Agreement with Firematic (CONTRACTOR) FOR THE INSTALLATION OF A SPRINKLER SYSTEM IN THE PROPOSED TEKTITE TOWERS a. The project had two phases: PHASE 1 and PHASE 2 2. SCOPE OF FIREMATIC’S WORK a. The CONTRACTOR… shall fully and faithfully deliver, perform and undertake to finish and supply all the materials, tools, equipment, supervision and to do all the skills and labor necessary or proper for the due completion of the Sprinkler System for the above-mentioned project, and does hereby warrant and guarantee that the said work and labor shall be performed in the most proper and workmanlike manner and in full conformity with the corresponding plans and specifications duly prepared therefor and/or the pertinent contract documents. b. The work of the CONTRACTOR shall include, but shall not be limited to ordering materials, following-up of orders, checking the quantity and quality of materials within the premises of the construction site, and rejecting or returning defective materials. c. The CONTRACTOR is hereby expressly required to refer to all Mechanical, Plumbing, Electrical, Structural and Architectural plans and specifications and shall investigate any possible interference and conditions affecting its contract work. d. All materials supplied by the CONTRACTOR shall be in conformity with the Sprinkler System specifications prepared by R. Villarosa — Architects. e. It is not intended that the drawings shall show every pipe, fittings, and valve. All such items, whether or not those parts have been specifically mentioned or indicated on the drawings, shall be furnished and installed by CONTRACTOR, if necessary to complete the system in accordance with the best practice of Sprinker System and to the satisfaction of the OWNER 3. Article IX of the Contract enumerates the responsibilities of Firematic relative to the supply and installation of the sprinkler supplies: a. The CONTRACTOR shall remove all portions of work which the OWNER or its representative may condemn as in any way having failed to conform with the corresponding Sprinkler Systems plans and specifications, and the CONTRACTOR shall properly make good all such work so condemned by the OWNER. The cost of making good any/all work shall be solely borne by the CONTRACTOR b. The CONTRACTOR warrants the Sprinkler System installations under this contract to be free from faults or defects in materials and workmanship for a period of One (1) year from the date of initial operations. Faults caused by or due to ordinary wear and tear or those caused by the OWNER or its employees are excluded from this guarantee. The CONTRACTOR further warrants all equipment and accessories thereto to be free from defects in materials and faulty workmanship for a period of One (1) year from the date of initial operation. The equipment or parts thereof which are found defective within the said period of guarantee shall be replaced by the CONTRACTOR at no cost to the OWNER.

4. On December 11, 1990, PRHC informed Firematic that it had decided to delete Phase II (Tower II) from the original contract, and consequently, the contract price for Phase I was reduced to P22,153,424.52. However, by reason of the change orders approved by PRHC, the contract price was increased to P24,773,376.48. 5. On December 13, 1990, PRHC and Firematic entered into another Construction Agreement under which the latter undertook to supply, deliver and install the fire alarm system for Phase I of the Tektite Project for a total contract price of P3,780,000.00. This agreement contains substantially the same terms and conditions as the earlier contract for fire sprinklers. 6. On March 30, 1992, Firematic requested PRHC for financial assistance due to its tight business credit and rising costs. Consequently, the purchases of materials for the project were directly paid by PRHC. 7. Firematic submitted to PRHC the Catalogue of Peerless Fire Pumps, and PRHC approved the use of 500 GPM (12 LB-F model) Peerless Vertical Turbine Fire Pumps. To facilitate the purchase of the approved model and specifications of the fire pumps from Technotrade Industrial Sales, Inc., and pursuant to the financial assistance earlier requested by Firematic, the latter presented to PRHC for approval Purchase Order No. 108 dated August 6, 1992. PRHC approved the purchase order. The subject materials were delivered and eventually installed by Firematic 8. The project became operational and was turned over to PRHC, which then issued the Certificate of Completion. 9. The Municipal Mayor issued a Certificate of Occupancy in favor of PRHC on January 12, 1993 10. In the meantime, PRHC requested the Connel Bros. Co., Philippines for a quotation of the Peerless UL/FU Fire pump similar to those installed by Firematic in Tektite Tower I. a. However, Connel Bros. Philippines, Inc. replied by letter dated September 2, 1993 that it would be difficult for them to trace whether they had records of transactions with Technotrade-USA, because the pump model and serial number that PRHC furnished were not of Peerless origin." 11. Meanwhile, on October 14, 1993, Firematic billed PRHC P1,402,559.93 for the balance of the amount of the automatic sprinkler supplies installed. 12. However, PRHC rejected the claim. On October 20, 1993, PRHC, through counsel, sent a letter to Firematic claiming that, based on its Purchase Order, the brand "Peerless" should have been used; however, the manufacturer of the brand (Peerless Pump Co., USA), did not have any record of having manufactured the pumps that Firematic delivered and installed on the Tektite Towers project. 13. Firematic did not respond to the letter. Instead, its managing director, Ms. Jojie Gador, went to the Fire Department of the City of Pasig and inquired about the fire incident that occurred at Tower II while construction was ongoing 14. In response to the inquiry, the City Fire Marshall issued a report dated June 10, 1994 stating that "said fire could have turned into a conflagration size without the swift response of the company guards on duty plus the existing firefighting equipment installed thereat." 15. In a letter dated March 2, 1994, Connel Bros. stated that Peerless Pump Co. never had direct negotiation with Technotrade, and as such, the latter is not a dealer of "Peerless" pump. 16. JANUARY 12, 1995: Firematic sent its final billing and a demand letter prepared by its counsel to PRHC for the payment of the latter's balance of the contract price amounting to P3,919,283.13, including the unacted charge order attached thereto 17. In answer to the final billing of Firematic, PRHC denied LIABILITY: the installation is incomplete and not fully commissioned; the FIRE ALARM PANELS could not be interfaced with Buildng Management System as required in the contract and the FIRE ALARM PANELS do not follow the specifications required in the contract 18. MARCH 6, 1995 LETTER: PRHC informed Firematic that all the fire pumps and accessories supplied by it shall be removed, and the cost of replacement, including the labor cost of the installation, would be chargeable to its account. Again, Firematic failed to respond 19. In the meantime, PRHC purchased the replacement for the "defective" materials installed by Firematic, as evidenced by several Purchase Orders a. The Peerless pumps bought by PRHC to replace the pumps Firematic had installed were higher in terms of capacity 20. As a result of the continued refusal of PRHC to pay its unpaid obligation, Firematic filed a Complaint for Collection for Sum of Money plus Damages against PRHC. a. Firematic alleged in its complaint that when it followed up its final billings and retention money, the PRHC, under new management, refused to pay its obligation. It further claimed that the PRHC's reason, that the sprinkler system and fire alarm system were defective was so flimsy because the sprinkler and fire alarm systems were certified to be in good condition (PLUS PRAYER FOR DAMAGES) 21. PRHC’S ANSWER: plaintiff had no cause of action, and that the complaint is premature because the case should have been submitted first to arbitration. It also alleged that out of the total amount of P23,400,869.41 billed by Firematic, it already paid the total sum of P22,098,302.45. It likewise claimed that there was in fact

22.

23.

24.

25.

an overpayment of P182,433.04 insofar as the fire sprinkler contract was concerned. As to the fire alarm contract, PRHC alleged that it paid a total sum of P3,247,966.49, but it turned out that the works actually completed in accordance with the specifications of the contract amounted only to P2,857,655.10. PRHC insisted that Firematic committed fraud in the performance of its obligations under the two contracts in (1) actually delivering and installing pumps that were not genuine "Peerless" products, non-UL listed and nonFM approved; (2) supplying and installing "Mitech" brand instead of "Firescan 5027" as approved during the bidding; (3) installing fire alarm control and data gathering panels that were not compatible with each other; and (4) installing a fire alarm system that could not be connected or interfaced with the Building Management System. FIREMATIC’S REPLY: the provision on arbitration had force and effect only during the execution and performance of the agreement or contract and not after its termination. It further asserted that the total contract price, including the change orders, increased to P25,277,559.75 but PRHC only paid P21,087,191.89; thus, there was a balance of P4,190,367.86. It likewise contended that though there was an approved specification, revisions were made due to unavailability of materials. Consequently, with the conformity and approval of PRHC of the description specified under P.O. 108, the latter made direct orders from Technotrade; PRHC also made direct payments to it. Firematic pointed out that the materials delivered were under warranty for one (1) year, and since PRHC had no complaints after the lapse of the warranty, it was under the impression that the materials had met the specifications. On September 1, 1998, PRHC filed a Motion for Leave to Amend Answer to Conform to Evidence (FIREMATIC OPPOSED THIS) GRANTED PHRC then filed an Amended Answer a. In its Amended Answer, PRHC claimed that, with respect to the fire sprinkler system, the actual works completed by Firematic amounted to only P20,613,302.45. Thus, it (PRHC) made an overpayment of P1,485,000.00. As to the fire alarm system, the works actually completed in accordance with the technical specifications amounted to only P2,597,966.49. Again, there was an overpayment of P650,000.00. b. IT ALSO INTERPOSED A COUNTERCLAIM THE RTC RULED IN FAVOR OF PHRC. a. The RTC concluded that in failing to deliver genuine Peerless Pumps as agreed upon, and to install fire alarm system that could be interfaced with the system, Firematic failed to comply with the technical specifications of the contracts CA REVERSED RTC DECISION a. The CA declared that PRHC's belated claim was highly doubtful since PRHC had ordered the pumps from Technotrade, albeit through the Firematic, and were inspected and scrutinized by its consultants who are experts in their fields b. However, the CA affirmed the findings of the RTC that appellant committed a breach of contract in installing the fire control panels because of its failure to comply with the requirement of interfacing with its system. Since PRHC was constrained to incur P450,000.00 to undo the work of Firematic, it was convinced that the unfinished work amounted to P1,372,507.07. c. Thus, the appellate court held that Firematic was liable to PRHC for a total amount of P1,822,507.07, while PRHC had an unpaid obligation to Firematic amounting to P2,675,074.03 representing the balance of the contract price. The appellate court concluded that PRHC owed Firematic P852,566.96.

The threshold issue raised is whether or not the fire pumps supplied and delivered by respondent to petitioner conformed to the technical specifications of the contract - Petitioner argues that while it is true that the particular model of the pumps for the fire control system was not specified in the technical specifications for fire protection, the qualifications of the pumps were nevertheless provided — that the pumps should be "listed" and "approved" by an internationally recognized testing laboratory for the specific service intended o Petitioner insists that the fire pumps supplied and installed by respondent are "not of Peerless origin" because of the following: (1) respondent failed to present proofs of the genuineness of the pumps; (2) respondent failed to answer petitioner's letters requiring it to present the aforesaid proofs, thus, estoppel by silence applies; and (3) the manufacturer of the Peerless pumps verbally informed Connel Bros. that the subject fire pumps "are not of Peerless origin." - For its part, respondent contends that the fire pumps were inspected, examined and tested by petitioner's technical staff, and that the latter found them to be operational. Thus, it cannot now be permitted to belatedly complain. According to respondent, petitioner admitted that when the fire pumps were changed, the replacement pumps installed by the latter were higher in terms of capacity. Respondent likewise reiterates that the evidence presented by petitioner to prove that the fire pumps were not genuine is inadmissible in evidence for being hearsay. SUPREME COURT

1. THE COURT DOES NOT AGREE WITH PETITIONER’S SUBMISSIONS 2. Well-settled is the rule that the party alleging fraud or mistake in a transaction bears the burden of proof. The circumstances evidencing fraud are as varied as the people who perpetrate it in each case. It may assume different shapes and forms; it may be committed in as many different ways. Thus, the law requires that fraud be established, not just by preponderance of evidence, but by clear and convincing evidence 3. In this case, petitioner relied on the principle of estoppel by silence, as well as on Letter No. L/93-272 and Letter No. L/94-043 of Connel Bros. to prove that the fire pumps, which respondent supplied and installed, were not genuine. 4. However, petitioner failed to present the signatory of the letters (E.L. Sta. Maria, Jr.) to testify on the veracity of the contents of the letters; thus, respondent was not given the opportunity to crossexamine him. It also appears that the person who signed the letters had no personal knowledge of the facts stated therein, as he claimed that he had been "verbally advised" that the manufacturer of Peerless pumps never had direct negotiation with Technotrade, and as such, the latter is not a dealer of the pumps 5. Well-entrenched is the rule that a private certification is hearsay where the person who issued the same was never presented as a witness. The same is true of letters. While hearsay evidence may be admitted because of lack of objection by the adverse party's counsel, it is nonetheless without probative value. a. Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for cross-examination. The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value 6. Petitioner asserts that respondent impliedly admitted that the fire pumps it installed were "not of Peerless origin" because of its failure to dispute petitioner's accusation and to present proofs that the fire pumps delivered were genuine. Thus, petitioner contends that estoppel by silence applies to respondent. a. THE PRINCIPLE IS INAPPLICABLE IN THIS CASE. b. The principle of estoppel in pais applies wherein one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts c. Acording to respondent's Managing Director Jojie S. Gador, she did not completely keep silent on petitioner's accusation. She testified that when petitioner refused to pay respondent, she went to the Fire Department of the City of Pasig and made an inquiry regarding the fire incident that took place at the Tektite project d. In answer to this inquiry, the Fire Department issued a Certification stating, inter alia, that the office was very much delighted because the management of Tektite Tower had substantially complied with the safety requirements of Presidential Decree No. 1185. In making such inquiry, respondent in effect denied petitioner's accusation that the fire pumps it had installed were defective; as such, the principle of estoppel by silence does not apply. 7. Because good faith is presumed, respondent was not obliged to present proofs of the genuineness of the fire pumps it supplied and installed. The burden of proof to show that the pumps were not genuine fell upon petitioner. However, the records show that petitioner failed to discharge this burden. Clearly, the evidence relied upon is not sufficient to overturn (1) the presumption of good faith; (2) that private transactions have been fair and regular; and (3) that the ordinary course of business had been followed NAPOCOR V. DIATO-BERNAL (QUESTION OF JUST COMPENSATION): NAPOCOR filed an Opposition to the Commissioner's Valuation Report, asserting that it was not substantiated by any official documents or registered deeds of sale of the subject property's neighboring lots. NAPOCOR invoked our ruling in Rep. of the Phil. v. Santos, wherein we held that a commissioner's report that is not based on any documentary evidence is hearsay and should be disregarded by the court. Lastly, NAPOCOR claimed that the just compensation for the expropriated property should be P3,500.00 per sq m, based on Resolution No. 08-95 dated October 23, 1995, enacted by the Provincial Appraisal Committee of Cavite (PAC-Cavite). As correctly invoked by NAPOCOR, a commissioners' report of land prices which is not based on any documentary evidence is manifestly hearsay and should be disregarded by the court. The trial court adopted the flawed findings of the commissioners hook, line, and sinker. It did not even bother to require the submission of the alleged "market sales data" and "price listings." Further, the RTC overlooked the fact that the recommended just compensation was gauged as of September 10, 1999 or more than two years after the complaint was filed on January 8, 1997. It is settled that just compensation is to be ascertained as of the time of the taking, which usually coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint. FACTS

1. Petitioner National Power Corporation (NAPOCOR) is a government owned and controlled corporation created by Republic Act No. 6395, as amended, for the purpose of undertaking the development of hydroelectric power throughout the Philippines. To carry out the said purpose, NAPOCOR is authorized to exercise the power of eminent domain 2. Respondent Teresita Diato-Bernal (respondent) is the registered owner of a 946 sq m parcel of land situated along General Aguinaldo Highway, Imus, Cavite, covered by Transfer Certificate of Title No. T-384494 3. In order to complete the construction of structures and steel posts for NAPOCOR's "DasmariñasZapote 230 KV Transmission Line Project," it had to acquire an easement of right of way over respondent's property. 4. Thus, on January 8, 1997, NAPOCOR filed an expropriation suit against respondent, alleging, inter alia, that: the project is for public purpose; NAPOCOR negotiated with respondent for the price of the property, as prescribed by law, but the parties failed to reach an agreement; and NAPOCOR is willing to deposit the amount of Eight Hundred Fifty- Three Pesos and 72/100 (P853.72), representing the assessed value of the property for taxation purposes 5. Respondent moved for the action's dismissal, arguing the impropriety of the intended expropriation, and claiming that the value of her property is Twenty Thousand Pesos (P20,000.00) per sq m for the front portion, and Eighteen Thousand Pesos (P18,000.00) per sq m for the rear portion, and that she will lose One Hundred Fifty Thousand Pesos (P150,000.00) per month by way of expected income if the property is expropriated. 6. On September 25, 1998, the parties filed with the RTC a partial compromise agreement (approved by the RTC in its Order dated September 25, 1998) a. That the parties, after earnest and diligent efforts, have reached an amicable settlement regarding the location and size of Pole Site No. DZ-70 to be constructed on the property of (respondent); b. That the parties have agreed that the said Pole Site No. DZ-70 shall be constructed or located on (respondent's) Lot No. 6075-B covered by Transfer Certificate of Title No. T-384494 of the Registry of Deeds for Cavite, covering a total affected area of 29.25 square meters more or less as indicated in the Sketch hereto attached as Annex "A"; c. That the case shall[,] however, proceed to trial on its merits only with respect to the question of just compensation. 7. With the first phase of the expropriation proceedings having been laid to rest by the partial compromise agreement, the RTC proceeded to determine the amount of just compensation. To assist in the evaluation of the fair market value of the subject property, the RTC appointed three (3) commissioners a. THE PROVINCIAL ASSESSOR OF CAVITE b. THE MUNICIPAL ASSESSOR OF IMUS UPON RECOMMENDATION OF NAPOCOR c. SOLEDAD ZAMORA, RESPONDENT’S REPRESENTATIVE i. The commissioners submitted their report to the RTC on September 14, 1999. In the main, they recommended that the just compensation due from NAPOCOR be pegged at P10,000.00 per sq m, based on the property's fair market value 8. NAPOCOR filed an Opposition to the Commissioner's Valuation Report, asserting that it was not substantiated by any official documents or registered deeds of sale of the subject property's neighboring lots. a. NAPOCOR invoked our ruling in Rep. of the Phil. v. Santos, wherein we held that a commissioner's report that is not based on any documentary evidence is hearsay and should be disregarded by the court. b. Lastly, NAPOCOR claimed that the just compensation for the expropriated property should be P3,500.00 per sq m, based on Resolution No. 08-95 dated October 23, 1995, enacted by the Provincial Appraisal Committee of Cavite (PAC-Cavite). 9. On January 14, 2000, the RTC issued an Order adopting the recommendation of the commissioners AFFIRMED BY CA P’S MR LIKEWISE DENIED SUPREME COURT: THE PETITION IS MERITORIOUS 1. PROCEDURAL ISSUE: A question of law exists when there is doubt or controversy on what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises from the truth or the falsity of the allegations of facts. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation (SANTOS V. COMMITTEE ON CLAIMS SETTLEMENT) a. In this case, it is clear that NAPOCOR raises a question of law, that is, whether or not the resolution of the PAC-Cavite should prevail over the valuation report of the court-appointed commissioners. The issue does not call for a recalibration or reevaluation of the evidence

submitted by the parties, but rather the determination of whether the pertinent jurisprudence and laws cited by NAPOCOR in support of its argument are applicable to the instant case. 2. THE RTC AND THE CA ERRED IN RELYING ON THE UNSUBSTANTIATED AND INSUFFICIENT FINDINGS CONTAINED IN THE COMMISSIONER’S REPORT a. In arriving at the P10,000.00 per sq m market value of the expropriated property, the commissioners utilized the following factors: i. PROPERTY LOCATION ii. NEIGHBORHOOD DESCRIPTION iii. VALUATIONS OF LAND MARKET DATA b. First, the market values of the subject property's neighboring lots were mere estimates and unsupported by any corroborative documents, such as sworn declarations of realtors in the area concerned, tax declarations or zonal valuation from the Bureau of Internal Revenue for the contiguous residential dwellings and commercial establishments c. The report also failed to elaborate on how and by how much the community centers and convenience facilities enhanced the value of respondent's property. d. Finally, the market sales data and price listings alluded to in the report were not even appended thereto. e. As correctly invoked by NAPOCOR, a commissioners' report of land prices which is not based on any documentary evidence is manifestly hearsay and should be disregarded by the court f. Further, the RTC overlooked the fact that the recommended just compensation was gauged as of September 10, 1999 or more than two years after the complaint was filed on January 8, 1997. It is settled that just compensation is to be ascertained as of the time of the taking, which usually coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint 3. As to the resolution of the PAC-Cavite advanced by NAPOCOR, which pegged the fair market value of the property at P3,500.00 per sq m, it can only serve as one of the factors in the judicial evaluation of just compensation, along with several other considerations. NAPOCOR cannot demand that the PAC-Cavite resolution be substituted for the report of court-appointed commissioners in consonance with the firm doctrine that the determination of just compensation is a judicial function Dantis v. Maghinang (2013)– Mendoza, J. Petitioner: Rogelio Dantis Respondent: Julio Maghinang, Jr. Concept: Best Evidence Rule Brief facts: Dantis filed a complaint for quieting of title and recovery of possession against Julio Maghinang. Dantis testified that he inherited the said lot and presented a TCT. Julio, on the other hand, denied the material allegations and presented an affidavit (Exhibit 3) and a photocopy of an undated handwritten receipt of initial downpayment (Exhibit 4) in the amount of P100.00 supposedly issued by Emilio to Julio, Sr. in connection with the sale of the subject lot. The Court ruled that the evidences submitted by Julio failed to establish ownership. The affidavit is inadmissible because it is hearsay; the receipt, being a photocopy, is inadmissible because it violates the best evidence rule. Doctrine: Jurisprudence dictates that an affidavit is merely hearsay evidence where its affiant/maker did not take the witness stand. The sworn statement of Ignacio is of this kind. The affidavit was not identified and its averments were not affirmed by affiant Ignacio. Accordingly, Exhibit 3 must be excluded from the judicial proceedings being inadmissible hearsay evidence. It cannot be deemed a declaration against interest for the matter to be considered as an exception to the hearsay rule because the declarant was not the seller (Emilio), but his father (Ignacio). FACTS: 1. Rogelio Dantis filed a complaint for quieting of title and recovery of possession with damages against Julio Maghinang, Jr. - Dantis alleged that he was the registered owner of a parcel of land covered by TCT No. T-125918, with an area of 5,657 square meters, located in Sta. Rita, San Miguel, Bulacan - He acquired ownership of the property through a deed of extrajudicial partition of the estate of his deceased father, Emilio Dantis, dated December 22, 1993; - He had been paying the realty taxes on the said property; - Julio, Jr. occupied and built a house on a portion of his property without any right at all; - He has already made demands upon Julio, Jr. that he vacate the premises but the same fell on deaf ears; and - The acts of Julio, Jr. had created a cloud of doubt over his title and right of possession of his property.

- He was constrained to institute an ejectment suit against Julio, Jr. before the Municipal Trial Court of San Miguel, Bulacan (MTC), but the complaint was dismissed for lack of jurisdiction and lack of cause of action. 2. In his Answer, Julio, Jr. denied the material allegations of the complaint. - By way of an affirmative defense, he claimed that he was the actual owner of the 352 square meters (subject lot) of the land covered by TCT No. T-125918 where he was living; - That he had been in open and continuous possession of the property for almost thirty (30) years; - The subject lot was once tenanted by his ancestral relatives until it was sold by Dantis’s father, Emilio, to his father, Julio Maghinang, Sr. (Julio, Sr.); - He succeeded to the ownership of the subject lot after his father died on March 10, 1968; and - He was entitled to a separate registration of the subject lot on the basis of the documentary evidence of sale and his open and uninterrupted possession of the property. 3. RTC Testimonies for Dantis: Dantis and as an adverse witness Julio, Jr. - Dantis testified that he inherited 5,657 square meters of land located at Sta. Rita, San Miguel, Bulacan, through an Extrajudicial Partition of Estate of Emilio Dantis, executed in December 1993. o The land was titled later on under his name, Rogelio Dantis, married to Victoria Payawal, as shown by copy of TCT No. T-125918, issued by the Register of Deeds of Bulacan on September 29, 1998, declared for taxation purposes o Julio, Jr and his predecessor-in-interest built the house located on said lot. When he first saw it, it was only a small hut but when he was about 60 years old, he told Julio, Jr not to build a bigger house thereon because he would need the land and defendant would have to vacate the land. o Dantishowever, has not been in physical possession of the premises. - Julio Maghinang, Jr., as an adverse witness, testified that he has no title over the property he is occupying. He has not paid realty taxes thereon. He has not paid any rental to anybody. He is occupying about 352 square meters of the lot. o He presented an affidavit (Exhibit 3) executed on September 3, 1953 by Ignacio Dantis, grandfather of Rogelio Dantis (plaintiff) and the father of Emilio Dantis. The latter was, in turn, the father of Rogelio Dantis. o The affidavit, according to affiant Ignacio Dantis (grandfather), alleged that Emilio Dantis agreed to sell 352 square meters of the lot to Julio Maghinang on installment. Defendant was then 11 years old in 1952. 4. RTC Testimony: Maghinang for defense - He owns that house located at Sta. Rita, San Miguel, Bulacan, on a 352 square meter lot. He could not say that he is the owner because there is still question about the lot. - He claimed that his father, Julio Maghinang (Sr.), bought the said lot from the parents of Rogelio Dantis. He admitted that the affidavit was not signed by the alleged vendor, Emilio Dantis, the father of Rogelio Dantis. - The receipt he presented was admittedly a mere photocopy. - He spent P50,000.00 as attorney’s fees. - Since 1953, he has not declared the property as his nor paid the taxes thereon because there is a problem. RTC: In favor of Dantis as true owner - Evidenced by his TCT over the lot - Julio, Jr.’s documentary evidences no probative value o An affidavit allegedly executed by Ignacio Dantis (Ignacio), Rogelio’s grandfather, whereby said affiant attested, among others, to the sale of the subject lot made by his son, Emilio, to Julio, Sr. (Exhibit "3"); o An undated handwritten receipt of initial downpayment in the amount of ₱100.00 supposedly issued by Emilio to Julio, Sr. in connection with the sale of the subject lot (Exhibit "4"). - Even if these documents were adjudged as competent evidence, still, they would only serve as proofs that the purchase price for the subject lot had not yet been completely paid and, hence, Dantis was not duty-bound to deliver the property to Julio, Jr. - Julio, Jr. is a mere possessor by tolerance. MR denied CA: Reversed RTC - The receipt was an indubitable proof of sale of the 352 sq. m lot between Emilio and Julio Sr. (fathers of the parties) - Partial payment of the purchase price, coupled with the delivery of the res, gave efficacy to the oral sale and brought it outside the operation of the statute of frauds. - Julio, Jr. and his predecessors-in-interest had an equitable claim over the subject lot which imposed on Rogelio and his predecessors-in-interest a personal duty to convey what had been sold after full payment of the selling price. MR denied Argument of Dantis: - Affidavit and receipt are devoid of evidentiary rule and deserves scant consideration o The handwritten receipt is a mere photocopy, the existence and execution had not been established, thus inadmissible

o Even if the receipt would be considered as competent and admissible evidence, still, it would not be an adequate proof of the existence of the alleged oral contract of sale because it failed to provide a description of the subject lot, including its metes and bounds, as well as its full price or consideration. - Reconveyance is not obtainable here since he is a transferee in good faith, having acquired the land through a Deed of Extrajudicial Partition of Estate. - Dantis could not be considered a trustee as he was not privy to the receipt - The action for reconveyance on the ground of implied trust had already prescribed since more than 10 years had lapsed since the execution receipt in 1953. - Julio did not acquire the lot through acquisitive prescription because Dantis’ Torrens title cannot be collaterally attacked. A Torrens title is indefeasible and must be respected unless challenged in a direct proceeding. ISSUES: WON there is a perfected contract of sale? (NO) Sub-topic: Who owns the lot? (Dantis) RATIO: 1.[PROCEDURAL] In petitions for review under Rule 45, the Court, as a general rule, does not venture to reexamine the evidence presented by the contending parties during the trial of the case considering that it is not a trier of facts and the findings of fact of the CA are conclusive and binding upon this Court. The rule, however, admits of several exceptions. One of which is when the findings of the CA are contrary to those of the trial court. - Considering the incongruent factual conclusions of the CA and the RTC, this Court is constrained to reassess the factual circumstances of the case and reevaluate them in the interest of justice. 2.[BURDEN OF PROOF] In civil cases, he who alleges a fact has the burden of proving it and a mere allegation is not evidence and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in favor of plaintiff. - Rogelio was able to establish a prima facie case in his favor tending to show his exclusive ownership of the parcel of land o From the records, it appears that TCT No. T-125918 is a derivative of TCT No. T-256228, which covered a bigger area of land measuring 30,000 square meters registered in the name of Emilio Dantis; o Emilio died intestate on November 13, 1952. His five heirs, including Rogelio, executed an extra-judicial partition of estate on December 22, 1993 and divided among themselves specific portions of the property o The land known as Lot 6-D-1 with an area of 5,657 sq. m. went to Rogelio, the property now covered by the TCT o The property was declared for realty tax purpose in the name of Rogelio for which a tax declaration was issued in his name o The property had not been transferred to anyone else since its issuance. - The burden of evidence now shifts to Julio, Jr. to prove that his father bought the subject lot from Emilio Dantis. Julio, Jr. failed to discharge this burden. - His pieces of evidence, affidavit and receipt, cannot prevail over the array of documentary and testimonial evidence that were adduced by Rogelio. The totality of Julio, Jr.’s evidence leaves much to be desired. 3. [Affidavit is hearsay]Evidence is hearsay when its probative force depends on the competency and credibility of some persons other than the witness by whom it is sought to be produced. The exclusion of hearsay evidence is anchored on three reasons: 1) absence of cross-examination; 2) absence of demeanor evidence; and 3) absence of oath. An affidavit is merely hearsay evidence where its affiant/maker did not take the witness stand. - The sworn statement of Grandfather Ignacio is of this kind. The affidavit was not identified and its averments were not affirmed by affiant Ignacio. - It cannot be deemed a declaration against interest. This is not considered as an exception to the hearsay rule because the declarant was not the seller (Emilio), but Ignacio. 4.[The handwritten receipt is a secondary evidence] The best evidence rule requires that the highest available degree of proof must be produced. For documentary evidence, the contents of a document are best proved by the production of the document itself to the exclusion of secondary or substitutionary evidence, pursuant to Rule 130, Section 3. A secondary evidence is admissible only upon compliance with Rule 130, Section 5, which states that: when the original has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Accordingly, the offeror of the secondary evidence is burdened to satisfactorily prove the predicates thereof, namely: (1) the execution or existence of the original; (2) the loss and destruction of the original or its non-production in court; and (3) the unavailability of the original is not due to bad faith on the part

of the proponent/offeror. Proof of the due execution of the document and its subsequent loss would constitute the basis for the introduction of secondary evidence. - Where the missing document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved. - The receiptis considered secondary evidence being a mere photocopy which, in this case, cannot be admitted to prove the contents of the purported undated handwritten receipt. - Also, his testimony was riddled with improbabilities and contradictions which tend to erode his credibility and raise doubt on the veracity of his evidence. o First, the claim of Julio, Jr. that Emilio affixed his signature on the original of the receipt in 1953 is highly improbable because record shows that Emilio died on November 13, 1952. o Second, Julio, Jr.’s testimony pertinent to the alleged loss of the original receipt is inconsistent. He is not a credible witness.  In his first testimony, Julio Jr. gave the impression that the original of the document was lost while it was in the possession of his parents. During cross-examination, however, he testified that it was lost while it was in his possession.Later, Julio, Jr. claimed that his sister was the one responsible for the loss of the original of Exhibit "4" after borrowing the same from him.  He was also inconsistent with regard to the last time he saw the original of receipt. On cross-examination, he said he last saw the original when his mother died. However, upon further questioning, he said that he did not see the original because it was already lost1 - Third, the Court found it strange that there are two receipts prepared for the initial payment of ₱100.00 in connection with the sale of the subject lot. The contents of the photocopied receipt were similar to those of Annex "A" of Julio, Jr.’s Answer, dated June 9, 2002. Annex "A," however, was typewritten and the name of the recipient indicated therein was a certain Cornelio A. Dantis, whose identity and participation in the alleged sale was never explained. - Fourth, apart from the lone testimony of Julio, Jr., no other witness who knew or read the receipt," much less saw it executed, was presented. 5. [Assuming that Exhibit 4 is admissible, there is still no perfected contract of sale2.] The essential elements of a contract of sale are: a) consent or meeting of the minds, that is, consent to transfer ownership in exchange for the price; b) determinate subject matter; and c) price certain in money or its equivalent. The absence of any of the essential elements shall negate the existence of a perfected contract of sale. - Consent / Meeting of the Minds: Julio, Jr. miserably failed to establish that there was a meeting of the minds of the parties as to the subject matter and the purchase price.The receipt should only further corroborate the existence of the sale. At best, his testimony only alleges but does not prove the existence of the verbal agreement. - Determinate Subject Matter: The receiptdoes not specify a determinate subject matter nor does it provide a description of the property subject of the sale, including its metes and bounds, as well as its total area. o While Julio, Jr. testified that the land subject of the sale consisted of 352 square meters, the receipt however, states that it’s more than 400 square meters. - Price: The receipt does not categorically declare the price certain in money. Neither does it state the mode of payment of the purchase price and the period for its payment o The manner of payment of the purchase price was an essential element before a valid and binding contract of sale could exist. Albeit the Civil Code does not explicitly provide that the minds of the contracting parties must also meet on the terms or manner of payment of the price, the same is needed, otherwise, there is no sale. o Where the parties already agreed on the object of sale and on the purchase price, but not on how and when the downpayment and the installment payments were to be paid, it cannot be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. 1Atty. Vicente Millora(On Cross-examination) Q: And when did you last see the original? A: When my mother died in 1993 that was the last time I tried to see the original of the document after her interment, Sir. Q: Where did you see this document? A: From the safekeeping of my mother, Sir. x xxx Q: When did you get this Exhibit "4" now, the photocopy from your sister? A: When the interment of my mother in September 1993, Sir. Q: Now, let us reform. Which one did you get after the interment of your mother, this Exhibit "4" or the original? A: I asked that xerox copy because I have lost the original and I could not find the same, Sir. Q: So, from the safe of your mother after her interment, what used you found and got this Exhibit "4"? A: Yes, Sir, from my sister. Q: So, not from your mother safe? A: The original was taken from the safe of my mother, Sir. Q: So after your mother’s death you never saw the original? A: I did not see it anymore because the original was lost before she died, Sir. 2By the contract of sale, one of the contracting parties obligates himself to transfer the ownership of, and to deliver, a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale is a consensual contract and, thus, is perfected by mere consent which is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. Until the contract of sale is perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation between the parties.

- Partial performance of the contract of sale- giving of a downpayment coupled with the delivery of the res - took the oral contract out of the scope of the Statute of Frauds. o This conclusion arose from its erroneous finding that there was a perfected contract of sale. The above disquisition, however, shows that there was none. There is, therefore, no basis for the application of the Statute of Frauds. The application of the Statute of Frauds presupposes the existence of a perfected contract. - As to the delivery of the res, it does not appear to be a voluntary one pursuant to the purported sale. If Julio, Jr. happened to be there, it was because his ancestors tenanted the land. It must be noted that when Julio, Jr. built his house, Rogelio protested. Dispositive: Petition granted. CA reversed.

People v. Valero (1982) – Ercita, J. Petitioner: People of the Philippines Respondent: Lucila Valero Concept: Admissions Brief Facts: Lucila Valero and Alfonsito Valero alias “Pipe” were accused in 2 separate complaints for double murder and frustrated murder, causing the death of Michael and Annabel Velasco who died of poisoning after eating bread containing endrin, a commercial insecticide. Complaints against Pipe were dismissed because he was a deaf-mute and proceedings were beyond his comprehension. TC convicted Valero and imposed penalty of death. SC acquitted Valero for the testimonies against him cannot be given credence for they were hearsay, and likewise violates the principle of res inter aliosacta. DOCTRINE: Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language. The evidence is purely hearsay. The presentation of such evidence likewise violates the principle of res inter aliosacta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. FACTS: 1. Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused in two separate complaints, one of double murder and the other of frustrated murder. Complaints against Alfonsito were dismissed because he was a deaf-mute. 2. In February 1969, Michael (9 mos.) and Annabel (1 year & 9 mos.), children of Ceferino Velasco, died of poisoning after eating bread containing endrin, a commercial insecticide. Imelda, minor child of Ceferino, tasted the poisoned bread and would have died as a consequence were it not for the timely medical assistance given her. 3 puppies of Ceferino Velasco under their balcony also died of poisoning. 3. 6 am of that morning, Ceferino was seen throwing poisoned rats into a river near his house. After investigations, the police saw the dead bodies of Michael and Annabel in the house of Ceferino the dead puppies under the balcony. They also saw several pieces of sliced pan scattered in the sala of the house, near the balcony, and under the balcony. They picked up some pieces of sliced bread under the balcony, wrapped them in a piece of paper and submitted them to a chemist for examination. It was found that the bread contained endrin, a poisonous insecticide. Autopsied and the necropsy reports of the 2 children showed that both died of poisoning by endrin. Blood and internal organs were also examined by a chemist and it was found that these contained endrin. 4. The evidence of the prosecution and the defense conflict as to the source of the poisoned bread. 5. Prosecution: poisoned bread was given to the children by Alfonso Valero alias Pipe, a deaf-mute brother of the defendant Lucila Valero, and that it was Lucila who gave the bread to Pipe for delivery to the minor children. 6. Defense: Lucila Valero denies that she ever gave bread to her deaf-mute brother, Pipe, for delivery to the minor children. Velasco children might have eaten one of the sliced poisoned bread used by their father in poisoning rats in his garden. 7. The trial court convicted Lucila Valero of complex crime of double murder and frustrated murder and imposed penalty of death. ISSUES: WON the accused should be convicted on the basis of testimonies of the 3 prosecution witnesses- NO! The court proceeds by assessing the witnesses of the prosecution. 1. Rodolfo Quilang- star eyewitness stating that he saw the defendant Lucila Valero deliver "something wrapped in a piece of paper" to her deaf-mute brother Pipe with the alleged instruction by sign language to deliver the same to the Velasco children.

SC:

Quilang never saw what was inside the piece of paper. At the time Quilang saw the delivery to Pipe of the wrapped object, the defendant and her brother were in the balcony of their house, which was just near the gate of Ceferin’s house where Quilang was standing. Upon receipt of the wrapped object, Pipe allegedly proceeded towards Velasco's house. According to Quilang, he was "in the act of leaving Velasco's gate when Pipe "was entering the gate of Ceferino Velasco". In his affidavit, dated March 1972, 3 years after the poisoning of the Velasco children, Quilang stated that he actually saw Pipe deliver the wrapped object to the children. 3 years later during the trial on September 1975, he declared on cross-examination, Quilang reiterated that he did not see Pipe deliver the bread because he was already departing from the place. There were several inconsistencies in the Quilang’s answer in crossexamination and questions propounded by the court whether he actually saw the handing of bread. -

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The tendency of Quilang to prevaricate is shown not only in his self-contradictory statements on the witness stand but also in the other portions of the record. On the witness stand, Quilang stated that he made an affidavit on February 23, 1969. He must have made this statement to make it appear that he was not an "eleventh-hour witness" as alleged by the defense. He insisted that the correct date was February 23, 1969 and that either the Fiscal committed the error in indicating the date in his affidavit.Court said that it is incredible that a Fiscal administering the oathtaking on February 23, 1969 and signs the jurat postdates the oath-taking to March 8, 1972, three years later. Also, when the complaint for frustrated murder and for murder, were filed in March 1969, Quilang was not listed as one of the several witnesses. When information for frustrated murder and for murder were filed in February 1971, the Quilang, was not listed among the 9 prosecution witnesses.Then 6 years after the tragedy, Quilang was suddenly sprung as the star witness, the only witness who allegedly saw the delivery by the defendant to Pipe of "something wrapped in a piece of paper" with the alleged instruction by sign language to deliver the same to the Velasco children. Without the testimony of Quilang, there would be no evidence to show that the poisoned bread which was allegedly delivered by Pipe to the Velasco children came from the Lucilla. Realizing that there was a missing link, the prosecution thought of presenting Quilang to provide the missing link 6 years after the occurrence of the tragedy.

2. Federico Jaime and Ceferino Velasco- did not see the delivery by the defendant to her deaf-mute brother "something wrapped in a piece of paper". They never saw or heard her giving any instruction to Pipe to deliver the wrapped object to the children. Both claimed that they learned or obtained the information from Pipe after interviewing him by means of sign language. Which the trial Court accepted as competent, trustworthy and credible SC: -

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There is nothing in the testimony pointing to the Lucila as the source of the poisoned bread. What is evident is nothing but confusion. What Jaime asked from Pipe was "Who gave the bread to the children?" The evidence of the prosecution already shows that Pipe gave the bread to the children. In reply, it seems that Pipe pointed to the Lucila who was standing nearby. Here, the confusion is clear. Pipe could not have said that his sister handed over the poisoned bread to the children because the evidence of the prosecution shows that Pipe himself, gave the bread to the children. It is clear that Pipe did not understand the sign language of Jaime and vice-versa. Also, Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language. The evidence is purely hearsay. The presentation of such evidence likewise violates the principle of res inter aliosacta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. With particular reference to the testimony of Ceferino, its admission cannot be justified by claiming that it is a part of the res gestae. When Pipe allegedly revealed to Ceferino Velasco that the source of the poisoned bread was the defendant, the children had not eaten or tasted it. Nobody was yet poisoned. There was no startling Occurrence yet. As to the testimony of Jaime, there is no showing that Pipe made the extrajudicial revelation spontaneously when he was still under the influence of a startling occurrence. Pipe made his extrajudicial revelation not spontaneously but after an interview through the complicated process of sign language.

3. The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter aliosacta, or his failure to ask for the striking out of the same does not give such evidence any probative value. Admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value. 4. To give weight to the testimonies of Federico Jaime and Ceferino Velasco, whether considered as hearsay evidence or as part of res gestae and make the same the basis for the imposition of the death penalty gravely

5.

6. 7.

8.

violates the constitutional right of the defendant to meet the witnesses face to face and to subject Pipe to the rigid test of cross-examination, the only effective means to test the truthfulness, memory, intelligence, and in this particular case, the ability of the deaf-mute, Alfonso Valero alias Pipe, to communicate with the outside world. In conflict between a provision of the constitution giving the defendant a substantive right and mere technical rules of evidence, Court must give effect to the constitution. The cross-examination of Pipe, the source of the vital information for the prosecution, would have shown clearly his incompetence as a witness. During the preliminary investigation in the Municipal Court, experts on deafmutes, examined Pipe and reported that "questions addressed to him and answers given by him cannot be accurately interpreted". Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on crossexamination that their interpretations of the sign language of Pipe were only guess work. Trial Court was wrong in giving weight to the testimonies of Federico Jaime and Ceferino Velasco interpreting the alleged extrajudicial information to them by sign language of Pipe, when the source of the information himself, Alfonsito Valero alias Pipe, would have been an incompetent witness had he taken the witness stand. Also, the natural reaction of Jaime who is the uncle of the mother of the victims upon learning the killer of his relatives would have been a violent action or at least an angry confrontation. Obviously, Ceferino Velasco is a lying witness. The first suspicion of Ceferino Velasco when his 3 children were still suffering from the effects of the poison was that his children were "nausog" (victim of witchcraft) as testified to by Onofre Adriano, a 73-year old relative of Ceferino Velasco SC: Other considerations which negate the guilt of the defendant. - There was no motive for Pipe and Lucila Valero to poison the 3 children for they loved the children. Ceferino Velasco admitted that even when Pipe was only a small boy, the latter frequented his house to visit his children. When the children were dying because of the poison, Pipe alternately fanned Michael and Annabel. The quarrel in the morning of February 21, 1969 between Demetria Manalastas, mother of the victims, and Lucila Valero was due to the interference of the Lucila to protect the children from the scolding and maltreatment to their own mother. Her intervention in their behalf only shows her affectionate concern for them. Even Ceferino stated that the cause of the quarrel was very trivial. The quarrel was not a sufficient cause to commit a heinous crime. - When the police investigated the premises of the house of Ceferino, they found not only one pandesal but "several sliced pan" scatterred in the sala, near the balcony, and under the balcony contary to testimony of Quilang that it was just 1 piece of wrapped bread. - According to the Lucila, in her testimony not rebutted by the prosecution, Ceferino who was her tenant, dipped sliced pieces of bread in endrin dried them up and used them as bait in his barn. As a matter of fact, Ceferino Velasco threw into a nearby river a long string of poisoned rats. Three puppies died of poisoning under the balcony. The rats, the dogs, or maybe even his minor children must have found the poisoned slices of bread somewhere in the barn or in the house, scattered them, and the children, not knowing the danger of the poison, ate them. - The thought that he might have poisoned his own children must have caused Ceferino Velasco some kind of trauma. So galling to a father is the thought that he, himself, might have caused the death of his two children and the near death of a third child, albeit unintentionally, that his natural reaction is to escape from it by throwing the blame to someone else not only to appease his own conscience but also to avoid embarassment before his relatives, friends and neighbors. - Trial court judge ruled that motive was not necessary to compel the Lucila to commit the crime because according to the observation of the Judge, she was suffering from some kind of psychiatric abnormality or mental disorder that can make her violent (based on disquieting unfading smiles, with her sharp, penetrating look, her unsolicited smiles are clues to her real personality). SC said that it is most unfair for the Judge to unexpectedly spring observation in his decision without having mentioned it in the course of the trial. Such a procedure is unfair to the accused, for she is thereby deprived of her chance to either deny or affirm the truth of such a very material finding which has important bearing in the judgment, violating her right to due process. The surprising finding of the Judge relates not only to the credibility of a witness but to the sanity of the defendant. Its aim is not only to weigh the testimony of the witness but to establish a motive for the crime charged.

DISPOSITIVE: Prosecution has not established the guilt of the defendant. TC decision is reversed and instead judgment of acquittal is rendered. DYING DECLARATION evidence of the cause and surrounding circumstances Sec. 37. Dying Declaration – The declaration of a dying of such death. person, made under the consciousness of an impending death, may be received in any case - Dying declaration is also known as an ante mortem wherein his death is the subject of inquiry, as statement or a statement in articulo mortis.

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Requisites for admissibility: o That death is imminent and the declarant is conscious of the fact; o That the declaration refers to the cause and surrounding circumstances of such death; o That the declaration relates to facts which the victim is competent to testify to; and o That the declaration is offered in a case wherein the declarant’s death is the subject of the inquiry That death is imminent and the declarant is conscious of the fact - A declaration will be deemed as having been made under the consciousness of imminent death, in consideration of – o The words or statements of the declarant on the same occasion; o His conduct at the time the declaration was made; or o The serious nature of his wounds a would necessarily engender a belief on his part that he

would not survive therefrom (especially when he died an hour thereafter) - The intervening time from the making of the declaration to the actual death of the declarant is immaterial, as long as the declaration was made under, the consciousness of an impending death. o XPN: The interval time between the declaration and the death of the declarant may be taken into account where the declaration is ambiguous as to whether the declarant believed that his death was imminent when he made such declarant That the declaration refers to the cause and surrounding circumstances of such death - All facts relating to the cause of such death are admissible whether the same are in favor of or against the accused - Statements referring to the antecedents of the fatal encounter or opinions, impressions, or conclusions of the declarant are not admissible

PEOPLE V. MARAMARA (MURDER): Regarder Donato, Miguelito’s father, immediately went to the crime scene and rushed Miguelito to the Pio Duran Hospital where the latter died early in the morning of the next day (November 19, 1991). Before Miguelito expired, Regarder Donato asked who shot him and Miguelito replied that it was accusedappellant. The Court finds no reason to disturb the trial court’s assessment of (1) Ricardo Donato’s eyewitness account of how accused-appellant shot Miguelito Donato and (2) Regarder Donato’s recollection of his son Miguelito’s dying declaration, as truthful testimonies coming from credible witnesses. The fact of relationship of prosecution witnesses Ricardo and Regarder Donato to the victim Miguelito Donato does not necessarily place them in bad light. Relationship per se does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto impair the credibility or tarnish the testimony of a witness. Regarder Donato’s testimony regarding Miguelito’s identification of the accused-appellant as his assailant certainly qualifies as a dying declaration that is worthy of credence. For a dying declaration to be admissible in evidence, these requisites must concur: (1) that death is imminent and the declarant is conscious of that fact; (2) that the declaration refers to the cause and surrounding circumstances of such death; (3) that the declaration relates to facts which the victim is competent to testify to; (4) that the declarant thereafter dies; and (5) that the declaration is offered in a criminal case wherein the declarant’s death is the subject of inquiry. The degree and seriousness of the wounds suffered by the victim Miguelito Donato and the fact that his death supervened shortly thereafter may be considered as substantial evidence that the declaration was made by him with the full realization that he was in a dying condition. The victim Miguelito Donato’s dying declaration having satisfied all these requisites, it must be considered as an evidence of the highest order because, at the threshold of death, all thoughts of fabrication are stilled. A victim’s utterance after sustaining a mortal wound may be considered pure emanations of the incident. FACTS: JAN. 23, 1992An information was filed with the RTC against Mara-Mara for murder, alleging: That on November 18, 1991, in the evening thereof, at Barangay Calpi, Municipality of Claveria, Province of Masbate, Philippines and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, evident premeditation, treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with a handgun one Miguelito Donato, hitting the latter on the chest, thereby inflicting wound which caused his death. At his arraignment on March 25, 1992, Mara-Mara pleaded not guilty to the crime charged. Trial commenced thereafter. The prosecution's version of the killing of Miguelito Donato, from the testimonies of the following: Ricardo Donato (younger brother) A benefit dance sponsored by the Calpi Elementary School Parents-Teachers Association of MaraMara is the president, was held in the yard of his house in Barangay Calpi, Claveria, Masbate in the evening of November 18, 1991.

At about 12 midnight, while Ricardo Donato [brother of Miguelito Donato] was dancing with a certain Rowena del Rosario, one Dante Arce, a friend of Mara-Mara, approached Ricardo Donato and boxed him on the chest. Frightened, Rowena ran away while Ricardo Donato scampered toward the fence for safety. Miguelito Donato was about two (2) meters away from where Ricardo Donato stayed at the fence. Mara-Mara took his handgun and fired at victim Miguelito Donato, hitting the latter on the left breast. Ricardo Donato tried to help his fallen brother Miguelito but somebody struck Ricardo's head with an iron bar which knocked him out for about three (3) minutes. When Ricardo regained consciousness, he hurried home and informed his parents of what happened to Miguelito. Regarder Donato (father) Regarder Donato, Miguelito's father, immediately went to the crime scene and rushed Miguelito to the Pio Duran Hospital where the latter died early in the morning of the next day (November 19, 1991). Before Miguelito expired, Regarder Donato asked who shot him and Miguelito replied that it was Mara-Mara. Dr. Nora L. Presbitero conducted a post-mortem examination of Miguelito's cadaver and his autopsy and his autopsy report revealed that aside from a gunshot wound, Miguelito's body bore a 4 cm. lacerated wound at the left temporal area, a 4 cm. incised wound at the left parietal area and a 5.5 cm. incised wound at the right iliac area. Dr. Presbitero explained that the three (3) wounds were caused by blunt and sharp instruments and considered the possibility that all four (4) wounds could have been inflicted by more than two (2) persons. She also testified that Mara-Mara was formerly her patient whom she diagnosed as suffering from empyema The defense had a different story: Mara-Mara: At about 11:00 in the evening, brothers Ricardo and Miguelito Donato arrived at the benefit dance and approached the dancing pair of Rowena del Rosario and Dante Arce. Then Ricardo and Miguelito ganged-up on Dante Arce. Mara-Mara, who was about eight (8) meters away, rushed to the scene to pacify the trio. Ricardo held Mara-Mara's hands at his back and then Miguelito repeatedly stabbed Mara-Mara on different parts of his body. Mara-Mara regained consciousness at the Claveria hospital where Dr. Gil Geñorga treated him for a few days, then transferred him to the Pio Duran Hospital. There was no way accused-appellant could have resisted Miguelito's attack, much less was he capable of inflicting injury on Miguelito, since the stronger Ricardo was holding Mara-Mara's hands and was dragging him away while Miguelito kept lunging a six-inch bladed weapon at him. Dr. Gil Geñorga He attended to Mara-Mara at the Claveria Hospital in the early morning of November 19, 1991. MaraMara suffered four stab wounds on different parts of his body—two on the stomach, one on the left nipple and one on the left arm. Dr. Geñorga had to open Mara-Mara's abdomen to determine what internal organs were affected. Although he was the attending physician, Dr. Geñorga never asked the details of the stabbing incident nor the identity of assailant, as he was purely concerned with the treatment of Mara-Mara's injuries. The trial court found Mara-Mara guilty for murder and sentenced him to suffer the penalty of RECLUSION PERPETUA. Hence, this appeal.

Mara-Mara challenges the findings of the trial court in the hope of securing an acquittal or, at the least, being held liable only for the death of Miguelito Donato in a tumultuous affray as defined under Article 251 of the Revised Penal Code. Mara-Mara assails the credibility of prosecution witnesses Ricardo and Regarder Donato whose testimonies formed the principal basis for his conviction. The conflicting claims of the prosecution and the defense on how Miguelito Donato died is an issue that ultimately and unavoidably goes into the question of whom to believe among the witnesses. ISSUES: 1. WON the testimonies of Ricardo and Regarder Donato are credible enough to support the conviction of Mara-Mara for the crime of murder [relevant]; Yes 2. WON Mara-Mara is liable under Article 251 of the RPC instead. No RATIO: 1. Yes, testimonies were credible enough. The issue of credibility requires a determination that is concededly best left to the trial court with its unique position of having been enabled to observe that elusive and incommunicable evidence of the deportment of witnesses on the stand. a. In the absence of any showing that the trial court's calibration of credibility is flawed, this Court is bound by its assessment. b. Guided by these long standing doctrinal pronouncements, the Court found no reason to disturb the trial court's assessment of: i. Ricardo Donato's eyewitness account of how accused-appellant shot Miguelito Donato and ii. Regarder Donato's recollection of his son Miguelito's dying declaration, as truthful testimonies coming from credible witnesses. c. The fact of relationship of prosecution witnesses Ricardo and Regarder Donato to the victim Miguelito Donato does not necessarily place them in bad light. i. Relationship per se does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto impair the credibility or tarnish the testimony of a witness. ii. In fact, family members who have witnessed the killing of a dear one usually strive to remember the face of the assailant. Such relatives are naturally interested in implicating only the real culprit, for otherwise, the latter would thereby gain immunity. Thus, where there is no evidence and nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit d. Regarder Donato's testimony regarding Miguelito's identification of the Mara-Mara as his assailant certainly qualifies as a dying declaration that is worthy of credence. e. For a dying declaration to be admissible in evidence, these requisites must concur: i. that death is imminent and the declarant is conscious of that fact; ii. that the declaration refers to the cause and surrounding circumstances of such death; iii. that the declaration relates to facts which the victim is competent to testify to; iv. that the declarant thereafter dies; and v. that the declaration is offered in a criminal case wherein the declarant's death is the subject of inquiry. f. The degree and seriousness of the wounds suffered by the victim Miguelito Donato and the fact that his death supervened shortly thereafter may be considered as substantial evidence that the declaration was made by him with the full realization that he was in a dying condition. g. The victim Miguelito Donato's dying declaration having satisfied all these requisites, it must be considered as an evidence of the highest order because, at the threshold of death, all thoughts of fabrication are stilled. i. A victim's utterance after sustaining a mortal wound may be considered pure emanations of the incident. 2. There is no merit in Mara-Mara's position that he should be held liable only for death caused in a tumultuous affray under Article 251 of the Revised Penal Code. a. It was in such situation that accused came at the scene and joined the fray purportedly to pacify the protagonists when Miguelito attacked him causing four stab wounds in different parts of his body — two on the stomach, one on the left nipple, and one on the left arm. i. Then Mara-Mara with his handgun shot Miguelito. b. Assuming that a rumble or a free-for-all fight occurred at the benefit dance, Article 251 of the Revised Penal Code cannot apply because prosecution witnesses Ricardo and Regarder Donato positively identifiedMara-Mara as Miguelito Donato's killer.

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However, the SC does not subscribe to the trial court's appreciation of treachery which was discussed only in the dispositive portion of the decision and which was based solely on the fact that Mara-Mara used a firearm in killing Miguelito Donato. i. The use of a firearm is not sufficient indication of treachery. ii. In the absence of any convincing proof that Mara-Mara consciously and deliberately adopted the means by which he committed the crime in order to ensure its execution, the Court must resolve the doubt in favor of Mara-Mara. d. And where treachery is not adequately proved, the accused-appellant can be convicted only of homicide. e. As Mara-Mara is liable for homicide, it is the penalty for homicide that shall be imposed. The penalty prescribed for homicide is reclusion temporal. DISPOSITIVE: Mara-Mara is liable for homicide. Miguelito Donat's dying declaration was admitted as evidence against him. PEOPLE V. MOLO (MURDER OF VENANCIO GAPISA): Alejandro and Roman ran towards the house of Venancio, followed by Simeona. Upon arrival, they saw Venancio bleeding profusely and in weakened condition. He was sitting in the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms, Venancio told him that he was boloed by Boslo. Roman Mangaring who was present also inquired from Venancio who his assailant was and elicited the answer, "Boslo." Re the dying declarations. Appellant claims that the same should not be accorded credence because the victim could not have recognized his assailant, since as testified by Simeon he was asleep when attacked. Again this is inaccurate. It was only at the initial stage of the attack when the victim was asleep, because he was awakened by the first blows and stood up to defend himself. FACTS: Dominador Molo was charged with the crime of murder for the death of Venancio Gapisa. Venancio and Simeona Rapa-Gapisa are husband and wife. They live in Barrio Tambac, Romblon, in a typical hut made of bamboo flooring and dilapidated buri walling, surrounded by fruit-bearing banana plants. In the evening of April 9, 1976 at about 8pm, the spouses retired to sleep. Venancio immediately fell asleep because he was tired from clearing the fields, and besides, he drank tuba on that day. He was sleeping near the door, lying on his right side. Not long after the spouses retired, Simeona, who was still awake, heard an indistinct sound of murmur and gnashing of teeth. Although she was afraid, she peeped through the buri wall and saw Dominador Molo outside, dressed only in short pants. Molo was alone. Simeona immediately lighted a kerosene lamp and placed it on top of a trunk nearby. Simeona tried to awaken Venancio but her husband did not respond. Molo then has already climbed up [the 2 steps to] their house. Molo forcibly pushed the sliding door and entered their house. He asked Simeona where her husband was and she told him that Venancio was already asleep. When Molo found Venancio sleeping, he immediately grabbed his left wrist and started hacking at the sleeping old man Venancio.  Venancio was rudely awakened. He quickly stood up and with his right hand tried to reach for his bolo at the nearby table. However, he was not able to retaliate since Molo quickly hacked at him again.  Fearing for her own life, Simeona ran out of the house (through the door of their unfinished kitchen) to summon help from their son Alejandro Gapisa. Alejandro was at Roman Mangaring’s house 100 meters away from the Gapisas’ house. Simeona told Alejandro that Venancio was boloed by Boslo (the name by which Molo was known in their locality). Alejandro and Roman, followed by Simeona, ran back to the Gapisa residence. When they arrived, they saw Venancio bleeding profusely and in a weakened condition. He was sitting on the floor, defecating in his pants. When Alejandro took his father in his arms, Venancio told him that he was boloed by Boslo. Roman, who was also present, inquired from Venancio as to who his assailant was and elicited the answer “Boslo”. Venancio was then rushed to the hospital and arrived at about 1:50am. He died a few minutes after. In the autopsy, it was found that Venancio died of hemorrhage from multiple incised wounds. He sustained 8 wounds – in his left arm, below his left arm, left side of the neck, below that neck wound, right arm, two in his right forearm, and in the anterior portion of the neck. Morning of April 10: An investigation was conducted. In the presence of Patrolmen Montojo and Madali, Pat. Mariño took the statement of Simeona, who identified Molo as her husband’s assailant. PC soldiers and policemen were dispatched to Molo’s house. Molo was then placed under arrest and brought to the Poblacion. When Molo was investigated at the PC barracks, he denied having committed any wrong and having gone to Venancio’s house.

April 23: After the additional statements of Alejandro, Roman and Florencio Guarte (I don’t know who he is), a criminal complaint was filed in the Romblon MC. After the preliminary examination conducted by Mayor Montojo, an order confirming Molo’s detention was issued, there being a finding of reasonable ground against him. The accused waived the second stage of the preliminary investigation. ON MAY 31, 1976, Information for murder was later filed against Molo. At the trial, the prosecution presented the testimonies of the following: 1. Simeona Gapisa, Venancio’s wife – an eye-witness and ear-witness 2. Alejandro Gapisa, son of victim – went to the rescue and was able to talk to his father before the latter’s death 3. Roman Mangaring, neighbour – also able to talk to victim 4. Dr. Benedicto – performed autopsy and accomplished the Autopsy Report (Exhs. A and A-1) Molo offered alibi as his defense and presented his own testimony and that of his wife Barbara Mingo, and Patrolman Manunggay. He also presented a bolo (Exh. 1) and a scabbard (Exh. 1-a). TC DECISION: Molo was guilty beyond reasonable doubt of the crime of murder. It relied on the testimony of Simeona, who was an eye- and ear-witness, and the corroborating testimony of Alejandro and Roman, who testified on the ante-mortem statements of the victim identifying Molo as his assailant. It also appreciated the qualifying circumstance of treachery, the aggravating circumstances of dwelling, recidivism, and reiteracion, and the mitigating circumstance of voluntary surrender, and imposed the death penalty. Hence, the accused interposed the present appeal. Solicitor General Estelito P. Mendoza — who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. de la Cruz — after refuting the foregoing assignment of errors submits the following conclusions as to the nature of the offense committed, the qualifying and aggravating circumstances that attended the commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender. - Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was attended with treachery. Treachery qualifies the killing into murder. (RPC 248) - Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provocation. (Art. 14 (3), Revised Penal Code). - Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accused-appellant had been previously convicted of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery, (pp 10-12, tsn., July 12, 1976). - Accused appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force of policemen and Philippine Constabulary agents at his residence the day after the killing, (p. 6, tsn., July 29, 1976). - Re the claim that there is no proof of motive on appellant's part. This error may be subsumed under and/or discussed together with the second, since it admits that motive need not be shown where there is positive identification, which, as We shall explain later, happened in this case. However, by way of traverse, We find the following observations of the Solicitor General well-taken, and therefore well worth adopting. o Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of accused-appellant (pp. 34,44, tsn., July 12, 1976). They could not, however, state how much money was taken, from whom it was taken and how it was taken o Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony, thus rendering themselves untrustworthy witnesses, it should be pointed out that when they mentioned robbery as the possible motive of accused-appellant, Alejandro Gapisa made it clear that that was only his "surmise11 (p. 34, tsn,, July 12, 1976) while Simeona Gapisa qualified her assertion with the word "maybe" (p. 44, tsn., July 12, 1976). They were not committal or categorical about the matter. o But even in the absence of proof of motive, the conviction of accused-appellant can stand inasmuch as he had been positively identified by Simeona Gapisa and by the deceased himself through his dying declaration. Motive need not be shown when there is positive identification. (P V. FELICIANO) ISSUES: 1. WON Molo was convicted upon proof beyond reasonable doubt – YES! 2. WON the identification of Molo as the assailant was proven beyond reasonable doubt – YES! ARGUMENTS+RULING+ RATIO: 1. MOLO: While proof of motive is unnecessary if the evidence of identification is convincing, there is a total want of motive on my part, as admitted by Simeona and Alejandro.

COURT: This issue may be subsumed under the second issue since Molo in fact admitted that where there is positive identification, motive need not be shown. 2. MOLO: My identity as the assailant was NOT established beyond reasonable doubt because of: (a) alleged inconsistencies and incredible assertions in Simeona’s testimony (b) physical conditions which rendered it impossible for Simeona to recognize the assailant (c) Simeona’s alleged admission that she pointed to Molo as the assailant because he was a hated criminal in their place (d) The so-called dying declarations should NOT have been accorded credence because the victim could NOT have identified the assailant. COURT: The identity of Molo as the assailant was established beyond reasonable doubt. On the alleged inconsistencies and incredible assertions in Simeona’s testimony: - Molo: There are inconsistencies between Simeona’s statement given to the police and her testimony in open court, relative to – (a) the precise moment when she recognized Molo, and (b) whether there was a conversation between Simeona and Molo. - COURT: The alleged statement given to the police was neither offered in evidence nor shown to Simeona in order for her to explain the discrepancies. Therefore, the proper basis to impeach her testimony was not laid. At any rate, the alleged inconsistencies are inconsequential. In fact, they even heighten the credibility of Simeona. -

Molo: Simeona claimed that she was able to identify me because of the lamp which was lighted BUT she also said that the lamp was put out when the door was opened due to the sudden gust of wind. COURT: This was an inaccurate representation of Simeona’s testimony. She clarified that Venancio was already boloed when the light went out.

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Molo: It is very unusual that Simeona remained silent while witnessing the attack on her husband. COURT: Defense counsel himself, during cross-examination, provided the answer to this. Simeona was tongue-tied because she was so afraid and so shocked.

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Molo: If the victim was lying down, then he would have sustained stab wounds, not incised wounds. COURT agreed with SolGen: To simply thrust a bolo at a lying person is not as forceful as to hack him with it.

On the alleged conditions which rendered it impossible for Simeona to recognize Molo: - Molo: Simeona could not have recognized me because there were banana plants which obstructed the light of the moon. - COURT: Simeona testified that the banana plants did not obstruct the light cast by the moon. In fact, SImeona had no difficulty recognizing Molo considering that their house was only elevated by two steps and at the time she saw him, he was already at the foot of the stairs. (QUARTER MOON; MAIN DOOR OF THEIR HOUSE WAS FRONTING A YARD). Simeona had no difficulty in recognizing the accused, considering that their house was only elevated by two steps and at the time she saw him through the dilapidated buri wall he was already at the foot of the stairs On Molo’s being a hated criminal: There was no basis that Simeona only pointed to Molo because he was a hated criminal. Simeona’s testimony shows that she was very certain of Molo’s identity as her husband’s assailant. TAKE NOTE: Inconsistencies on minor details or on matters that are not of material consequence as to affect the guilt or the innocence of the accused do not detract from the credibility of the witnesses. The discordance in their testimonies on collateral matters heightens their credibility and shows that their testimonies were not coached or rehearsed. Far from being evidence of falsehood, they could justifiably be regarded as a demonstration of good faith On the dying declarations - Molo: These should not be accorded credence because Venancio could NOT have recognized me because he was asleep when attacked. - COURT: This is inaccurate. It was only at the initial stage of the attack that Venancio was asleep because, as testified to by Simeona, Venancio was awakened by the first blows of the bolo, and even stood up to try to defend himself. - The statements of Venancio, identifying Molo as his assailant to Alejandro and Roman are DYING DECLARATIONS.

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Considering the NATURE and EXTENT of the WOUNDS (8), Venancio must have realized the SERIOUSNESS of his condition. It can therefore be inferred that he made the incrimination UNDER THE CONSCIOUSNESS OF IMPENDING DEATH. In fact, he died barely 4 ½ hours after he was boloed. As shown by the testimonies of Alejandro and Roman, when they came to the house, Venancio was bleeding and had plenty of wounds. They even think that he was defecating in his pants as a result of the pain he was experiencing. o In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa, who was an eye-witness to the fatal incident, and that of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivism and reiteration, it appearing that accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling a robbery, and, had served sentences for said crimes.

Circumstances: affirmed the circumstances appreciated by the TC except the mitigating circumstance of voluntary surrender. The SC agreed with the SolGen in that there was no voluntary surrender since Molo was arrested at his house. The fact that he did not try to escape or did not resist arrest does NOT amount to voluntary surrender. Penalty: Considering the circumstances in this case, the imposition of the death penalty was not only justified but is required as a measure of social defense. PEOPLE V. BAUTISTA, Kapunan, J Concept: Dying Declaration Brief Facts: Cipirano was killed by a gunshot. According to the victim’s wife who found his body right after hearing the gunshot, she saw Bautista standing 2 meters from the victim pointing a gun at her husband. She also said that befoe dying, her husband identified the killer as Bautista who was thereafter charged with murder. Several persons made entries in the police blotter and sworn statements. One of them is Gagaza who accompanied the wife as the victim was rushed to the hospital. In Gagaza’s police blotter, he said that the victim pointed to the wife’s paramour Feriamil as the killer. In his sworn statement, he pointed to Bautista. There were also several inconsistencies in the testimonies of prosecution witnesses. There were also people, instrumental to the case, that were not presented. Upon Bautista’s conviction, he appealed to the SC questioning the evidentiary weight accorded to Gagaza’s police blotter narrating the dying declaration of the victim that Feriamil was the murderer. He also pointed out major inconsistencies in the testimony of the prosecution witnesses. The SC ruled that the dying declaration of the victim made orally, as detailed in Gagaza’s police blotter, must be proved by the testimony of the person who heard the dying declaration in order to be given the desired evidentiary weight. In this case, Gagaza was not presented as witness so the alleged dying declaration cannot be given due weight. However, the inconsistencies in the testimonies of the other witnesses weaken the prosecution’s case. Every doubt being resolved in favor of the accused, Bautista must be acquitted. DOCTRINE: A dying declaration, also known as an ante mortem statement or a statement in articulo mortis, is admissible under the following requisites: (1) that death is imminent and the declarant is conscious of that fact; (2) that the declaration refers to the cause and surrounding circumstances of such death; (3) that the declaration relates to facts which the victim is competent to testify to; and (4) that the declaration is offered in a case wherein the declarant's death is the subject of the inquiry. If the dying declaration was made orally, it may be proved by the testimony of the witness who heard the same or to whom it was made. The entry of the dying declaration in the police blotter alone will not suffice to confer upon it the desired evidentiary weight. Entries in police blotters are only prima facie evidence of the facts stated therein. FACTS: Bautista was originally charged with murder along with Samuel Ventura and Alejandro Defuntorum but upon reinvestigation by the prosecutor, the charge against Ventura and Defuntorum was dismissed for lack of sufficient evidence. (AGGRAVATING CIRCUMSTANCES STATED IN THE INFORMATION: TREACHERY; EVIDENT PREMEDITATION)

At 7pm of November 30, 1992: Leticia Bandarlipe was seated on a sled near a kamias tree by her house in San Fabian, Pangasinan to await the arrival of her husband, Cipriano. An hour and a half later, she heard a gun report and the ensuing shout of her husband that he was shot. Leticia ran to her husband's succor and found him prostrate on the road. As she embraced her husband and cried for help, she saw accused Bautista standing two meters away from Cipriano, pointing a long firearm at the victim. Moreover, it was a moonlit night and the place was illuminated by the lights originating from the house of her in-laws and a passing payloader. Leticia recognized Bautista whom she identified in court as "Leopoldo Bautista," as she had seen him several times before. Leticia asked her husband who shot him and Cipriano replied that accused Bautista did. When Leticia looked up, accused Bautista was no longer there. Thereupon, Leticia rushed Cipriano to the provincial hospital in Binloc, Dagupan City together with - her sister-in-law - Barangay Captain Felipe M. Solis - Jose C. Gagaza, Jr. - Barangay Tanod De Leon and others. Cipriano died in the hospital. Leticia's neighbor, Rogelio Peralta, was walking on his way home when, by the light of a passing payloader, he saw accused Bautista carrying a long firearm immediately after he had heard gunfire. Rogelio went to the side of the road and, after accused Bautista had vanished, continued on his way home. He later learned that Cipriano was shot and rushed to the hospital. Dr. Alberto Gonzales, the resident physician who attended to the victim, issued a medico-legal certificate stating that the 37-year-old Cipriano had alcoholic breath and omental evisceration at the right upper abdomen. Cipriano died of cardio-respiratory arrest secondary to hypovolemic shock due to gunshot wound on the abdomen. According to Leonardo Tabilen, Chief of the PC Company, he had known accused Bautista as a "dreaded killer in Pangasinan" who was suspected of having killed 3 other people including a barangay captain. [RELEVANT] Jose Gagaza, Jr. (BARANGAY TANOD), one of the people who rushed the victim to the hospital, entered his blotter saying that on their way to the hospital, the victim pointed to a Feriamil as his killer. But in his sworn statements, he said that the victim pointed to Bautista. - This has ref to entry Nr. 187, in this Police Blotter dtd 30 Nov. 92, Jose Gagasa y Castro, 25 years old, single, a resident of brgy. Anonang this mplty appeared to this station and informed that when he accompanied the victim (Cipriano Bandarlipe) at the hospital. He the (victim) stated that he was shot by one Domy Ferreamil also of same place, and in the presence of Brgy. Capt. Felipe Solis and chief Brgy. Force Saldy Aquino of brgy. Anonang this town, when he stated same words against the suspect. o Exhibit "3-a," a document dated September 11, 1998 that was issued by Chief Inspector Fausto M. Cayabyab, Jr., shows that SPO2 Ricardo D. Abrio, police desk officer, confirmed that Gagaza, Jr. had affixed his signature on the same police blotter - Also, the Brgy. Captain (SOLIS) brought Feriamil to the police station, and even in the NBI, for investigation such however yielded a negative result. Based on information gathered from barangay people, PC Chief Tabilen conducted a surveillance operation upon accused Bautista. Based on information gathered from barangay people, Tabilen conducted a surveillance operation upon appellant. PC Chief Tabilen invited accused Bautista and his brother-in-law, Rufino Reyes, to the headquarters to shed light on the killing of victim Cipriano. At the headquarters, the investigation conducted resulted at a finding that accused Bautista was the killer of Cipriano. The witnesses who were investigated and who pointed to accused Bautista as the culprit were - Rogelio Peralta – neighbor of the spouses who saw the incident - Leticia Bandarlipe – wife of the victim - Prudencio Feriamil – the alleged paramour of the victim’s wife who was implicated in the murder - Chief Barangay Tanod - Barangay Captain DEFENSE OF ACCUSED BAUTISTA He was framed up. It was actually Feriamil (owner of house) who killed Cipriano. Feriamil convinced him to work as his industrial partner in the tobacco plantation. They became business partners and he stayed with Feriamil in a hut. He met Leticia Bandarlipe (introduced as Feriamil’s kumadre) who since then, became a frequent visitor of Feriamil in the hut.

One time, he saw Leticia in an uncompromising situation with Feriamil. The two were lying naked on a bamboo bed inside the hut with Leticia on top of Feriamil. Perplexed by what he saw, he hurriedly went out of the hut. The illicit lovers begged him to keep it a sercet. The two did not go home immediately for fear that they would get sick (pasma) but apparently in her haste to leave, Leticia left in the hut a pink panty with the name "Letty Bandarlipe" embroidered on it. Appellant kept the panty in a plastic bag intending to return the same to its owner. However, since Leticia never visited the house again, appellant could not return the panty to her. Accused Bautista produced the panty in court. After the harvest season, he went home to visit his family. During his absence, Feriamil and Leticia sold tobacco for P35,000 but they refused to give him his share in the proceeds. He made several attempts to collect his share but Feriamil merely advised him to keep his patience while he searched for money as Leticia had taken the proceeds of the sale. While accused Bautista was in his hometown, Cipriano Bandarlipe was killed. The Barangay Captain believed that Feriamil could have authored the crime per information given him by Gagaza because Feriamil was often in the company of "Leopoldo Bautista." The report of Solis was written on the police blotter. In fact, Solis brought Feriamil to the police station and even the NBI but Feriamil's investigation yielded a negative result so that Feriamil was able to go home with Solis. Sometime in August 1993, he returned to collect his share of the proceeds of the sale of tobacco from Feriamil who requested him to come back after a month. In his frustration, he threatened to reveal the amorous relationship between Leticia and Feriamil. In the evening of September 3, 1993, Zaldy Aquino invited Solis and Feriamil to his residence. Solis and Aquino asked Feriamil if he had anything to do with the killing of Cipriano Bandarlipe or if he knew anything about it. Feriamil replied that "Poldo Bautista" killed Cipriano and that "Poldo Bautista" was supposed to go to his residence on September 5, 1993. Appellant, his sister and brother-in-law indeed returned to Feriamil's house on that date. Feriamil asked them to wait while he prepared some snacks. While they were drinking coffee, several people entered the house. They, pointed a gun at him and his companions, telling them not to move. They told his group that if they valued their lives, they should go down the house. As they were descending from the house, someone asked Feriamil, "Who among these?" Feriamil pointed to accused Bautista and immediately someone struck him with the butt of a gun. With his hands tied at the back, appellant was brought to the PC Command where he was tortured to admit the killing of Cipriano with whom he was not even acquainted. Feriamil, for his part, stated that when appellant came home disturbed and with a gun that fateful night of November 30, he confessed to having killed Cipriano. He and appellant then slept. In the morning of November 31, 1992 (sic), Barangay Captain Solis and some policemen arrived and brought him (Feriamil) to the police station where he was asked about the killing of Cipriano. Feriamil told the police that he did not know anything about the matter but he did not relate to them what appellant had confessed to him the night before because he was afraid. RTC RULING: Guilty of murder Accused Bautista was seen holding a gun near the fallen victim. Rogelio Peralta had seen Alfonso Bautista holding a gun on November 30, 1992 at around 8:30 in the evening while on the road walking near the house of Cipriano Bandarlipe at Anonang, San Fabian, Pangasinan, at which place he heard a burst of a gun. He met accused Alfonso Bautista and the latter was carrying a firearm. This witness could not have committed a mistake because there was a light of the payloader which was focused to the accused ISSUES: 1. W/N the police blotter entry of Gagaza (one of those who rished the victim to the hospital) pointing to Feriamil should be given due evidentiary weight NO, dying declarations made orally may be proved by the testimony of witness who heard the same. Entries in a police blotter alone would not suffice to confer upon it the desired evidentiary weight 2. W/N the inconsistencies in the testimonies of the witnesses renders them unworthy of belief YES, the inconsistencies are so glaring that believing them would result in grave injustice. Because of these inconsistencies, accused must be acquitted. RATIO: 1. A dying declaration, also known as an ante mortem statement or a statement in articulo mortis, is admissible under the following requisites: (1) that death is imminent and the declarant is conscious of that fact;

(2) that the declaration refers to the cause and surrounding circumstances of such death; (3) that the declaration relates to facts which the victim is competent to testify to; and (4) that the declaration is offered in a case wherein the declarant's death is the subject of the inquiry. Records show that Gagaza, the person who allegedly heard the victim's ante mortem statement, was never presented in court to testify on the matter. It has been held that if the dying declaration was made orally, it may be proved by the testimony of the witness who heard the same or to whom it was made. The entry of the same statement in the police blotter alone will not suffice to confer upon it the desired evidentiary weight. Entries in police blotters are only prima facie evidence of the facts stated therein. 2. While as a general rule, the findings of fact of the trial court on the credibility of witnesses are entitled to great weight and respect on appeal, this rule cannot be strictly applied where significant facts had been overlooked and disregarded by the trial court. In this case, the prosecution's pieces of evidence are so teeming with loopholes and inconsistencies as to render them unworthy of belief. It is doctrinal that the requirement of proof beyond reasonable doubt in criminal cases does not entail absolute certainty of facts. Neither does it exclude the possibility of error. What is required is moral certainty. Thus, inconsistencies in testimonies that refer only to minor and insignificant details of an incident are considered to reinforce rather than weaken a witness' credibility. In this case, the inconsistencies in the testimony of the principal prosecution witness as regards the identity of the assailant are so glaring that giving such testimony the weight and credence would result in grave injustice. Credibility of Victim’s Wife Leticia In her direct testimony, victim’s wife Leticia said she was able to talk to the victim. On cross-examination, she admitted that she was no able to talk to the victim anymore. It is also puzzling why Leticia should still ask her husband who shot him when she allegedly saw Bautista still pointing the gun at him. She would have asked her husband who shot him only if she did not see or identify the culprit. However, she categorically testified that as soon as she heard gunfire, she rushed to her husband who was sprawled on the ground and saw 2 meters away, Bautista with a gun in his hand. Her testimony does not inspire belief that she was telling the truth as to the identity of appellant as the felon. If it is true that the victim’s wife Leticia actually saw her husband being shot by Bautista, or that her dying husband told her that it was Bautista who shot him, why did she not report what she saw and heard to the two barangay tanods; and, why was she reluctant to file a complaint against the gunman. Her acts are contrary to the natural tendency of a witness closely related to the victim, to report a crime and describe the malefactor at the earliest possible opportunity. In fact, it was not until 10 months later that Leticia executed a sworn statement pointing to Bautista as the assailant of her husband. Credibility of Victim’s Neighbor Rogelio Peralta He allegedly saw Bautista carrying a long firearm. He went to the side of the road and when Bautista was no longer in view, he continued walking home. About an hour thereafter, he learned that the victim was shot. And yet, Peralta gave his statement only about ten 10 months after the shooting. While the initial reluctance of a witness in getting himself involved in a criminal case may not impair his credibility, this holds true only when said delay is adequately explained. But where the witness' reason for delay in reporting to authorities is baseless, his testimony will not inspire belief. Here, Peralta was then a member of the Barangay Tanod or "security force" of the locality. He knew policeman Tabilen and from whom he certainty could have asked for help and protection if he wanted to. More importantly, based on his own admission, Peralta merely learned of the shooting from the people who rushed to the scene of the crime. He did not in fact witness the shooting, but merely presumed it was Bautista who shot the victim because he saw him carrying a gun near the vicinity of the crime scene. Accused Bautista: Gagaza was not presented by the prosecution as witness. SC: Given the alleged knowledge of Gagaza of certain vital facts, it is highly surprising why the prosecution did not call him to testify. He caused the entry in the police blotter naming Feriamil as the main suspect; whereas, in his

sworn statement, he made a contradictory declaration, by saying that while they were on their way to the hospital the victim repeatedly told him that he was shot by Bautista. The matter of deciding whom to present as witness for the prosecution is not for the accused or for the trial court to decide, as it is the prerogative of the prosecutor. However, when a party has in his possession best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose. In the case at bar, there are pieces of evidence on record which, if properly considered, would certainly raise questions that the prosecution might have accused the wrong person, foremost of which is Barangay Captain Solis' testimony that Feriamil was the original suspect in the murder, and Leticia 's admission that Solis and Gagaza went to her house the day after her husband's murder to solicit her cooperation in the prosecution of Feriamil. If Prudencio Feriamil was the original suspect, why was he not duly investigated for the murder? And why did Leticia Bandarlipe refuse to cooperate with the authorities in the investigation and prosecution of Feriamil? Finally, why did the prosecution not present Feriamil as a witness when he was instrumental in naming Bautista as the alleged assailant? As in the case of witnesses Rogelio Peralta and Leticia Bandarlipe, Feriamil's alleged reaction to the killing of Cipriano Bandarlipe is beyond credulity. How could Feriamil have slept so easily and so soundly with the confessed assailant of his "kumpadre?" Even more amazing is the fact that when he (Feriamil) was brought for questioning to the police station the day after the shooting, he simply kept silent about what he knew despite the fact that he was the main suspect in the murder, and only revealed appellant's alleged confession about ten (10) months after the incident. Considering the apparent unreliability of the evidence proffered by the prosecution, SC is constrained to rule for an acquittal. In all criminal cases, all doubts should be resolved in favor of the accused on the principle that it is better to liberate a guilty man than to unjustly keep in prison one whose guilt has not been proven by the required quantum of evidence. Conviction, it is said, must rest on nothing less than a moral certainty of guilt that we find here to be wanting. DISPOSITIVE: Bautista is ACQUITTED.

PEOPLE v. BASAY People v. Basay (1993) – Davide, Jr., J. Plaintiff-Appellee: People of the Philippines Accused-Appellant: Teodoro Basay alias Doro and Jaime Ramirez alias Neboy (appellant) Concept: Dying Declaration Summary: Basay and Ramirez were charged with Multiple Murder with Arson in for having allegedly killed Sps. Zosimo and Beatrice Toting and their six-year old daughter Bombie, and for having burned the spouses’ house to conceal the crime; as a consequence of such fire, the spouses’ other daughter Manolita was burned to death. According to the polic, before Bombie died, she was able to relate that Ramirez and Basay killed her parents and burned their house. Trial court acquitted Basay but convicted Ramirez. TC did not admit Bombie’s statement as dying declaration. SC acquitted Ramirez. Bombie’s alleged statement is doubtful. Doctrine: Requisites for admissibility of a dying declaration: (1) that the statement was given under consciousness of an impending death; and that (2) Witness is competent. [In this case, Bombie was incompetent.] Facts: 1. Basay and Ramirez were charged with Multiple Murder with Arson in for having allegedly killed Sps. Zosimo and Beatrice Toting and their six-year old daughter Bombie, and for having burned the spouses’ house to conceal the crime; as a consequence of such fire, the spouses’ other daughter Manolita was burned to death. 2. March 31, 1986 – MCTC issued a warrant of arrest; no bail was recommended. It appears that the accused had earlier been apprehended on March 6, 1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF) and were detained at the municipal jail. 3. April 15, 1986 – The accused filed a waiver of preliminary investigation. December 11, 1986 – information for multiple murder and frustrated murder with arson against the accused.

4. Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the burning of the house 5. Evidence for the prosecution (from the Appellee’s Brief) a. March 6, 1986 - Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. b. This prompted 3 PCs and three members of the Civilian Home Defense Force to go to Tigbaw, Negros Oriental, to investigate the incident. c. Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four 4 fatalities and their injuries as follows: (1) Zosimo Toting, Sr. – hack wounds, 90% second and third degree burns of the body; (2) Beatrice Toting- hack wounds; 90% second and third degree burns of the body; (3) Bombie Toting – hack wound (4) Manolita Toting - third degree burns, all burned body, head, extremities or 100% burns; d. Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity e. Zosimo Toting, Sr, Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About forty meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds The young girl said that she had been in this condition for one and a half days already. f. Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00pm, Ramirez and Basay killed her parents and burned their house. g. On the same day the investigating officers went to the Ramirez’s house. They saw him fixing the roof of his house and when he saw them, he went down and tried to run away He was turned over to the Pamplona Police Station. h. Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M. i. Ramirez was brought into the chamber of Judge Calumpang, the municipal circuit trial judge on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellant’s counsel. They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the court interpreter translate the allegations of the sworn statement into the local dialect for appellant Thereafter, in the presence of the Judge, Ramirez and Mr. Catacutan signed the affidavit. Ramirez and counsel also signed the vernacular translation of Exhibit F (sworn statement). 6. Evidence for the accused. a. Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him. He was brought to the PC detachment where he was maltreated. Then he was brought to the municipal jail. b. He did not read the joint waiver because he did not know how to read. When it was read to him, he did not understand it because it was read in English. Catacutan was not his lawyer and he didn’t know him. c. On cross-examination: he reached Grade II and knows how to write his name. He was alone at the time he was arrested. He was arrested ahead of Basay and those who arrested him were not the same persons who arrested Teodoro Basay. d. He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was in front of him. They did not converse and he did not engage Catacutan to assist him, nor solicit his services. He doesn’t know anyone who solicited Catacutan’s services for him. He did not ask the Judge (Calumpang) that a lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give him a lawyer to assist him in the execution of the affidavit. 7. Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. The prosecution did not rebut his claim that he had only finished Grade II and that he does know how to read. He, however, understands Cebuano. 8. Exhibit F is the Sworn Statement (in English) of Ramirez taken in the Pamplona police station and subscribed and sworn to before Judge Calumpang. Trial court described this as the Extra-Judicial Confession of Ramirez. 9. Exhibit G (Joint Waiver in Cebuano) was signed by Basay and Ramirez. Both stated that for their safety and security, the voluntarily decided to be detained and that they killed Sps. Toting and thereafter burned their house; this resulted in the death of one and the hospitalization of 2 children. 10. Trial Court: disregarded the Joint Waiver because when they signed it, they were not represented by counsel thus violating the Constitution. a. Basay was acquitted. b. Ramirez was convicted. TC admitted in evidence the “extra-judicial confession”, considered as part of res gestae the alleged statement of Bombie Toting to the police identifying Ramirez and Basay as the perpetrator of the crime and considered as flight (indicative of guilty) Ramirez’s running away when he

saw law enforcers. It further ruled that the latter signed the confession voluntarily and in the presence of Catacutan, the COMELEC registrar of Pamplona – “a barrister who appeared as counsel for Ramirez;” hence it is admissible against the latter. c. Did not admit the statement of Bombie as a dying declaration but merely as part of res gestae because the prosecution failed to prove 2 of the requisites for admissibility of dying declaration: (1) that the statement was given under consciousness of an impending death; and that (2) Bombie is a competent witness. 11. TC directed the clerk of court to transmit to SC the entire records of the case because in view of the penalty imposed – life imprisonment – such Decision is subject for automatic review. (SC said that this is erroneous; automatic review is available only for death penalty. But in the interest of justice, SC accepted the appeal.) Issues: 1. WON Bombie’s alleged “statement” should be appreciated as evidence. NO 2. WON rights of the accused were violated. YES Ratio: 1. The trial court itself ruled that Bombie was not a competent witness. SC agrees. Her condition at the time she supposedly gave her statement made it impossible for her to have communicated effectively.  She suffered serious injuries. She was taken from the crime scene only 2 days after the commission of the crime, and died thereafter.  The doctor who attended to her when she arrived at the hospital was not presented as witness. The doctor who attended to her before she died testified that when he last saw Bombie alive, she could NOT talk. It was this inability to talk which led the trial court to express doubts on the veracity of the latter’s supposed statement.  TC: “Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show that Bombie Toting told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither did the P.C. nor the police take any statement from her on her way to the hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain or to any reputable member of the community where the incident happened, the Court will have to put weight and consider her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements of peace officers. The Court therefore has to be cautious when these peace officers testify in Court."  The trial court completely disregarded Bombie’s so-called statement as against Teodoro Basay. SC sees “neither rhyme nor reason for the trial court’s admission of the same as against” Ramirez. 2. Rights of the accused were violated. The “extra-judicial confession” was obtained during custodial interrogation in blatant disregard of his right to counsel, to remain silent and to be informed of his rights. (a) MORALES V. ENRILE: At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means -- by telephone if possible -- or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence REITERATED IN PEOPLE V. GALIT. (b) PEOPLE V. NICANDRO: this Court declared that one's right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, it is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms -- e.g., what the person under interrogation may or may not do -- and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding

of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel (THE COUNSEL MUST BE A LAWYER). (c) The interrogation was the conducted and the confession was written in English a language the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and the answers into a dialect known and fairly understood by the appellant. (d) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be provided with one. (e) He did not sign any waiver of his right to remain silent and to counsel. (f) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to have appeared for him as a "friend-counsel," was present only at the time that appellant was brought to the office of Judge Catacutan for the preparation of the jurat. Catacutan merely signed as a witness. (g) Assuming arguendo that Catacutan may have been summoned to act as appellant’s counsel, he was, nevertheless, not present during the custodial interrogation which, by the way, was conducted exactly a week before he appeared —or more correctly, was made to appear — before Judge Calumpang. His presence before the latter did not change the situation. a. People v. Burgos: the securing of counsel to help the accused when the latter subscribed under oath to his statement at the Fiscal’s Office was too late and had no palliative effect; it did not cure the absence of counsel at the time of the custodial investigation when the extra-judicial statement was being taken. (h) Elpedio Calumpang is NOT A LAWYER; according to the trial court, he is "a barrister." In fact, he candidly admitted that he is not a lawyer but that he obtained a law degree from the Siliman University in 1959. Unfortunately, however, he failed in three Bar Examinations. (i) There is no showing that the so-called extra-judicial confession, which is in English, was correctly explained and translated to the appellant by Judge Calumpang. Although the latter claimed in his testimony on direct examination that he translated the same in the local dialect to the appellant before the latter affixed his signature thereto, Catacutan categorically declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant. (j) The kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class — a long question by the investigator informing the appellant of his right followed by a monosyllabic answer — which this Court has condemned for being unsatisfactory. The investigator gave his advice perfunctorily or in a proforma manner, obviously to pay mere lip service to the prescribed norms. As this Court observed in People v. Newman, this stereotyped "advice"". . . has assumed the nature of a ‘legal form’ or model. Its tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing." (k) Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is inadmissible in evidence. The trial court, therefore, committed a fatal error in admitting it. 3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not be considered as the flight which is indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be construed as flight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction, there must, inter alia, be more than one (1) circumstance. No other circumstance was established in this case. Hence, the appellant's guilt was not established with moral certainty. He should be acquitted.

People v. Cabrillas, Del Castillo Concept: Dying Declaration SUMMARY: Accused Adriano and Benny were charged with murder for the death of Jesus Cabujat. According to the prosecution witnesses, while Jesus was walking home with his granddaughter, he turned towards the grassy area of

the road to urinate. The accused then suddenly emerged from their hiding place, held Jesus’ shoulders and alternately stabbed him. At that moment, Jesus shouted, “I am wounded, please help me because I was stabbed by Benny and Adriano.” The 2 accused fled and only Benny was arrested only 2 years later. The RTC and CA convicted him of murder. Benny’s defense consisted of an alibi and the argument that the witnesses were not credible. The SC upheld his conviction ruling that the argument of relationship, inconsistency and delay in the testimonies were without merit and his alibi was weak. Also, the statement of the accused pointing to Benny and Adriano as his assailants was admissible against Benny as a dying declaration. DOCTRINE: A dying declaration is an evidence of the highest order. It is entitled to the utmost credence on the premise that no person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts on concocting lies disappear. FACTS: Prosecution’s Version Wilfredo Pacayra (witness): On July 11, 1999, at around 7pm, he went to the store of Susan Cabtalan to buy salt. While thereat, the two accused asked him to join them in their drinking spree, to which he obliged. In the course thereof, Wilfredo noticed that they had bolos (locally called sundang) tucked on their waists. He also heard them talking about their plan to assault someone that same night. Sensing that something wrong would happen, Wilfredo left them and walked home. Upon reaching his house, he noticed the two circling the house of Jesus Cabujat’s daughter, Elena Raypan, which is just about 2 arms length away from his house. Thereafter, they stood on a dark portion of the road. Later on, he saw Jesus and his 9-y/o granddaughter Jonalyn C. Raypan walking towards the house of Elena. Jesus stopped and turned towards a grassy area to urinate when suddenly, the accused emerged from their hiding place, held Jesus by his shoulders and alternately stabbed him. At that moment, Jesus shouted, “I am wounded, please help me because I was stabbed by Benny and Adriano.” Jesus then fell to the ground while the two immediately fled form the crime scene. Jonalyn C. Raypan (witness): She fetched her grandfather, Jesus, from her Ate Susan’s house. They walked side by side in going back to their house. However, upon reaching the vicinity of their house, her grandfather went across the street to urinate. It was then that she saw the accused on the same street. She knew them because Benny and her father are cousins while Adriano and her mother are also cousins. She saw them take hold of her grandfather’s arms, after which Benny stabbed him with a long bolo. She heard her grandfather say, “Donnie, help me, I am wounded.” After that, she saw Benny go home. Elena Raypan (DAUGHTER; witness): When she heard her father shouting for help, she immediately went outside the house and saw Benny releasing her father. As she got nearer to Jesus, the two accused ran away. When she asked Jesus as to who stabbed him, the latter replied that it was Benny and Adriano. Jesus was rushed to a hospital where he was pronounced dead due to multiple stabbed wounds. His family spent P18,500 for his wake and burial. At the time of his death, Jesus was earning P1,000/week as a farmer. An Information for Murder was filed against Benny and Adriano and a warrant was issued for their arrest, which was however, returned unserved since they could no longer be located. It appears that on July 13, 1999, the two escaped by ferryboat to Catbalogan, Samar. 2 years later (July 31, 2001), Benny was arrested in Las Pinas City by virtue of an alias warrant of arrest. Defense Version Benny Cabtalan (accused): He was in his mother’s house the morning of July 11, 1999 until lunch time. He then proceeded to the store of Susan and saw Adriano and a certain Manuel Cabigayan drinking tuba. He accepted their invitation to join and stayed there until 6pm. Thereafter, he went home to Brgy. Pilaon which was about 3km away. He reached his destination after walking for nearly an hour and no longer went out. He learned of the death of Jesus from his neighbors only the following day. In the succeeding days, he went to Paranaque City after receiving a letter from his brother informing him of a job opportunity therein as gardener. Gertrudes Cabtalan (witness; mother of Benny): On July 11, 1999, she was in her farm in Brgy. Laygayon, Pinabacdao, Samar with her husband and Adriano’s mother, Pacita Ocenar. At around 9pm, Adriano arrived and confided to her that he attacked an injured person in said barangay. The next day, Adriano left and was never seen again. RTC: Benny convicted of the crime of Murder. Gave more credence to the testimonies of the prosecution’s 2 eyewitnesses since their positive declarations that the 2 accused stabbed Jesus were never refuted. Besides, the ad mortem statement of Jesus that the 2 stabbed him would serve to cleanse any doubt on their responsibility. Also telling is the fact that the 2 immediately fled to Catbalogan, Samar after the incident. There was the qualifying circumstance

of treachery since the attack upon Jesus who was unarmed and unsuspecting was without any warning. There is also the aggravating circumstance of superior strength as both accused held, subdued and attacked the 69-year-old defenseless Jesus. Conspiracy was evident since the 2 had common criminal intent and were united in its execution. Sentenced to death by lethal injection. The case against Adriano was sent to the archives and another alias warrant of arrest was issued. Benny was ordered transferred to the National Penitentiary. CA: Affirmed. Did not consider the aggravating circumstance of abuse of superior strength as the qualifying circumstance of treachery already absorbed it. Sentence reduced to reclusion perpetua. Benny insists that the evidence adduced to establish his culpability is not sufficient and credible. He posits that Wilfredo is not a credible witness because it took him three years to come out and reveal the identities of the alleged perpetrators without any adequate explanation for the delay. He likewise impugns the credibility of the prosecution witnesses since Wilfredo is a relative of the victim’s son-in-law while Jonalyn is a grandchild. In addition, Benny asserts that the prosecution’s evidence is glaring with inconsistencies. According to him, Wilfredo’s testimony that he and Adriano took turns in stabbing Jesus is diametrically opposed to Jonalyn’s declaration that only he stabbed Jesus. Furthermore, the testimony of Elena that she inquired from Jesus who his assailants were is inconsistent with her own affidavit and that of her sister, Julita, as the affidavits indicated that it was Julita and not Elena who asked their father about the identity of his assailants. ISSUES: 1. Whether treachery attended the killing as to qualify the crime to murder. 2. Whether the credibility of the witnesses should be upheld. 3. Whether Benny’s defense of alibi was properly rejected. 4. Whether Benny can escape liability by imputing the crime to Adriano. 5. Whether Jesus’s statement pointing to Benny as one of his assailants is admissible in evidence against Benny. RULING: 1. YES. 2. YES. 3. YES. 4. NO. 5. YES. It is a dying declaration admissible in evidence against the accused. RATIO: 1. TREACHERY ATTENDED THE KILLING OF JESUS. Murder is the unlawful killing by the accused of a person, which is not parricide or infanticide, committed with any of the attendant circumstances enumerated in Art. 248 of the RPC, among which is treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the victim might make. The essence of treachery is that the attack comes without a warning and in a swift, deliberate and unexpected manner, affording hapless, unarmed and unsuspecting victims no chance to resist/escape. In this case, it was established by the prosecution witnesses (see Annex of digest for the complete testimony) that Benny and Adriano were in the crime scene prior to the incident. They hid in a dark portion of the road and assaulted Jesus with their bolos while he was urinating with his back to them. They even held him by his shoulders to render him defenseless and unable to resist attack on him by his assailants. Jesus was unaware of the imminent peril to his life and was rendered incapable of defending himself. 2. THE TRIAL COURT’S ASSESSMENT OF WITNESSES USUALLY REMAINS UNDISTURBED. Benny: The prosecution’s evidence is glaring with inconsistencies. Wilfredo’s testimony that he and Adriano took turns in the stabbing is diametrically opposed to Jonalyn’s declaration that only he stabbed Jesus. SC: Both the RTC and the CA concluded that Wilfredo and Jonalyn deserve credence as both narrated in a straightforward manner the details of the attack. The inconsistency argued by Benny pertains merely to the manner the fatal stab wounds were inflicted on Jesus. The materiality of the assailants’ exact position during their attack on the victim is a trivial and insignificant detail which cannot defeat the witnesses’ positive identification of Benny as one of the assailants. Besides, it is perfectly natural for different witnesses testifying on the occurrence of a crime to give varying details as there may be some details which one witness may notice while the other may not observe/remember. A perfect dovetailing of narration by different witnesses could mean that their testimonies were fabricated and rehearsed. Benny: Wilfredo is not a credible witness because it took him 3 years to come out and reveal the identities of the alleged perpetrators without any adequate explanation for the delay. SC: The proceedings in the case was suspended for 2 years because the accused left Pinabacdao and the warrant for their arrest could not be served on them. Also, deference or reluctance in reporting a crime does not destroy the truth of the charge nor is it an indication of deceit. Delay in reporting a crime or an unusual incident in a rural

area is well-known. It is common for a witness to prefer momentary silence for fear of reprisal from the accused. Wilfredo fulfilled his duty as a good member of society by aiding the family of Jesus when they were seeking justice. In the absence of other circumstances that the charge was a mere concoction and that Wilfredo was impelled by evil motives, delay in testifying is insufficient to discredit his testimony. Benny: Wilfredo is also a relative of Jesus’ son-in-law while Jonalyn is a grandchild. SC: Relationship per se does not evince ulterior motive nor does it ipso facto tarnish the credibility of witnesses. It cannot militate against the credibility of witnesses or be taken as destructive of their credibility. What matters is both positively identified Benny and Adriano as the assailants and that they testified in a straightforward manner. These indicate that the 2 were telling the truth. Benny: The testimony of Elena that she inquired from Jesus who his assailants were inconsistent with her own affidavit and that of her sister, Julita, as their affidavits indicated that it was Julita who asked their father about the identity of his assailants. SC: The affidavits or statements taken ex parte are generally considered incomplete and inaccurate. By nature, they are inferior to testimony given in court and whenever there is inconsistency between the affidavit and the testimony of a witness in court, the latter commands greater weight. The RTC did not err in affording more credence to Elena’s testimony given in open court despite her inconsistent affidavit. Appellate courts do not disturb the findings of trial courts with regard to the assessment of credibility of witness as the trial courts have the unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination. 3. BENNY’S ALIBI WAS PROPERLY REJECTED. Alibi is the weakest of all defenses since it is easy to concoct and difficult to disprove. To prosper, proof that accused was in a different place at the time the crime was committed is insufficient. There must be evidence that it was physically impossible for him to be within the immediate vicinity of the crime during its commission. Benny did not satisfactorily demonstrate that it was physically impossible for him to be at the locus criminis at the night of its commission. While he denies being at the scene of the crime when it happened, he claims to be within a reasonably near area which is his residence in Brgy. Pilaon, more or less 3.5km away from the scene of the crime. He even testified that such distance can be covered in an hour’s walk. Furthermore, his alibi is uncorroborated by a credible eyewitness. Lastly, alibi becomes weaker in the face of positive identification made by witnesses for the prosecution, as in this case. 4. BENNY CANNOT EXCAPE LIABILITY BY IMPUTING THE CRIME TO ADRIANO. Benny: Adriano was solely responsible for the murder of Jesus. SC: Such a claim is common among conspirators in their veiled attempt to escape complicity. It is a desperate strategy to compensate for a weak defense. Its obvious motive is to distort the truth and frustrate the ends of justice. 5. The victim’s statement, pointing to Benny as one of his assailants, before his death is a dying declaration that is admissible evidence against Benny. A dying declaration is an evidence of the highest order. It is entitled to the utmost credence on the premise that no person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts on concocting lies disappear. DISPOSITIVE: Conviction affirmed. ANNEX Wilfredo’s testimony Q. What else did you observe while the dogs were barking? A. While the dogs were barking, I saw two (2) persons who were [circling] the house of Elena Raypan, they were walking back and forth in front of the house of Elena Raypan. Q. Were you able to recognize these two (2) persons walking back and forth near the house of Elena Raypan? A. Yes, sir. Q. Who were they? A. Benny Cabtalan and Adriano Cabrillas. Q. How did you recognize them? A. Because the house was lighted. Q. After they were going back and forth in front of the house of Elena Raypan, where did these persons go? A. They went to the dark portion of the road. xxxx Q. After they went to the dark portion of the road, what did you observe next? A. They just stood by [there]. Q. After that what happened next? A. I saw Jesus Cabujat walking towards the house of Elena Raypan.

Q. Was he alone? A. He was accompanied by a child. xxxx Q. When you saw Jesus Cabujat walking towards the house of Elena Raypan, what did Jesus Cabujat do before going to the house of Elena Raypan? A. When Jesus Cabujat reached the place where the two persons Benny [Cabtalan] and Adriano Cabrillas were standing, Jesus Cabujat urinated. xxxx Q. To what direction was he facing? A. He was facing towards the grassy area. Q. What happened while Jesus Cabujat was urinating as you said? A. That’s the time when Jesus Cabujat was held on his shoulder. xxxx Q. Who held the left shoulder of Jesus Cabujat? A. Benny Cabtalan. xxxx Q. [H]ow about Adriano Cabrillas, what did he do? xxxx A. He also stabbed the victim. Q. Were you able to see the weapon used by Benny Cabtalan? A. Yes, sir. Q. What was the weapon used? INTERPRETER: The witness demonstrated that it was more or less 14 1⁄2 inches. Q. That includes the handle? A. Yes, sir. xxxx Q. How many times did Benny Cabtalan stab the victim? A. Three (3) times. Q. How about Adriano Cabrillas? A. Three (3) times also. Q. From the first blow of Benny Cabtalan to the first blow of Adriano Cabrillas, how long did it take? A. It just happened so quickly; as the first one delivered his stab blow the other one also delivered his stab blow, alternately stabbing the victim. Q. So, what happened to Jesus Cabujat? A. He asked for help and said: "I am wounded, please help me because (I) was stabbed by Benny Cabtalan and Adriano Cabrillas." Q. After he shouted what happened to him. A. After that he fell down. Q. How about Benny Cabtalan and Adriano Cabrillas, what did they do when Jesus Cabujat fell down? A. When Jesus Cabujat shouted for help, that was the time the two (2) culprits [fled]. Q. To what direction? A. To the route going to a farm. Jonalyn’s testimony corroborating Wilfredo’s Q. When you x x x [reached] your house, what did your lolo do? A. He went across the street and urinated there and saw Benny also on the street. Q. Was Benny alone? A. [There] were two (2) of them. Q. Do you recognize the other one? A. Yes, sir. Q. Who? A. It was Adriano. Q. Do you know the surname of Benny? A. Cabtalan. Q. How about Adriano, do you know the surname of Adriano? A. I cannot remember. Q. Why do you know the surname of Benny Cabtalan? A. Because my father and his father are cousins. Benny and my father are cousins. xxxx Q. You saw them also in the street while your lolo was urinating so, what did Benny and Adriano do at that time? A. They held both arms of my grandfather. xxxx Q. And after holding x x x your grandfather, what did Benny do if any? A. They suddenly stabbed my lolo. Q. With what? A. It was a long bolo.

ZARATE VS. GINGOOG CITY, Peralta, J. Concept: Dying Declaration SUMMARY: Zarate stabbed Guiritan. After Guiritan almost died of the wounds but lived because of timely medical assistance. The morning after the stabbing and after surgery, SPO1 Alecha took the ante-mortem statement of Guiritan. The latter said that it was Zarate that stabbed him and that he felt he would die. The TC, CA, and SC held such statement as part of the res gestae. DOCTRINE: A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances. The circumstances show that the statement was taken a few hours after the operation when he regained consciousness. His statements were still the reflex product of immediate sensual impressions so that it was the shocking event speaking through him, and he did not have the opportunity to concoct or contrive the story. His statement is admissible as part of the res gestae. It was signed by Guiritan and its date was established by SPO1 Alecha. (This case is under Dying declaration but nothing in the case discusses it. So maybe Ma’am will ask if the antemortem statement can be taken as a dying declaration despite the fact that Guiritan survived and it was done after the medical operation.) FACTS: At 10:00p.m. of April 1, 1994, Good Friday, Ernesto Guiritan, a gay beautician, was alone on a bench outside the Sta. Rita Church. Arthur Zarate asked Guiritan for a cigarette. Guiritan could not produce one. Zarate immediately stabbed him with a switchblade knife and ran away. Remigoso and Binasbas came to his aid. Guiritan was brought to the Gingoog District Hospital, where Dr. Santua and Dr. Babanto attended to him. Dr. Babanto said that Guiritan’s sustained a 2.5 centimeter stab wound at the upper part of the small intestine and middle colon which would have caused his death if not for the immediate medical intervention. He also had a deep laceration on his penis. Blood transfusion was required; otherwise, he would have died of hypovolemic shock. 5:00 a.m. the next day, Dr. Babanto operated on Guiritan which ended at 7:30 a.m. In the morning of that day, SPO1 Alecha went to the hospital to take the ante-mortem statement of Guiritan, who, at that time, was lying down and feeling weak. The investigation was conducted in the Cebuano dialect and the questions and answers were written down by Alecha. Guiritan stated that he felt “as if he would die” from his wound and that “Ating Arthur Zarate” was the one who stabbed him. The inquiry was conducted in the presence of Dr. Babanto. The statement was signed by Guiritan and Dr. Babanto. Guiritan was confined for 3 weeks. Guiritan testified that he recognized Zarate because he used to see him during the town fiestas of Misamis Oriental playing hantak. Guiritan’s friend, Maximo, who was a parlor proprietor, told him Zarate’s name. Also, a month before the stabbing, Guiritan had an accidental “sexual affair” with Zarate, who, after, asked him for money, but Guiritan had no money at that time. Zarate put up the defense of alibi; that he was near his house helping decorate the altar for the Station of the Cross. Zarate’s house was 200 meters away from the Sta. Rita Church, which would take less than five minutes by foot The trial court did not find Zarate guilty of frustrated murder as charged, absent proof of evident premeditation and/or treachery that was alleged in the Information. Instead, Zarate was found guilty beyond reasonable doubt of the crime of frustrated homicide. The CA affirmed. Zarate contends in the SC that the CA erred in upholding the trial court’s decision that the ante-mortem statement of Guiritan was part of the res gestae since the statement was taken after the operation of Guiritan in the hospital, which operation affected his mental and physical condition. Also, there were no witnesses presented to support the claim of Guiritan that Zarate stabbed him. ISSUES: Whether or not Guiritan’s ante-mortem testimony is part of the res gestae. RATIO: Yes, because all the elements of Res Gestae are present. RULING: A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.

Guiritan lost consciousness when he was brought to the hospital and regained consciousness the following morning after the operation. The hospital records showed that the operation started at 5:00 a.m. and ended at 7:30 a.m. of April 2, 1994. SPO1 Alecha testified that it was in the morning of April 2, 1994 that he took the statement of Guiritan reproduced below: Q. Nakaila ka ba kun kinsay nagdunggab nimo? (Do you know who stabbed you?) A. Ho-o, si Tating Cuerdo Zarate ug aduna siyay kauban. (Yes, Tating Cuerdo Zarate and he had a companion.) xxxx Q. Ikamatay mo ba kining imong samad? (Are you going to die of your wound?) A. Morag.(As if.) SPO1 Alecha testified that he had to put his ear near Guiritan’s mouth so that he could hear Guiritan’s answers as he was catching his breath. The circumstances show that the statement was taken a few hours after the operation when he regained consciousness. His statements were still the reflex product of immediate sensual impressions so that it was the shocking event speaking through him, and he did not have the opportunity to concoct or contrive the story. His statement is admissible as part of the res gestae. It was signed by Guiritan and its date was established by SPO1 Alecha. Also, Zarate is wrong in saying that such declaration was the sole basis for his conviction. Guiritan Zarate in open court and testified that Zarate was the one who stabbed him and that he knew him even before the stabbing incident. Conviction of the accused may be had on the basis of the credible and positive testimony of a single witness. PHYSICAL IMPOSSIBILITY ALSO NOT PROVEN (ACCUSED WAS JUST 200M AWAY FROM THE CRIME SCENE) The trial court correctly found Zarate guilty of the crime of frustrated homicide instead of the charge of frustrated murder, absent any proof of treachery or evident premeditation alleged in the Information to qualify the crime to frustrated murder. DISPOSITIVE: Petition DENIED. Zarate is found guilty beyond reasonable doubt of frustrated homicide. JESUS GERALDO AND AMADO ARIATE v. PEOPLE [GR NO. 173608] | [NOVEMBER 20, 2008] | [J. CARPIO-MORALES] A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarant's 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 declarant's death. There is no dispute that the victim's utterance to his children related to the identities of his assailants. As for the victim's 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. 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 postmortem examination report having merely stated that the points of entry of the wounds were at the "right lumbar area" and the "right iliac area." FACTS 

Petitioners Jesus Geraldo and Amado Ariate were charged with Homicide allegedly committed as follows: o At about 3:00 o'clock early morning, the accused, conspiring and mutually helping one another, armed with handguns and with intent to kill, did, then and there, willfully, unlawfully and feloniously shoot one ARTHUR U. RONQUILLO, thereby hitting and inflicting wounds which have caused the instantaneous death of said victim.

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His wife, daughter Mirasol, and son Arnel, among other persons, on being informed of the shooting of Arthur Ronquillo (the victim), repaired to where he was, not far from his residence, and found him 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 PNP Crime Laboratory which reported a negative result for both of the accused. The victim's son Arnel gave a statement that herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father. In another document, Mirasol also gave a statement that her father uttered that herein petitioners shot him. 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: o Petitioner Ariate, a barangay tanod of Bunga, declared that Barangay Kagawad Omboy Roz woke him 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. o Petitioner Geraldo declared that he slept in his house located also in Barangay Bunga, Lanuza 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. In the course of the testimony of Ariate, his counsel presented the PNP Chemistry Report reflecting the negative results of the paraffin test on him and Geraldo. o In the Pre-trial Order, the trial court noted the parties' agreement "that witnesses not listed in this Pre-trial Order shall not be allowed to testify as additional witnesses." o Significantly, there was no agreement to disallow the presentation of documents which were not reflected in the Pre-trial Orders. o At all events, oddly, the trial court allowed the marking of the PNP Chemistry Report as Exhibit "3" when Ariate’s counsel moved to tender exclusive evidence the paraffin test. When petitioner Geraldo's turn to present the same PNP Chemistry Report came, the trial court ruled: o There is a problem in the Pre-Trial Brief if the exhibits are not stated. It will set aside that Order but in the interest of justice, RTC allowed the accused to submit. o The version of the defense was in part corroborated by witnesses. o Passing on the demeanor of the victim's eight-year old daughter Mirasol, RTC observed that she talks straightforward, coherent and clear, very intelligent, with child mannerisms. While testifying she was criss-crossing her hands, touching anything within her reach, innocent and simple, pressing off and on her stomach but she talks with correct grammar. Her testimony which was corroborated by her brother Arnel Ronquillo. o A dying declaration may be oral or in writing. As a general rule, a dying declaration to be admissible must be made by the declarant while he is conscious of his impending death. However, even if a declarant did not make a statement that he was on the brink of death, the degree and seriousness of the wound and the fact that death supervened shortly afterwards may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition (People vs. Ebrada). o Even assuming that the declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae since it was made shortly after the startling occurrence and under the influence thereof, hence, under the circumstances, the victim evidently had no opportunity to contrive. Trial court convicted petitioners of the crime of Homicide penalized under Article 249 of the RPC and with the presence of one aggravating circumstance of night time. CA affirmed with modification the trial court's decision. It found that the trial court erred in appreciating nocturnity as an aggravating circumstance.

ISSUE Whether or not the identities of the accused as the alleged assailant has been adequately established? -NO

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PETITIONERS: o Petitioners disagree with the holding of 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, so petitioners contend, 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. o 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. o What the CA 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. o Petitioners believe, that even assuming that there are no other "BADJING" or "AMADO" in the barangay, still o it does not follow that the persons referred to by the dying declarant as his assailant were Jesus Geraldo alias "BADJING" and Amado Ariate alias "AMADO". Although, it is inconceivable how the CA arrived at the said conclusion that there are no other "BADJING AMADO" and/or "BADJING AND AMADO" in the barangay absent any proof to that effect from the prosecution. SC agrees with the petitioner. A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarant's 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 (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant's death. There is no dispute that the victim's utterance to his children related to the identities of his assailants. o As for the victim's consciousness of impending death, it is not necessary to prove that he stated that he was at the brink of death. o 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. o 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. It has not been established, however, that the victim would have been competent to testify had he survived the attack. o There is no showing that he had the opportunity to see his assailant. o 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."  "Lumbar" may refer to "the loins" or "the group of vertebrae lying between the thoracic vertebrae and the sacrum," or to "the region of the abdomen lying on either side of the umbilical region and above the corresponding iguinal." "Iliac" relates to the "ilium," which is "one of the three bones composing either lateral half of the pelvis being in man broad and expanded above and narrower below where it joins with the ischium and pubis to form part of the actabulum." At all events, even if the victim's dying declaration were admissible in evidence, it must identify the assailant with certainty. Otherwise it loses its significance. o 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. o CA 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"

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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." Contrary, however, to the 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. 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 victim's fate raises reasonable doubt as to his guilt of the crime charged.

DECISION: WHEREFORE, the petition is GRANTED. CA decision is REVERSED and SET ASIDE. Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED of the charge of Homicide for failure of the prosecution to establish their guilt beyond reasonable doubt. DECLARATION AGAINST INTEREST 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 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. Regalado Admission against interest Those made by a party to a litigation or by one in privity with or identified in legal interest with such party. Admissible whether or not the declarant is available as a witness.

Declaration against interest Those made by a person who is neither a party nor in privity with a party to the suit. Admissible only when the declarant is unavailable as a witness. Secondary evidence but constitute an exception to the hearsay rule.

1. Requisites: a. The declarant is dead or unable to testify; b. It relates to a fact against the interest of the declarant; c. At the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; d. The declarant had no motive to falsify and believed such declaration to be true. 2. It is the opposite of a self-serving declaration, which is a statement favourable to or intended to advance the interests of the declarant. Such a declaration is, consequently, inadmissible as being hearsay, if the declarant is unavailable as a witness.

3. People v. Toledo and Holgado: A declaration admitting that he was the one who killed the victim, made by a declarant who died shortly thereafter, is admissible where another person was subsequently charged as the killer of the same victim, under the theory that said declaration was one against the penal interest of the declarant. [Francisco] 1. Reason for the rule: a. The necessity of the occasion renders the reception of such evidence advisable b. The reliability of such declaration asserts facts which are against his own pecuniary or moral interest. 2. Reasons for the admissibility in evidence of declarations against pecuniary or proprietary interest: a. Necessity – because such declaration act or omission is frequently the only mode of proof available. b. Trustworthiness – men will neither falsify nor commit mistakes when such falsehood or mistake would be prejudicial to their own pecuniary interest, and because of the fact that any fraudulent motive for making the statement may be shown. 3. Declaration against interest distinguished from admission

Declaration against interest MUST be against interest Declaration against interest of a DECEASED person Admissible against third persons

Admission Not necessarily against the interest of the person who made the admission May be used although the admitter is still alive May be used only against the admitter and those identified with him in legal interest

4. Declaration against interest distinguished from self-serving declaration Declaration interest

against

Admissible in evidence notwithstanding its hearsay character, only if the declarant has died, become insane, or for some other reason is not available as a witness. Admissible as an entirety including parts not against interest, if the latter are substantially connected with the same subject matter as that covered by the part against interest.

Self-serving declaration Statement favourable to the interest of the declarant Not admissible in evidence as proof of the facts asserted since its introduction in evidence would open the door to frauds and perjuries

5. This provision has been expanded to include all kinds of interests: pecuniary, proprietary, moral or penal interests. 6. Requisites for the admissibility of declarations against interest a. Declarant must not be available to testify. b. Declaration must concern a fact cognizable by declarant. i. Declarations or statements of facts, made by a deceased person, at variance with his interest, which he is presumed to have had a competent knowledge of, or which it was his duty to know, and in respect to which he could have been examined as a witness

7.

8.

9. 10. 11.

if alive, are, if pertinent to the matter of inquiry, admissible in evidence as between third persons, whether made at the time of the fact declared, or afterward. c. The circumstances must render it improbable that a motive to falsify existed. i. There must be circumstantial guaranty of the trustworthiness of the declaration. ii. Where there exists both a selfserving and a self-disserving interest, the latter must preponderate over the selfserving interest. iii. It is essential to the relevancy of the declaration that the fact asserted therein was at the time it was made so far contrary to declarant’s own interest that a reasonable man in his position would not have made the declaration unless he believed it to be true. iv. Test of reliability of declaration: whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify. Declaration against pecuniary interest a. Those which may bar in whole or in part the declarant’s money claim, or which may give rise to a monetary claim against him b. Ex: Where he acknowledges that his credit is already paid, or that he is indebted to some person. Declaration against proprietary interest a. Those which are at variance with the declarant’s property rights b. Ex: where he, being in possession of a chattel or a piece of land, declares that he is not the owner thereof, or that he is holding it as a mere trustee, or that he has already sold it, and the like. c. Usually involve declarations in derogation of an apparent property interest. Declarations against moral interest Declarations against penal interest Form of declaration: may be oral or written

Lichauco v. AGPC (1949) – Ozaeta, J. Petitioner: estate of the deceased Richard T. Fitzsimmons with Lichauco as administrator Respondents: Atlantic, Gulf & Pacific Company of Manila Concept: Concept: Declarations against interest Brief Facts: Fitzsimmons was the president and stockholder of Atlantic when the Pacific war broke out. He held shares but some were not fully paid for, but for which he had executed promissory notes. When he died, Atlantic filed

a claim against his estate which is under the administration of Lichauco. The claim consist of 63, 000 from overdraft which was supported by 2 testimonies and P867.67 for charges from San Francisco agent of the company. Atlantic presented testimonies of the accountant and assistant accountant and also tried to present the testimonies of the current president and vice-president-treasurer of the company but upon objection of the administrator the trial court refused to admit their testimony on that point on the ground that said witnesses were incompetent under section 26(c) of Rule 123. For the administrator, he presented his testimony and exhibit 1 which is a carbon copy of the inventory of assets and liabilities of the conjugal partnership of Fitzsimmons which is submitted to court in the divorce proceedings of Fitzsimmons marriage. Lichauco also filed a counterclaim for salaries allegedly due to the deceased during the time of war and the company is closed. SC ruled that TC erred in not admitting the testimonies of officers and stockholders. Exhibit 1 is a declaration against an interest and thus admissible. The claim of 63, 000 was not duly proven but the claim of P867.67 was sufficiently prove. The deceased is not entitled to the salaries claimed. Doctrines: A. Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors of parties, then officers and/or stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person B. A self-serving declaration is a statement favorable to the interest of the declarant. It is not admissible in evidence as proof of the facts asserted. "The vital objection to the admission of this kind of evidence is its hearsay character. On the other hand, a declaration against the interest of the person making it is admissible in evidence, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness. The true test in determining whether evidence can be admitted is whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify. FACTS: 1. Atlantic, Gulf and Pacific Company of Manila is a foreign corporation duly registered and licensed to do business in the Philippines, with its office and principal place of business in the City of Manila. 2. Richard T. Fitzsimmons was the president and one of the largest stockholders of said company when the Pacific war broke out on December 8, 1941. As such president he was receiving a salary of P3,000 a month. He held 1,000 shares of stocks, of which 545 shares had not been fully paid for, but for which he had executed promissory notes in favor of the company aggregating P245,250, at the rate P450 a share. 3. In 1941 the sum of P64,500 had been credited in his favor on account of the purchase price of the said 545 share of stock out of bonuses and dividends to which he was entitled from the company 4. Under his agreements with the company, should he die without having fully paid for the said 545 shares of stock, the company, at its option, may either reacquire the said 545 shares of stock by returning to his estate the amount applied thereon, or issue in favor of his estate the corresponding number of the company's shares of stock equivalent to the amount paid thereon at P450 a share. 5. Soon after the Japanese army occupied Manila in January, 1942, it seized and took possession of the office and all the properties and assets of the Atlantic and interned all its officials, they being American citizens 6. Richard T. Fitzsimmons died on June 27, 1944, in the Santos Tomas interment camp, and special proceeding No. 70139 was subsequently instituted in the Court of First Instance of Manila for he settlement of his estate. 7. Atlantic filed a claim of P63, 868.67 against the estate of Fitzsimmons. P 63,000 of it for the personal overdraft of Fitzsimmons with Atlantic and P867.67 for charges from San Francisco agent of the company (P1,002), less subsequent credit advice from San Francisco agent (P133.33) 8. In the same claim Atlantic offered to require the 545 shares sold to the deceased Fitzsimmons upon return to his estate of the amount of P64,500 paid thereon, and asked the court to authorize the setoff of the amount of its claim of P63,868.67 from the amount of P64,500 returnable to the estate. 9. In his answer to the amended claim the administrator denied the alleged indebtedness of the deceased to the claimant, expressed his conformity to the refund of P64,500 by the claimant to the estate and the retransfer by the latter to the former of the 545 shares of stock, and set up a counterclaim of P90,000 for salaries allegedly due the deceased from the claimant corresponding to the years 1942, 1943, and the first half of 1944, at P36,000 per annum. Narration of Evidence and testimonies presented: EVIDENCE OF CLAIMANT ATLANTIC: 2 TESTIMONIES Note: All the books, receipts, papers, documents, and accounts referring to the personal account of Mr. Fitzsimmons were lost during the war. 1. Santiago Inacay – chief of accounting department; In his recollections of the personal account of Mr. Fitzsimmons, as of the last statement of account rendered in the year 1941, it was around P63,000. Though he admitted that he could not recollect the balance of each Americans and employees, he claimed to remember the status of the personal account of Mr. Fitzsimmons because Mr. Fitzsimmons was the president and member of the board of directors and it is very shameful if he could not remember it when said officer and other officers of the company come around and ask him about their balance.

2. Modesto Flores – assistant accountant of Atlantic; he remembered that the personal account of Mr. Fitzsimmons on December 29, 1941, was on the debit side, amounting to P63,000 more or less, according to his best recollection 3. Claimant Atlantic also called as witnesses Mr. Henry J. Belden and Mr. Samuel Garmezy, vice-president-treasurer and president, respectively, of the Atlantic, to testify on the status of the personal account of the deceased Fitzsimmons with the company as of December, 1941; but upon objection of the administrator the trial court refused to admit their testimony on that point on the ground that said witnesses were incompetent under section 26(c) of Rule 123, they being not only large stockholders and members of the board of directors but also vice-president-treasurer and president, respectively, of the claimant company. Thus, the counsel for Atlantic just stated in the record that Mr. Belden and Mr. Garmezy, if permitted to testify, would testify that The account of Mr. Fitzsimmons had a debit balance of P63,000. Both ratified above statement. EVIDENCE OF ADMINISTRATOR: EXHIBIT 1 AND 1 TESTIMONY 1. EXHIBIT 1: carbon copy of the inventory of the conjugal assets and liabilities, which was signed by Fitzsimmons, and filed in the CFI of Manila and admitted by the trial court in the divorce proceeding against Miguela Malayto; the P63,000 claim of Atlantic is not listed in the liabilities declared by Fitzsimmons 2. Atty. Marcial P. Lichauco - administrator of deceased estate; he explains the circumstances under which said document was prepared and signed by the deceased Fitzsimmons; as attorney for Mr. Fitzsimmons in the divorce case he prepared the said inventory from the data furnished him by Mr. Fitzsimmons after he had conferred with and explained to the latter why it was necessary to prepare said inventory, telling him that under the divorce law the conjugal properties had to be liquidated and that he made it very clear to Mr. Fitzsimmons that he should not forget the obligations he had because they would diminish the amount his wife was going to receive, and that any obligation not included in the inventory would be borne by him alone after his wife had received her share. ISSUES and RULING: 1. Whether or not the officers of a corporation which is a party to an action against an executor or administrator of a deceased person are disqualified from testifying as to any matter of fact occurring before the death of such deceased person, under Rule 123, section 26(c), of the Rules of Court? NO. 2. Whether or not Exhibit 1 (liquidation of conjugal properties) is admissible? YES 3. Whether or not Atlantic's claims of P63,000 and P868.67 have been established by satisfactory evidence? No to P63,000; Yes to P868.67 4. Whether or not the deceased Richard T. Fitzsimmons was entitled to his salary as president of the Atlantic from January, 1942, to June 27, 1944, when he died in the Santo Tomas internment camp? NO RATIO: 1. No, the president and vice president-treasure may testify and their testimony should not have been disqualified by the trial court. - Although, in common law, interest disqualified a person from being a witness, that rule has been modified by statute. In this state interest is no longer a disqualification, and the disqualifications are only such as the law imposes. - Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors of parties, then officers and/or stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. - City Savings Bank vs. Enos decided by SC of California ruled that such provision applies only to parties or assignors of parties, and not to a stockholder for interest does not disqualifies. - Merriman vs. Wikkersman: It neither disqualifies parties to a contract nor persons in interest, but only parties to the action. Such rule does not exclude from testifying a stockholder of a corporation, whether he be but a stockholder, or whether, in addition thereto, he be a director or officer thereof. 2. Yes, Exhibit 1 is a declaration against an interest and thus admissible - Atlantic contends that Exhibit 1 is a self-serving declaration, while administrator Lichauco contends that it is a declaration against interest. - A self-serving declaration is a statement favorable to the interest of the declarant. It is not admissible in evidence as proof of the facts asserted. "The vital objection to the admission of this kind of evidence is its hearsay character. Furthermore such declarations are untrustworthy; to permit their introduction in evidence would open the door to frauds and perjuries." - On the other hand, a declaration against the interest of the person making it is admissible in evidence, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness." - The true test in reference to the reliability of the declaration is not whether it was made ante litem motam , as is the case with reference to some classes of hearsay evidence, whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify." - Insofar, at least, as the Fitzsimmons was concerned, there was no probable motive on the part of Fitzsimmons to falsify his inventory Exhibit 1 by not including therein Atlantic’s present claim of P63,000

among his obligations or liabilities to be deducted from the assets of the conjugal partnership between him and his divorced wife. It would even be unfavorable to him because such liabilities will be borne by him alone. Hence, Exhibit 1, insofar as the ommission therefrom of the claim in question was concerned, far from being self-serving to, was a declaration against the interest of, the declarant Fitzsimmons. He having since died and therefore no longer available as a witness, said document was correctly admitted by the trial court in evidence. 3. P63,000 not proven; P868.67 sufficiently proven - There is no reason to doubt the good faith of the witnesses of the claimant and administrator Lichauco. However, there is a possible explanation of this seemingly irreconcilable conflict, which in the absence of other proofs is considered satisfactory but which both parties seem to have overlooked. - In the testimony during direct examination of Santiago Inacay, he explained that at the end of each year, after the declaration of dividends, bonuses, and director's fees, the account of Fitzsimmons was brought up to a credit balance. In other words, at the start of the following year the account will be on the credit side. Unfortunately, no counsel pursued this statement. But enough appears in his testimony to warrant the deduction that had the war not forced the corporation to close office on December 29, 1941, dividends, bonuses, and director's fees for the year 1941 would, as of the and of that year, have been declared and credited to the account of Fitzsimmons, which as in previous years would or might have brought that account on the credit side. - Probably the reason why Fitzsimmons did not include or mention any obligation in favor of his own corporation in his inventory Exhibit 1 was that he believed he was entitled to be credited by said corporation with dividends, bonuses, and director's fees corresponding to the year 1941, which as in previous years would bring his account on the credit side. - Fitzsimmons was justified in considering his account was having to all intends and purposes been brought on the credit side; because if such dividends, bonuses, and director's fees had been earned, the fact that they were not actually declared and credited to him, should not prejudice him the subsequent loss of the company's properties and assets as a result of the war should be borne by the company and not by its officers. - Note: Recognizing the fraility and unreliability of human memory especially with regard to figures, after the lapse of more than five years, there is no sufficient basis upon which to reverse the trial court's finding that this claim had not been satisfactorily proven. - However, the claim of P868.67 was sufficiently proven as it was supported by documents (debit notices of the deposits). 4. No, Fitzsimmons is not entitled to such salaries claimed 5. There was no resolution either of the stockholders of the board of directors of the company authorizing the payment of the salaries of the president or any other officer or employee of the corporation for the period of the war when the corporation was forced completely to suspend its business operations and when its officers were interned or virtually held prisoners by the enemy. - There is no principle of law that would authorize the court to compel a corporation, which for a long period was not in operation and did not receive any income, to pay the salaries of its officers during such period, even though they were incapacitated and did not perform any service. To do so would be tantamount to depriving the corporation or its stockholders of their property without due process of law. DISPOSITIVE: The appellant Atlantic, Gulf and Pacific Company of Manila is ordered to pay to the administrator the sum of P64,500 upon the retransfer by the latter to the former of the 545 shares of stock purchased by the decedent in 1939. The administrator is ordered to pay to the said company the sum of P868.67. The claim of the company against the estate for P63,000 and the counterclaim of the estate against the company for P90,000 are disapproved.

People v. Toledo and Holgado. Justice Malcolm Concept: Declarations against interest Brief Facts: Sisendo Holgado and Filomeno Morales engaged in a bolo duel in the morning of June 15, 1927. The two had had disputes about the occupation of a certain land in Pinamalayan, Mindoro. Filomeno Morales died as a result of the duel. Sisendo Holgado was seriously wounded but was able to proceed to a neighboring house. But before reaching said house, Sisendo met one of his workers named Eugenio Toledo, who accompanied him to the neighboring house owned by Dalmacio Manlisic. From the neighboring house, Holgado was taken to the municipal building where he madfe a sworn statement before the municipal president, in which he declared that only he and Morales fought. About one month later, Sisendo Holgado died from the wounds received in fight. The CFI Mindoro found Eugenio Toledo guilty of the crime of homicide. On appeal to the SC, Toledo's counsel raised the issue of the admissibility of Holgado's sworn statement/ affidavit before the municipal president. The SC acquitted Holgado and stated that the affidavit should be admitted as a statement of a fact against penal interest.

DOCTRINE: The declarant made the statement before the municipal president before he died and that it was clearly against his interest because it had the effect of exonerating Eugenio Toledo from liability. Declarant was also aware of this fact and knows this to be true because otherwise, he wouldn’t have made such a statement. Here the declarant is deceased and his statements were made under oath. They also read in such a way as to ring with the truth. FACTS: 1. Sisendi Holgado (HOLGADO) and Filomeno Morales (MORALES) had had disputes about the occupation of a certain land in Pinamalayan, Mindoro. 2. On the morning of 15 June 1927, HOLGADO and MORALES met. The argument was renewed and they agreed to fight. They engaged in a bolo duel with a fatal result for MORALES, who was killed instantly. 3. HOLGADO was also seriously wounded but was able to proceed to a neighboring house. Before reaching the neighboring house, HOLGADO met one of his workers named Eugenio Toledo (TOLEDO). TOLEDO accompanied HOLGADO to the house of one Dalmacio Manlisic. 4. From Manlisic's house, HOLGADO was taken to the municipal building where he made a sworn statement3 [please read the sworn statement of HOLGADO], made originally in Tagakig, before the municipal president, in which he declared that only HOLGADO and MORALES fought. 5. About one month later, HOLGADO died from the wounds he received in the bolo duel. 6. The disputable point is whether TOLEDO intervened in the quarrel and dealt a mortal blow to MORALES. 7. The CFI of Mindoro found TOLEDO guilty of the crime of homidice. PROSECUTION: Presented (1) Justina Villanueva, the querida of MORALES, who testified to the presence and participation of Toledo; (2) Justina Llave, who partially corroborated Justina's testimony. DEFENSE: 1. TOLEDO was in another place when the bolo duel occurred; 2. TOLED's only participation was on meeting HOLGADO, who was his landlord or master, in helping him go to a nearby house. 3. The above two statements of defense were corroborated by Conrado Holgado, son of Sisendo HOLGADO. 4. Presented the AFFIDAVIT of HOLGADO, Exhibit I, which was identified by the municipal president. ISSUES: 1. Did the CFI err in not admitting in evidence Exhibit I? 2. Did the CFI err in not finding that TOLEDO did not participate in the fight between HOLGADO and MORALES, resulting in the death of MORALES? 3. Did the lower court err in not giving TOLEDO the benefit of a reasonable doubt? 3 AFFIDAVIT I. Sisenando Holgado, married, of legal age, and resident of this municipality of Pinamalayan, Province of Mindoro, P. I., after being sworn in accordance with law, state the following: My additional homestead situated in Calingag was cleaned by me and is at present planted with palay (rice), on which I also plant hemp, but the hemp planted by my workers is frequently uprooted by Filomeno Morales who claims that said land is his, whereas when I was cleaning said land nobody objected to it, but now that it is already cleaned, Filomeno Morales says that one-half of the land occupied by me is his; for this reason I decided to see Filomeno Morales about this matter and when I talked to him this morning (Wednesday) at about nine o'clock, at the hemp plantation of Victorio Saudan situated in Calingag, he told me that if I should plant there anything he would cut my neck, and to this I answered that if he was going to cut my neck we would fight and thereupon he stabbed me with a penknife and then I slashed at him; after this we separated, and went to Dalmacio Manlisic's house. When we fought, there was nobody present. Question by president: When you went to the house of Dalmacio Manlisic, did you not meet anybody before reaching said house? Answer: I met one of my workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic. Question by president: How do you know that the hemp you planted on your land above-mentioned was frequently uprooted by Filomeno Morales? Answer: Because he said as to my worker named Eulogio Supleo. Question by president: Do you have anything more to say about the incident? Answer: No more. In testimony of all that I stated above, I signed this document in the presence of two witnesses and then swore to it in the presence of the municipal president here at Pinamalayan, Mindoro, this June fifteenth, nineteen hundred twenty-seven.

His SISENANDO HOLGADO Mark In the presence of: (Sgd.) ILLEGIBLE HILARION NIEVA Signed and sworn to before me, this June fifteenth, 1927. (Sgd.) ILLEGIBLE Municipal President

[In short, was the conviction correct?] RULING: TOLEDO did not commit the crime of homicide. RATIO: [The SC presented the three divergent views of the Justices which all point to TOLEDO's acquittal] First view: The view of CJ Avancena and Justice Villamor. 1. The admissibility of Exhibit 1 should not be discussed. 2. Look at other pieces of evidence, they all point to acquittal. The contradictions in the testimony for the prosecution pointed out by the trial judge do not impress the members of the SC. 3. There being one witness for the prosecution who, on account of her relations with MORALES, and land troubles, might be expected to exaggerate. 4. On the testimonial facts, the members of the SC vote for acquittal. Second view: The view of Justice Romualdez and Justice Villareal 1. Exhibit 1 should have been admitted as part of the res gestae. 2. Exhibit 1 was made by Holgado on the same morning that the fight occurred and without the interval of sufficient time for reflection. The declaration of Sisenando Holgado fulfilled the test of the facts talking through the party and not the party talking about the facts. 3. There was such a correlation between the statement and the fact of which it forms part as strongly tends to negative the suggestion of fabrication or a suspicion of afterthought. The nature and circumstances of the statement do not disclose intrinsic evidence of premeditation as revealed in a long, coherent, closely connected story. Third view [THE IMPORTANT VIEW]: The view of Messrs. Justices Street, Malcolm, and Ostrand. The CFI erred in not admitting Exhibit 1 as a statement of a fact against penal interest. [The opinion begins with a reexamination of the principles of the common law and discloses the principles' anomalies.] First anomaly: A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, "to reach those man slayers who perpetrate their crimes when there are no other eyewitnesses." But the person accused of a crime, under the same principle of necessity, is not permitted to free himself by offering in evidence the admission of another under oath that this other committed the crime. Again admissions are receivable against either a pecuniary or a proprietary interest, but not against a penal interest. Justice Malcolm's answer to the first anomaly: The SC fails to see why it can be believed that a man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth in the other instance. Again the exhibit would have been admitted against its maker at his trial, if he had not died. But the document is held inadmissible to exonerate another. Yet the truth of the exhibit is not different in the first case that in the second. Second anomaly: A study of the authorities discloses that even if given application they are not here controlling. Most of them do not concern the confessions of declarants shown to be deceased. Practically all of them give as the principal reason for denying the admission of a confession of a third person that he committed the crime with which the accused is charged, that it was not made under oath. Justice Malcom's answer to the second anomaly: Here the declarant is deceased and his statements were made under oath. They also read in such a way as to ring with the truth. When Sisenando Holgado declared "When we fought, there was nobody present," it was at the end of just such a rambling statement as a wounded man would be expected to make. When Sisenando Holgado declared "I met one of my workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic," he did so in response to a question by the municipal president. Exhibit 1 should have been received not as conclusive evidence of innocence, but as evidence to be taken into consideration in connection with the other proven facts. [The last part of the opinion just quoted Wigmore on the subject] 1. Acceptance was gained, after two decades, for the principle that all declarations of facts against interest (by deceased persons) were to be received. What is to be noted, then, is that from 1800 to about 1830 this was fully understood as the broad scope of the principle. It was thus stated without other qualifications; and frequent passages show the development of the principle to this point.

a. But in 1884, in a case in the House of Lords, not strongly argued and not considered by the judges in the light of the precedents, a backward step was taken and an arbitrary limit put upon the rule. It was held to exclude the statement of a fact subjecting the declarant to a criminal liability, and to confined to statements of facts against either pecuniary or proprietary interest. Thenceforward this rule was accepted in England; although it was plainly a novelty at the time of its inception; for in several rulings up to that time such statement had been received. b. The same attitude has been taken by most American courts, excluding confessions of a crime, or other statements of facts against penal interest, made by third persons; although there is not wanting authority in favor of admitting such statements. 2. It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the rule culprit now beyond the reach of justice. Those who watched (in 1899) with self-righteous indignation the course of proceedings in Captain Dreyfus' trial should remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French court never for a moment hesitated to admit, — the authenticated confession of the escaped Major Esterhazy, avowing himself the guilty author of the treason there charged. 3. In the case of Pace vs. State ([1911], Court of Criminal Appeals of Texas, 135 Southwestern, 379), the appellant offered to prove in the trial court by the witness Byron Kyle that on Saturday morning following the killing of the deceased on the previous Sunday he had a conversation with Dick Cain, one of the parties to the homicide, in which Dick Cain admitted the he killed the deceased. a. If appellant could prove that another party or others committed the homicide, it might prove his innocence, and would be strong evidence to go before the jury in his favor. Any legitimate fact or circumstance which would meet or tend to meet the state's case and break the force of criminative facts introduced against the accused is always admissible. [Justice Malcolm also quoted the statements of the editor of L.R.A. In his note in volume 37] 1. So long therefore as a declarant is available as a witness, his extrajudicial statement should not be heard. 2. Where, however, the declarant is dead or has disappeared, his previous statements, out of court, if not inadmissible on other grounds, are the best evidence. But they are not rendered inadmissible by the mere fact that the declarant is unavailable, — something else is necessary. One fact which will satisfy this necessity is that the declaration is or was against the declarant's interest, and this is because no sane person will be presumed to tell a falsehood to his own detriment. 3. Again, if, seems indisputable, the desire to close the door to falsehood which cannot be detected dictates the exclusion of such testimony, the question as to the effect to be given to such a confession is solely one of weight and credibility DISPOSITIVE:For three somewhat divergent reasons, we are all of the opinion that the defendant-appellant Eugenio Toledo should be given the benefit of the reasonable doubt which prevails in our minds. Accordingly, the judgment appealed from will be reversed and the defendant and appellant acquitted, and as it appears that he is now confined in Bilibid Prison, an order will immediately issue directing his release, with costs de oficio.

FUENTES JR. v. CA, Corona, J Concept: Declarations against interest Brief Facts: Fuentes Jr was convicted in the lower courts of the murder of Julieto Malaspina. In his defense, Fuentes presents, among others, the alleged confession of his cousin, Zoilo Fuentes Jr., that the latter killed Malaspina, which should be admitted as a declaration against penal interest hence an exception to the hearsay rule. SC disagreed. The alleged confession cannot be admitted into evidence. SC sustained conviction DOCTRINE: Requisites for admissibility of declaration against interest: (1) The declarant must NOT be available to testify; (2) Declaration must concern a fact cognizable by the declarant; and (3) Circumstances must render it improbable that a motive to falsify existed. In this case, SC said, the declarant had every motive to prevaricate as he is related to the accused. The admission of such a statement may likewise be, according to Wigmore, “shocking to the sense of justice” Declarant is NOT “unable to testify.” There is no showing that declarant is either dead, mentally incapacitated, or physically incompetent which Sec. 38 obviously contemplates. Mere absence from the jurisdiction does not make him ipso facto unavailable under Sec. 38 FACTS ACCORDING TO THE PROSECUTION:

1. At 4am of June 24, 1989, Julieto Malaspina, Godofredo Llames, Honorio Osok and Alberto Toling were at a benefit dance 2. Alejandro Fuentes called Malaspina a. Fuentes places his right arm on the shoulder of the latter and said: “Before, I saw you with a long hair but now you have short hair” 3. Fuentes suddenly stabbed Malaspina in the abdomen with a hunting knife 4. Fuentes fled 5. Malaspina fell and his companions rushed to his side a. Malaspina then muttered that it was Fuentes who stabbed him FACTS ACCORDING TO DEFENSE: 1. Fuentes was talking with Malaspina 2. Suddenly, Malaspina was stabbed a. It was Fuentes’ cousin Zoilo Fuentes, Jr. alias “Jonie” who knifed Malaspina 3. Fuentes was compelled to run away when he heard somebody with a bolo and spear would “kill all those from San Isidro” because Jonie the killer was from that place a. Fuentes was also from San Isidro so he ran 4. Fuentes sought refuge in his brother’s house a. There he met Jonie b. Jonie admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him c. Since there were already many persons milling around the house, Jonie jumped out and escaped through the window RTC RULING: It found Fuentes guilty of Murder qualified by Treachery CA DECISION: CA affirmed the RTC. Hence this petition for review. ARGUMENTS OF FUENTES: 1. CA erred when it held: a. That he was positively and categorically identified as the killer b. In affirming judgment of conviction 2. There is an inconsistency between the testimonies of prosecution witnesses Alberto Toling and Honorio Osok a. Toling and Osok testified that they saw Fuentes stab Malaspina on the right lumbar region4 b. BUT the testimony of attending physician5 said that Malaspina was stabbed on the left lumbar region ISSUE: WON the guilt of Fuentes was proved beyond reasonable doubt. HELD: YES I.

The alleged discrepancy is inconsequential A. What is material is that Malaspina was stabbed to death and that the 3 prosecution witnesses positively identified Fuentes as the killer B. These witnesses had known Fuentes for some time and never had any personal misunderstanding as to create any suspicion that they were impelled by ill will to falsely implicate Fuentes

II.

The defense that it was another person who committed the offense is too incredible A. It was even the defense witness, Nerio Biscocho, who claimed that he also saw the killing, testified that “Alejandro Fuentes, Jr.” and “Jonie” Fuentes are ONE AND THE SAME PERSON! 1. On cross, Biscocho admitted that he himself would call Fuentes as Joni or Jonie Fuentes and some of his friends also call him that and that Malaspina referred to him as Junior B. Fuentes relies on the confession of Zoilo Fuentes, Jr., since it is a declaration against penal interest and therefore an exception to the hearsay rule

4 The lumbar region is sometimes referred to as the lower spine, or as an area of the back in its proximity 5 Dr. Porfiro Salubre, Rural Health Physician, who autopsied the cadaver of Malaspina, reported that the death was due to “stab wound at left lumbar region 1.5in. in length with extracavitation of the small and large intestines”

1. The so-called confession of Zoilo was allegedly given to Felicisimo Fuentes, uncle of Zoilo, who in turn relayed the matter to P/Sgt. Benjamin Conde, Jr. 2. Felicisimo testified that while he was at Brgy. San Isidro, Zoilo confessed that he killed Malaspina “in retaliation” a. That he even showed him the knife he used and asked his help in finding a lawyer, in securing bail, and if possible, working out a settlement with the family of Malaspina b. That the next day he learned that Zoila was gone and Fuentes was arrested 3. Station Commander P/Sgt. Conde, Jr. testified that after the criminal information was filed, Fuentes met Felicisimo who informed him of the confession by Zoilo a. Conde then advised Felicisimo that it it was true, Felicisimo must persuade Zoilo to surrender b. Conde then went to Brgy. San Isidro only to find that Zoilo has fled III.

Discussion on the Declaration Against Interest A. One of the exceptions to hearsay is that pertaining to declarations made against interest: 1. Found in Sec. 38, Rule 130 2. Ratio: Necessity and trustworthiness B. Requisites for admissibility of declaration against interest: 1. The declarant must NOT be available to testify 2. Declaration must concern a fact cognizable by the declarant; and 3. Circumstances must render it improbable that a motive to falsify existed

IV.

The declaration against the penal interest of Zoilo is NOT admissible in evidence as an exception to hearsay A. Court first discussed People v. Toledo (1928) then held that Toledo is NOT applicable in this case a. This case is “remarkably different” B. First: Factual scenario: alleged declarant Zoilo, cousin of Fuentes, verbally admitted to the latter, and later to their common uncle Felicisimo, that he killed Malaspina because of grudge 1. Striking feature: PATENT UNTRUSTWORTHINESS 2. Zoilo, who is related to Fuentes, has every motive to prevaricate a. Same can be said to Fuentes and Felicisimo C. Second: The admission of such a statement may likewise be, according to Wigmore, “shocking to the sense of justice” 1. (SC did not say why it just said “we need not resort to legal rhetoric”) 2. SC said: Let us assume that RTC did admit Zoilo’s statement and on that basis acquitted Fuentes. And then Zoilo was captured and repudiated the statement. There is absolutely nothing, that can bind Zoilo legally to that statement D. More importantly: Declarant is NOT “unable to testify” 1. There is no showing that Zoilo is either dead, mentally incapacitated, or physically incompetent which Sec. 38 obviously contemplates 2. Mere absence from the jurisdiction does not make him ipso facto unavailable under Sec. 38 3. It is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure acquittal a. Records show that defense did not exert any serious effort to produce Zoilo as witness

V.

The RTC and CA correctly determined the crime to be murder qualified by treachery

DISPOSITIVE: Judgment appealed from is affirmed with modifications. - Fuentes Jr. is guilty of Murder - He is to indemnify heirs of Malaspina P50,000 plus costs - Penalty imposed should be reclusion perpetua

People v. Bernal, John Doe and Peter Doe, Romero, J. Concept: Declarations against interest Brief Facts: While Openda and Racasa were having a drinking spree they invited Bernal to join them. After a few minutes, Bernal left. Thereafter, 2 persons representing themselves as policemen asked Openda if he is “Payat”. When he answered in the affirmative, a handgun was pointed at him. He was handcuffed and taken away. He was not yet found until the resolution of this case. The prosecution, based on the testimony of Enriquez that Openda confided to him that Openda has an affair with the wife of Bernal, alleged that the infidelity of Bernal’s wife was sufficient

motive for him to commit the crime. The LC ruled that Bernal was guilty beyond reasonable doubt based on the testimonies of the 4 witnesses presented by the prosecution. SC affirmed the LC ruling and ruled that Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. DOCTRINE: With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true. FACTS: Theodore Bernal, with two other persons, whose identities and whereabouts are still unknown, were charged with the crime of kidnapping. Bernal pleaded not guilty during his arraignment, then trial ensued. The prosecution presented four witnesses while Bernal testified for his defense. 1. On August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them. 2. After a few minutes, Bernal decided to leave both men, because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat." When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him "not to run because they were policemen" and because he had an "atraso" or a score to settle with them. They took him away. 3. Racasa immediately went to the house of Openda, Jr. and informed the Openda’s mother of the abduction. Prosecution (from the testimony of a certain Salito Enriquez): Openda, Jr. had an illicit affair with Bernal's wife Naty and this was the motive behind the Openda's kidnapping. Until now, Openda, Jr. is still missing. Defense: Openda Jr. was a drug-pusher arrested by the police on August 5, 1991, and was never kidnapped. LC rendered judgment finding Bernal "guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda Jr. under Article 267 of the RPC and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering." Bernal assails the lower court for giving weight and credence to the prosecution witnesses' allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt. ISSUES: 1. WON Bernal’s guilt has been proven beyond reasonable doubt? YES. The Court notes that up to this day, neither the victim nor his body has been found. 1. In Kidnapping6, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victim's bodies.

6 Art. 267. — Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

2. The deprivation of the victim's liberty, the essential element of the offense, must be duly proved. a. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as shown by their concerted acts evidentiary of a unity of thought and community of purpose." Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only. The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr. 3. The prosecution has profferred sufficient evidence to show that Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. a. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to "Tarsing's Store" to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latter's presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernal's companions. b. Equally important is the testimony of Roberto Racasa who knew both Bernal and the victim. He narrated that he and the victim were drinking at "Tarsing's Store" on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the store and asked for "Payat." When Openda, Jr. confirmed that he was indeed "Payat," he was handcuffed and taken away by the unidentified men. c.

Salito Enriquez, a tailor and a friend of Openda, Jr., testified that Openda, Jr. confided to him that he and Bernal's wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty "not to do it again because she was a married woman.”

4. Undoubtedly, his wife's infidelity was ample reason for Bernal to contemplate revenge. Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence of facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction. 5. Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.: 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 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. a. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. b. A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true. 6. Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. Other allegations of Bernal: 1. That the latter could not have seen the actual handcuffing because "Tarsing's Store" could not be seen from the billiard hall. SC: Sagarino's testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed. Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court held that: Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing store. He said that he had not known who the person was that Bernal referred to when he requested one of this two companions

to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road. 2.

Bernal pointed to another discrepancy from the testimonies of Racasa7 and Sagarino8. SC: The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino.

3. Bernal alleges that six days before the alleged kidnapping, five policemen asked for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned. SC: Bernal's position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous. The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive against Bernal. If the latter's allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was made. The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. Sagarino's forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead. DISPOSITIVE: Appeal is DISMISSED and the appealed decision dated November 18, 1993, is AFFIRMED in toto.

PAREL vs. PRUDENCIO, Austria-Martinez Respondent: Simeon Prudencio Petitioner: Danilo Parel Concept: Declarations against interest Brief Facts:: Prudencio filed a complaint for recovery of possession against Parel. Prudencio claims that he is the owner of a two-storey residential house in Baguio. When it was being constructed, Prudencio allowed Florentino Parel and his family to live in it in order to supervise the construction. Prudencio allowed Parel to reside in this house even after the construction was already finished out of sheer magnanimity to the Parels. Florentino died so now only his children live in the house. After sometime, Prudencio already needed the house so he asked that Parels to vacate. Parels refused claiming that their father was a co-owner of the house hence they had a right to the house. Florentino Parel however during his lifetime executed an affidavit saying that Prudencio was the owner of the house. TC ruled that there was co-ownership. CA and SC ruled in favor of Prudencio based on preponderance of evidence, among which is the affidavit. The affidavit of Florentino Parel was a declaration against his interest hence an exemption to the hearsay rule.

7 Racasa, on cross-examination, stated: Q: After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct? A: Yes, sir, because I was still in the store. 8 On the other hand, Sagarino averred that: Q: When Theodore Bernal left the place, how long (sic) were you able to see him again? A: Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came. Q: Do you know where this Bernal from? (sic) A: He was coming from outside. Q: He has with him his son? A: He was with nobody, sir. Q: Are you sure of that? A: Yes, sir. Q: He was alone? A Yes, sir.

DOCTRINE: 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. 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. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. FACTS:

Simeon Prudencio filed a complaint for recovery of possession and damages against Danilo Parel with RTC Baguio. Prudencio is alleging that he is the owner of a two-storey residential house located at No. 61 Forbes Park National Reservation and that the house was constructed solely from his own funds and declared under his name in the tax declaration. According to him, he commenced the construction of the house in 1972 until its completion three years later. When the second floor of the house became habitable in 1973, he allowed Parel’s parents Florentino (now dead) and Susan to move in and occupy the second floor to supervise the construction of the ground floor which was still not yet done at that time. When the construction of the second floor was finished in 1975, Prudencio allowed Parel’s parents and children to transfer and temporarily reside there. It was done out of sheer magnanimity as Parel’s parents have no house and since Prudencio’s wife is the older sister of Florentino Parel. In November 1985, Prudencio wrote Florentino a notice for him to vacate because Prudencio was due for retirement and he needed the place to which Parel’s parents heeded when they migrated to the US in 1986. However, without Prudencio’s knowledge, Parel and his family unlawfully entered and took possession of the ground floor of Prudencio’s house. Prudencio made several demands but Parel still refused to vacate. Prudencio filed an action for recovery of possession wherein he also asked for the monthly rental of P3000 from April 1988 and every month thereafter until they vacate and moral and exemplary damages, attorney’s fees and cost of suit. Parel filed his answer alleging mainly that his parents are co-owners of the residential house with Prudencio. He alleges that the upper story belongs to Prudencio while the ground floor is his parents’. Hence he claims that he is now occupying the ground floor upon the instruction of his father and with Prudencio’s full knowledge. Parel says that his late father was an awardee of the land on which the house stands. The demand to vacate was Prudencio’s attempt to deprive Parel’s parents of their rights as co-owners of the house. He further contends that Prudencio had filed an ejectment case as well as criminal cases against them involving the same house but all of them were dismissed. Hence he was asking for the dismissal of the complaint and prayed for damages and attorney’s fees. RTC ruled that the house was owned in common by Florentino Parel and Simon Prudencio hence Prudencio could not evict Parel. RTC found these matters as conclusive: Parel’s father was an allocatee of the land, Prudencio failed to show proof of any contract that the late Florentino and his family stayed on the house not as co-owners but as mere lessees nor any other proof that established that they were the sole owners of the house, Florentino was the one who gathered the laborers for the construction of the house and it was him who paid the salaries and that Prudencio did not question 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 the fact that the land was in Florentino’s possession created the impression that the house indeed is jointly owned by Prudencio and Florentino. RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the propert. The RTC also rejected the affidavit executed by Florentino declaring the house as owned by Prudencio saying that the affidavit should be read in its entirety to determine the purpose of its execution and 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 Prudencio who should pay the taxes and that the affidavit cannot be accepted for being hearsay. CA reversed the trial court and declared Prudencio as the sole owner of the subject house. CA found meritorious the contention of Prudencio that since Parel failed to formally offer in evidence any documentary evidence, hence there is nothing to refute the evidence offered by respondent. CA also found the September 24, 1973 affidavit of Florentino stating that he is not the owner of the subject house but Prudencio as conclusive proof of Prudencio’s sole ownership of the subject house as it is a declaration made by Florentino against his interest. ISSUES: WON Parel was able to prove by preponderance of evidence that his father was a co-owner of the subject two-storey residential house – NO RULING: Prudencio is the sole owner of the house. The affidavit executed by Florentino Parel proved this fact. The said affidavit is a valid declaration against his interest hence excluded from the hearsay rule. RATIO: Parel: CA erred in finding the affidavit declaring Prudencio as owner as conclusive proof that Prudencio is the true and only owner since the affidavit should be read in its entirety to determined the purpose for which it was executed Court: Untenable. Prudencio presented the affidavit executed by Florentino and sworn to before the assistant city assessor of Baguio City G.F. Lagasca which reads: “I, Florentino Parel...after having been sworn to according to law

depose and say:…that I am not the owner of the building in question; that the building in question is owned by Mr. Simeon B. Prudencio…” The applicable provision is Section 38 of Rule 130 of the Rules of Court which provides: “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” 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. The affiant, Florentino, who died in 1989 was Parel’s father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, 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. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. Notably, during Florentino’s lifetime, from the year he executed said affidavit until 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 Prudencio against him regarding the subject house which the trial court dismissed due to the absence of evidence showing that Parel entered the house against the latter’s will and held that the remedy of respondent was to file an action for ejectment. And even when a complaint for unlawful detainer was filed against petitioner and his wife which was subsequently dismissed on the ground that respondent’s action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court. (other sub issues) Moreover, the building plan of the residential house was in the name of Prudencio and his wife. Also, Prudencio has been religiously paying the real estate property taxes on the house declared under his name. While tax receipts and declarations are not incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property. Hence Prudencio having established his claim of exclusive ownership of the subject property, it was incumbent upon Parel to contravene Prudencio’s claim. In this case, the records show that although Parel’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however did not file the same. a formal offer of evidence is required in Section 34 of Rule 132 of the rules of court. Parel 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. But this case is not applicable to the case at bar. The factual circumstances in that case are different from this case. And even assuming arguendo that the documentary evidence of Parel should be considered in his favor, the evidence showing that Prudencio had filed civil and criminal cases against Parel which were dismissed as well as the alleged Special Power of Attorney of Parel’s parents whereby they authorized Parel to stay in the ground floor of the house, did not establish co-ownership of Florentino and Prudencio of the subject house. Also the testimonies of Parel and his witnesses failed to show that the subject house is co-owned by Parel’s father and Prudencio. DISPOSITIVE: CA AFFIRMED

Philippine Free Press v CA, Garcia J Concept: Declarations against interest Brief Facts: PFPI published articles critical of Marcos before Martial Law. Its building was later on padlocked and several offers to buy it were directed to Locsin Sr. Menzi, allegedly Marcos’ guy, was able to get Locsin to sell the building and other assets. After the EDSA revolution, PFPI filed a case, alleging that it’s consent was vitiated during the sale to Liwayway. SC said that the contracts should not be voided, rejecting the testimonies of the Locsins to the effect that Menzi made a declaration against interest that he was working for the government at that time. SC said that these testimonies are hearsay. DOCTRINE: Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or writings are attributed. (Not in the case) A declaration which is not against the interest of the declarant cannot be considered to fall under the exception under sec 38, and it is hearsay. FACTS:

Certiorari filed by Phil Free Press seeking to reverse the CA decision, which affirmed the RTC decision, in case filed by PFPI against PCGG and Liwayway publishing. CA decision stated the facts: PFPI is a domestic corp engaged in the publication of the Philippine Free Press Magazine, which allowed PFPI to attain considerable prestige before the declaration of Martial Law. PFPI purchased a parcel of land in Pasong Tamo, Makati, constructed an office building there which became its main office. PFPI supported Diosdado Macapagal against then Sen President Ferdinand Marcos in the 1965 presidential elections. Prior to the imposition of martial law, PFPI printed numerous articles highly critical of the Marcos administration, exposing corruption and abuses of the regime. It also exposed a plan by the Marcoses to impose a dictatorship. On Sep 20, 1972, soldiers surrounded the PFPI building, forced out the employees and padlocked the building. Teodoro Locsin Jr, son of Locsin Sr. (president of PFPI), was told that Martial Law had been declared and they were instructed by Marcos to take over the building and close the printing press. The next day, Locsin Sr was arrested and brought to Camp Crame, and later transferred to Fort Bonifacio. In December of the same year, he was provisionally released, informed that there were no charges against him, and subjected to conditions that he was not to publish the Phil Free Press, nor was he to do, say or write anything critical of the Marcos administration. PFPI ceased publishing, and the building remained padlocked. This led to financial ruin of the PFPI, coupled with demands from the employees of payment of separation pay, and minority stockholders’ demands from Locsin Sr to buy them out. Locsin Sr was approached by Atty Crispin Baizas (deceased already) with offers from Pres. Marcos for acquisition of the PFPI. He refused several times, stating that PFPI was not for sale. Also, Guillermo de Vega approached him with the same offer. In the middle of 1973, he was contacted by Brig. Gen. Hans Menzi, former aide-de-camp of Marcos concerning the sale of PFPI. They met inside the building and Menzi reiterated the offers, adding that “Marcos cannot be denied”. Locsin refused but Menzi said he had no choice but to sell. Locsin made a counter-offer, saying that he be allowed to keep the name of PFPI. Menzi thereafter contacted him again and said that Marcos was amenable to his request, and offered P5,750,000 for the land, building, machineries, furniture and fixtures on a “take-it-or-leave-it” basis. On Aug 22, 1973, Menzi tendered to Locsin a P1M check as downpayment. Locsin accepted, on the condition that it will be refunded if the sale does not push through. The next day, PFPI BoDirectors authorized Locsin to sell to Menzi. On Oct 23, 1973, 2 notarized deeds of sale were executed and the full purchase price was paid. Locsin used the proceeds of the sale to pay separation pay of PFPI employees and buy out the shares of the minority stockholders, and settled obligations. On Feb 26, 1987, PFPI filed a complaint for annulment of sale against Liwayway and PCGG before Makati RTC, alleging vitiated consent and gross inadequacy of purchase price. The complaint against PCGG was dismissed on its motion. RTC dismissed. CA modified removing atty’s fees. ISSUES: I. Did the Martial Law Regime toll the prescriptive period under Art 1391 of the Civil Code? II. WON duress, intimidation or undue influence vitiated PFPI’s consent to the subject contracts of sale III. WON the purchase price is inadequate IV. Exclusion of certain exhibits RULING: I. No it does not. II. No it did not. III. Price was not inadequate. PFPI ratified the sale with the use of the proceeds IV. They are irrelevant to the issue RATIO: I. Did the Martial Law Regime toll the prescriptive period under Art 1391 of the Civil Code? The deeds of sale sought to be annulled were executed Oct 23, 1973. The CA, citing DBP v Pundogar, said that the 4year prescriptive period for annulment ended “in late 1977”. PFPI contends that the period could not have commenced on said date since martial law was in full swing. Also, the continuing threats on the life of Locsin Sr and his family and other effects of martial law, which should be considered force majeure, ceased only after the Feb 25, 1986 People Power.

Tan v CA, reiterated by NDC v CA, said “However, we can not say, as a universal rule, that the period from September 21, 1972 through February 25, 1986 involves a force majeure. Plainly, we can not box in the "dictatorial" period within the term without distinction, and without, by necessity, suspending all liabilities, however demandable, incurred during that period, including perhaps those ordered by this Court to be paid…It is our opinion that claims should be taken on a case-to-case basis. This selective rule is compelled, among others, by the fact that not all those imprisoned or detained by the past dictatorship were true political oppositionists, or, for that matter, innocent of any crime or wrongdoing. Indeed, not a few of them were manipulators and scoundrels.” PFPI contends that the rule should be read as saying that Martial Law is a force majeure that suspends the running of the prescriptive period provided that it is established that the party invoking it are true oppositionists and that said party was so circumstanced that it was impossible for said party to commence, continue or even resist an action during the regime. SC: Although Locsin Sr and PFPI were true oppositionists, they have failed to convincingly prove that Locsin Sr as PFPI president were so circumstanced that it was impossible for them to institute an action during the martial law years. Shortly after his arrest in 1972, he filed suits against figures of the dictatorial regime and challenged the validity of Martial Law (Aquino v Enrile). SC approved the CA statements: CA could not agree that the control of Marcos consistently was unchanged til 1986. It also said that the judiciary was not rendered inutile by the martial law regime. “The Judiciary, . . . did not lack in gallant jurists and magistrates who refused to be cowed into silence by the Marcos administration. Be that as it may, the Locsin’s mistrust of the courts and of judicial processes is no excuse for their non-observance of the prescriptive period set down by law.” II. WON duress, intimidation or undue influence vitiated PFPI’s consent to the subject contracts of sale PFPI: It was error to consider hearsay the testimonial evidence that may prove the element of threat against Locsin Sr, and the dictatorial regime’s use of Liwayway as its corporate vehicle for forcibly acquiring the former’s properties; that it was error to not consider acts of Marcos as consent-vitiating; that it was error to resolve the case on mere surmises and speculations. The evidence considered hearsay refer to testimonies of Locsins (Jr and Sr) which established: 1) the widely circulated Free Press magazine, which, prior to the declaration of Martial Law, took the strongest critical stand against the Marcos administration, was closed down on the eve of such declaration, which closure eventually drove petitioner to financial ruin; 2) upon Marcos’ orders, Mr. Locsin, Sr. was arrested and detained for over 2 months without charges and, together with his family, was threatened with execution; 3) Mr. Locsin, Sr. was provisionally released on the condition that he refrains from reopening Free Press and writing anything critical of the Marcos administration; and 4) Mr. Locsin, Sr. and his family remained fearful of reprisals from Marcos until the 1986 EDSA Revolution. CA: the testimonies regarding Menzi’s threat that “Marcos cannot be denied” and that Liwayway is the corporate vehicle is hearsay as Menzi is already dead and cannot defend himself. The same with offers of Baizas and Guillermo de Vega. Sec 36, Rule 130 states that “any evidence, . . . is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. Consequently, 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”. SC: Agrees with CA. “Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or writings are attributed. And there can be no quibbling that because death has supervened, the late Gen Menzi, like the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins for the threatening statements allegedly made by them for the late President.” Citing Sec 38, Rule 1309, the court said that Menzi’s supposed declaration against interest, that he was acting for the late President Marcos when he purportedly coerced Locsin to sell the property, cannot be given weight. Locsins can hardly be considered as disinterested witnesses. They are likely to gain the most from the annulment of the contracts. 9 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.

Moreover, allegations of duress should be viewed with caution. Francisco explains that “temptation and opportunity for fraud in such cases also operate against the testimony… Testimony to statements of a deceased person, at least where proof of them will prejudice his estate, is regarded as an unsafe foundation for judicial action except in so far as such evidence is borne out by what is natural and probable under the circumstances taken in connection with actual known facts.” PFPI: “hearsay evidence has been defined as ‘the evidence not of what the witness knows himself but of what he has heard from others." xxx Thus, the mere fact that the other parties to the conversations testified to by the witness are already deceased does [not] render such testimony inadmissible for being hearsay… Teodoro Locsin, Sr. and Teodoro Locsin, Jr. were in fact testifying to matters of their own personal knowledge because they were either parties to the said conversation or were present at the time the said statements were made.’” SC: disagrees. Even if the testimony is divided, one purporting to quote the words of a live witness and the other purporting to quote what such live witness heard from one already dead, the one pertaining to the dead shall remain hearsay. Locsins cannot testify to what Marcos said to Menzi about the acquisition of the properties since none of said witnesses heard what the latter 2 talked about. The only declaration supposedly made by Gen. Menzi which can conceivably be labeled as adverse to his interest could be that he was acting in behalf of Marcos in offering to acquire the physical assets of petitioner. Far from making a statement contrary to his own interest, a declaration conveying the notion that the declarant possessed the authority to speak and to act for the President of the Republic can hardly be considered as a declaration against interest. PFPI: Martial Law is consent vitiation phenomenon CA: Declaration of martial law is not an act of intimidation of a 3rd person who did not take part in the contract. PFPI should have presented by clear and convincing evidence that Marcos abused his powers by forcing PFPI to sell…It is equally plausible that Menzi convinced Locsin to sell the assets of PFPI by simply pointing out to them the fact that PFPI was in dire financial straits, while being sued by employees and minority stockholders. SC: PFPI could also be considered to be offering surmises and specualtions, such as its claim that Lopez Sr and Imelda Marcos offered enticing amounts to buy PFPI. Also, even after imposition of Martial Law, Locsin Sr even rejected several of Marcos emissaries who tried to buy PFPI. This argues against vitiation of its contracting mind, belying the notion that “Martial Law worked as a sword of Damocles that reduced Locsin into a mere automation”. III. WON the purchase price is inadequate PFPI: Lopez even offered P18M CA: the book value in PFPI’s accounts set the land at P237.5K only. PFPI: this does not have anything to do with the actual market value SC: PFPI is barred by estoppel by assigning a value less than what was paid therefor. The net book value of the properties were a little over P994K, audited by SGV, and clearly showed that PFPI actually profited over P4M from the sale. Also, Art 1470 says that gross inadequacy of purchase price does not per se affect a contract of sale. The price was not unreasonable. Also, PFPI’s use of the proceeds to settle claims confirms the voluntariness of its consent and ratified the sale under 1393 of Civil Code IV. Exclusion of certain exhibits These consist of Liwayway’s certificate of stock in the name of Gen Menzi indorsed in blank found in the presidential palace. It was intended to show that Marcos owned Liwayway. The SC said these are irrelevant to the issue in this case. The issue is the voidability of contracts and not ownership of Liwayway. DISPOSITIVE: Petition denied. ___________________________________________________ DANTIS v. MAGHINANG, Mendoza Concept: Declarations against interest Brief Facts: Rogelio Dantis inherited a parcel of land from his father. It was registered under his name and he had been paying taxes thereon. Julio Maghinang Jr. had been occupying a potion of the property and he had his house thereon. Dantis filed a case for quieting of title against Maghinang. Maghinang presented an affidavit that was

executed by Ignacio Dantis (grandfather of Rogelio) saying that Emilio Dantis (father of Rogelio) agreed to sell the lot to Julio Maghinang (father of respondent) on installment. He said that he owned the house but he admitted that there was a problem because the affidavit was not signed by Emilio Dantis and the receipt he could present was merely a photocopy. The pieces of evidence he presented were an affidavit by Ignacio Dantis and a photocopy of undated handwritten receipt of initial downpayment of P100 issued by Emilio to Julio Sr. The RTC ruled that Rogelio is true owner based on TCT. The CA reversed and said that Maghinang is the owner. The SC reinstated the RTC decision and ruled that the pieces of evidence presented by Julio Maghinang cannot prevail over the documentary and testimonial evidence adduced by Rogelio. Exhibit 3 is hearsay because the affiant or maker did not take the witness stand. It cannot be a declaration against interest because the declarant was not the seller (Emilio) but his father (Ignacio). Exhibit 4 is secondary evidence for being a mere photocopy. Julio’s testimony was riddled with improbabilities and contradictions which then to erode his credibility and raise doubt on the veracity of his evidence. Moreover, there is no perfected contract of sale in this case. Based on exhibit 4, the subject, price and mode of payment were lacking DOCTRINE: Jurisprudence dictates that an affidavit is merely hearsay evidence where its affiant/maker did not take the witness stand. Ignacio’s affidavit is hearsay and it cannot be considered as an exception to the hearsay rule because the declarant was not the seller (Emilio), but his father (Ignacio). [In other words, the declaration was not against the interest of the declarant.] FACTS: Rogelio Dantis inherited a 5,657 sq. meter land from his father. It was registered under his name and he had been paying taxes thereon. Julio Maghinang Jr. had been occupying about 352 sq. meters of the property and he had his house thereon. Dantis filed a case for quieting of title against Maghinang. Maghinang said that he owned the house but he admitted that “there was a problem” because the affidavit (Exhibit 3) was not signed by Emilio Dantis and the receipt he could present was merely a photocopy. He said that he also acquired the property by acquisitive prescription, also filed for reconveyance on the ground of implied trust. Evidence presented by Maghinang:  Exhibit 3: Affidavit by Ignacio Dantis.  Ignacio Dantis (grandfather of Rogelio) executed an affidavit saying that Emilio Dantis (father of Rogelio) agreed to sell the lot to Julio Maghinang (father of respondent) on installment. Julio Maghinang Jr. said he was 11 years old at that time.  Exhibit 4: Photocopy of undated handwritten receipt of initial downpayment of P100 issued by Emilio to Julio Sr. Rogelio said that he is a transferee in good faith, having acquired the land through a Deed of Extrajudicial Partition of Estate. He said that he could not be a trustee because he was not privy to the Exhibit 4. He also said that acquisitive prescription cannot lie against real property covered by a Torrens title which is indefeasible and cannot be collaterally attacked. RTC: Rogelio is true owner based on TCT. Even if the evidence presented by Maghinang will be admitted, they do not prove that the purchase price was completely paid. CA: Maghinang is the owner. There is proof of sale of the lot. Partial payment coupled with delivery gave efficacy to the oral sale and brought it outside the statue of frauds. ISSUES: 1. Whether the affidavit executed by Ignacio Dantis is hearsay evidence. –YES 2. Whether the photocopy of the undated handwritten receipt is admissible. –NO 3. Whether there was a perfected contract of sale. -NO RULING: The pieces of evidence presented by Julio Maghinang cannot prevail over the documentary and testimonial evidence adduced by Rogelio. RATIO: 1. The affidavit executed by Ignacio Dantis (Exhibit 3) is hearsay because the affiant or maker did not take the witness stand. Evidence is hearsay when its probative force depends on the competency and credibility of some persons other than the witness by whom it is sought to be produced. The exclusion of hearsay evidence is anchored on three reasons: (1) absence of cross-examination; (2) absence of demeanor evidence; and (3) absence of oath. Jurisprudence dictates that an affidavit is merely hearsay evidence where its affiant/maker did not take the witness stand. The sworn statement of Ignacio is of this kind. The affidavit was not identified and its averments were not affirmed by affiant Ignacio. Exhibit 3 is therefore inadmissible for being hearsay.

Exhibit 3 cannot be a declaration against interest because the declarant was not the seller (Emilio) but his father (Ignacio). 2. The photocopy of the undated receipt (Exhibit 4) is inadmissible under the Best Evidence Rule under Rule 130.3. It is secondary evidence for being a mere photocopy. Where the document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved (MCC Industrial Sales Corporation v. Ssangyong Corporation). Julio Jr. failed to prove the due execution of the original as well as its subsequent loss. Julio’s testimony was riddled with improbabilities and contradictions which then to erode his credibility and raise doubt on the veracity of his evidence. They bear he earmarks of falsehood and hence, not reliable.  The claim of Julio Jr. that Emilio affixed his signature on the original in 1953 is highly improbable because the record shows that Emilio died before that year, in 1952.  Julio Jr.’s testimony pertinent to the alleged loss of the original is laden with inconsistencies. In his testimonies, he gave the impression that the original was lost in his parents’ possession, but at crossexamination, he testified that it was lost while it was in his possession. Later he claimed that his sister was the one responsible for the loss of the original.  It is also quite strange that two receipts were issued for the initial payment. In a trypewritten receipt annexed, the name of the recipient indicated was a certain “Cornelio A. Dantis” whose participation in the alleged sale was never explained.  Apart from the lone testimony of Julio Jr., no other witness who knew or read the receipt was presented. 3. There is no prefected contract of sale. Based on exhibit 4, the subject, price and mode of payment were lacking. There is no need to apply the Statue of Frauds (as the CA did, saying that there was partial performance) because there was no perfected contract of sale. The receipt states: “Alamin ng sino mang Makababasa Akong si Emilio Dantis may sapat na Gulang may asaw naninirahan sa Sta Rita San Miguel Bul. ay kusang nagsasasay ng sumusunod. Na ako Tumanggap Kay Julio Maghinang ng P100.00 peso cuartang Pilipino, bilang bayad sa Lupa niayang nilote sa akin 400 apat na raan mahigit na metro cuadrado. Testigo Emilio a Dantis

Tumanggap,

DISPOSITIVE: Petition granted. The RTC decision is reinstated.