RECTO v.

REPUBLIC (2004) FACTS: Spouses Philip and Ester Recto purchased a lot from sisters Rosita Guevarra and Maria Torres which they inherited from their deceased parents, Vicente and Eufemia Medrana. o Maria declared that since 1945, her father was already the owner of Lot 806. She became aware of her fathers possession of the subject lot in the concept of owner when she was 13 yo. The possession of the subject lot by the Medrana family prior to 1945 was corroborated by Rosita, who testified that when she was 13 yo, she first came to know that her father was the owner of Lot 806. The sisters added that during the lifetime of Vicente, he planted rice and corn on the lot with the help of their tenant. After his demise, they continued to plant the same crops through hired farmers. Spouses Recto, filed with the RTC, an application for registration of title over the lot, under P.D. 1529, (Property Regn De cree). They also prayed in the alternative that their petition for registration be granted pursuant to C.A. 141 (Public Land Act). Petitioners presented the following documentary evidence o (1) Blue Print Copy of the Plan and Technical Description of Lot 806 o (2) Tax Declarations of the lot o (3) Certification of Non-Delinquency for the year 1998 from the Municipal Treasurer. o (4) Report from the Community Environment and Natural Resources Office, DENR stating, among others, that (a) the entire area is within the alienable and disposable zone as classified under Project No. 30 L.C. Map No. 582 and released and certified as such on December 31, 1925; (b) the lot is not within a reservation area nor within the forest zone; (c) the lot is not within a previously issued patent, decree or title. (d) there is no public land application filed for the same land by the applicant or any other person; (e) the land is covered by Tax Declaration No. 021-02166-A in the name of the predecessor-in-interest and that there is no difference in area; (f) the lot is agricultural in nature; and (g) the lot does not encroach upon an established watershed, riverbed and river bank protection. o (5) Report from the Land Management Bureau that the land involved is not covered by any land patent or by land application pending issuance of patent. o (6) Report from the Forest Management Service, DENR that the subject lot falls within Alienable and Disposable lands, Proj No. 30 of Sto. Tomas, Batangas, per BFD LC Map No. 582 certified on December 31, 1925. o (7) Report from the Land Management Sector, DENR that Plan Ap-04-010485, Lot 806, Cad-424, Sto. Tomas Cadastre, situated in the Barangay of San Rafael, Municipality of Sto. Tomas, Province of Batangas, is not a portion of nor identical to any previously approved isolated survey. There being no opposition to the petition from any private individual, an Order of General Default was issued by the trial court. The court granted the petition for registration. CA reversed the decision of the trial court on the sole ground of failure to offer in evidence the original tracing cloth plan of the land.

ISSUE: WON the Spouses should be allowed to register the lot DECISION: YES. Decision REVERSED. Decision of RTC REINSTATED. HELD: Before one can register his title over a parcel of land, the applicant must show that (a) he, by himself or through his predecessors-in-interest, has been in open, continuous, exclusive and notorious possession and occupation of the subject land under a bona fide claim of ownership since June 12, 1945 or earlier; and (b) the land subject of the application is alienable and disposable land of the public domain (PD 1529, and CA 141). In the instant case, Rosita and Maria the predecessors-in-interest of petitioners, categorically testified that they, and prior to them their father, had been cultivating and possessing Lot 806 in the concept of owners. o Maria, having been born on October 22, 1917, and Rosita on October 29, 1922, were 13 years of age when they became aware of their familys possession of Lot 806 in 1930 and 1935, res pectively. At 13, they were undoubtedly capable and competent to perceive their fathers possession of Lot 806 in the concept of owner. Moreover, the trial court found their testimonies to be worthy of belief and credence. Considering that the judge below is in a better position to pass judgment, having personally heard the witnesses testify and observed their deportment and manner of testifying, her findings deserve the highest respect. The fact that the earliest Tax Declaration of the subject lot was for the year 1948 will not militate against petitioners. Note that said 1948 Tax Declaration cancels a previous Tax Declaration, thus substantiating petitioners possession of Lot 806 through their predeces sor-in-interest even prior to said date. At any rate, in Republic v. CA, it was held that the belated declaration of the lot for tax purposes does not necessarily mean that possession by the previous owners thereof did not commence in 1945 or earlier. As long as the testimony supporting possession for the required period is credible, the court will grant the petition for registration. Pertinent portion of the decision, reads o Petitioner questions the credibility of claimant Divinaflor who testified on the possession of Marcial Listana for the period required by law. The issue of credibility is unavailing considering that the judge below is in a better position to pass judgment on the issue having personally heard the witnesses testify and observed their deportment and manner of testifying. Being in a better position to observe the witnesses, the trial courts appreciation of the witness testimony, truthfulness, honesty, and candor, deserves the highest respect. o A person is competent to be a witness if (a) he is capable of perceiving at the time of the occurrence of the fact and (b) he can make his perception known. True, in 1939, Divinaflor was not born yet, but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the subject lot is located. As his testimony goes, he and Marcial Listana were barrio mates, and that he usually passes by the subject land. The fact that Divinaflor was only a child at the required inception of possession does not render him incompetent to testify on the matter. o It is well-established that any child regardless of age, can be a competent witness if he can perceive, and perceiving can make known his perception to others and that he is capable of relating truthfully facts for which he is examined. The requirements of a childs competence as a witness are: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication. There is no showing that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a witness knowledg e of the fact to which he testifies was obtained in adulthood. He may have first acquired knowledge of the fact during childhood, that is, at the age of four, which knowledge was reinforced through the years, up until he testified in court in 1990. There is reason to reject petitioners claim that Divinaflor is incompetent to testify regarding Listanas possession since it appears undisputed that Divinafl or grew up in Maramba, Oas, Albay, and had occasion to see Listana possessing the land.

Finally, we agree with the CA that the belated declaration of the property for tax purposes does not necessarily lead to the conclusion that the predecessors were not in possession of the land as required by law since 1945. Petitioner capitalizes on the fact that the earliest tax declaration presented took effect only in 1980 while the certificate of tax payment is dated 1990. While this Court has held in a long line of cases that tax declarations or tax receipts are good indicia of possession in the concept of owner, it does not necessarily follow that belated declaration of the same for tax purposes negates the fact of possession, especially in the instant case where there are no other persons claiming any interest in Lot 10739. So also, there is no doubt that Lot 806 is an alienable land of the public domain having been released and certified as such on December 31, 1925. As further certified by the Community Environment and Natural Resources Office of the DENR, the entire area of Lot 806 is an agricultural land; within an alienable and disposable zone; not within a reservation area nor within a forest zone; and does not encroach upon an established watershed, riverbed, and riverbank protection. Petitioners were thus able to successfully meet the requisite for original registration of title, to wit: open, continuous, exclusive and notorious possession and occupation of an alienable and disposable land under a bona fide claim of ownership since June 12, 1945 or earlier. Lot 806 was sufficiently identified by the blue print copy of the plan and the technical description thereof both approved by Land Management Services, DENR. Also, per report of the Land Management Sector, Plan Ap-04-010485, Lot 806, Cad-424, Sto. Tomas Cadastre, situated in the Barangay of San Rafael, Municipality of Sto. Tomas, Province of Batangas, is not a portion of, nor identical to any previously approved isolated survey. o Petitioners also submitted before the CA a certified true copy of the original tracing cloth plan as well as a certification from the Land Registration Authority attesting to the fact that the original plan of Plan-Ap-04-010485 in Diazo Polyester film is on file with their office. Under the circumstances, therefore, the CA erred in reversing the decision of the trial court solely on the ground that petitioners failed to present the original tracing cloth plan. Having met all the requirements for registration of title including the presentation of sufficient evidence to identify the land sought to be registered, there is no more need to remand the case before the trial court for the presentation of the tracing cloth plan. o

PEOPLE v. DEAUNA (2002) FACTS: -Prosecutions Version: Victim Josephine Deauna (19 yo) was at their house. She was lying down while her sister Jasmin was sleeping when her father, Richard, suddenly held her hand. Appellant proceeded to kiss Josephines neck; touched her breasts; inserted his finger in Josephines vagina and played with it. Appellant inserted his penis in her vagina and felt pain at the penetration. When he withdrew, he warned Josephine not to tell her mother about this incident. Same incident happened the next year. Josephine later told her mother but the latter refused to believe her. Josephine went to the NBI. There, she gave her sworn statements and the Medico-Legal expert in the person of Dr. Minay subjected Josephine to a medical genital examination. He concluded that there are lacerations in the vagina of the victim which is normally produced by sexual relation with a man. -Defenses Version: Appellant advances the theory that complainant was insane when she testified in court, and that the alleged rape incidents did not actually happen based on the testimony of his 5 witnesses. -The trial court rejected the defense that the complainant had been insane or suffering from psychosis when she testified in court, and that the rape charges had merely been fabricated by reason of such mental illness. The defense is primarily anchored on the alleged mental insanity or pyschosis on the part of the private complainant. This allegation that the private complainant was mentally deranged assumes significance only when shown that at the precise time she testified in court, she had been clearly shown to be suffering from such illness, so as to undermine her ability to give statements voluntarily, knowingly and intelligently. On the other hand, on the three occasions that she testified in Court, her testimonies were consistent, straightforward, and no significant lapses of memory or thought processes were evident. Moreover, it is not conclusive that the victim was suffering from psychosis as the different physicians that were presented by the defense had different diagnosis as to the subjects mental state. It is possibl e that initially, she was suffering from emotional maladjustment and due to the abuses committed against her by her father, she reached the so called breaking point making her more prone to psychological or mental relapse. Thus, the victim in this case would not file a charge as serious as rape against her very own father simply because she was maltreated; only her desire to seek justice would be compelling enough to implicate her own flesh and blood. ISSUE: WON Josephine was insane when she testified in court DECISION: YES. Decision AFFIRMED. HELD: During the pendency of the appeal, she submitted to numerous letters and manifestations including an affidavit of desistance, essentially stating that her father had not raped her, and that she had been insane when she testified in court. After carefully reviewing the records of the case, the Court finds that her state of mind was normal, and that she was not suffering from insanity or psychosis when she testified as a prosecution witness. A perusal of her testimony during direct examination and during cross-examination shows her narration to be rational, sensible and comprehensible. Clearly, there was no indication or sign of insanity on her part when she narrated the sexual transgressions committed by her father. However, it appears that she manifested in her deportment and demeanor, some form of insanity or mental derailment thereafter or during the course of the proceedings, when she again testified in court, this time as a defense witness. As can be gleaned from her testimony as a defense witness on January 8, 1999, she obviously gave unsettling and unnatural responses when queried by the trial judge regarding an affidavit of desistance she had executed. True enough, the records show that the victim was diagnosed to have been suffering from psychosis or insanity just a few weeks before she testified on her affidavit of desistance. The diagnosis was made by Dr. Jay Madelon Carcenery of the National Mental Hospital. o Appellant relies on this subsequent finding of insanity on the part of the victim. He theorizes that her mental impairment had already been present even before the alleged rape incidents and was what caused her to file the rape charges against him. However, the records reveal that it was not yet present at the time of the rape incidents or immediately thereafter. One of the defense witnesses, Dr. Paredes, testified that the victim had not been insane or psychotic at the time of the first rape, as evidenced by a psychological evaluation she conducted on the victim in October of that year. The normal state of mind of the victim was unperturbed even after the foregoing initial mental examination and remained intact during the early and the middle part of the trial. As mentioned earlier, it was only on December 21, 1998 that she was found to be suffering from insanity or psychosis. This finding is consistent with the official report dated March 2, 1999, on the mental evaluation of victim showing that she was suffering from psychosis or insanity and was not fit to stand the rigors of trial.

Although one of the expert witnesses testified that the mental illness of the victim could have existed prior to the diagnosis made on her on December 28, 1998, no clear and categorical statement to this effect was presented. In any event, courts are not bound by the opinions of expert witnesses on such matters, especially when they appear to be merely speculative and conjectural, as in this case. Even assuming that the victim was already insane during her earlier testimony, this fact alone will not render her statements incredible or inadmissible in evidence. Her mental imbalance or abnormal state of mind would not automatically affect her credibility. Indeed, even a mental retardate or feeble-minded person may qualify as a competent witness, considering that all persons who can perceive and, perceiving, can make known their perception to others, may be witnesses. o Unsoundness of mind does not per se render a witness incompetent. One may be insane, yet be capable in law of giving competent testimony. The general rule is that lunatics or persons affected with insanity are admissible as witnesses, if they have sufficient understanding to apprehend the obligation of an oath and are capable of giving correct accounts of the matters that they have seen or heard with respect to the questions at issue. o In this case, it is quite evident that the victim was not only competent to testify, but turned out to be a credible and convincing witness for the prosecution. Verily, sufficient in itself to establish appellants criminal liability were her detailed accounts of the two (2) rape incidents establishing the fact of rape and identifying her father as her ravisher, as indicated in the September 2, 1998 and the October 7, 1998 transcripts of stenographic notes. The longstanding rule is that when a woman says that she has been raped, she says in effect all that is necessary to show that rape has been committed. If her testimony meets the test of credibility, the accused may be convicted solely on that basis. As regards the recantation of the victim, the Court emphasizes that mere retraction by a prosecution witness does not necessarily vitiate her original testimony. If such testimony was sufficiently clear, consistent and credible to establish the crime beyond reasonable doubt, a conviction may be based on it, notwithstanding its subsequent retraction. It has long been held that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. o

PEOPLE v. MACAPAL, JR. (2005) FACTS: One evening, while she was walking on her way home after she bought kerosene from the nearby store of appellant's father, Jesus Macapal, Sr., appellant suddenly appeared and waylaid her. Holding both her arms, appellant dragged her to an isolated grassy area where he ordered her to lie. Appellant poked a knife at her abdomen and threatened to kill her if she would shout or resist. Appellant thereafter succeeded in having sexual intercourse with her. Prosecution: When the victim visited her sister Vilma, Upon noticing her stomach bulging, Vilma asked her what happened. The victim then revealed what their neighbor (appellant), did to her. When Vilma asked her when the incident happened, the victim answered 'when you just left for Manila. Vilma thus invited to her house appellant's father, the purok leader of the barangay. In the presence of Vilma's three brothers and her husband, the victim narrated to appellant's father how his son ravaged her in a grassy area in their barangay. On hearing the victim's account, appellant's father requested the Sarinos not to report the incident to the authorities until he had spoken to appellant. Vilma paid no heed to the request, however, and reported the incident to the barangay captain and then to the town police before which the victim's sworn statement was taken. A complaint for rape bearing the victim's thumbmark was accordingly filed against appellant before the MTC. Meanwhile, on the request of appellant and his parents, First Asst Provl Prosecutor Doyon summoned the complainant and her relatives for a possible settlement of the case. By virtue of an agreement, an Affidavit of Desistance was executed by the victim stating that 'after mature deliberation and consultation with her father and other relatives, she was withdrawing her accusation against appellant. Victim gave birth to a boy. The victim, assisted by her father, filed before the Provl Prosecutor's office an 'EX-PARTE MOTION TO RESCIND AND NULLIFY AMICABLE SETTLEMENT AND TO REVIVE THE CASE alleging that she was forced to enter into such agreement as they were duped and harassed by some policemen. Appellant having failed to submit his counter-affidavit and controverting evidence, the Prosecutor's Office, finding the complaint uncontroverted, filed the information against appellant. Dr. Cheryl Zalsos, a psychiatrist at the Northern Mindanao Medical Center who conducted a psychiatric evaluation of the victim, found that 'the patient is suffering from Mental Retardation, mild to moderate . And the doctor opined that while the mental capacity of the victim is comparable to that of a child between 9 to 12 years old, she could testify in court but under closed door and leading questions should be avoided 'as retarded people may be suggestible and wish to please others. o When Dr. Selim, Med Officer III of the Butuan Provl Hospital, examined the victim, he found her to be in a pregnant state and that her hymen was not intact. Defense: He came to know for the first time of the charge when he appeared before the brgy capt during which the victim's sister, Vilma, did most of the talking, she informing him of the alleged rape. At said meeting, the victim who had a boyfriend named Edsel was asked who raped her, but she was mum. Pande, a neighbor of the victim, related that one afternoon, he witnessed the victim and Edsel having sexual intercourse in the house of Gultiano where Edsel was then visiting. And Bermudez, brgy capt of Magsaysay, ventured the opinion that appellant could not have committed the rape as appellant was from May 22 to August 17, 1996 in barangay Magsaysay, in the farm of his (Bermudez's ) uncle, working as a helper in the operation of a turtle tractor. RTC: convicted Macapal, Jr. of rape. CA: affirmed. ISSUE: WON the victim, who is a mental retardate, is incompetent to testify DECISION: NO. Decision AFFIRMED. HELD: In rape cases, the victim's credibility is crucial to the determination of the accused's culpability as the crime generally involves two persons only and usually perpetrated in seclusion. While it may be difficult to determine the credibility of one who is a mental retardate, it can still be attained by deducing from the manner he or she testifies in court as to the surrounding facts of the crime committed. As long as a witness' testimony is straightforward, candid and unflawed by inconsistencies or contradictions in its material points, and his or her demeanor is consistent with one who has been victimized to thus bolster credibility with the verity born out of human nature and experience, as in the herein victim's case, credibility can be accorded to him or her.

The straightforward narration of the victim of what transpired, accompanied by her categorical identification of appellant as the malefactor, sealed the case for the prosecution. A litany of cases echoes the rule that great respect on the findings of the trial court on the credibility of witnesses and their testimonies is accorded. For the trial judge observes the behavior and demeanor of the witness in court. His evaluation or assessment of the credibility of witness and of testimony acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the victim's testimony. It is only in exceptional circumstances that this rule is brushed aside, such as when the court's evaluation was reached arbitrarily, or when the trial court overlooked, misunderstood or misapplied certain facts or circumstances of weight and substance which could affect the result of the case. Mental retardation per se does not affect credibility. A mentally retarded may be a credible witness. The acceptance of his or her testimony depends on the quality of his or her perceptions and the manner he or she can make them known to the court. o In the case at bar, albeit the victim's testimony was tainted with inconsistencies, these are mere collateral and minor matters which would not compel this Court from discrediting her testimony, given her mental retardation. In fact, testimonial discrepancies, which could have been caused by the natural fickleness of memory, tend to strengthen, rather than weaken, credibility as they negate any suspicion of rehearsed testimony and do not destroy the substance of the victim's testimony. As for the defense attack on the prosecution in having allegedly failed to prove the date and place of commission of the rape, the same fails. o The records show that when the victim executed a sworn statement before the police on she was categorical in furnishing the date and place of the commission of the rape. Even Dr. Selim echoed the victim's account to him about the month and year of commission. Appellant is alleged by defense witness Bermudez to have been, in June 1996, at barangay Magsaysay, of which he (Bermudez') was a resident, working as helper in the operation of a turtle tractor on the farm of his (Bermudez') uncle. Bermudez following testimony on crossexamination, does not, however, rule out appellant's presence on the date and place of the commission of the crime. o Alibi is a defense that places the defendant at the relevant time and in a place different from the commission of the crime, so removed therefrom as to render it impossible for him to be the guilty party. For it to prosper, the following must thus be established: the presence of the appellant in another place at the time of the commission of the crime and the physical impossibility for him to be at the scene of the crime at the time of its commission. The accused must not only prove that he was somewhere else when the crime was committed, he must also convincingly demonstrate the physical impossibility of his presence at the locus criminis at the time of the incident. o In any event, even assuming that appellant was in barangay Magsaysay, the distance from where the crime took place to barangay Magsaysay, is about 75 km with an average travel time of about 3 hours only, to thus render it not physically impossible for appellant to have been at the scene of the crime on the date and time of its commission. Moreover, the positive identification by the victim of appellant as the culprit being categorical and consistent and devoid of any showing of ill motive on her part prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. o

PEOPLE v. SANTOS (2006) FACTS: Prosecution: AAA was playing at the northern portion of a bridge when she was taken by appellant and brought to his house. Appellant took off the clothes of AAA and had sexual intercourse with her causing her to feel pain and experience bleeding. After a complaint was lodged with the brgy and the police, AAA was brought to the Jose Lingad Memorial Reg l Hospital, where she was examined. The Medico Legal O.B. Gyne Report indicated multiple superficial healed lacerations. The victim, who was 6 yo when she testified in court, positively identified the appellant during the trial and testified on the affidavit she executed before the police. Defense: Denial and alibi He was the driver of BBB who lived in Barangay xxx, xxx, Pampanga which is a kilometer away from his place in Sulipan. Appellant usually leaves his house at 7:00 a.m. and stays at his workplace up to 7:30 p.m. or sometimes even up to 10:00 p.m. when necessary. His job was to drive his employer whenever the latter had appointments in Manila. When BBB had no appointments, he drove a passenger jeepney plying San Fernando, Pampanga and Malolos, Bulacan, a route which passed Sulipan. On July 17, 1999, appellant drove his employer to the Wheels Motor Shop at E. Rod Avenue, On July 18, appellant left his house at 6:00 a.m. arriving at his workplace at 7:30 a.m. and from there he delivered surplus bumpers to Malinta. On July 19-22, appellant plied the San Fernando-Malolos route on board his passenger jeepney.19 On July 23, appellant went to Makati leaving at 10:00 a.m., returning only at 10:00 p.m. On July 30, between 6:30 to 7:30 a.m., he was sweeping the ground in front of his house when a white car pulled over. The vehicle's occupants introduced themselves as police officers and asked him if he was Rene Santos. Thereafter, he was taken to the police headquarters for questioning. RTC: guilty of rape CA: AFFIRMED. ISSUE: WON the victim is a competent witness DECISION: YES. Decision AFFIRMED. HELD: The credibility given by the trial court to the rape victim is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct and attitude during the direct and cross-examination by counsel. It is likewise well established that the testimony of a rape victim is generally given full weight and credit, more so, if she is a 5-year-old child as in this case. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive. o The trial court and the CA gave credence to the testimony of AAA who was only six years old when she narrated the sordid details of her ravishment. Counsel for the defense attempted, albeit futilely, to impeach the credibility of the victim. It is highly improbable for an innocent girl of tender years like the victim, who is very naive to the things of this world, to fabricate a charge so humiliating not only to herself but also to her family. Appellant's reliance on the corroboration by his wife of his alibi cannot overturn the clear and categorical declarations of the victim identifying him as the perpetrator of the crime. The corroboration should, furthermore, be received with caution coming as it does from appellant's spouse whose emotional ties and interest in his acquittal cannot be gainsaid. In addition to his defense of alibi, appellant further faults the trial court with "acting as the prosecutor and the judge at the same time" for allegedly initiating and propounding "the questions, short of supplying the desired answer from the witness."

The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. Under Sections 19 to 21 of the Rules on Examination of a Child Witness, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. It must be borne in mind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. o The record discloses that the questions propounded by the judge were intended to elicit the truth from the child witness. This perceived undue inquisitiveness of the judge did not unduly harm the substantial rights of the appellant. In fact, it is only to be expected from the judge who, with full consciousness of his responsibilities could not, and should not, easily be satisfied with incompleteness and obscurities in the testimonies of the witness. In his attempt to extricate himself from criminal liability, appellant further insinuates that his sons may be the possible perpetrators of the felony saying that "it could have been Rene Santos, Jr. or Michael Santos who could have raped the victim" considering that AAA and her sister CCC allegedly complained earlier that they were raped by the two brothers. o If at all, the foregoing suggestion that his sons may have been the malefactors who sexually assaulted the victim and her sister only succeeds in underscoring his moral depravity and his capacity to commit the crime. Only one whose degree of wickedness plumbs the deepest depths of criminal perversity would have no qualms of laying the onus of his guilt even on his own offspring and, worse, blacken the memory of one of them who is already dead in his endeavor to exculpate himself from the consequences of his felonious acts. Much less convincing is appellant's proposition that ill feelings and ill motives of the victim's mother impelled the filing of the charges against him. Ill-motives become inconsequential where there are affirmative or categorical declarations establishing appellant's accountability for the felony. o

LEZAMA v. RODRIGUEZ (1968) FACTS: Jose Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co., together with C.N. Hodges and Ricardo Gurrea, filed an action in the CFI for the annulment of a judgment rendered against the La Paz Ice Plant in a civil case. Named as defendants were Marciano C. Roque, in whose favor judgment was rendered, and the spouses Jose Manuel and Paquita Lezama. o The complaint alleged that, because of mismanagement by the Lezamas, the La Paz Ice Plant was placed under the receivership of Dineros; that during the pendency of the receivership, Roque brought an action against the La Paz in the CFI of Manila for the collection of sum he had supposedly lent to it; that summons was served not on the receiver but on the spouses Jose Manuel and Paquita Lezama; and that, through the collusion of the Lezamas, Roque was able to obtain judgment by default against the company. It was claimed that, because the summons was served on Jose Manuel Lezama instead of on the receiver, the CFI of Manila acquired no jurisdiction over the La Paz Ice Plant and that, therefore, the decision of that court was void. In their answer, the spouses (petitioners), while admitting that the company was placed under receivership, maintained that Lezama nevertheless remained president of the La Paz and that as such he had authority to receive in behalf of the company the court summons. They denied entering into collusion with Roque and averred that they did not contest Roque's claim because they knew it to be a legitimate obligation which the La Paz had incurred pursuant to a resolution of its board of directors. At the hearing Dineros asked the court to issue a subpoena to Paquita Lezama to testify as "a witness summoned by the plaintiffs in accordance with the RoC." The request was granted over the objection of the petitioners based on marital disqualification. The trial court, ruled in the affirmative and required the wife to appear and testify. The petitioners sued for certiorari but the CA affirmed.

ISSUE: WON a wife, who is a co-defendant of her husband in an action, may be examined as a hostile witness by the adverse party without infringing on her marital privilege not to testify against her husband DECISION: NO. Decision REVERSED and case REMANDED. HELD: It is argued that the wife may be so compelled but her testimony would be receivable only against her. It is even suggested that "each may testify in his or her own behalf, although the testimony may inure to the benefit of the other spouse, or against his or her own interest, although the testimony may also militate against the other spouse."11 Upon the other hand, it is insisted that compelling Paquita Lezama to testify will transgress section 20(b) of Rule 130, especially if her testimony will support the plaintiff's charge. The complaint charges "fraudulent conspiracy" on the part of the spouses and one Roque to make it appear that the La Paz was indebted to Roque. The wife, Paquita Lezama, is called upon to testify as an adverse party witness on the basis of her following participation in the alleged fraudulent scheme: "that it was Paquita Lezama who as Secretary of the company signed the minutes of the meeting during which Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as Secretary, made the entry in the books of the corporation." Evidently, Paquita Lezama will be asked to testify on what actually transpired during the meeting and will be asked questions on the matter of the veracity or falsity of the entry in the books of the corporation. Whether her testimony will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her against her husband. The interests of husband and wife in this case are necessarily interrelated. Testimony adverse to the wife's own interests would tend to show the existence of collusive fraud between the spouses and would then work havoc upon their common defense that the loan was not fictitious. Because of the unexpensive wording of the rule which provides merely that the wife cannot be examined "for or against her husband without his consent," it is further argued that "when husband and wife are parties to an action, there is no reason why either may not be examined as a witness for or against himself or herself alone," and his or her testimony could operate only against himself or herself. o Even if such view were generally acceptable as an exception to the rule, or even as a separate doctrine, it would be inapplicable in this case where the main charge is collusive fraud between the spouses and a third person, and the evident purpose of examination of the wife is to prove that charge. Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the adverse party as a hostile witness when both spouses are parties to the action, either the interests of the spouses are separate or separable, or the spouse offered as a witness is merely a formal or nominal party. The final point urged upon us is that to prevent one spouse from testifying would encourage alliance of husband and wife as an instrument of fraud; for then what better way would there be to prevent discovery than to make a co-conspirator in fraud immune to the most convenient mode of discovery available to the opposite party? o This argument overlooks the fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the rule which precludes the husband or the wife from becoming the means of the other's condemnation. The said rule of discovery should

therefore not be expanded in meaning or scope as to allow examination of one's spouse in a situation where this natural repugnance obtains. It may not be amiss to state in passing that the respondent Dineros has not demonstrated that there is no evidence available to him other than the Lezamas' testimony to prove the charge recited in the complaint.

ALVAREZ v. RAMIREZ (2005) FACTS: Husband Maximo Alvarez went to sister-in-laws house and set the place on fire knowing that there were people inside (including his wife Esperanza). Esperanza testified against her husband but Alvarez petitioned to disqualify such testimony on the ground of marital disqualification. The RTC issued an order to disqualify the wifes testimony. Sister-in-law (Susan Ramirez) filed in the CA an application for preliminary injunction and TRO. CA nulli fied RTCs orders thereby anticipating husbands current appeal. ISSUE: WON the wifes testimony can be used against her husband DECISION: YES. Decision AFFIRMED. HELD: The marital disqualification rule has its own exceptions for both civil and criminal actions. If marital relations are so strained that harmony and tranquility are disturbed, the identity of interests of both parties disappears and the consequent danger o f perjury based on that identity is non-existent. In Ordono v. Daquigan, when an offense directly attacks, or directly and vitally impairs the conjugal relation, it comes wi thin the exception to the statuteObviously the offense of arson impairs the conjugal relation. It should be stressed that prior t o the commission of the offense, the relationship between the petitioner and his was already strained. In fact, they were separated de facto almost six months before the incident. Evidence thus reveals that the preservation of such a marriage is no longer an interest that the State aims to protect. It bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco), it was the latter himself who gave rise to its necessity. TONGCO v. VIANZON (1927) FACTS: In a cadastral case, Marcelino Vianzon presented claims, asking for titles to certain properties in the name of the conjugal partnership. Upon Marcelinos death, his niece, Josefa, was named the administratrix of the estate. The decrees for the abovementioned lots wer e issued in the name of the conjugal partnership was issued not long after such death. Marcelinos widow, Anastacia, then initiated a cadastral action, presenting a motion for revision of certain decrees within a 1 year period as provided by the Land Registration Law. Consequently, the court annulled and set aside the OCTs and issued in favor of Anastacia new decrees and certificates. Josefa filed an action against Anastacia for the recovery of the property, plus damages. The court, however, absolved Anastacia from the complaint and declared of the value of the share in one Sociedad Cooperative de Credito Rural de Orani, amounting to P10K, as belonging to the intestate of Marcelino, which must appear in the inventory of the property of the estate of Marcelino. Josefina appealed, assailing that the testimony of the widow should be discarded. Consequently, the presumption of the Civil Code, in addition to the unassailable character of the Torrens titles, would arise, and the entire fabric of Anastacia would be punctured.

ISSUE: WON Anastacias testimony is competent DECISION: YES. Judgment AFFIRMED. HELD: In order for the Dead Mans Statute to apply, the action wherein the prohibited testimony is sought to be made must have been brought against the administratrix of the estate, or against the estate. While it is true that the object and purpose of the statute is to guard against the temptation to file false testimony with respect to the subject transaction on the part of the surviving party, the law is also designed to aid in arriving at the truth and not as a design to suppress the truth. The present actions were not brought against the administratrix of the estate, nor were they brought against the estate, as provided under the Dead Mans Statute. In the first case, the action is one by the same administratrix to enforce a demand by the estate. In the second, the claim was presented in cadastral proceedings where in one sense there is no plaintiff or defendant. Moreover, in this case, Josefa is deemed to have waived the prohibition when Anastacia was cross-examined regarding the prohibited matter. MENDEZONA v. vda. DE GOITA (1930) FACTS: Defendant Encarnacion Vda, de Goitia has been duly appointed judicial administratrix of the estate of her deceased husband Benigno Goitia. Benigno Goitia was the representative and attorney-in-fact of the plaintiffs in the joint-account partnership known as the Tren de Aguadas, of which the plaintiff Leonor Mendezona, widow of Juan Bautista Goitia, owns 180 shares worth P18,000, and the plaintiff Valentina Izaguirre y Nazabal owns 72 shares worth P7,200. Prior to 1915, Benigno Goitia, at that time the manager of the co-partnership, collected the dividends for the plaintiffs, which he remitted to them every year. That the usual dividends which Benigno Goitia forwarded to plaintiff Leonor Mendezona each year were P540, and to plaintiff Valentina Izaguirre y Nazabal, P216 From 1915 until his death in August, 1926, Benigno Goitia failed to remit the dividends. Some time before his death, more particularly, in July, 1926, Benigno Goitia, who was no longer the manager of the said business, receive as attorney-in-fact of both plaintiff, the amount of P90 as dividend upon plaintiff Leonor Mendezona's shares, and P36 upon Valentina Izaguirre y Nazabal's stock. During the period from 1915 to 1926, Benigno Goitia collected and received certain sums as dividends and profits upon the plaintiffs's stock in the Tren de Aguadas in his capacity as representative and attorney- in-fact for both of them, which he has neither remitted nor accounted for to the said plaintiffs. Counsel for both plaintiffs filed their claims with the committee of claims and appraisal of the estate of Benigno Goitia, and, upon their disallowance, appealed from the committee's decision by means of the complaints in these two cases.

The court below ordered the defendant, as judicial administratrix of Benigno Goitia's estate to render a judicial account of the intestate estate of the deceased Benigno Goitia, to render an account of the amounts collected by her aforesaid husband as attorney-in-fact and representative of the plaintiffs in the co-partnership from 1915 to July, 1926, within thirty days from notice of this decision. Defendant, reiterating her exception to the court's decision enjoining her to render accounts, manifested that after a painstaking examination of the books of account of the co-partnership and several attempts to obtain data from Ruperto Santos, the manager and administrator thereof, she has found no more evidence of any amount received by her late husband than a book of accounts where she came upon an item of P90 for Leonor Mendezona, and another of P36 for Valentina Izaguirre. The court ordered the defendant, as judicial administratrix of the estate of the deceased Benigno Goitia, to pay the plaintiff Leonor Mendezona the sum of P13,140 with legal interest from the date of the filing of the complaint, and to pay the plaintiff Valentina Izaguirre P5,256 likewise with legal interest from the date of the filing of the complaint, and moreover, to pay the costs of both instances. The defendant appealed from this judgment. The appellees made depositions before the American consul at Bilbao, Spain, in accordance with section 356 of the Code of Civil Procedure. Counsel for the appellant was notified of the taking of these depositions, and he did not suggest any other interrogatory in addition to the questions of the committee. When these depositions were read in court, the defendant objected to their admission, invoking section 383, No. 7, of the Code of Civil Procedure. Her objection referred mainly to the following questions: o 1. Did Mr. Benigno Goitia render you an account of your partnership in the "Tren de Aguadas?" Yes, until the year 1914. o 2. From the year 1915, did Mr. Benigno Goitia send you any report or money on account of profits upon your shares? He sent me nothing, nor did he answer, my letters. o 3. Did you ever ask him to send you a statement of your account Yes, several times by letter, but I never received an answer.

ISSUE: WON the appellees' depositions are admissible DECISION: YES. Judgment AFFIRMED. HELD: The first of these questions tends to show the relationship between the principals and their attorney- in-fact Benigno Goitia up to 1914. Supposing it was error to permit such a question, it would not be reversible error, for that very relationship is proved by the Exhibits. o As to the other two questions, it is to be noted that the deponents deny having received from the deceased Benigno any money on account of profits on their shares, since 1915. We are of opinion that the claimants' denial that a certain fact occurred before the death of their attorney-in-fact Benigno Agoitia does not come within the legal prohibitions (sect 383, No. 7, Code of Civ Pro). The law prohibits a witness directly interested in a claim against the estate of a decedent from testifying upon a matter of fact which took place before the death of the deceased. The underlying principle of this prohibition is to protect the intestate estate from fictitious claims. But this protection should not be treated as an absolute bar or prohibition from the filing of just claims against the decedent's estate. The facts in the case of Maxilom vs. Tabotabo differ from those in the case at bar. o Maxilom vs. Tabotabo: the plaintiff Maxilom liquidated his accounts with the deceased Tabotabo during his lifetime, with the result that there was a balance in his favor and against Tabotabo of P312.37, (Mexican). The liquidation was signed by both Maxilom and Tabotabo. In spite of this, some years later, or in 1906, Maxilom filed a claim against the estate of Tabotabo for P1,062.37alleging that P750 which included the 1899 liquidation had not really been received, and that therefore instead of P312.37, that liquidation should have shown a balance of P1,062.37 in favor of Maxilom. It is evident that in view of the prohibition of sec 383, par 7, of the Code of Civ Pro, Maxilom could not testify in his own behalf against Tabotabo's estate, so as to alter the balance of the liquidation made by and between himself and the decedent. But in the case before us there has been no such liquidation between the plaintiffs and the deceased Goitia. They testify, denying any such liquidation. To apply to them the rule that "if death has sealed the lips of one of the parties, the law seals those of the other," would be to exclude all possibility of a claim against the testamentary estate. This was the legislator's intention. The plaintiffs-appellees did not testify to a fact which took place before their representative's death, but on the contrary denied that it had taken place at all, i.e. they denied that a liquidation had been made or any money remitted on account of their shares in the "Tren de Aguadas" which is the ground of their claim. It was incumbent upon the appellant to prove by proper evidence that the affirmative proposition was true, either by bringing into court the books which the attorney-in-fact was in duty bound to keep, or by introducing copies of the drafts kept by the banks which drew them, as was the decedents's usual practice according to Exhibit I, or by other similar evidence. The appellant admits having found a book of accounts kept by the decedent showing an item of P90 for the account of Leonor Mendezona and another of P36 for the account of Valentina Izaguirre, which agrees with the statement of Ruperto Santos, who succeeded Benigno Goitia in the administration of said partnership, to the effect that the deceased attorney-in-fact had collected the amounts due the plaintiffs as dividends on their shares for the months of May and June, 1926, or P90 for Leonor Mendezona, and P36 for Valentina Izaguirre, amounts which had not been remitted by the deceased to the plaintiffs. ICARD v. MASIGAN (1941) FACTS: For services rendered in connection with the development and location of certain mining claims, Joseph Icard filed a claim of P2,000 against the estate of his deceased father George M. Icard. The claim having been allowed by the commissioner on claims, the administrator appealed to the CFI, where it was likewise allowed. ISSUE: WON the probate court erred in allowing the claimant to testify to the services rendered by him in favor of his father, because the action being one against the administrator of a deceased person DECISION: NO. Judgment AFFIRMED. HELD: No. It is undisputed that the Antamok Central Group of mining claims, situated in the sub province of Benguet, were originally owned in common by Fred M. Harden, the deceased George Icard, and plaintiff-appellee Joseph K. Icard. These mining claims were later sold to the Big Wedge Mining Company, the deed of sale having been executed jointly by the common owners, Fred M. Harden, George M. Icard, and Joseph K. Icard, the latter represented by his attorney-in-fact, George M. Icard. A dispute arose as to the price still due under the contract of sale, thus, the Big Wedge Mining Company filed an action for rescission. The case was, however, settled between the parties, and a compromise agreement was duly approved by the court. It is thus clear that Joseph Icard had an interest in the mining claims aforementioned, as evidenced by the deed of sale executed in favor of the Big Wedge Mining Company and the compromise agreement approved by the court. The amount of this interest being undetermined, Joseph Icard may, if he wishes to, properly claim one-half of P39,478.16, under the legal provision that "the interests of the coowners shall be presumed to be equal until the contrary is proved.". Instead, he claims P2,000 only, and it is this reduced claim which he seeks to establish by his oral testimony.

Sec 383, par. 7, of the Code of Civ Pro, which is now Rule 123, sec 26, par (c), of the RoC, is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. Where, as in the instant case, the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased, the law has certainly no reason for its application. Rationecessante, cessat ipsa lex (when the reason for the law ceases, the law itself ceases).

LICHAUCO v. AG&P (1949) FACTS: Appelant Atlantic, Gulf and Pacific Company of Manila is a foreign corporation duly registered and licensed to do business in the Phils, with its office and principal place of business in the City of Manila. 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. He held 1,000 shares of stock, 545 of which was not fully paid. He executed promissory notes in favor of the company worth P245,250 (540 per share) for those shares. In 1941 he already paid P64.5k. Fitzsimmons had an agreement with the company that should he die without having paid in full, 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. On Jan 1942, the Japanese occupied Manila and seized all assets of the company. Fitzsimmons died on 1944 and special proceeding was instituted. Atlantic resumed business in 1945. Atlantic filed a claim on the estate worth P63,868.67 Fitzsimmons owed them. It also wanted to exercise its option to acquire the 545 shares by returning the P64.5k Fitzsimmons paid. They requested a set-off. Lichauco, the administrator, denied any indebtedness. He expressed conformity however to the refund of P64.5k. He also interposed a counterclaim worth P90k for salaries allegedly due. Santiago Inacay, chief of the accounting department of the Atlantic testified that the officers had maintained personal accounts with the company. Fitzsimmons maintained one. He testified that at the end of 1941, the account shows that Fitzsimmons owed P63k to the company. He said that he specifically knew the balance of the said account because it would be very shameful on his part if the officer s asked him for their balance and he didnt know. Modesto Flores, the assistant accountant, also testified that Fitzsimmons had a balance of P63k. He knew this because as accountant, he made the entries in the books of the company. He also signed receipts whenever Fitzsimmons would withdraw funds. Mr. Henry Belden and Mr. Samuel Garmezy, vice- president-treasurer and president were also called to testify but the TC refused to admit them because they were not only large stockholders and members of the board of directors but also vice-president-treasurer and president, respectively, of the claimant company. However, if allowed to testify, they said that they would also say that they had personal knowledge that Fitzsimmons owed the company P63k. The administrator as evidence showed Exhibit 1, which contains the gross value of assets of the conjugal partnership of Fitzsimmons and Miguela Malayto. He testified that he was the attorney in the divorce case (1943) between them and that Fitzsimmons prepared Exhibit 1 for the division of assets of the partnership. In said exhibit, there is no indication of any debt to the company.

ISSUE/S: 1. WON 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 (now Rule 130.23) 2. WON Exhibit 1 is admissible because it is self-serving 3. WON the deceased Richard T. Fitzsimmons was entitled to his salary as president of the Atlantic, Gulf & Pacific Company of Manila from January, 1942, to June 27, 1944, when he died in the Santo Tomas internment camp HELD: 1. NO

2. NO

Ratio: Rule 123 disqualifies only parties or assignors of parties. The 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. Reasoning: o This provision was taken from sec 383, par 7, of our former Code of Civ Pro, which in turn was derived from sec 1880 of the Code of Civ Pro of California. o City Savings Bank vs. Enos: To hold that the statute disqualifies all persons from testifying who are officers or stockholders of a corporation would be equivalent to materially amending the statute by judicial interpretation. Plainly the law disqualifies only "parties or assignors of parties," and does not apply to persons who are merely employed by such parties or assignors of parties. o Merriman vs. Wickersman: An examination of the authorities from other states will disclose that their decisions rest upon the wordings of their statutes, but that generally, where interest in the litigation or its outcome has ceased to disqualify, officers and directors of corporations are not considered to be parties within the meaning of the law. The trial court erred in not admitting the testimony of Messrs. Belden and Garmezy. It is not necessary, however, to remand the case because it would be merely corroborative, if at all, and in any event what said witnesses would have testified, if permitted, already appears in the record as hereinabove set forth, and we can consider it together with the testimony of the chief accountant and the assistant accountant who, according to the appellant itself, were "the only ones in the best of position to testify on the status of the personal account" of the deceased Fitzsimmons. Reasoning 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. 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. Insofar, at least, as the appellant was concerned, there was no probable motive on the part of Fitzsimmons to falsify his inventory Exhibit 1 by not including therein appellant'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. He did not know then that he would die within one year and that the corporation of which he was the president and one of the largest stockholders would present the claim in question against his estate. Neither did he know that the books and records of that corporation would be destroyed or lost. Yet, although he listed in said inventory his obligations in favor of the Peoples Bank and Trust Company and the Philippine Bank of Commerce aggregating more than P30,000, he did not mention at all any obligation in favor of the corporation of which he was the president and one of the largest stockholders.

3. No

A possible explanation such conflict between the company and Fitzsimmons can be seen in Inacays testimony. The latter said t hat at the end of the year, the personal accounts would be on the credit side since the dividend, bonuses and fees would be credited. On the year 1941, such did not happen because of the war. Fitzsimmons could have believed that such amount was credited, therefore, he did not include any obligations he had to the company in Exhibit 1. However, since the counsels did not pursue this point, the court cannot rule on this point. Leaving this foregoing reflection, the court held that since the testimonies are based only on memory, and given that human memory, especially with regard to figures after more than 5 years, is unreliable, they cannot overturn the TC decision. Reasoning: 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

GO CHI GUN v. GO CHO (1955) FACTS: Go Checo, a chinaman, died in saigon, leaving real and personal properties in the Philippines. His son Paulino Gocheco instituted judicial proceedings for the distribution of his estate. o The intestate left children by two marriages. In the first marriage with Ong So, who died in 1908, he was survived by his children Paulino Gocheco, 26 years, Go Tua Tia, 20 years, Go Pan Gui, 18 years, Go Tua Ting, 16 years, Go Chi Gun, 14 years, and Go Away, 8 years. By his marriage with Yu Ui, who survived him, left two, Go Cheng Siu, 7 years and a child 20 months old. Each of his children received properties or cash. The project of partition is signed by one Joaquin Go Cuay as guardian ad litem of the minors and was approved by the court. Paulino Gocheco died and his eldest son instituted intestate proceedings for the settlement of his estate. The present action was instituted by Go Chi Gun and Go Away alleging that: o (1) that plaintiffs were purposely kept in complete and absolute ignorance of the intestate proceedings of their deceased father Go Checo, instituted by Paulino, and were not informed by the latter of the existence of a guardian ad litem appointed for them o (2) that Paulino caused Joaquin Go Cuay to be appointed as commissioner on claims and appraisals and the latter in obedience to instructions from said Paulino, appraised the real properties of the estate at their assessed value and not at their market value; o (3) that Paulino caused Joaquin Cuay to be appointed guardian ad litem of the plaintiffs without informing the latter of such step; o (4) that Paulino caused the age of Go Chi Gun to appear as 14 yo, in order to obviate the necessity of notifying her of the hearing of the project of partition; o (5) that in conspiracy with Joaquin Go Cuay, the latter signed his conformity to the project of partition and kept the plaintiffs completely and totally ignorant of everything that took place in the proceedings; o (6) that subsequently Paulino instituted guardianship proceedings and had himself appointed as guardian of the persons and properties of the plaintiffs without giving information whatsoever thereof to them; o (7) that Gocheco caused Go Away to come to the Philippines under the assumed name of Lim purportedly the daughter of a chinese merchant Lin Tui, for the purpose of making her believe that their common father had died without leaving any properties, as well as to prevent her from making inquiries of her mother; o (8) that notwithstanding the fact that Go Away had reached the age of majority, Gocheco did not keep her informed of such fact; o (9) that the plaintiffs only learned of the fact that their deceased father had left valuable properties in Manila when a friend of theirs accidently found the papers connected with the intestate proceedings for the settlement of the estate of their deceased father. They pray that the project of partition submitted and the order of the court approving the partition, be declared null and void as a result of fraud, collusion and connivance of Paulino and Joaquin Go Cuay, and that the properties adjudicated to Paulino Gocheco, Go Chi Gun and Go Away in the project of partition be declared as their joint properties. CFI annulled the project of partition as the same was found to have been procured through fraud, collusion and connivance to the prejudice of the plaintiffs; declared that the properties obtained by the deceased Paulino Gocheco in the said partition proceedings are the common properties of plaintiffs Go Chi Gun and Go Away and the deceased Paulino Gocheco in the proportion of 1/3 for each of them; and ordered defendants to render a correct and detailed accounting of the said properties and business interest of said deceased Paulino Gocheco to the plaintiffs from 1916 up to the present. It also dismissed the defendants' counterclaim.

ISSUE (Relevant): WON the plaintiffs should be allowed to testify as to an alleged fraudulent statement by the deceased Paulino to them DECISION: NO. Judgment REVERSED. HELD: The issue involves the competency of the plaintiffs Go Chi Gun and Go Away to testify as to a supposed statement, made to them by the deceased Paulino during his lifetime, to the effect that their common father Go Checo had not left any properties. When the plaintiffs were called upon the testify to these supposed statements, counsel for the defendants immediately objected on the ground that plaintiffs were incompetent to testify thereto under the provisions of Section 26 (c) of Rule 123 of the Rules of court (Dead Man Statute). The court allowed the testimony over the objection, holding that as the action is brought against the defendants in their personal capacity, and the claim is not directed against the estate of Paulino Gocheco but against the latter personally, the rule invoked is not applicable. It must ne noted, in contrast to the case at bar, that the action in Myers vs. Reinstein, which was the basis of the lower court, was against a defendant who claimed the land in his own right; but here the action is not against the defendants in their own right, but is based on an alleged fraud committed by the deceased, and the defendants are sued because they are now in possession of the properties. The title of the defendants is not in issue; it is the title of their father, Paulino Gocheco, who, according to the contention of the plaintiffs, has been guilty of fraud. The word "representative" in the statute has been explained thus: "If a party is so placed in a litigation that he is called upon to defend that which he has obtained from a deceased person, and make the defense which the deceased might have had, if living, or to established a claim which the deceased might have been interested to establish, if living, then he may sais in that litigation to represent a deceased person; but where he is not standing in the place of the deceased person, and asserting a right of the deceased is, where the right of the deceased himself, at the time of his death, is not in any way involved), and the question is not what was the right of the deceased at the time of his death, but merely to whom has the right descended, in a such a contest neither party can be said to represent the deceased." The action of plaintiffs is based on a supposed fraudulent act of the deceased Paulino Gocheco, and its purpose is to allow plaintiffs to share in his estate. That Paulino Go Checo had died some 10 years ago and his properties are now in the hands of his children can not make the action one against his heirs in their personal capacity because their right or title to said properties is not in issue, but the right, the exclusive right thereto of their deceased father. The defendants cannot, therefore, be said to be sued in their personal capacity. The testimonies of the plaintiffs as to the alleged statements of the deceased to him are well within the purpose and intent of the prohibition . The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the

supposed statements made by him (deceased person), many would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to "guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party." The administration of the properties of plaintiffs' father was judicially made, and the existence thereof and of the properties had left were in public records. For 40 years during which Paulino Gocheco was living, plaintiffs herein had remained silent and had done nothing to check the truth of the supposed statements of their deceased brother, which could easily be done because the facts they had interest in were in public records. We are aware of the existence of an exception to the rule, where the decedent had been guilty of fraud. The rule has been adopted to promote justice and not to shield fraud. In Ong Chua v. Carr, before he testimonies of witnesses were allowed to be introduced, the fraud perpetrated by the deceased had been established beyond all doubt, not by mere preponderance of the evidence alone. In the case at bar, no such amount of proof of the supposed fraudulent acts on the part of the deceased was introduced by the plaintiffs, so there was no showing made to bring the case within the exception enunciated in the case of Ong Chua vs. Carr. Plaintiffs-appellees claim that there was fraud because the properties assigned to the deceased Paulino Gocheco were assessed at their tax value, not at their market value. This is no proof of fraud. All of these circumstances cited could have induced the assignment of real properties to the deceased Paulino Gocheco and personal properties and cash to the plaintiffs-appellees. They explain the reason for the difference in the inheritance received and exclude the probability of fraud. On any case, the partition was given the stamp of judicial approval, and as a matter of principle and policy we should sustain its regularity, in the absence of such cause or reason that the law itself fixes as a ground for invalidity. Claim is also made that the deceased Paulino Gocheco connived with the guardian ad litem of the minors in keeping the latter ignorant of his appointment as guardian ad litem of all the proceedings in the distribution and guardianship, and in assessing the properties at low prices in connivance with the deceased. The rule is that fraud is not presumed. As fraud in character, it must be proved by clear preponderance of evidence. There is absolutely no evidence in the case at a bar that the plaintiffs have not been advised of the pendency of the administration proceedings or of the appointment of the guardian ad litem, and the incidents thereof, except the testimonies for the plaintiffs with regard to the supposed statements of Paulino Gocheco, which have been discarded as incompetent. It is also suggested that the fact that deceased caused plaintiff Go Away to enter the Philippines under the name of Lim Koc and as a daughter of a merchant by the name of Lim Tui is a badge of the fraud perpetrated by the deceased. We cannot agree to this conclusion. Go Away was born of Chinese parents and could not be allowed entry in the islands. In order to secure her entry, it was necessary for her to assume another name and pretend to be the daughter of a Chinese resident merchant. Go Away was already approaching 21 years of age at that time and should have known that was the real reason; she must have been party to the fraud herself, not its victim. In any case, the fraud could not have been used to hide the existence of the properties left by his deceased father Go Checo, which were available in public records (judicial records of the intestate and guardianship proceedings). Aside from the fact that fraud must be proved as fact by a clear preponderance of evidence, because fraud a criminal charge, there is an added ground in the case at bar requiring a high quantum of proof of the fraud, i. e., the fact the proceedings which are supposed to have been fraudulent are judicial proceedings which by legal provision are presumed to be fair and regular . Public policy demands that judicial proceedings may not lightly be considered; it is necessary that full faith and credit should be given thereto in order that matters settled thereby may no longer be subject to doubt or question. The evidence that was necessary to be introduced by plaintiffs to support their cause of action was not, as the trial court has found it to be, a mere preponderance of evidence; a clear preponderance is demanded as it must overcome the presumption of good faith and regularity with which judicial proceedings are clothed.

ASTURIAS v. CA (1963) FACTS: In order to pay his debt to PNB, Nicolas Miras obtained from the spouses Laureano Asturias and Julia Orozco, a loan secured by a mortgage in a private document of the land in question. Two years later, having paid only P30.00 as interest while the total indebtedness reached the sum of P830.00 P500.00 representing the capital and P330.00 the balance of the unpaid interest for two years Nicolas Miras, upon the request of the spouses, executed a written document of sale with the right of repurchase within seven years. Although not expressed in the contract, the parties agreed that the spouses, in payment of the stipulated 3% per month interest on the P830, were to be permitted to gather and benefit by the fruits of the coconut trees planted and growing on the land. Miras remained in possession of the land, cultivating the portion not occupied by the coconuts and raising therein other plants. After Laureano Asturias died, and before the death of his widow, Julia Orozco, Miras offered to redeem the property but the latter requested him to postpone the same to a later date as she had not yet sufficiently benefited from the capital invested, as the price of copra unexpectedly went down. Upon Julia Orozco's death, Miras made the same offer to redeem the property from petitioners herein, successors-in-interest of the spouses, who made the same request as their deceased mother, and to which request Miras once more agreed. One year after Julia Orozco's death, petitioners discovered the document and noting that it was in the form of a sale, they agreed to partition the land among themselves notwithstanding the fact that their father, Laureano Asturias, did not include said property in his will and Miras continued in possession thereof, paying the land taxes thereon. o Amparo, Romeo and Apolonia Camilon, children of the deceased Constancia Asturias, one of the heirs of the creditor spouses, reconveyed to respondent Nicolas Miras their 1/5 portion of the property in question, upon receipt from him of the sum of P210.00, their share of the credit against Miras. When the petitioners attempted to enter and fence the property, in order to exclude Nicolas Miras therefrom, the latter filed an action for forcible entry and prevented the petitioners from continuing their act. In the same year, because of petitioners' continued refusal to have the property redeemed, Miras filed the present case. o The contention that under the rule of survivorship disqualification, the testimony of respondent Miras is inadmissible to vary the terms of the pacto de retro sale, untenable because, as found by the CA, no timely objection has been made against the admission of such evidence. Furthermore, one of the petitioners (Fell Asturias) was made to testify on such prohibited matters covered by the exclusion rule. Petitioners seek in this appeal the review of the decision of the CA confirming in toto the judgment of the CFI wherein the contract of sale with right of redemption executed by plaintiff-appellee Nicolas Miras in favor of the spouses Laureano Asturias and Julia Orozco (petitioners' predecessors-in-interest) covering the land in question, was declared one of mortgage with usurious interest and therefore null and void. The defendants, now petitioners, were consequently ordered to vacate the portion (4/5) of the land occupied by them, to pay plaintiff.

ISSUE: WON the oral testimony of plaintiff Miras could be admitted DECISION: YES. Judgment AFFIRMED. HELD:

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The contention that under the rule of survivorship disqualification, the testimony of respondent Miras is inadmissible to vary the terms of the pacto de retro sale, is untenable because, as found by the CA, no timely objection has been made against the admission of such evidence. Furthermore, one of the petitioners (Fell) was made to testify on such prohibited matters covered by the exclusion rule. In view of this, petitioners are correctly deem to have waived the benefit and protection of the rule. The finding of fact of the CA, arrived at after considering and evaluating the evidence thus properly admitted, that the contract in question is one of a loan with usurious interest and therefore is null and void, is conclusive. The claim of petitioners that the action of plaintiff-respondent Miras has already prescribed, and that they in turn had acquired title to the land in question by acquisitive prescription, is without merit, in view of the fact that, as found by the CA, the present action is one primarily for reivindication or recovery of property and only incidentally to declare the contract of sale with right of repurchase null and void as having been executed for the purpose of disguising a usurious transaction. This is evident from the allegations in the complaint and the reliefs prayed for, which, it is a settled rule, determine the nature of an action or issue (Rone v. Claro). Article 4 of the Civil Code (the Provision applicable to this transaction) provides that "Acts Performed contrary to law are void, except in cases in which the law itself gives validity to such acts". A contract designed to hide a usurious agreement not only violates the law but contravenes public policy. Such a contract can not be countenanced and is therefore illegal and void from its inception. Such being the case, the prayer for the declaration of its nullity is imprescriptible under Article 1410 of the New Civil Code. It is true that this is a new provision, but its principle is equally applicable to the case at bar. Neither did petitioners acquire title to the land by acquisitive prescription since it appears from the facts found by the CA, that possession of the property was obtained by the petitioners only in 1946 and the original complaint was filed in 1948. Their claim that their possession dates back from 1930 when they started gathering the coconuts from the land in the form of payment of the usurious interest on the loan is groundless. The mere fact that from 1930 they were permitted to enter the land for the purpose of gathering the fruits of the coconuts did not make them possessors of the property in the concept of owners to entitle them to claim prescription.1awphl.nt Such possession which was sporadic and by mere tolerance of the owners and actual possessors of the land cannot be the basis of a claim of ownership by prescription.

GUERRERO v. ST. CLARES REALTY & CO. (1983) FACTS: Petitioners original and amended complaints alleged that during their lifetime, spouses Isidoro uerrero and Panay Ramos were the absolute owners of a parcel of land located at San Dionisio, Paranaque, Rizal, with an area of 42,299 square meters, more or less. The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all surnamed Guerrero. Panay predeceased Isidoro. Before his demise, Isidoro verbally willed and ordained that the questioned lot be assigned and adjudicated to Andres Guerrero as his share in the inheritance, the other children having been assigned other lots. Accordingly, upon the death of Isidro, Andres physically possessed the lot and cultivated it through his tenant Dominador Ramirez. Shortly after the beginning of the Japanese occupation, Andres entrusted the land to his sister, Cristina, and allowed her to have the property cultivated and to retain the owner's share in the harvests. The arrangement between brother and sister was that Cristina could continue in the cultivation of the land and enjoyment of the owner's share in the produce for as long as she needed the property. Dominador Ramirez continued his tenancy until shortly before the death of Andres. Sometime in 1943, Andres died and survived by his widow, Segunda Laquindanum, and their children, who are the petitioners in this case. Cristina continued as trustee of the deceased Andres. Sometime during the latter part of 1971, certain people, who introduced themselves as agents or buyers of the land, approached plaintiffs in order to secure their consent to the sale of the property. Plaintiffs were informed that the land was titled in the name of their cousin, Manuel Guerrero. Plaintiffs made inquiries and discovered that Manuel was able to have the lot titled in his name on the basis of a 'Deed of Sale of Land' purportedly executed by Cristina. According to the original and amended complaints, the Deed of Sale in favor of Manuel was fraudulent, simulated and falsified for the reason, among others, that Cristina was not the owner of the land at the time she purportedly sold it. On October 19, 1973, Laura Cervantes testified that her mother, Cristina, had been sick for a long time before she died in 1948; and that her mother could walk only inside their house; that the money spent for the illness of her mother came from Manuel; and that, through her children, Cristina could ask money from Manuel Guerrero because of the land that Andres Guerrero had lent to her. The defendants Guerreros filed a written motion to disqualify Laura Cervantes as a witness on the basis of Section 20(a), Rule 130, of the New Rules of Court. The motion was opposed by the plaintiffs. The trial court granted the motion and declared that Laura Cervantes, Jose Cervantes as well as other witnesses similarly situated, disqualified to testify in the case.

ISSUE: WON the Dead Mans Statute applies DECISION: NO. Judgment REVERSED and REMANDED. HELD: The Dead Mans Statute applies only against an executor or administrator or other represe ntative of a deceased person, whose estate is being subjected to claims and demands. o In this case, no claim or demand is being made against the estate of Manuel Guerrero, and the Guerreros are not the executors or administrators or representatives of such deceased. The Guerreros are being sued in their individual capacities as claimants of ownership of the subject lot, which is not a part of Manuels estate. The Dead Mans Statute cannot apply. Statutes which provide that a party in interest is incompetent to testify where the adverse party is dead or insane must be applied strictly in accordance with their express wording, irrespective of their spirit. Section 20(a), Rule 130, expressly uses the phrase agai nst an executor or administrator or other representative of the deceased person. The other representatives in the statute means only those who, like the executor or administrator, are being sued in their representative, and not personal capacity, as emphasized by the use of the law of the words against the estate of such deceased persons. The last phrase convey the idea of an estate actually owned by the deceased at the ti me the case was brought and that, therefore, it is only his rights that are to be asserted and defended in the litigation by the person representing him, not the personal rights of such representatives. GENARO GOI, ET AL. v. COURT OF APPEALS, ET AL. (1986) FACTS: Praxedes Villanueva, the predecessor-in-interest of the petitioners Villanuevas, negotiated with TABACALERA for the purchase of three haciendas (San Sebastian, Sarria, and Dulce Nomber de Maria) owned by the latter in Bais, Negros Oriental. For lack of sufficient funds to pay the price, Villanueva, with the consent of TABACALERA, offered to sell Hacienda Sarria to Santiago Villegas, who was later substituted by Joaquin Villegas. Gaspar Vicente served as a guarantor for Villegas since TABACALERA refused to consent to the transaction between Villanueva and Villegas without a guaranty.

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Villanueva also contracted to sell to Villegas three fields within the Hacienda Dulce Nombre de Maria for P13,807.00, which agreement was reduced to writing and signed by Genaro Goi as attorney-in-fact for Villanueva. Vicente thereafter advised TABACALERA to debit from his account P13,807.00 as payment for the balance of the purchase price. However, only P12,460.24 was needed to complete the price, and the difference was paid by Vicente to Villanueva, though no receipt evidenced the alleged payment. Having thus raised funds by selling a property in Ayungon, Negros Oriental, Villanueva went to Vicente to rescind the contract. However, since the balance has already been debited from Vicentes account, it was agreed that two lots of the Hacienda Dulce Nombre de Maria would merely be leased to Vicente for 5 years, said rent to be deducted from the money advanced by Vicente and any balance owing to Villanueva would be delivered by Vicente together with the lots at the end of the lease. TABACALERA sold the 3 haciendas in favor of Villanueva. After the latter died, intestate proceedings were instituted, in which among the properties included were the fields of Hacienda Dulce Nombre de Maria which had been registered in Villanuevas name. Before the intestate proceedings were ordered closed and the estate of the deceased delivered to his heirs, Vicente instituted an action for recovery of property against Goi as administrator of the intestate estate of Villanueva and the latters heirs, based on the contract/promise to sell executed in Vicentes favor. One of the witnesses presented by the plaintiff was Vicente himself, who testified as to facts occurring before the death of Villanueva. This was objected to by the defendants for being violative of the Dead Mans Statute.

ISSUE: WON Vicentes testimony violate the Dead Mans Statute DECISION: YES (but waived). Judgment REVERSED. HELD: Defendants-heirs are properly the representatives of the deceased. The adverse party is also competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person where the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent. It is true that under ordinary circumstances, Vicente would be disqualified from testifying as to any matter of fact occurring before Villanuevas death under the Dead Mans Statute. The object and purpose of this Statute is to close the lips of the party plaintiff when d eath has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. Although the case was instituted after the estate of Villanueva had been distributed to the heirs, it remains within the ambit of the protection. Defendants-heirs are properly the representatives of the deceased, not only because they succeeded to the decedents right by descent or operation of law, but more importantly because they are so placed in litigation that they are called on to defend that which they have obtained from the deceased and make the defense which the deceased might have made if living, or to establish a claim which deceased might have been interested to establish, if living. However, in this case, the protection under the Dead Mans Statute is deemed waived when the counsel for the Villanuevas cross-examined Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during deceased's lifetime." Furthermore, the Villanuevas presented a counterclaim against Vicente. When the latter took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of the subject fields. He was therefore not disqualified from testifying as to matters of fact occurring before the death of Villanueva, such action not having been brought against, but by the esatate or representatives of the estate/deceased person. Moreover, the adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person where the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent. ENRIQUE RAZON v. IAC, ET AL. (1992) FACTS: Enrique Razon organized the E. Razon, Inc., for the purpose of bidding for the arrastre services in South Harbor, manila. A stock certificate for 1,500 shares of stock was issued and paid for in the name of Juan Chuidian. Chuidian, then Razon, were elected as directors of the corp. o Razon never questioned the ownership of Chuidian of the shares and had never brought any action for the cancellation of the certificate of stock, which was in the possession of Razon, who refused to deliver said shares to Vicente Chuidian, the son of the deceased Juan, until same surrendered it and deposited it in a safety box. Vicente Chuidian prayed in a complaint that defendants Enrique Razon, et. al. be ordered to deliver certificates of stocks representing the shareholdings of the deceased Juan Chuidian in the E. Razon, Inc. with a prayer for an order to restrain the defendants from disposing of the said shares of stock, for a writ of preliminary attachment v. properties of defendants having possession of shares of stock and for receivership of the properties of defendant corporation. Razon claims that the late Juan had personally delivered the certificate covering the shares to the Corporate Secretary, and since then, Razon had been in possession of the certificate, even during the lifetime of Juan. It was alleged that Juan had delivered the certificate to Razon because it was Razon who paid for the subscription of the shares upon the understanding that he was the owner of said shares and was to have possession of the same until such time as he was paid therefore by the other nominal incorporators. CFI declared that Enrique Razon, the petitioner in G.R. No. 74306 is the owner of the said shares of stock. IAC reversed the trial court's decision and ruled that Juan Chuidian, the deceased father of petitioner Vicente Chuidian in G.R. No. 74315 is the owner of the shares of stock. IAC, however, refused to admit Razons testimony on the ground of incompetency under Section 20(a), Rule 130 of the Rules of Court. o Both parties filed separate motions for reconsideration. Enrique Razon wanted the appellate court's decision reversed and the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock dividends and all the pre-emptive rights accruing to the 1,500 shares of stock be ordered delivered to him. The appellate court denied both motions. Hence, these petitions.

ISSUE: WON the Dead Mans Statute have been applied in this case DECISION: NO. In G.R. No. 74306, the petition is DISMISSED. In G.R. No. 74315, the petition is GRANTED. HELD: The Dead Mans Statute is applicable to a case against the administrator or its representatives of an estate upon a claim against the estate of the deceased person. o The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous

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claims or demands. The purpose of the law is to "guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party." The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator or its representative of an estate upon a claim against the estate of the deceased person. o Here, the IAC excluded Razons oral testimony regarding an alleged oral agreement between him and Juan as regards the ownership of the shares of stock. Such case was filed by the administrator of the estate of Chuidian to recover shares of stock in E. Razon, Inc., allegedly owned by Juan. Razons testimony therefore clearly does not fall within the prohibition of the Dead Mans Statute. The case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. In any case Vicente never objected to Razons testimony. Moreover, Razon was subjected to cross -examination by Vicentes counsel regarding the same testimony. Hence, there is waiver of the prohibition under the Dead Mans Statute.

SUNGA-CHAN v. CHUA (2001) FACTS: In 1977, respondent Lamberto Chua verbally entered into a partnership agreement with Jacinto Sunga, father of petitioner, in the distribution of Shellane LPG in Manila. For business convenience, respondent and Jacinto allegedly agreed to register the business name of their partnership, SHELLITE GAS APPLIANCE CENTER (Shellite), under the name of Jacinto as a sole proprietorship. Respondent allegedly delivered his initial capital contribution of P100,000 to Jacinto while the latter in turn produced P100,000 as his counterpart contribution, with the intention that the profits would be equally divided between them. Upon Jacinto's death in the later part of 1989, his surviving wife, petitioner Cecilia and particularly his daughter, petitioner Lilibeth, took over the operations, control, custody, disposition and management of Shellite without respondent's consent. Despite respondent's repeated demands upon petitioners for accounting, inventory, appraisal, winding up and restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth allegedly continued the operations of Shellite, converting to her own use and advantage its properties. On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out the alibis and reasons to evade respondent's demands, she disbursed out of the partnership funds the amount of P200,000 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed respondent that the P200,000 represented partial payment of the latter's share in the partnership, with a promise that the former would make the complete inventory and winding up of the properties of the business establishment. Despite such commitment, petitioners allegedly failed to comply with their duty to account, and continued to benefit from the assets and income of Shellite to the damage and prejudice of respondent. Trial court directed petitioner to render an accounting, to restitute to the partnership all properties, assets, income and profits they misapplied and converted to their own use and advantage, to pay the plaintiff earned but unreceived income and profits from the partnership from 1988 to May 30, 1992, ORDERING them to wind up the affairs of the partnership and terminate its business activities pursuant to law. CA affirmed the decision

ISSUE: WON, in the absence of any written document to show such partnership between respondent and Jacinto, the courts were proscribed from hearing the testimonies of respondent and his witness, Josephine, to prove the alleged partnership three years after Jacintos death DECISION: NO. Decision AFFIRMED. HELD: A partnership may be constituted in any form, except where immovable property or real rights are contributed thereto, in which case a public instrument shall be necessary. Hence, based on the intention of the parties, as gathered from the facts and ascertained from their language and conduct, a verbal contract of partnership may arise. The essential points that must be proven to show that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in the profits. Understandably so, in view of the absence of a written contract of partnership between respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial evidence to prove said partnership. The Dead Mans Statute provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that: o 1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. o 2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; o 3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind; o 4. His testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind. Two reasons forestall the application of the Dead Mans Statute to this case. o First, petitioners filed a compulsory counterclaim against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the Dead Mans Statute. Well ent renched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim. Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased . o Second, the testimony of Josephine is not covered by the Dead Mans Statute for the simple reason that she is not a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners insistence that Josephine is the alter ego of respondent does not make her an assignor because the term assignor of a party means assignor of a cause of action which ha s arisen, and not the assignor of a right assigned before any cause of action has arisen. The petitioners allegation that Josephines testimony lacks probative value because she was allegedly coerced by respondent, her brother-inlaw, to testify in his favor is not convincing. Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. It cannot be concluded that this candid admission of Josephine is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses. Petitioners reliance alone on the Dead Mans Statute to defeat respondents claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of a partnership, albeit an informal one.

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It must be also pointed out that petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot now turn to this Court to question the admissibility and authenticity of the documentary evidence of respondent when petitioners failed to object to the admissibility of the evidence at the time that such evidence was offered. In a desperate bid to cast doubt on the validity of the oral partnership between respondent and Jacinto, petitioners maintain that said partnership that had an initial capital of P200,000.00 should have been registered with the SEC since registration is mandated by the Civil Code. o True, Article 1772 of the Civil Code requires that partnerships with a capital of P3,000.00 or more must register with the SEC, however, this registration requirement is not mandatory.

ZEIGLER v. MOORE (1959) FACTS: Plaintiff sued one Al Christ for damages alleging that her automobile was struck in the rear by a car negligently operated by Christ. Christ answered, denying negligence but admitting a collision between the two cars. He also pleaded plaintiff's contributory negligence. Christ died and Robert Moore was substituted as his administrator before trial. At the trial the court excluded under the dead man's rule certain testimony of the plaintiff and of plaintiff's witness, sheriff Delbert Moore. These and other rulings are assigned as error. o (1) An insurance adjuster had taken statements from both plaintiff and the decedent, which statements were written in longhand by the adjuster and signed by the parties. Plaintiff moved under Rule 34 for an order for the production of these documents so that the same might be inspected and copied, and assigns error and prejudice in the denial of such motion. The record shows, however, that a true and correct copy of the original statements taken was produced in open court and read into the record and is actually a part of the record on this appeal. If a discovery of the nature and contents of the statements was necessary to the prosecution of plaintiff's case, copies of the statements were before her. It is so evident that plaintiff was in no way prejudiced by the denial of her motion that discussion of the error assigned is unnecessary. (It should be noted that plaintiff had been permitted to read the copies of the statements into the record for the purpose of making an offer of proof. She then offered the copy of her own statement in evidence. An objection was sustained on the ground that if her direct testimony was inadmissible under the dead man's rule her extrajudicial statement was, a fortiori, inadmissible. Plaintiff then offered the copy of the statement made by the decedent, but immediately withdrew the offer. All of this was without the presence of the jury. It may be noted also that no objection was made to either statement on the ground that it was a copy.) o (2) Delbert Moore, sheriff of Humboldt County, testified that Christ, after the accident, had come to the office and made an "accident report" and, in his conversation in making the report, talked to the witness "about how the accident happened." He was then asked: "What did he tell you?" Objection on the ground "that this witness is rendered incompetent by reason of 48.010 NRS" was sustained. ISSUE: WON a surviving party to a transaction testify as to matters particularly within his own knowledge, which could not be contradicted by the other party if the other party were able to testify DECISION: NO. Decision REVERSED and REMANDED. HELD: Under the Dead Mans Statute, the surviving party may testify only as to those matters particularly within his own knowledg e, and if that deceased party would not have been able to contradict had she testified. The present statute after having been subjected to a number of amendments, all of which modified the common law rule disqualifying as witnesses all persons interested in the event of the action, generally recognized to mean that the witness would either gain or lose by direct legal operation or effect of the judgment. It should be noted that such rule was one of disqualification of witnesses and did not relate to the witness's testimony. The error assigned in sustaining the objection to the testimony of sheriff Delbert Moore as to statements made to him by the decedent is well taken. The statutory exclusion of the testimony of witnesses under the sections above quoted has been consistently held by this court not to apply to disinterested third persons. Respondent contends that even if the order excluding Delbert Moore's testimony was error, it could not possibly have prejudiced appellant, was harmless error and not ground for reversal. Respondent bases this contention upon the offer of proof that followed the court's ruling, namely, that the sheriff would testify that Christ told him shortly after the accident "that he, Christ, hit the plaintiff's car in the rear end, and that's the end of the offer of proof, your Honor." Respondent contends that such testimony would establish the mere fact that an accident had occurred without any inference of negligence. o At this point, however, there had been no evidence in the case that Christ's car had struck appellant's car in the rear. While it is true that this fact alone would not necessarily establish negligence on Christ's part, there can be no doubt that it would constitute a part of such proof. The exclusion of the evidence was therefore prejudicial. New trial must be ordered. (3) Appellant assigns as error the court's ruling precluding appellant from testifying as to any fact prior to Christ's death. The position taken by the respective parties is somewhat confusing. Respondent, in support of the court's ruling, recites the way the issue arose as follows: "At the trial appellant was called as a witness in her own behalf to testify to the facts of the accident" and says that the question presented is "whether the survivor of an automobile accident can give uncontradicted testimony as to the manner in which the collision occurred when the lips of the other party are sealed by death." o However, respondent's objection as made in the trial court and the rulings which the trial court was prevailed on to make by reason of such objection were far broader than the enunciation of the proper rule sought from this court and as expressed in italics above. Plaintiff took the stand and was asked, "Will you please state your name?" Objection was made that the plaintiff "is rendered incompetent [to testify] under the so-called Nevada dead man's statute." Thereupon the jury was excused and over thirty pages of the transcript are devoted to argument, whereupon the objection was sustained. o Appellant then proceeded to make an offer of proof including her age, place of employment, rate of employment, nature and hours of employment, her leaving of her place of employment, the route pursued by her, the nature of the road, visibility, traffic, the striking of her car from behind, her confinement in the hospital, her doctor bills, the amount of her lost wages and her pain and suffering. o She also offered to testify that, presumably at the time when defendant was close enough behind her to have observed the matters testified to and could have contradicted the same of his own knowledge, "at no time prior to the time of collision did she cause the brakes to be applied in a sudden manner, nor did she indicate that she was going to make either a left or a right turn that her car was suddenly and without warning hit from the rear." Appellant now contends as follows: "She is not attempting to testify that the decedent's car was driven in a reckless manner. She is not by any direct statement or inference attempting to fix blame or attach fault to any person. Stating it succinctly, she merely desires to testify that she was driving down the highway in the proper lane, at a speed reasonable under the circumstances and that thereafter her car was struck in the rear."

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It will thus be seen that on the one hand respondent obtained an exclusionary ruling far broader than the one he now seeks to sustain; and on the other hand appellant sought, by her offer of proof, to testify in far wider scope than she now claims admissible. Appellant insists first in this respect that she is not precluded from testifying under NRS 48.010 (1) (a) because the decedent cannot be said to be "the other party to the transaction" inasmuch as no "transaction" was involved; that a tort action is not a transaction. o There is indeed some authority to support this view. In many cases this is based upon the wording of the particular state statute involved and is of no assistance here. The Maryland case, for example, expresses a preference for the New York rule. The New York statute, however, definitely fixed the exclusion as applying to testimony concerning "a personal transaction or communication" with the decedent. The overwhelming weight of authority supports the rule that the dead man's statute applies to actions ex delicto and that such actions are embraced within the statutory use of the word "transactions." If then we apply the statute to tort actions as well as personal transactions between the parties the testimony of the plaintiff was properly excluded under the holdings of this court in earlier cases, defining the purpose and extent of the rule with reference to those matters which the decedent could have contradicted of his own knowledge. By the same token, the appellant's testimony as to her medical bills, her pain and suffering and matters of like nature which the decedent could not have contradicted of his own knowledge, was clearly admissible and the rejection of such testimony was prejudicial error. o Those items were entirely beyond the operation of the reasons for the rule of exclusion repeatedly enunciated by this court: To prevent the living from obtaining unfair advantage because of death of the other. Nor shall the living be entitled to the undue advantage of giving his own uncontradicted and unexplained account of what transpired beyond possibility of contradiction by the decedent. The whole object of the code provision is to place the living and dead on terms of perfect equality, and, the dead not being able to testify, the living shall not. The object of the statute is to prevent one interested party from giving testimony when the other party's lips are sealed by death. But when the above stated reasons for the rule do not appear, this court has not hesitated to admit in evidence the testimony of an interested party. Therefore the rule would not preclude plaintiff's description of her own actions and the road conditions prior to the point when within limitations of time or space the decedent could have contradicted her testimony of his own knowledge. o The lines delimiting the actual "transaction" within the knowledge of the decedent must be drawn by the trial court. Whether these lines are drawn within limits of space or within limits of time within which matters were under the observation of the decedent, or both, must likewise be determined by the trial court. (4) Finally it is contended by appellant that the effect of our statute providing for the survival of tort actions against the estate of a decedent is entirely destroyed by application of the dead man's rule in cases such as the present one where the collision occurs in the desert without witnesses other than the parties. o This is not necessarily so. In virtually all cases much physical evidence is available skid marks, tire tracks, the condition of the respective cars involved showing the nature of the collision, etc. Appellant further contends that inasmuch as the application of the dead man's rule is condemned by all writers of the law of evidence as leading to harsh and unjust results this court should not, in a situation that is res integra in this state, extend its application to tort actions. This, however, is a matter of public policy, a matter for the legislature, in which are balanced against each other the chance of injustice in individual cases on the one hand and the protection of estates from fraudulent demands on the other. o

UNITED STATES v. ANTIPOLO (1916) FACTS: The appellant Antipolo was convicted by CFI Batangas, for the murder of one Fortunato Dinal. He appealed. One error assigned is based upon the refusal of the trial judge to permit Susana Ezpeleta, the widow of victim Dinal, to testify as a witness on behalf of the defense concerning certain alleged dying declarations. At the witness stand she stated that she is the widow of Fortunato Dinal, and was asked: "On what occasion did your husband die?" To this question the fiscal objected upon the ground that the witness is disqualified from testifying in this case in which her husband is the injured party. Counsel for defendant insisted that the witness was competent; that the parties to the prosecution of a criminal case are the Government and the accused; that, furthermore the marriage of Dinal to the witness having been dissolved by the death of her husband, she is no longer his wife, and so not subject to any disqualification arising from the status of marriage. Objection sustained. To this objection counsel took exception and made an offer to prove by the excluded witness the facts which he expected to establish by her testimony. Concerning these facts it is sufficient at this time to say that some of them would be both material and relevant, to such a degree that if proven to the satisfaction of the court, they might have lead to the acquittal of the accused, as they purported to relate to the dying declarations of the deceased, concerning the cause of his death, the general purport being that his injuries were due to fall and not to the acts imputed to the accused.

ISSUES: 1 WON the widow Susan Ezpeleta was disqualified as a witness by reason of marriage 2 WON the dying declaration of the victim to his wife constitute privileged communication DECISION: NO. NO. Judgment SET ASIDE and REMANDED. HELD: 1) Ratio: On grounds of public policy the wife can not testify against her husband as to what came to her from him confidentially or by reason of the marriage relation, but this rule does not apply to a dying communication made by the husband to the wife on the trial of the one who killed him. The declaration of the deceased made in extremes in such cases is a thing to be proven, and this proof may be made by any competent witness who heard the statement. The wife may testify for the state in cases of this character as to any other fact known to her (Arnett vs. Commonwealth) Reasoning: Sec. 58 of Gen. Orders No. 58 (1900) states that: Except with the consent of both, or except in cases of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties. o This case does not fall with the text of the statute or the reason upon which it is based, and therefore it is inapplicable. The purpose of Sec. 58 is to protect accused persons against statements made in the confidence engendered by the marital relation, and to relieve the husband or wife to whom such confidential communications might have been made from the obligation of revealing them to the prejudice of the other spouse. Such is not the case at bar. 2) Ratio: It can not be contended that the dying declaration testified to by the witness was a confidential communication made to her; on the contrary, it was evidently made in the furtherance of justice for the express purpose that it should be testified to in the prosecution of the defendant. (Arnett vs. Commonwealth) Reasoning: Obviously, when a person at the point of death as a result of injuries he has suffered makes a statement regarding the manner in which he received those injuries, the communication so made is in no sense confidential. On the contrary, such a communication is made for the express purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into the cause of his death.

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The declarations of a deceased person while in anticipation of certain impending death, concerning the circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the declarant. (U. S. vs. Gil) Such dying declarations are admissible in favor of the defendant as well as against him. (Mattox vs. U. S.) It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations.

PEOPLE v. CARLOS (1925) FACTS: Dr. Sityar operated on Carlos wife for appendicitis and other ailments. The wife was confined, and was required to often consult with the doctor afterwards. Carlos accompanied his wife during consultations. On one visit Dr. Sityar asked Carlos to buy medicine, which during his time away Dr. Sityar outraged his wife. The wife told Carlos after they left the clinic. Nevertheless, Carlos still consulted with Dr. Sityar with his lung trouble after the incident without revealing any special resentment. Later Dr. Sityar through letter asked Carlos to immediately settle the professional fees due him for treating Carlos wife. Carlos went to the clinic several times but wasnt able to talk to Dr. Sityar until May 26. The prosecution established through evidence that Carlos stabbed Dr. Sityar twice with a fan-knife without any preliminary quarrel, and inflicted a third wound while in pursuit. Carlos escaped but surrendered himself to the Constabulary the next evening. The defense presented arguments for self-defense which failed. TC convicted Carlos of murder due to evident premeditation, which only support was Exhibit L the wifes letter to Carlos [dated two days before the crime] which was seized by the police. In the letter, the wife feared that Carlos contemplated resorting to physical violence in dealing with Dr. Sityar. ISSUE: Murder or homicide? [Is the letter admissible or is it privileged communication and therefore inadmissible?] DECISION: GUILTY of simple HOMICIDE. [NO] HELD: SC: Homicide. Letter inadmissible written by wife. Might have been admissible: o If wife testified at the trial and subject her testimony to impeachment, but she was not put on the witness stand and the letter was therefore not offered for that purpose. o If Carlos, either by answer or otherwise, had indicated his assent to the statement s contained in the letter, but he didnt. The letter therefore is pure hearsay and its admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witness for the prosecution and have the opportunity to examine them. In this respect there can be no difference between an ordinary communication and one originally privileged. When admissible: o Conversation ( Letter): The question is radically different from that of the admissibility of testimony of a t hird party as to a conversation between a husband and wife overheard by the witness. It is admissible because it relates to a conversation in which both spouses took part, and on the further ground that where the defendant has the opportunity to answer a statement made to him by his spouse and fails to do so, his silence implies assent. This cannot apply where the statement is contained in an unanswered letter. o Where a privileged communication from one spouse to another comes into the hands of a third party, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise competent, becomes admissible. o Wigmore: If they were obtained surreptiously or otherwise without the addressees consent, the privilege should cease. Since Exhibit L is inadmissible, Carlos should be convicted only with murder. Regarding prosecutions contention that the crime was murder because it was committed with aleviosa (be cause one of the wounds received by the deceased showed a downward direction, indicating that the deceased was sitting down when the wound was inflicted), the res no sufficient proof because the direction of the wound would depend largely upon the manner in which the knife was held. DISSENT (Villamor): Carlos should have been convicted of murder. An eyewitness testified that Dr. Sityar had his arms lowered and was about to fall down when Carlos stabbed him, which wound according to the doctor-examiner could have caused Dr. Sityars death. The case of US v. Baluyot states that even though a deadly attack may be begun under conditions not exhibiting the feature of aleviosa, yet if the assault is continued and the crime is consummated with aleviosa, such circumstance may be taken into consideration as a qualifying factor in murder. PEOPLE v. FRANCISCO (1947) FACTS: Defendant, who had been previously arrested on charges of robbery requested permission from the chief of police of Mansalay to go home to see his wife about the procurement of bail for his provisional release. Permission was granted. He was allowed to go with sergeant Pimentel. Upon reaching the house, the sergeant allowed the prisoner to see his wife. After a few moments, Pimentel heard the scream of a woman. Still moments later, Pimentel saw defendant lying down with his little son Romeo, aged one year and a half, on his breast. Pimentel also found defendant to have a wound in his belly while his child had a wound in the back. Pimentel found the child dead. The prosecution, in recommending the imposition of the capital penalty upon the accused relies mainly on the affidavit of the accused, the arraignment of the defendant upon which he made a plea of guilty, and the rebuttal testimony of Emilia Taladtad, wife of appellant. ISSUE (Relevant): WON the testimony of Emilia Taladtad, wife of appellant, is admissible HELD: YES. The rule contained in section 26(d) of Rule 123 is an old one. Courts have assigned as reasons therefor the following: first, identity of interest; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of and occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and, fourth, because where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other. However, this rule has its exceptions as well. In the instant case, the wife did not testify in the direct evidence for the prosecution. It will be noted that the wife only testified against her husband after the latter, testifying in his own defense, imputed upon her the killing of their little son. By all rules of justice and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and to the wife herself the right to so testify, at least, in self-defense, not, of course, against being subjected to punishment in that case in which she was not a defendant but against any or all of various possible consequences which might flow from her silence.

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Furthermore, by his said act (imputing the crime to his wife), the husband himself exercising the very right which he would deny to his wife upon the ground of their marital relations must be taken to have waived all objection to the latters testimony upon rebuttal, eve n considering that such objection would have been available at the outset. As well settled as this rule of marital incompetency itself is the other that it may be waived.

LACUROM v. JACOBA (2006) FACTS: The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Veneracion in a civil case for unlawful detainer against defendant Barrientos. The MTC rendered judgment in favor of Veneracion but Barrientos appealed to the RTC and was raffled to Judge Lacurom. Judge Lacurom issued a Resolution reversing the earlier judgments rendered in favor of Veneracion. Veneracion's counsel filed a MR (with Request for Inhibition), using strong and insulting language, praying that (1) Judge Lacurom inhibit himself "in order to give plaintiff a fighting chance" and (2) the Resolution be reconsidered and set aside. Atty. Velasco-Jacoba signed the motion on behalf of the firm. Judge Lacurom ordered Velasco-Jacoba to appear before his sala and explain why she should not be held in contempt of court for the "very disrespectful, insulting and humiliating" contents of the motion. In her Explanation, Comments and Answer, Velasco-Jacoba claimed that "His Honor knows beforehand who actually prepared the subject Motion; records will show that the undersigned counsel did not actually or actively participate in this case." Velasco-Jacoba disavowed any "conscious or deliberate intent to degrade the honor and integrity of the Honorable Court or to detract in any form from the respect that is rightfully due all courts of justice." o Nevertheless, Velasco-Jacoba expressed willingness to apologize "for whatever mistake they may have committed in a moment of unguarded discretion when they may have 'stepped on the line and gone out of bounds'." She also agreed to have the allegedly contemptuous phrases stricken off the record. Judge Lacurom found Velasco-Jacoba guilty of contempt. Velasco-Jacoba moved for reconsideration. She recounted that on her way out of the house for an afternoon hearing, Atty. Jacoba stopped her and said "O, pirmahan mo na ito kasi last day na, baka mahuli." She signed the pleading handed to her without reading it, in "trusting blind faith" on her husband of 35 years with whom she "entrusted her whole life and future." The records show that with the assistance of counsel Jacoba and the Jacoba-Velasco-Jacoba Law Firm, Veneracion had executed an affidavit accusing Judge Lacurom of knowingly rendering unjust judgment through inexcusable negligence and ignorance and violating Section 3(e) of RA 3019. The first charge became the subject of a preliminary investigation by the City Prosecutor. On the second charge, Veneracion set forth his allegations in a Complaint-Affidavit filed with the Office of the Deputy Ombudsman for Luzon. Judge Lacurom issued another order, this time directing Jacoba to explain why he should not be held in contempt. Jacoba complied by filing an Answer with Second Motion for Inhibition, wherein he denied that he typed or prepared the motion. Against Velasco-Jacoba's statements implicating him, Jacoba invoked the marital privilege rule in evidence. Judge Lacurom later rendered a decision finding Jacoba guilty of contempt. Judge Lacurom filed the present complaint against respondents before the IBP. IBP Commissioner Navarro, in her Report and Recommendation, recommended the suspension of respondents from the practice of law for six months. Commissioner Navarro found that "respondents were prone to using offensive and derogatory remarks and phrases which amounted to discourtesy and disrespect for authority." Although the remarks were not directed at Judge Lacurom personally, they were aimed at "his position as a judge, which is a smack on the judiciary system as a whole." IBP Board adopted said Report and Recommendation, except for the length of suspension which the IBP Board reduced to three months. Velasco-Jacoba sought reconsideration of the IBP Board decision saying that they filed an administrative case against Judge Lacurom with the SC.

ISSUE (Relevant): WON the marital communication privileged can be invoked DECISION: NO. The Court SUSPENDS Atty. Ellis F. Jacoba from the practice of law for 2 years effective upon finality of this Decision. The Court SUSPENDS Atty. Olivia Velasco-Jacoba from the practice of law for 2 months effective upon finality of this Decision. The Court STERNLY WARNS respondents that a repetition of the same or similar infraction shall merit a more severe sanction. HELD: Velasco-Jacoba insists that she signed the motion only because of her husband's request but she did not know its contents beforehand. Apparently, this practice of signing each other's pleadings is a long-standing arrangement between the spouses. By Velasco-Jacoba's own admission, therefore, she violated Section 3 of Rule 7. This violation is an act of falsehood before the courts, which in itself is a ground for subjecting her to disciplinary action, independent of any other ground arising from the contents of the motion. As regards Jacoba, his name does not appear in the motion. He asserts the inadmissibility of Velasco-Jacoba's statement pointing to him as the author of the motion. The Court cannot easily let Jacoba off the hook. o Firstly, his Answer with Second Motion for Inhibition did not contain a denial of his wife's account. Instead, Jacoba impliedly admitted authorship of the motion by stating that he "trained his guns and fired at the errors which he perceived and believed to be gigantic and monumental." o Secondly, Velasco-Jacoba's version of the facts is more plausible, for two reasons: (1) her reaction to the events was immediate and spontaneous, unlike Jacoba's defense which was raised only after a considerable time had elapsed from the eruption of the controversy; and (2) Jacoba had been counsel of record for Veneracion in Civil Case No. 2836, supporting Velasco-Jacoba's assertion that she had not "actually participated" in the prosecution of the case. o Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that Judge Lacurom await the outcome of the petition for certiorari before deciding the contempt charge against him.41 This petition for certiorari anchors some of its arguments on the premise that the motion was, in fact, Jacoba's handiwork. The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to its presentation or by any conduct that may be construed as implied consent. This waiver applies to Jacoba who impliedly admitted authorship of the motion. No doubt, the language contained in the motion greatly exceeded the vigor required of Jacoba to defend ably his client's cause especially the use of the ff words and phrases: abhorrent nullity, legal monstrosity, horrendous mistake, horrible error, boner, and an insult to the judiciary and an anachronism in the judicial process. Even Velasco-Jacoba acknowledged that the words created "a cacophonic picture of total and utter disrespect." Well-recognized is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. Though a lawyer's language may be forceful and emphatic, it should always be dignified and respectful, befitting the dignity of the legal profession. Shortly after the filing of the 30 July 2001 motion but before its resolution, Jacoba assisted his client in instituting two administrative cases against Judge Lacurom. Civil Case No. 2836 was then pending before Judge Lacurom's sala. The Court's attention is drawn to the fact that the

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timing of the filing of these administrative cases could very well raise the suspicion that the cases were intended as leverage against Judge Lacurom. Respondent spouses have both been the subject of administrative cases before this Court. In Administrative Case No. 2594, the Court suspended Jacoba from the practice of law for a period of six months because of "his failure to file an action for the recovery of possession of property despite the lapse of two and a half years from receipt by him of P550 which his client gave him as filing and sheriff's fees."48 In Administrative Case No. 5505, Jacoba was once again found remiss in his duties when he failed to file the appellant's brief, resulting in the dismissal of his client's appeal. As for Velasco-Jacoba, only recently this Court fined her P5,000 for appearing in barangay conciliation proceedings on behalf of a party, knowing fully well the prohibition contained in Sec 415 of the LGC.

BARTON v. LEYTE ASPHALT & MINERAL OIL CO. (1924) FACTS: James Barton is a US citizen residing in Manila while Leyte Asphalt is a Philippine company which has its principal office in Cebu. Barton sought to recover the sum of $318,563.30 in damages from Leyte Asphalt due to breach of contract along with a judicial pronouncement that he was entitled to an extension of the terms of the sales agencies specified in the contract (Exhibit A). Leyte Asphalt appears to be the owner of the Lucio Mine in Leyte, a valuable deposit of bituminous limestone and other asphalt products. William Anderson, the general manager of Leyte Asphalt, wrote a letter to Baron authorizing the latter to sell the products of the Lucio Mine in the Commonwealth of Australia and New Zealand upon a scale of prices indicated in said letter. Exhibit A, the authorization Baron relies on, contained the following stipulations (among others): o Baron is given the sole and exclusive sales agency for the bituminous limestone and other asphalt products of the Leyte Asphalt in Australia, Saigon, Java, New Zealand, India, China, Tasmania, Sumatra, Siam, the Strait Settlements, USA and Hongkong until May 1, 1921. o No orders for less than one thousand (1,000) tons will be accepted except under special agreement with Leyte Asphalt. It also contained a breakdown of the prices per ton. o If the sales in the above territory equal or exceed ten 10,000 tons in the year ending October 1, 1921 then in th at event the price of all shipments made during the above period shall be ten pesos (P10) per ton, and any sum charged to any of your customers or buyers in the aforesaid territory in excess of ten pesos (P10) per ton shall be rebated to Baron. o Baron also had full authority to sell the Lucio mine products for any sum he saw fit in excess of the prices quoted above and such excess in price was to be his extra and additional profit and commission. o All ships, steamers, boats or other carriers were to be loaded promptly with not less than 1,000 tons each 24 hours after March 1, 1921, unless there was to be prior notice. It was also stipulated that Leyte Asphalt shall not be required to ship orders of 5,000 tons except on 30 days notice and 10,000 tons except on 60 days notice. Baron entered into subagency agreements in San Francisco and Australia. o In San Francisco, he entered into an agreement with Ludvigsen & McCurdy. Ludvigsen & McCurdy was instituted as a subagent and given the sole selling rights for the bituminous limestone products of Leyte Asphalt for 1 year. o Baron had also gone to Australia where he instituted Frank Smith as his sales agent. February 5, 1921 Ludvigsen & McCurdy advised Baron of an order of 6,000 tons of bituminous limestone which Baron accepted. Anderson informed Baron that Leyte Asphalt was behind construction so it could not handle big contracts as of the moment. The two met in Manila on March 12 and Baron told Anderson about the San Francisco order. Anderson said that, owing to lack of capital, adequate facilities had not been provided by the company for filling large orders and suggested that Baron had better hold up in the matter of taking orders. Despite Andersons response, Baron wrote a notification to Leyte Asphalt for the compa ny to be prepared to ship five thousand tons of bituminous limestone to San Francisco. He also made additional orders for Smith in Australia. Leyte Asphalt acknowledged the orders for Australia and San Francisco but stated that no orders would be entertained without a cash deposit. The CFI absolved Leyte Asphalt from four of the six causes of action. The CFI allowed Barton to recover $202,500 from the first cause of action and $405,000 from the fourth cause of action. Among the evidence presented was a carbon copy of a letter written by Baron to Atty. Ingersoll, his lawyer. In the said letter, Baron wrote that his profit from the San Francisco contract would have been at the rate of 85 cents per ton. When the letter was offered in evidence by the attorney for the defendant, the counsel for the plaintiff announced that he had no objection to the introduction of this carbon copy in evidence if counsel for the defendant would explain where this copy was secured. The attorney for the defendant informed the court that he received the letter from the former attorneys of the defendant without explanation of the manner in which the document had come into their possession. Barons lawyer then made an announcement that unless the defendants counsel explained how the letter came to the defenses possession, he proposed to object the letters admission on the ground that it was a confidential communication between client and lawyer. The trial judge excluded the letter. ISSUE: WON the letter should be excluded HELD: NO RATIO: When papers are offered in evidence a court will take no notice of how they were obtained, whether legally or illegally, properly or improperly; nor will it form a collateral issue to try that question. Reasoning: Even supposing that the letter was within the privilege which protects communications between attorney and client, this privilege was lost when the letter came to the hands of the adverse party and it makes no difference how the defense acquired possession. The law protects the client from the effect of disclosures made by him to his attorney in the confidence of the legal relation, but when such a document, containing admissions of the client, comes to the hand of a third party, and reaches the adversary, it is admissible in evidence. According to Wigmore: Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is a derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications. One who overhears the communication, whether with or without the client's knowledge, is not within the protection of the privilege. The same rule ought to apply to one who surreptitiously reads or obtains possession of a document in original or copy. DISPOSITION: Judgment reversed. ORIENT INSURANCE CO. v. REVILLA (1930) FACTS:

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Teal Motor Co. filed a civil action to recover upon 2 fire insurance policies issued by the Orient Insurance Company upon a stock of merchandise, which was allegedly destroyed by a fire. As a defense, Orient claimed that, though it had sent notice rejecting Teals claim, the latter failed to institute action within 3 months from such notice, thereby forfeiting all benefits under the terms of the contract. On the other hand, Teal alleged that one E.E. Elser, a representative of the company, expressly requested Teal to defer judicial action as there were possibilities for an extrajudicial compromise. During trial, E.M. Bachrach, president of Teal Motor, said that he received a letter from their attorneys, Attys. Guevarra, Francisco and Recto, urging him to file the case. Orient moved for the reading of said letter, however, upon objection by Teal, the trial judge allowed only the reading of the part on which Bachrach testified. Orient tried again to have the whole letter read, but was denied. Orient then procured a subpoena duces tecum requiring the aforesaid attorneys to produce in court certain papers, including the aforesaid letter. Upon motion by said attorneys, said subpoena was quashed.

ISSUE: WON the reading of the whole letter violate the attorney-client privilege HELD: No. When a part of a writing is introduced in evidence by one litigant, his adversary is entitled to use the other parts of the same writing, so far as is relevant to the issues in the case. To this end, the adversary partys attorney has a right to inspect the writing and to req uire its production in court. According to Teal, the other, unread, portions of the letter were privileged as they were related to the terms of employment between attorney and client. Irrelevant it might be, under certain circumstances, it is not privileged. On the other hand, assuming the matter contained in the letter and withheld from the inspection of Orient was of a privileged nature, the privilege was waived by the introduction in evidence of part of the letter. Section 283 of the Code of Civil Procedure makes no exception as to privileged matter. The introduction in evidence of part of a paper writing by one party waives privilege as to the other parts of the same writing. UPJOHN COMPANY v. U.S. (1981) FACTS: Petitioner, an international pharmaceutical company discovered through an independent audit that one of its foreign subsidiaries might have made payments to foreign government officials in order to secure government business. Gerard Thomas, petitioners eneral Counsel, was notified and he consulted with outside counsel as well as petitioners Chairman, all of whom decided an internal investigation as to questionable payments was necessary. As a result, questionnaires were sent to all foreign and area managers inquiring as to information regarding any such payments. This procedure of collecting information had been deemed highly confidential. Petitioner voluntarily sent a preliminary report to the Secu rities and Exchange Commission (SEC) and the IRS. The IRS began an investigation and was given lists by Petitioner of all those who were interviewed and all whom had responded to the questionnaire. The IRS then sought production of all files relative to the investigation conducted under erard Thomas super vision. The requested production included, but was not limited to the written questionnaires and memoranda or notes of interviews conducted in the US and abroad of officers and employees of Petitioner and its subsidiaries. Petitioner refused, citing attorney-client privilege and attorney work product in anticipation of trial. The Respondent, the United States (Respondent), filed a petition seeking enforcement of the summons in the United States District Court for the Western District of Michigan, which was granted. Petitioner then appealed to the Court of Appeals for the Sixth Circuit which rejected the District Courts finding of waiver of the attorney -client privilege, but agreed that the privilege did not apply to the communications made by officers and agents not responsible for directing Upjohns actions in response to legal advice. The Appellate Court remanded to the District Court to determine who was within the control group.

ISSUE: WON the attorney-client privilege in the corporate context extends to employees not within the control group of the corporation. Whether the IRS had shown sufficient necessity and justification to overcome the work- product doctrine. HELD: Judgment of the Court of Appeals reversed and remanded. The attorney-client privilege protects the communications in this case from compelled disclosure. The work-product doctrine applies in tax summons enforcement proceedings where a strong showing of necessity must be shown to compel discovery of work product. RATIO: The attorney-client privilege applies to corporations, not just to the control group rather, it extends to lower level employees as well, since their actions as well may involve the corporation in legal difficulties. The attorney-client privilege only protects disclosure of communications. It does not protect disclosure of the underlying facts by those who communicated with the attorney. In this case, the Petitioner gave to the IRS a list of those employees to whom the questionnaire was given and those who answered. The IRS was free to question the employees who communicated with Thomas and outside counsel. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The notes and memoranda that the IRS sought in this case were work product based on oral statements. This required the IRS to show necessity and undue hardship in obtaining the information it sought, a burden that the Supreme Court of the US held was not met. REGALA v. SANDIGANBAYAN (1996) FACTS: The matters raised here are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by RP, through the PCGG against Eduardo Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case entitled "RP vs. Eduardo Cojuangco, et al." (Civil Case No.0033). Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo Angara, Avelino Cruz, Jose Concepcion, Rogelio Vinluan, Victor Lazatin, Eduardo Escueta and Paraja Hayudini, and herein private respondent Raul Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (ACCRA Law Firm). As members of the ACCRA Law Firm, petitioners and respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings. August 20, 1991, PCGG filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul Roco from the complaint in Civil Case No. 0033 as party- defendant. Respondent PCGG based its exclusion of Roco as partydefendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in Civil Case No. 0033. Petitioners were included in the Third Amended Complaint on the strength of the following allegations: Defendants Cojuangco, Angara, Concepcion, Regala, Cruz, Vinluan, Escueta, Hayudini and Roco of ACCRA plotted, devised, schemed, conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the

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ISSUES: 1. WON Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nomineestockholders, to the strict application of the law of agency. 2. WON Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. 3. WON Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment. A) There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nomineestockholder. B) Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. C) Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause. HELD: 1. YES Ratio: It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners inclu sion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. Reasoning: It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the bigger fish as they say in street parlance. This ploy is quite clear from the PC s willingness to cut a deal with petitioners -- the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: o ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e., their p rincipal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for r ecognizing the privilege; the existence and identity of the client. 2. YES.

establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately 15M shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1.4M shareholders. On the other hand, corporate books show the name Edgardo Angara as holding approximately 3,744 shares as of February, 1984. In their answer ACCRA lawyers alleged that: o Defendants-ACCRA lawyers participation in the acts with which their co -defendants are charged, was in furtherance of legitimate lawyering. o In the course of rendering professional and legal services to clients, defendants became holders of shares of stock in the corporations listed under their respective names as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. o Defendant Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the shares appearing in his name are his assets. o Petitioner Hayudini, who had separated from ACCRA, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth. ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded Roco. In its "Comment," PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer- client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings. Consequently, PCGG presented supposed proof to substantiate compliance by Roco of the conditions precedent to warrant the latter's exclusion as party- defendant in Civil Case No. 0033: (a) Letter to PCGG of the counsel of Roco reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33 (Civil Case No. 0033); (b) Affidavit executed by Roco as Attachment to the letter aforestated; and (c) Letter of the Roco, Bunag, and Kapunan Law Offices to the PCGG in behalf Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in PCGG Case No. 33. During said proceedings, Roco did not refute petitioners' contention that he did not actually reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. o The PCGG is satisfied that Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72). o The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings. The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. o The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. WHEREFORE, the Counter Motion for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED. ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari. Hayudini filed a separate petition for certiorari on the same grounds averred by petitioners ACCRA lawyers. PCGG refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status.

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Ratio: As a matter of public policy, a clients identity should not be shrouded in mystery. Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. Notwithstanding these considerations, the general rule is however qualified by some important exceptions. o 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. o 2) Where disclosure would open the client to civil liability, his identity is privileged. o 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure and the entire transaction. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. o Reasoning The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matteror the substance (without which there would be no attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PC itself. The key lies in the three specific conditions laid down by the PC which constitutes petitioners tick et to non-prosecution should they accede thereto: the disclosure of the identity of its clients; submission of documents substantiating the lawyer-client relationship; and the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners legal service to t heir clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, that would inevitably form the chain of testimony necessary to convict the (client) of a... crime." An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime. The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the clients name is not privileged information. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link that would inevitably form the chain of testimony necessary to convict the (client) of a crime. LEGAL ETHICS; LAWYER-CLIENT RELATIONSHIP; BOUND BY RULES, ETHICAL CONDUCT AND DUTIES; RATIONALE: In the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, that is required by reason of necessity and public interest based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. It is also the strict sence of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition. Considerations favoring confidentiality in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once selfevident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. In our jurisdiction, this privilege takes off from the old Code of Civil Procedure. Section 383 specifically forbids counse l, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional em ployment.

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Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. - The following persons cannot testify as to matters learned in confidence in the following cases: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorneys secretary, stenographer, or clerk be examined , without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: o (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: Canon 17. A lawyer owes fidelity to the cause of his clientand he shall be mindful of the trust and confidence reposed in him. Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.

3. YES Ratio: As to the bare statement that Roco merely acted as a lawyer and nominee, a statement made in his out- of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of- court but also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "le gitimate lawyering. Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. Reasoning: To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show - and absolutely nothing exists in the records of the case at bar - that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions. To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as a species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. The equal protection clause is a guarantee which provides a wall of protection against uneven application of statutes and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment. Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed. DISPOSITIVE: We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PC s demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. Dissenting Opinion DAVIDE: The rule of confidentiality under the lawyer-client relationship is not a cause to exclude a party. It is merely a ground for disqualification of a witness (Sec. 24, Rule 130, Rules of Court) and may only be invoked at the appropriate time, i.e., when a lawyer is under compulsion to answer as witness, as when, having taken the witness stand, he is questioned as to such confidential communication or advice, or is being otherwise judicially coerced to produce, through subpoena duces tecum or otherwise, letters or other documents containing the same privileged matter. Hypothetically admitting the allegations in the complaint in Civil Case No. 0033, I find myself unable to agree with the majority opinion that the petitioners are immune from suit or that they have to be excluded as defendants, or that they cannot be compelled to reveal or disclose the identity of their principals, all because of the sacred lawyer-client privilege. This privilege is well put in Rule 130 of the Rules of Court. The majority seeks to expand the scope of the Philippine rule on the lawyer-client privilege by copious citations of American jurisprudence which includes in the privilege the identity of the client under the exceptional situations narrated therein. From the plethora of cases cited, two facts stand out in bold relief. Firstly, the issue of privilege contested therein arose in grand jury proceedings on different States, which are primarily proceedings before the filing of the case in court, and we are not even told what evidentiary rules apply in the said hearings. In the present case, the privilege is invoked in the court where it was already filed. Secondly, and more important, in the cases cited by the majority, the lawyers concerned were merely advocating the cause of their clients but were not indicted for the charges against their said clients. Here, the

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counsel themselves are co-defendants duly charged in court as co-conspirators in the offenses charged. The cases cited by the majority evidently do not apply to them. I wish to repeat and underscore the fact that the lawyer-client privilege is not a shield for the commission of a crime or against the prosecution of the lawyer therefor. We do not even have to go beyond our shores for an authority that the lawyer-client privilege cannot be invoked to prevent the disclosure of a client's identity where the lawyer and the client are conspirators in the commission of a crime or a fraud. Under our jurisdiction, lawyers are mandated not to counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system (Rule 1.02, Canon 1, Code of Professional Responsibility) and to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01, Canon 19, Id). And under the Canons of Professional Ethics, a lawyer must steadfastly bear in mind that his great trust is to be performed within and not without the bounds of the law (Canon 15, Id.), that he advances the honor of his profession and the best interest of his client when he renders service or gives advice tending to impress upon the client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law (Canon 32, Id.). These canons strip a lawyer of the lawyer-client, privilege whenever he conspires with the client in the commission of a crime or a fraud. The attorney-client privilege can never be used as a shield to commit a crime or a fraud. Communications to an attorney having for their object the commission of a crime "x x x partake the nature of a conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes." As a general rule, the attorney-client privilege does not include the right of non-disclosure of client identity. The general rule, however, admits of well- etched exceptions which the Sandiganbayan failed to recognize. The general rule and its exceptions are accurately summarized in In re Grand Jury Investigation. The Circuits have embraced various "exceptions" to the general rule that the identity of a client is not within the protective ambit of an attorney- client privilege. All such exceptions appear to be firmly grounded in the Ninth Circuit's seminal decision in Baird v. Koerner. 'The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgment of guilt on the part of such client of the very offenses on account of which the attorney was employed.' 'A significant exception to this principle of non-confidentiality holds that such information may be privileged when the person invoking the privilege is able to show that a strong possibility exists that disclosure of the information would implicate the client in the very matter for which legal advice was sought in the first case.' Another exception to the general rule that the identity of a client is not privileged arises where disclosure of the identity would be tantamount to disclosing an otherwise protected confidential communication. To the general rule is an exception, firmly embedded as the rule itself. The privilege may be recognized where so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. The privilege may be recognized where so much of the actual communication has already been disclosed [not necessarily by the attorney, but by independent sources as well] that identification of the client [or of fees paid] amounts to disclosure of a confidential communication. Another exception, articulated in the Fifth Circuit's en banc decision of In re Grand Jury Proceedings (Pavlick) is recognized when disclosure of the identity of the client would provide the "last link" of evidence. The person claiming the privilege or its exception has the obligation to present the underlying facts demonstrating the existence of the privilege. When these facts can be presented only by revealing the very information sought to be protected by the privilege, the procedure is for the lawyer to move for an inspection of the evidence in and in camera hearing. The hearing can even be in camera and ex-parte. Thus, it has been held that "a well-recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex-parte hearing. Without the proofs adduced in these in camera hearings, the Court has no factual basis to determine whether petitioners fall within any of the exceptions to the general rule.

PUNO:

PEOPLE v SANDIGANBAYAN (1997) FACTS: Mansueta Honrada was the Clerk of Court and Acting Stenographer of the First MCTC, San Francisco- Bunawan-Rosario in Agusan del Sur. Ceferino Paredes was successively the Provl Atty of Agusan del Sur, then Governor, and is at present a Congressman. Generoso Sansaet was a practicing attorney who served as counsel for Paredes in several instances pertinent to the criminal charges involved herein. In 1976, Paredes applied for a free patent over a lot of Rosario Public Land Subd Survey. This was approved and an OCT was issued in his favor. In 1985, Director of Lands filed an action for the cancellation of Paredes' patent and certificate of title since the land had been designated and reserved as a school site in the subdivision survey. The TC nullified the patent and title after finding that Paredes had obtained the same through fraudulent misrepresentations in his application. Sansaet served as counsel of Paredes in that civil case. Upon the subsequent complaint of the Sangguniang Bayan, an information for perjury was filed against Paredes in the MCTC. Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the proceedings were terminated. Paredes was represented by Sansaet. Paredes was then haled before the Tanodbayan for PI on the charge that, by using his former position as Provincial Attorney to influence and induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated Sec 3(a) of RA 3019. Sansaet was again Paredes' counsel.. On Aug 29, 1988, the Tanodbayan, issued a resolution recommending the criminal prosecution of Paredes. Sansaet, as counsel, moved for reconsideration, saying: o . . . respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the same evidence . . . but said case after arraignment, was ordered dismissed by the court upon recommendation of the Department of Justice. Copy of the dismissal order, certificate of arraignment and the recommendation of the Department of Justice are hereto attached for ready reference; thus the filing of this case will be a case of double jeopardy for respondent herein . . . A criminal case was subsequently filed with Sandiganbayan, charging Paredes with violation of Sec 3 (a) of RA 3019. However, a motion to quash was later granted and the case was dismissed on the ground of prescription. On Jan 23, 1990, Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges against Paredes, sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents. He claimed that Honrada, in conspiracy with Paredes and Sansaet, simulated and certified as true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge. These falsified documents were annexed to Paredes' motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention that the same would constitute double jeopardy.

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Gelacio attached to his letter a certification that no notice of arraignment was ever received by the Office of t he Provincial Fiscal of Agusan del Sur in connection with that perjury case; and a certification of Presiding Judge Ciriaco Arino that said perjury case in his court did not reach arraignment since action was suspended pending the review of the case by the DOJ. Respondents filed their counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made. In an Affidavit of Explanations and Rectifications, Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed by the trial court after he had been arraigned. For that purpose, the documents which were later filed by Sansaet in the preliminary investigation were prepared and falsified by his corespondents in the house of Paredes. To evade responsibility for his own participation in the scheme, Sansaet claimed that he did so upon the instigation and inducement of Paredes. This was intended to pave the way for his discharge as a government witness. In a resolution dated Feb 24, 1992, the Ombudsman approved the filing of falsification charges against Honrada, Paredes and Sansaet. The proposal for the discharge of Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position: o . . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial. The Ombudsman refused to reconsider that resolution and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the respondents. Thus, three criminal cases were filed in the graft court. These were consolidated for joint trial in the Sandiganbayan. A motion was filed by the People on July 27, 1993 for the discharge of Sansaet as a state witness. It was submitted that all the requisites, as provided in Sec 9, Rule 119 ROC, were satisfied insofar as Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by Honrada and Paredes. Sandiganbayan resolved to deny the desired discharge on this ratiocination: o From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged.

ISSUES: 1. WON the projected testimony of Sansaet, as proposed state witness, is barred by the attorney-client privilege 2. WON, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis HELD: 1. NO. The attorney-client privilege cannot apply in these cases, as the facts and actuations of both respondents therein constitute an exception to the rule. a. It may be assumed that there was a confidential communication made by Paredes to Sansaet in connection with the criminal case for falsification, and this may be expected since Paredes was the accused and Sansaet his counsel. The fact that Sansaet was called by Paredes and Honrada to witness the preparation of the falsified documents was as eloquent a communication, if not more than, as verbal statements by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. In the American jurisdiction, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. Nor can it be pretended that during the entire process, considering their past and existing relations as counseland client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is that the documents were thereafter filed by Sansaet as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. b. It is postulated that a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. The announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that it is here dealing with a past crime, and that Sansaet is set to testify on alleged criminal acts of Paredes and Honrada that have already been committed and consummated. It is true that by now, insofar as the falsifications to be testified to are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. The testimony sought to be elicited from Sansaet are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan and culminated in the criminal charges now pending in Sandiganbayan. Clearly, therefore, the confidential communications made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his co-respondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. c. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. In fact, the "prosecution of the honorable relation

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of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." It was error for Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. 2. YES Sansaet was a conspirator in the crime of falsification, and the rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of the conspiracy. One of the requirements for a state witness is that he "does not appear to be the most guilty" and not that he must be the least guilty as is so often erroneously framed or submitted. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness. The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the RPC is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. This is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy. b. The other requisites for the discharge of Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan. Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases, and the prosecution is faced with the formidable task of establishing the guilt of the two other co- respondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution, hence there is absolute necessity for the testimony of Sansaet. He has indicated his conformity thereto and has, for the purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanation and Rectifications. His testimony can also be substantially corroborated on its material points by reputable witnesses. Moreover, it does not appear that Sansaet has at any time been convicted of any offense involving moral turpitude. DISPOSITION: Writ of certiorari is granted. MERCADO v. VITRIOLO (2005) FACTS: Complainants husband filed for annulment of their marriage where Atty. De Leon as counsel of complainant. Respondent entered his appearance as collaborating counsel for complainant when Atty. De leon died. He has been appointed as counsel for the complainant in substitution of Atty. De Leon. Respondent filed criminal action against petitioner for violation of art. 171 and172 (falsification of doc) that complainant made false entries in the Cert. of Live Birth of her children as to the name of her husband and the date of their marriage. Complainant brings this action against respondent. She claimed that, in filing criminal case for falsification, respondent is guilty of breaching their privileged and confidential lawyerclient relationship and should be disbarred. ISSUE: WON the respondent violated the rule on privileged communication between Atty and client when he filed criminal case against his former client HELD: The nature of the relationship between atty. And client and the rule of atty-client relationship privilege that is designed to protect such relation is in order. In engaging the services of an atty., the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting and confidential in nature that is required by necessity and public interest. One rule adopted to serve this purpose is the atty-client privilege: an atty. Is to keep inviolate his clients secrets or confidence and not to abuse them. Thus, the duty of a lawyer to preserve his clients secrets and conf idence outlasts the termination of the attyclient relationship, and continues even after the Clients death. It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyers tongue is tied from e ver disclosing it. With full disclosure of the facts of the case by the client to his atty. Adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the clients cause. The factors essential to establish the existence of the privilege are as follows: (1) where legal advice of any kind is sought; (2) from a professional legal adviser in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal advisor; (8) except the protection be waived. Without any testimony from the complainant as to the specific confidential information allegedly divulged by respondent without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privilege communication. Such confidential information is crucial link in establishing a breach of the rule on privileged communication between atty and client. It is not enough to merely assert the attyclient privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege. Thus, respondent is dismissed for lack of merit.

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