G.R. No.

L-64556 June 10, 1988

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

GANCAYCO, J.:
Rape is a serious offense against chastity. Its essential element is involuntariness. More often than not, the credibility of the offended party is vital.
Failing in this, the prosecution cannot make out a case.
This is demonstrated in a review of the conviction of the accused Ceferino Lungayan by the Regional Trial Court (RTC) of Echague, Isabela for the
crime of rape, who was thereby imposed the penalty of reclusion perpetua with all the accessory penalties provided for by law, and ordered to
indemnify the victim Agripina Juan Vda. de Garzota in the amount of P12,000.00 for moral damages without subsidiary imprisonment in case of
insolvency, and to pay the costs, in a decision dated April 8, 1982.
The evidence for the prosecution show that the complainant Agripina Juan Vda. de Garzota, then 52 years old and a widow, was asleep inside the
room at their market stall located in the public market of barangay Oscariz, municipality of Ramon, Isabela, on the evening of January 20, 1980. With
her were her two married daughters Silveria and Leticia, the latter's husband Berting Garcia and the children of said daughters. At about 10:00 o'clock
of that evening, Silveria heard someone knock at their door and when she opened it she saw the accused who was then the barangay captain of
Barangay Oscariz. He asked Silveria if her mother was in. She answered in the affirmative and added that her mother was asleep. Nevertheless, the
accused entered the room where complainant was sleeping and woke up the complainant. He invited her to join him to observe the persons drinking
wine in the market stall identified as Linda's canteen in violation of the barangay ordinance prohibiting the same after 10:00 o'clock in the evening.
Complainant went with the accused to the said canteen which was only one market stall away. They stood about two meters away from the open door
of the canteen, the electric lights of which were open inside. They stayed at the place for ten minutes standing side by side without talking to each
other. They were observing the people drinking in the canteen. Suddenly the accused grabbed both hands of complainant so complainant reacted by
shouting very loud only once. Her cries could not be heard by the people drinking inside the canteen because of the loud stereo player. The accused
slapped her and brought out his gun which he pointed at her breast threatening to kill her if she creates any noise. The accused then pulled her and
she fell on the ground hitting her head on the pavement so she lost consciousness, sustaining injuries on the palms of her hands.
When she regained consciousness after a short while, she was dragged by the accused towards the banana grove near the market. She managed to
stand and walk while being dragged. The accused then carried her body across the canal and dropped her on the ground causing her to fall flat on her
belly and her fingers were again injured by the broken glasses on the ground. She could not free herself nor shout for help because of the threat to her
life.
After she fell flat on the ground, the accused held her and pressed her down and he proceeded to remove her skirt and shorts and thereafter her
blouse leaving her exposed naked with her back to the ground. She was not wearing any panty or brassiere then. Besides pressing her down the
accused stepped on her thigh with his left foot as he went on top of her naked body. Then he stood up warning her not to make any noise and he
removed his pants and tee-shirt after which he again went on top of her naked body holding her hands. Pointing the gun at her breast anew, the
accused repeated his threat to kill her if she resisted. Then the accused started mashing her breast and succeeded in having sexual congress with the
complainant. She felt his penis penetrating her vagina followed by a push and pull movement for less than an hour, until she felt semen emitting from
his penis and entering her body. After a while, he stood up, put on his pants and warned her not to tell her children about what he had just done to her
or ask for help for he will kill her. He left her in tears. After the accused had gone, complainant put on her shorts and shirt which were muddy as it
previously rained that day and went home still crying.
When she reached home about 12:00 midnight, Silveria asked her what happened and she revealed that the accused abused her. When Silveria
pressed for details, the complainant replied that she will tell her the following morning.
As she promised, the next morning complainant told Silveria everything that happened to her and thereafter she proceeded to Santiago town and
reported the incident to Mr. Segundo Maylem, post commander and Executive Vice Chapter Commander, VFP Southern Isabela, from whom she
sought assistance. She was advised to submit herself to an investigation and medical examination, On the same day, the complainant was examined
by Dr. Normita Villarico, chief of the Cagayan Valley Sanitarium Hospital. After due investigation by the PC, a complaint for rape was filed signed and
sworn to by complainant in the Municipal Circuit Court of Ramon, Isabela against the accused.
In appealing his conviction, the accused, through counsel assailed the credibility of complainant and interposed the defense of denial and alibi.
However, by way of rebuttal of the People's brief filed by another collaborating counsel for appellant, the failure of the prosecution to establish
involuntariness on the part of the victim was emphasized.

The appeal is impressed with merit.

There is no question that there was sexual congress between the complainant and the appellant on that fateful evening. The medical findings and the
analysis of the court a quo to this effect is well- founded. However, the environmental circumstances of the case militates against the claim of the
complainant that the appellant employed force or intimidation in the perpetration of the said sexual act.
Complainant was a widow, 52 years of age. She had been married three times. She was not that innocent about the world. When appellant invited her
at 10:00 P.M. to step out of her house, she should have declined. Going out alone with a man late in the evening is not in good taste nor safe even if
the one who invited her was the barrio captain. Instead, she should have suggested that the appellant invite some other person for the purpose.
But obviously, the appellant was quite intimate with the complainant. When he knocked at her door and was allowed entry, he proceeded into the
bedroom of complainant and woke her up himself.
Complainant went with the appellant in her shorts. She took no precaution as any discreet woman would do by at least putting on her panty and a
brassiere instead of stepping out with the appellant in her shorts.
For about ten minutes, they were together side by side watching from a distance the people who were drinking at Linda's canteen. Then suddenly, the
appellant allegedly held her two hands. She allegedly shouted for help but only once. If she could not be heard as her voice was drowned by the
blaring stereo player, she should have shouted louder again and again. Better still, she should have ran towards the canteen which was just two
meters away or to her residence which was one market stall away. After allegedly shouting once, she kept her peace.
She was allegedly dragged although she admits she willingly walked along. She was allegedly carried across the canal by the appellant although she
was taller and definitely bigger than appellant.
When she fell on the ground, the appellant removed her shorts and skirt without difficulty. She offered no resistance. Even as he stood up to remove
his pants she did not attempt to stand up to escape nor to shout for help. There was no sign of struggle or resistance. Then the appellant put his penis
into her vagina penetrating her. They had sexual intercourse for almost one hour. She even felt the semen of appellant as it entered her body. Not a
whimper, not a sound from the complainant was heard. She claims she was afraid due to the gun of appellant and his threats. She did not even
describe the type of gun the appellant threatened her with several times. Nor had the prosecution shown appellant ever had a gun. All indications
show that she submitted to his advances.
The incident happened at about 10:00 o'clock in the evening. She went home only at about 12:00 o'clock that evening. Apparently, she still moved
around or spent sometime alone for about one hour. She must have contemplated what to do with her clothes all muddy. When she reached home
she was confronted by her daughter as to what happened. She had no choice but to tell her that she was abused by appellant but she was not
prepared to reveal everything. She promised to tell all the details to her daughter the following day. She thought about her predicament the whole
night. She had no choice. She must have to tell everything the following day.
As the Court sees it, what actually happened in this case, is that when the complainant went out with the appellant that evening, she was aware of the
risk of going out alone with a man for a reason that is far from unavoidable. They were close and side by side for sometime, allegedly watching the
drinking session at Linda's canteen. They must have succumbed to the temptation of the flesh. One thing led to the other until they had sexual
intercourse. Perhaps the complainant did not initiate or motivate the sexual interlude. In the least, she must have abetted it if not willingly submitted to
the advances of the appellant. Indeed, they were in ecstasy for almost one hour. Such mutual and passionate lovemaking can certainly not be
characterized as involuntary. It was free and without any compulsion.
The appellant was 48 years old when the incident happened. To think that a younger man would rape an elderly woman of 52 years, widow, three
times married, would be quite unusual. It is more probable that it was consensual.
The trial court considered the revelation of the complainant to her daughter Silveria of what happened to her when she returned home as part of the
res gestae. It is important to stress that her statement must not only be spontaneous. It must also be made at a time when there was no opportunity
1

As the Court observed, the complainant did not immediately go home after the
sexual encounter. She took a walk. She spent sometime thinking of what to do. Her clothes were muddy. She
had some bruises on her body and back because she was lying down on the ground during the sexual
intercourse and their passionate interlude. She had enough time to make a decision on what will be the nature of
her story. Her revelation cannot thus be categorized as part of the res gestae.
for her to concoct or develop her own story.

Considering all the facts and circumstances of the case, the Court finds that if there was any sexual congress
between appellant and complainant, it was upon their mutual consent. There was no compulsion or force. The
version of the complainant is far from credible. A verdict of acquittal is in order.

WHEREFORE, the judgment appealed from is REVERSED AND SET ASIDE and another judgment is hereby
rendered ACQUITTING the appellant of the offense charged, with costs de oficio.
SO ORDERED.

G.R. No. L-33049 November 29, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GUILLERMO PUTIAN, alias GUIRMO accused-appellant.
Alaric P. Acosta for appellant.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista, and
Solicitor Leonardo I. Cruz for appellee.

AQUINO, J:
Guillermo Putian appealed from the decision of the Court of First Instance of Misamis
Occidental, finding him guilty of murder, sentencing him to reclusion perpetua and ordering
him to indemnify the heirs of Teodulo Panimdim in the sum of twelve thousand pesos
(Criminal Case No. 6762).
The peculiarity of this case is that no eyewitness was presented to testify on the assault which
resulted in the victim's death (See People vs. Dahino, 88 Phil. 789 as to murder proven by
circumstantial evidence).
The prosecution presented only two witnesses: (1) The doctor who treated the victim at the
hospital and who testified on the nature of his wound and the cause of his death (Exh. A) and
(2) the policeman who arrested the accused and seized from him the dagger allegedly used in
the stabbing (Exh. B) and who took down the victim's ante-mortem statement Identifying
"Guirmo" Putian as his assailant (Exh. C).
On the other hand, the accused did not testify in his own behalf. The defense presented only
one witness. He testified that appellant Putian was in the dance hall when the victim was
stabbed outside that hall.
Hence, in this appeal our task is to determine whether the prosecution's evidence establishes
appellant's guilt beyond reasonable doubt and, if so, whether the offense is murder or
homicide. Those are the two issues raised by the appellant in his eight-page brief.

Appellant Putian admits that on November 22, 1969 while Teodulo Panimdim was attending a
dance at Barrio Tabo-o, Jimenez, Misamis Occidental, he (Panimdim) was stabbed in the left
groin. As a result of that assault, Panimdim died five days later at the provincial hospital (p. 3,
brief). The question is: Did Putian stab Panimdim?
According to the prosecution, in the evening of that day, November 22, while Patrolman Arturo
Yap was passing Barrio Tabo-o, he noticed a commotion at the back of the dance hall in that
barrio. He was informed that someone had been stabbed. He looked for the culprit. He found
Guillermo Putian behind the municipal building with a dagger and scabbard in his possession
(Exh. B and B-1). Yap investigated Putian. The latter denied that he stabbed Panimdim. Yap
arrested Putian and surrendered him to Jesus Gomonit, the guard at the municipal hall.
Patrolman Yap then repaired to the clinic of Doctor Saceda where the victim, Teodulo
Panimdim, alias Doling, was brought for treatment. At the clinic, Yap wrote on a piece of paper
the victim's declaration which is reproduced below (Exh. C):
ANTI-MORTEM Nov. 22,1969
Name of Victim Teodolo Padimdim
(should be Panimdim)
Age 21 single
Place Palilan, Jimenez
Who stabbed you? Guirmo Putian
Where? Outside the dancing hall of Tabo-o
Why? None
What time? 11:30 P.M.
Do you think you can suffer your wound? Yes
Who is your companion? Miguel Quilo,
Victorino Padimdim
Who is the companion of Guirmo? I don't know their names
because they are plenty

Can you sign your name in this anti-mortem? Yes

Statement taken by Pat. Yap.
Sgd.
Teodulo
Panimdim
TEODULO
PANIMDIM
Sign in the presence of
1. Victorino Panimdim
2. Ben Ybalane
3. Miguel Quilo
Witnesses
When that statement was taken, Panimdim was in a sitting position. Patrolman Yap advised
him to go to a hospital for treatment. Panimdim stood up, flexed his muscles and said that
there was nothing to worry about because the wound was small. Without anybody's help, he
put on his undershirt, pants and shirt. He went to his house without anyone's assistance.
Yap explained that Panimdim mentioned only a person named Guirmo and that he, Yap, was
the one who added the surname Putian in the statement Exhibit C. He clarified that he wrote
that surname because he knew of no other person called Guirmo in that locality except
Guirmo Putian, an alleged gambler (22 tsn).
On November 23, one day after the stabbing, the victim was brought to the hospital. An
operation was performed on him. He died in the hospital on November 27, or five days after
he was assaulted (Exh. D). The attending physician certified that the victim had a stab wound
in the left groin which penetrated the abdomen and punctured the large intestine. Death was
due to "toxemia secondary to general peritonitis" (Exh. A). The doctor testified that the stab
wound could have been caused by the two-bladed dagger (punyal), Exhibit B.
The slender evidence for the defense consists merely of the meager testimony of Anacleto
Taporco, 54, the assistant provincial board secretary and former candidate for mayor, who
claimed to be a friend of Panimdim and a close friend of Putian. Taporco declared that in the
evening of November 22, 1969 he was in the barrio dance hall together with appellant Putian,
Olimpio Sitoy and Ramon Gimeno. Panimdim was also there.

Taporco said that Panimdim, 21, asked his permission to box Rogelio Opos. Taporco
allegedly advised Panimdim not to do so because boxing Opos would cause trouble in the
dance hall. Panimdim obeyed him but sometime later Panimdim again asked Taporco that he
be allowed to box Opos. Taporco dissuaded Panimdim and took him outside the dance hall.
Afterwards, Taporco was allegedly informed that there was trouble. When he tried to find out
what the trouble was, he was informed that it was already patched up. During that interval,
Putian never left the dance hall.
The trial court, in convicting Putian, regarded Panimdim's ante-mortem statement as part of
the res gestae. Obviously, it did not give to that statement the probative value of a dying
declaration because the declarant at the time he made the statement was not under a
consciousness of an impending death (See see. 31, Rule 130, Rules of Court; People vs.
Saliling, L-27974, February 27, 1976, 69 SCRA 427).
The trial court did not give any credence to Putian's alibi. It noted that he did not take the
witness stand to refute Panimdim's declaration naming Putian as his assailant. The trial court
surmised that through Putian's machinations some witnesses listed in the information did not
testify for the prosecution.
Appellant Putian challenges the trial court's ruling that Panimdim's ante-mortem statement
was part of the res gestae as envisaged in Rule 130 of the Rules of Court which provides:
SEC. 36. Part of the res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be given in evidence as a part of
the res gestae. So, also, statements accompanying an equivocal act material to
the issue, and giving it a legal significance, may be received as a part of the res
gestae.
The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's
Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's
statement as a spontaneous statement made after the commission of a felony (People vs.
Talledo and Timbreza, 85 Phil. 533).
Appellant Putian contends that Panimdim's statement was not spontaneous because it was
"made several hours after the incident". He claims that the requisite that the declarant gave
the statement before he had time to devise or contrive was not present in this case. Appellant
further contends that because the statement is in narrative form, it is not the statement
contemplated in the rule.
On the other hand, the Solicitor General points out that the statement was in question-andanswer form and that Panimdim's answers were spontaneous, candid, straightforward, direct,

brief, concise, natural and devoid of any design or deliberation. He argues that the fact that
Patrolman Yap added the surname Putian to the name "Guirmo", which was mentioned by the
victim, did not destroy the probative value of the statement because the appellant could have
shown that there were other persons in the locality named Guirmo but he failed to do so.
The Solicitor General cites the ruling that a declaration made by a person immediately after
being wounded, pointing out or naming his assailant, may be considered as part of the res
gestae and is admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96
Phil. 979).
We hold that the trial court did not err in characterizing Panimdim's statement as a part of the
res gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab
wound that caused his death five days later in the hospital.
The res gestae rule embraces (a) spontaneous exclamations and (b) verbal acts (5 Moran's
Comments on the Rules of Court, 1970 Ed., p. 362). The trial court admitted Panimdim's
statement as a spontaneous statement made after the commission of a felony (People vs.
Talledo and Timbreza, 85 Phil. 533).
Appellant Putian contends that Panimdim's statement was not spontaneous because it was
"made several hours after the incident". He claims that the requisite that the declarant gave
the statement before he had time to devise or contrive was not present in this case. Appellant
further contends that because the statement is in narrative form, it is not the statement
contemplated in the rule.
On the other hand, the Solicitor General points out that the statement was in question-andanswer form and that Panimdim's answers were spontaneous, candid, straightforward, direct,
brief, concise, natural and devoid of any design or deliberation. He argues that the fact that
Patrolman Yap added the surname Putian to the name "Guirmo", which was mentioned by the
victim, did not destroy the probative value of the statement because the appellant could have
shown that there were other persons in the locality named Guirmo but he failed to do so.
The Solicitor General cites the ruling that a declaration made by a person immediately after
being wounded, pointing out or naming his assailant, may be considered as part of the res
gestae and is admissible in evidence (People vs. Alfaro, 83 Phil. 85; People vs. Ananias, 96
Phil. 979).
We hold that the trial court did not err in characterizing Panimdim's statement as a part of the
res gestae and as proving beyond reasonable doubt that Putian inflicted upon him the stab
wound that caused his death five days later in the hospital.
"Although a declaration does not appear to have been made by the declarant under the
expectation of a sure and impending death, and, for the reason, is not admissible as a dying

declaration, yet if such declaration was made at the time of, or immediately after, the
commission of the crime, or at a time when the exciting influence of the startling occurrence
still continued in the declarant's mind, it is admissible as a part of the res gestae" (5 Moran's
Comments on the Rules of Court, 1970 Ed. pp, 373-4, citing People vs. Palamos, 49 Phil.
601; People vs. Portento, 48 Phil. 971; People vs. Reyes, 52 Phil. 538).
Panimdim's statement was given sometime after the stabbing while he was undergoing
treatment at a medical clinic. He had no time to concoct a falsehood or to fabricate a
malicious charge against Putian (See People vs. Ner. L-25504, July 31, 1969, 28 SCRA 1151,
1161-2). No motive has been shown as to why he would frame up Putian.
Appellant's alternative contention that treachery was not proven and, therefore, he can be
convicted only of homicide is meritorious. The evidence for the prosecution does not show the
manner in which the wound was inflicted. Hence, the crime imputable to appellant Putian is
homicide (People vs. Ramolete, L-28108, March 27, 1974, 56 SCRA 66, 80).
As correctly observed by the Solicitor General, the trial court erred in appreciating the
aggravating circumstance of nighttime. Nocturnity is not aggravating in this case because it
was not purposely sought by the offender to facilitate the commission of the crime.
The trial court's decision is modified. Appellant Putian is convicted of homicide. As the
commission of the crime was not attended by any modifying circumstances, he is sentenced
to an indeterminate penalty of ten (10) years of prision mayor as minimum to fifteen (15)
years of reclusion temporal medium as maximum. The indemnity of P12,000 fixed by the trial
court is affirmed. Costs against the appellant.
SO ORDERED.
Fernando (Chairman), Barredo, Concepcion, Jr. and Martin, JJ., concur.
G.R. No. 87085 February 2, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANOLITO TOLENTINO @ "BONG", CARLITO TALA @ "BOY", RODOLFO MATAWARAN and @ JOHN DOE, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.

NOCON, J.:
1

dated September 7, 1988 of the Regional Trial Court of

Guagua, Pampanga, Third Judicial Region, Branch 51 in Criminal Case No. G-1627, the pertinent portion of
which reads:
This is an appeal by accused Carlito Tala alias "Boy" from the decision

Finding that the evidence has reached a degree of moral certainty that all the elements of the
crime of robbery with homicide were adequately proven the three accused Tolentino, Matawaran
and Tala should be found guilty of the crime charged. The Court also finds that the prosecution
has proven actual damages in the amount of P60,000.00 as hospital and medical expenses and
P30,000.00 as funeral expenses or a total of P90,000.00. Also proven is the claim of moral
damages which the Court assess at P40,000.00 for the death of the three children.
WHEREFORE, premises considered, the Court finds the accused Manolito Tolentino alias
"Bong", Carlito Tala alias "Boy" and Rodolfo Matawaran guilty beyond reasonable doubt as coprincipals by direct participation of the crime of Robbery with Multiple Homicide and Serious
Physical Injuries as charged in the Amended Information, with the attendance of the aggravating
circumstances of nighttime, dwelling, abuse of superior strength and there were more than one
victim, without modifying circumstance with respect to accused Carlito Tala alias "Boy" and
Rodolfo Matawaran to offset the same, but with mitigating circumstance of voluntary plea of
guilty with respect to Manolito Tolentino, and hereby sentences each of said accused to suffer
the penalty of RECLUSION PERPETUA, with the accessory penalties of the law, and ordering
each of them to indemnify solidarily the heirs of the deceased Enrique Lingad, Geraldine Lingad
and Glenly Lingad in the sum of P30,000.00 for each victim by reason of their death and the
further sum of P90,000.00 for actual damages, plus the amount of P4,000.00 by way of
restitution of the unrecovered cash amount stolen from the spouses Domingo Lingad, Jr. and
Adelaida Lingad and the additional amount of P40,000.00 for moral damages incurred by the
offended couple for the death of their three (3) children, without subsidiary imprisonment in case
of insolvency, and to pay the proportionate share of the costs.
The scythe (Exhibit "KK") used in the commission of the crime charged is hereby confiscated in
favor of the state. 2
On January 24, 1984, accused-appellant Carlito Tala alias "Boy" together with Manolito Tolentino alias "Bong",
Rodolfo Matawaran and one John Doe were charged for the crime of ROBBERY WITH MULTIPLE HOMICIDE
AND SERIOUS PHYSICAL INJURIES in an Amended Information committed as follows:
That on or about the 8th of November, 1983, in the municipality of Lubao, province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused MANOLITO TOLENTINO alias "Bong", CARLITO TALA alias "Boy", RODOLFO
MATAWARAN and alias JOHN DOE, conspiring and confederating together and helping one
another with grave abuse of confidence, nighttime purposely sought to facilitate the commission
of the offense, did then and there wilfully, unlawfully and feloniously, with intent of gain and
without the knowledge and consent of the owner and by the use of force upon things, to wit: by
forcibly breaking a wooden window grill of the comfort room to effect entrance into the said
house and once inside, did then and there take, steal and carry away with them cash money
amounting to FOUR THOUSAND (P4,000.00) PESOS, Philippines currency, belonging to
Domingo Lingad Jr., to the damage and prejudice of said owner in the total amount of
P4,000.00; that on the occasion of the said robbery and for the purpose of enabling them to
take, steal and carry away the amount above-mentioned, herein accused in pursuance of their
conspiracy, did then and there wilfully, unlawfully and feloniously and with evident premeditation
and taking advantage of their superior in number and strength and with deliberate intent to kill,
armed with a scythe, treacherously attack, assault and stab GLENLY LINGAD, 10 years of age,
ENRIQUE LINGAD, 8 years of age, IRENE LINGAD, 11 years of age, inflicting upon them
serious and fatal injuries which directly caused the death of Glenly Lingad, Enrique Lingad and
Irene Lingad and likewise causing Serious Physical Injuries upon GRACE PAULE, 13 years of
age, which injuries have required and will require medical attendance for a period of more than

thirty (30) days and will incapacitate said Grace Paule from performing her customary labor for
the same period of time. 3
Upon arraignment, accused Tala, Tolentino and Matawaran pleaded "Not Guilty" while their co-accused named
only John Doe in the Ameded Information was never identified by the prosecution nor arrested. However, during
the initial hearing of this case, accused Manolito Tolentino change his plea from "Not Guilty" to "Guilty" in open
court. 4
The facts as found by the trial court are as follows:
At around 7 p.m. of November 7, 1983, Adelaida Lingad left her niece, Grace Paule and her three (3) children
namely: Geraldine (Irene), Glenly and Enrique, all minors, at home to attend the wake of her uncle in a house
200 meters away from her place. The children were the only ones left at home. Her husband was then working
abroad. At that time, Adelaida had P4,000.00 in cash which was wrapped in newspaper and kept hidden under
her bed. Before leaving the house, Adelaida instructed the kids to go to bed.
At around 1 p.m. or 2 p.m. of November 8, 1983, accused Tala, Tolentino, Matawaran and an unknown person
whose face was covered entered the house of Adelaida Lingad by forcibly breaking the window grill of the
comfort room and demanded to know from the children where their mother hid her money. Grace Paule knew
Manolito Tolentino because he is both an uncle and a barriomate. She also knew Carlito Tala who is a relative of
her mother and Rodolfo Matawaran who is a "barkada" of Carlito. She recognized all the accused for the lights
were on. 5 When the man whose face was covered threatened to stab the kids, Geraldine got so frighten that she
revealed to the accused where her mother hid the money.
After Tolentino took the P4,000.00, he stabbed Grace Paule with a scythe while the other three (3) accused held
the three (3) other children who were then stabbed one after the other by Tolentino. During the stabbing incident,
Grace Paule lost consciousness but was able to regain it back after about five (5) minutes and shouted for help.
Her mother and grandmother, who lived nearby, heard her and immediately proceeded to said house but the four
(4) accused had already left.
When accused Tolentino's brother informed Adelaida about the stabbing incident that took place in her house,
Adelaida immediately rushed to her house and saw all the children with stab wounds. Glenly was lying on the
bed already dead while her bloodied niece Grace was sitting down near the door looking pale and holding her
heart. Upon reaching Geraldine, who was lying at the porch, she asked her the identities of the person
responsible for stabbing them with the latter answering "Bong-Bong" and also mentioning the names of Tala and
Matawaran. 6 However, when she asked her son Enique the later was not able to answer but merely made a sign
with his three (3) fingers. 7 Thereafter, Adelaida lost consciousness and was brought to the house of her mother.
Upon reporting said incident to the authorities, Adelaida together with three (3) policemen went back to her
house and investigation was conducted where it was discovered that the accused entered into the house by
destroying the middle portion of the wooden bars of the comfort room.
Meanwhile, the children were brought to the Central Luzon General Hospital where Glenly was pronounced dead
on arrival and Enrique eventually died after undergoing an unsuccessful surgery. Geraldine who was operated
twice at the Makabali Hospital also succumbed to her untimely death.
Grace Paule was the only surviving victim of this horrible and harrowing experience and testified that she was
awaken by the four (4) accused who entered the house of her aunt in the early morning of November 8, 1983
and subsequently stabbed her and her three (3) cousins. She positively identified the three (3) accused because

accused Manolito Tolentino is her uncle as well as her barriomate and accused-appellant Carlito Tala is a relative
of her mother while accused Rodolfo Matawaran is the "barkada" of accused-appellant Tala.
On the otherhand, accused-appellant Tala denied having been in the house of Adelaida Lingad on that fateful
morning and maintained that at around 11 p.m. of November 7, 1983, he and accused Matawaran were
delivering watermelons at Saging, Dinalupihan, Bataan. Thereafter, they went to Samal to return the trailer
where the watermelons were loaded and proceeded to his house in Lourdes, Lubao, Pampanga. On their way
home, they passed the house of Adelaida Lingad and noticed nothing unusual. They arrived at his house at
around 3 a.m. of November 8, 1983 and slept there.
In rejecting the defense of alibi, the trial court correctly stated as follows:
Inasmuch as the two accused, Tala and Matawaran, were riding in a jeep and the scene of
occurence is only a 30 minutes drive from their place of destination, which is Dinalupihan,
Bataan, it is [still] possible for them to reach their alleged destination and come back to Lourdes,
Lubao, Pampanga in time to participate in the commission of the offense. Their painful and
laborious effort to extend the period of time especially the three hours to load the watermelons is
pitiful in its incredibility. The indubitable fact remains that despite all allegations alleging alibi the
accused Tala and Matawaran slept in Lourdes, Lubao and were in fact apprehended there.
It must be noted that the alibi in order to be given full faith and credit must be clearly established
and must not leave any room for doubt as to its plausibility and verity.
In order that alibi as a defense may prosper, the evidence to support it must be clear and
convincing as to preclude the possibility of the accused's presence at the scene of the crime
while the evidence as to his identification must be weak and insufficient.
Foremost and above all, it is essential that the defense of alibi cannot prevail over the positive
testimony of a witness who clearly identified them as two of the cohorts of Manolito Tolentino.
It is clear that in this case that the accused Tala and Matawaran failed to establish the credibility
of their defense of alibi, first, as the facts narrated by them were not clear and convincing,
second, there exist a wide room for doubt as to the plausity and verity of their testimonies, and
finally, their defense of alibi is belied by the positive identification made by Grace Paule. 8
Resolving the arguments of accused-appellant Tala that no probative value should be given to the extrajudicial
statement of Grace Paule taken by Fiscal Abiog while she was still staying at the Makabili Hospital, since his
name and that of accused Matawaran were not mentioned by her as the unnamed companion of accused
Tolentino, thereby indicating that the witness really had no inkling as to his participation in said crime until Mang
Medrano supplied her their names, does not convince Us of the want of probative value of said statement of
Grace Paule.
True that Grace failed to mention the names of accused-appellant Tala and accused Matawaran in her
extrajudicial statement, but considering the fact that at the time her statement was taken she was then groggy
and delirious from the stab wound she sustained but was nevertheless, able to positively identify accusedappellant on the witness stand as one of the persons who stabbed her and the children. We find Grace's
testimony credible. There is no evidence on record to show why said witness would falsely implicate the
accused-appellant Tala who is a relative of her mother unless it is the truth. There being no improper motive on
her part to point to accused-appellant as one of the perpetrators of the crime charged, Grace's testimony is
entitled to full faith and credit. 9 Moreover, her testimony was corroborated by prosecution witness Adelaida

Lingad when the latter testified that her deceased daughter Geraldine mentioned the names of the accusedappellant Tala and accused Matawaran as the persons who stabbed her before she died. 10
As to accused-appellant's contention that the statement of Geraldine, naming her assailant soon after she was
stabbed is inadmissible as part of res gestae, We find said contention fallacious. The testimony of Adelaida
Lingad, as mother of the victims belied the accused-appellant's allegation:
Fiscal Abiog:
May I make it of record that all these three accused were properly or positively
identified by the witness.
Now, Mrs. Witness, when we initially hear this case, you testified that you asked
Geraldine who was then at the porch, you asked her as to who stabbed or
caused those stabbed wounds and you testified that she told you she was
stabbed by a certain Bong-Bong. Now, in the courtroom, you pointed out to a
certain person which you recognized or you know to be Manolito Tolentino, do
you know the nickname of that Manolito Tolentino who is residing in your barrio?
A Yes, sir.
Q What is the nickname of that Manolito Tolentino?
A Bong-Bong, sir.
Q And you also mentioned that before you asked Geraldine as to who accused
those stabbed wounds, Geraldine made a sign with her three fingers, did you
not ask her what she meant with that sign with her three fingers?
Atty. Sampang:
The question was already answered during the previous trial as appearing on
page 26 of the transcript of stenographic notes dated February 22, 1984.
Fiscal Abiog:
Alright, I will withdraw that question.
Court:
Next question.
Fiscal Abiog:
Q Now, according to you when you rushed home because you were called by
the brother of Manolito Tolentino informing you that your children whom you left
at home were stabbed and when you arrived home, you reached Glenly already
dead, and then Geraldine on the porch wounded, and Enrique on the sala, also
wounded, and Grace Paule near the door, will you please tell us what happened

to you when you saw or witnessed this incident when you observed your
children and you niece in this condition?
A I asked my youngest child, sir.
Fiscal Abiog:
Q And the youngest child you are referring to or what is the name of your
youngest child?
A Enrique, sir.
Q And what did you ask Enrique?
A I shouted and asked him and he responded by showing or raising his hand
with three fingers, sir.
Q Alright, after you asked Enrique shouting, what happened and he did not
answer and instead he made a sign with his three fingers, will you please tell us
what else happened after that?
A I lost consciousness, sir.
Q And when you regained consciousness or where did you regain your
consciousness?
A At the house of my mother, sir.
Q Will you please tell us how far is that house of your mother from the place of
you residence?
Witness:
A From here up to that corner, sir.
Court:
Which corner?
A Up to there, sir. (Witness pointing to Joan's Refreshment).
Fiscal Abiog:
Which is about two hundred meters, more or less.
Atty. Sampang:
We agree, your Honor. (T.S.N., October 29, 1984, pp. 6-10).

The trial court had correctly applied the principle of res gestae, namely: (1) that the principal act, the res gestae,
be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise;
and (3) that the statements made must concern the occurrence in question and its immediately attending
circumstances 11 which are all present in the case at bar as Geraldine had named accused-appellant as one of
the perpetrators in the commission of the crime immediately after the occurrence of the stabbing incident.
Accused-appellant Carlito Tala also contends that the trial court erred in considering the extrajudicial confession
of accused Manolito Tolentino implicating him in the crime charged in the face of the subsequent admission by
Manolito Tolentino that he was alone when he committed said crime.
We agree with the appellant on this point. The extrajudicial confession of Tolentino cannot be used against
appellant under the principle of res inter alios acta unless accused is discharge from the information and made a
state witness.
At any rate, the evidence on record, by itself is sufficient in proving accused-appellant's guilt beyond reasonable
doubt.
WHEREFORE, the judgment appealed from is hereby AFFIRMED with the sole modification that the indemnity
to be paid by the accused-appellant Carlito Tala to the heirs of each victim is increased to P50,000.00 in
accordance with the recent jurisprudence of this Court.
Narvasa, C.J., Feliciano, Regalado and Campos, Jr., JJ., concur.

U.S. Supreme Court

Palmer v. Hoffman, 318 U.S. 109 (1943)
Palmer v. Hoffman
No. 300
Argued January 7, 8, 1943
Decided February 1, 1943
318 U.S. 109
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
1. A signed statement of a railroad engineer, since deceased, giving his version of a grade crossing
accident in which the locomotive he was operating was involved, and made two days after the accident,
when he was interviewed by an official of the company and a representative of a state commission,

held not made "in the regular course" of business within the meaning of the Act of June 20, 1936, and
not admissible as evidence thereunder. P. 318 U. S. 111.
2. A ruling of the trial court that, if the defendant called for and inspected a signed statement which, on
cross-examination, a witness for the plaintiff stated he had given to the plaintiff's lawyer, the plaintiff
would then be entitled to put the statement in evidence, held not a ground for reversal in this case, since
the document was not marked for identification and is not a part of the record, and this Court is
therefore unable to determine whether the contents would have served to impeach the witness. P. 318
U. S. 116.
3. Rule 8(c) of the Rules of Civil Procedure does not make contributory negligence an affirmative
defense, but relates only to the manner of pleading. P. 318 U. S. 117.
4. The question of the burden of establishing contributory negligence is a question of local law which
federal courts in diversity of citizenship cases must apply. P. 318 U. S. 117.
5. The ruling of a lower federal court upon a question of local law will not here be set aside except on a
plain showing of error. P. 318 U. S. 118.
6. In a, suit in a federal court in New York, in which two of the causes of action were based on a
Massachusetts statute and two were based on the common law, the court charged the jury that the
burden of proving contributory negligence was on the defendants. The defendants' exception to the
charge did not differentiate between the causes of action based on the statute and those based on the
common law. Again without differentiating between the statutory and the common law causes of
action, the defendants requested a charge that the burden was on the plaintiff to establish freedom from
contributory negligence. In this situation, this Court, assuming that the charge, so far as the common
law counts are concerned, was
Page 318 U. S. 110
erroneous, but being unable to say that the charge was incorrect so far as the statutory cause of action
are concerned, does not reverse and remand the cause. P. 318 U. S. 119.
7. Where a party might have obtained a correct charge to the jury by specifically calling the attention of
the trial court to the error, and where a part of the charge was correct, he may not through a general
exception obtain a new trial. P. 318 U. S. 119.
129 F.2d 976, affirmed.
Certiorari, 317 U.S. 611, to review the affirmance of a judgment against the petitioners in an action for
damages on account of injury and death alleged to have been due to negligence. The jurisdiction of the
federal court was invoked on the ground of diversity of citizenship.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case arose out of a grade crossing accident which occurred in Massachusetts. Diversity of
citizenship brought it to the federal District Court in New York. There were several causes of action.
The first two were on behalf of respondent individually, one being brought under a Massachusetts
statute, Mass.Gen.L. (1932) c. 160 138, 232, the other at common law. The third and fourth were

brought by respondent as administrator of the estate of his wife and alleged the same common law and
statutory negligence as the first two counts. On the question of negligence, the trial court submitted
three issues to the jury -- failure to ring a bell, to blow a whistle, to have a light burning in the front of
the train. The jury returned a verdict in favor of respondent individually for some $25,000 and in favor
of respondent as administrator for $9,000. The District Court entered judgment on the
Page 318 U. S. 111
verdict. The Circuit Court of Appeals affirmed, one judge dissenting. 129 F.2d 976. The case is here on
a petition for a writ of certiorari which presents three points.
I. The accident occurred on the night of December 25, 1940. On December 27, 1940, the engineer of
the train, who died before the trial, made a statement at a freight office of petitioners where he was
interviewed by an assistant superintendent of the road and by a representative of the Massachusetts
Public Utilities Commission. See Mass.Gen.L. (1932), c. 159, 29. This statement was offered in
evidence by petitioners under the Act of June 20, 1936, 49 Stat. 1561, 28 U.S.C. 695. [Footnote 1]
They offered to prove (in the language of the Act) that the statement was signed in the regular course of
business, it being the regular course of such business to make such a statement. Respondent's objection
to its introduction was sustained.
We agree with the majority view below that it was properly excluded.
We may assume that, if the statement was made "in the regular course" of business, it would satisfy the
other provisions of the Act. But we do not think that it was made "in the regular course" of business
within the meaning of the Act. The business of the petitioners is the railroad business. That business,
like other enterprises,
Page 318 U. S. 112
entails the keeping of numerous books and records essential to its conduct or useful in its efficient
operation. Though such books and records were considered reliable and trustworthy for major decisions
in the industrial and business world, their use in litigation was greatly circumscribed or hedged about
by the hearsay rule -- restrictions which greatly increased the time and cost of making the proof where
those who made the records were numerous. [Footnote 2] 5 Wigmore, Evidence (3d ed., 1940) 1530.
It was that problem which started the movement towards adoption of legislation embodying the
principles of the present Act. See Morgan et al., The Law of Evidence, Some Proposals for its Reform
(1927) c. V. And the legislative history of the Act indicates the same purpose. [Footnote 3]
Page 318 U. S. 113
The engineer's statement which was held inadmissible in this case falls into quite a different category.
[Footnote 4] It is not a record made for the systematic conduct of the business as a business. An
accident report may affect that business in the sense that it affords information on which the
management may act. It is not, however, typical of entries made systematically or as a matter of routine
to record events or occurrences, to reflect transactions with others, or to provide internal controls. The
conduct of a business commonly entails the payment of tort claims incurred by the negligence of its
employees. But the fact that a company makes a business out of recording its employees' versions of
their accidents does not put those statements in the class of records made "in the regular course" of the
business within the meaning of the Act. If it did, then any law office in the land could follow the same

course, since business, as defined in the Act, includes the professions. We would then have a real
perversion of a rule designed to facilitate admission of records which experience has shown to be quite
trustworthy. Any business, by installing a regular system for recording and preserving its version of
accidents for which it was potentially liable, could qualify those reports under the Act. The result would
be that the Act would cover any system of recording events or occurrences provided it was "regular,"
and though it had little or nothing to do with the management or operation of the business as such.
Preparation of cases for trial, by virtue of being a "business" or incidental thereto, would obtain the
benefits of this liberalized version of the early shop book rule. The probability of
Page 318 U. S. 114
trustworthiness of records because they were routine reflections of the day to day operations of a
business would be forgotten as the basis of the rule. See Conner v. Seattle, R. & S. Ry. Co., 56 Wash.
310, 312, 313, 105 P. 634. Regularity of preparation would become the test, rather than the character of
the records and their earmarks of reliability (Chesapeake & Delaware Canal Co. v. United States, 250
U. S. 123, 250 U. S. 128-129) acquired from their source and origin and the nature of their compilation.
We cannot so completely empty the words of the Act of their historic meaning. If the Act is to be
extended to apply not only to a "regular course" of a business, but also to any "regular course" of
conduct which may have some relationship to business, Congress, not this Court, must extend it. Such a
major change which opens wide the door to avoidance of cross-examination should not be left to
implication. Nor is it any answer to say that Congress has provided in the Act that the various
circumstances of the making of the record should affect its weight, not its admissibility. That provision
comes into play only in case the other requirements of the Act are met.
In short, it is manifest that, in this case, those reports are not for the systematic conduct of the
enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading,
and the like, these reports are calculated for use essentially in the court, not in the business. Their
primary utility is in litigating, not in railroading.
It is, of course, not for us to take these reports out of the Act if Congress has put them in. But there is
nothing in the background of the law on which this Act was built or in its legislative history which
suggests for a moment that the business of preparing cases for trial should be included. In this
connection, it should be noted that the Act of May 6, 1910, 36 Stat. 350, 45 U.S.C. 38, requires
officers of common carriers by rail to make under oath
Page 318 U. S. 115
monthly reports of railroad accidents to the Interstate Commerce Commission, setting forth the nature
and causes of the accidents and the circumstances connected therewith. And the same Act, 45 U.S.C.
40, gives the Commission authority to investigate the to make reports upon such accidents. It is
provided, however, that
"Neither the report required by section 38 of this title nor any report of the investigation provided for in
section 40 of this title nor any part thereof shall be admitted as evidence or used for any purpose in any
suit or action for damages growing out of any matter mentioned in said report or investigation."
45 U.S.C. 41. A similar provision, 36 Stat. 916, 54 Stat. 148, 45 U.S.C. 33, bars the use in litigation
of reports concerning accidents resulting from the failure of a locomotive boiler or its appurtenances.
45 U.S.C. 32, 33. That legislation reveals an explicit Congressional policy to rule out reports of

accidents which certainly have as great a claim to objectivity as the statement sought to be admitted in
the present case. We can hardly suppose that Congress modified or qualified by implication these
longstanding statutes when it permitted records made "in the regular course" of business to be
introduced. Nor can we assume that Congress, having expressly prohibited the use of the company's
reports on its accidents, impliedly altered that policy when it came to reports by its employees to their
superiors. The inference is wholly the other way.
The several hundred years of history behind the Act (Wigmore, supra, 1517-1520) indicate the
nature of the reforms which it was designed to effect. It should, of course, be liberally interpreted so as
to do away with the anachronistic rules which gave rise to its need and at which it was aimed. But
"regular course" of business must find its meaning in the inherent nature of the business in question and
in the methods systematically employed for the conduct of the business as a business.
Page 318 U. S. 116
II. One of respondent's witnesses testified on cross-examination that he had given a signed statement to
one of respondent's lawyers. Counsel for petitioners asked to see it. The court ruled that, if he called for
and inspected the document, the door would be opened for respondent to offer the statement in
evidence, in which case the court would admit it. See Edison Electric Light Co. v. United States
Electric Lighting Co., 45 F. 55, 59. Counsel for petitioners declined to inspect the statement, and took
an exception. Petitioners contend that that ruling was reversible error in light of Rule 26(b) and Rule 34
of the Rules of Civil Procedure. We do not reach that question. Since the document was not marked for
identification and is not a part of the record, we do not know what its contents are. It is therefore
impossible, as stated by the court below, to determine whether the statement contained remarks which
might serve to impeach the witness. Accordingly, we cannot say that the ruling was prejudicial even if
we assume it was erroneous. Mere "technical errors" which do not "affect the substantial rights of the
parties" are not sufficient to set aside a jury verdict in an appellate court. 40 Stat. 1181, 28 U.S.C.
391. He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of
showing that prejudice resulted. That burden has not been maintained by petitioners.
III. The final question presented by this case relates to the burden of proving contributory negligence.
As we have noted, two of the causes of action were based on the common law, and two on a
Massachusetts statute. The court, without distinguishing between them, charged that petitioners had the
burden of proving contributory negligence. To this, petitioners excepted, likewise without
distinguishing between the different causes of action. And again without making any such distinction,
petitioners
Page 318 U. S. 117
requested the court to charge that the burden was on respondent. This was refused, and an exception
noted.
Respondent contends, in the first place, that the charge was correct because of the fact that Rule 8(c) of
the Rules of Civil Procedure makes contributory negligence an affirmative defense. We do not agree.
Rule 8(c) covers only the manner of pleading. The question of the burden of establishing contributory
negligence is a question of local law which federal courts, in diversity of citizenship cases (Erie R. Co.
v. Tompkins, 304 U. S. 64), must apply. Cities Service Oil Co. v. Dunlap, 308 U. S. 208; Sampson v.
Channell, 110 F.2d 754. And see Central Vermont Ry. Co. v. White, 238 U. S. 507, 238 U. S. 512.

Secondly, respondent contends that the courts below applied the rule of conflict of laws which obtains
in New York. So far as the causes of action based on the Massachusetts statute are concerned, we will
not disturb the holding below that, as a matter of New York conflict of laws which the trial court was
bound to apply (Klaxon Co. v. Stentor Co., 313 U. S. 487), petitioners had the burden of proving
contributory negligence. That ruling was based on Fitzpatrick v. International Ry. Co., 252 N.Y. 127,
169 N.E. 112, which involved an action brought in New York under a statute of the Province of
Ontario. That statute gave a plaintiff in a negligence action, though guilty of contributory negligence, a
recovery if the defendant was more negligent, the damages being proportioned to the degree of fault
imputable to the defendant. The New York Court of Appeals held that the New York courts were
justified in applying the Ontario rule, growing out of the statute, that the burden was on the defendant
to show contributory negligence. The Massachusetts statute on which two of the present causes of
action were founded makes a railroad corporation liable for its neglect in giving certain signals. It
provides that tort damages for injuries or death from collisions at crossings may be
Page 318 U. S. 118
recovered where such neglect "contributed" to the injury,
"unless it is shown that, in addition to a mere want of ordinary care, the person injured . . . was at the
time of the collision, guilty of gross or willful negligence, or was acting in violation of the law, and that
such gross or willful negligence or unlawful act contributed to the injury."
Mass.Gen.L. (1932) c. 160, 232. That statute, like the Ontario statute, creates rights not recognized at
common law. Brooks v. Fitchburg & L.St. Ry., 200 Mass. 8, 86 N.E. 289; Duggan v. Bay State Street
Ry. Co., 230 Mass. 370, 381, 382, 119 N.E. 757; Sullivan v. Hustis, 237 Mass. 441, 446, 130 N.E. 247;
Lewis v. Boston & Maine R., 263 Mass. 87, 91, 160 N.E. 663. And in actions under it, the burden of
proving contributory negligence is on the defendant. Manley v. Boston & Maine Railroad, 159 Mass.
493, 34 N.E. 951; Phelps v. New England R. Co., 172 Mass. 98, 51 N.E. 522; McDonald v. New York
C. & H. R. Co., 186 Mass. 474, 72 N.E. 55; Kenny v. Boston & Maine Railroad, 188 Mass. 127, 74
N.E. 309. And see Mass.Gen.L. (1932) c. 231, 85. Moreover, the measure of damages for death is
"the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with reference
to the degree of culpability of the" railroad. Mass.Gen.L. (1932) c. 229, 3. We are referred to no New
York decision involving the point. The propriety of applying the rule of the Fitzpatrick case to the
causes of action based on the Massachusetts statute may be arguable. But it is not the type of ruling
under Erie R. Co. v. Tompkins, supra, which we will readily disturb. Where the lower federal courts are
applying local law, we will not set aside their ruling except on a plain showing of error.
The question which is raised on the common law counts is more serious. The court below did not
distinguish between the conflict of laws rule in a case like the Fitzpatrick case and the rule which
apparently obtains in cases where
Page 318 U. S. 119
the foreign cause of action is not founded on such a statute. It was intimated in the Fitzpatrick case, 252
N.Y. p. 135, 169 N.E. 112, and stated in other cases in New York's intermediate appellate courts
(Wright v. Palmison, 237 App.Div. 22, 260 N.Y.S. 812; Clark v. Harnischfeger Sales Corp., 238
App.Div. 493, 495, 264 N.Y.S. 873) that, in the latter situation, the burden of proving freedom from
contributory negligence is on the plaintiff. Fitzpatrick v. International Ry. Co., supra, p. 134, 169 N.E.
112. But we do not reverse and remand the case to the court below so that it may examine and make an

appropriate application of the New York law on the common law counts, for the following reason: as
we have noted, petitioners, in their exceptions to the charge given and in the requested charge, did not
differentiate between the causes of action based on the Massachusetts statute and those on the common
law. Even if we assume that the charge on the latter was erroneous, we cannot say that the charge was
incorrect so far as the statutory causes of action were concerned. Likewise, we must assume that it
would have been error to give the requested charge on the statutory causes of action even though we
accept it as the correct charge on the others. Under these facts, a general exception is not sufficient. In
fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring
into focus the precise nature of the alleged error. Where a party might have obtained the correct charge
by specifically calling the attention of the trial court to the error, and where part of the charge was
correct, he may not, through a general exception, obtain a new trial. See Lincoln v. Claflin, 7 Wall. 132,
74 U. S. 139; Beaver v. Taylor, 93 U. S. 46, 93 U. S. 54-55; Mobile & M. Ry. Co. v. Jurey, 111 U. S.
584, 111 U. S. 596; McDermott v. Severe, 202 U. S. 600, 202 U. S. 611; Norfolk & W. Ry. Co. v.
Earnest, 229 U. S. 114, 229 U. S. 122; Pennsylvania R. Co. v. Minds, 250 U. S. 368, 250 U. S. 375.
That longstanding rule of federal practice is as applicable in this
Page 318 U. S. 120
type of case as in others. That rule cannot be avoided here by reason of the requested charge. For, as we
have said, it was at most only partially correct, and was not sufficiently discriminating.
Affirmed.
[Footnote 1]
"In any court of the United States and in any court established by Act of Congress, any writing or
record, whether, in the form of an entry in a book or otherwise, made as a memorandum or record of
any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction,
occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it
was the regular course of such business to make such memorandum or record at the time of such act,
transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the
making of such writing or record, including lack of personal knowledge by the entrant or maker, may
be shown to affect its weight, but they shall not affect its admissibility. The term 'business' shall include
business, profession, occupation, and calling of every kind."
[Footnote 2]
The problem was well stated by Judge Learned Hand in Massachusetts Bonding & Ins. Co. v. Norwich
Pharmacal Co., 18 F.2d 934, 937:
"The routine of modern affairs, mercantile, financial, and industrial, is conducted with so extreme a
division of labor that the transactions cannot be proved at first hand without the concurrence of
persons, each of whom can contribute no more than a slight part, and that part not dependent on his
memory of the event. Records, and records alone, are their adequate repository, and are in practice
accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents.
Unless they can be used in court without the task of calling those who at all stages had a part in the
transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business."
[Footnote 3]

Thus, the report of the Senate Committee on the Judiciary incorporates the recommendation of the
Attorney General, who stated in support of the legislation,
"The old common law rule requires that every book entry be identified by the person making it. This is
exceedingly difficult, if not impossible, in the case of an institution employing a large bookkeeping
staff, particularly when the entries are made by machine. In a recent criminal case, the Government was
prevented from making out a prima facie case by a ruling that entries in the books of a bank, made in
the regular course of business, were not admissible in evidence unless the specific bookkeeper who
made the entry could identify it. Since the bank employed 18 bookkeepers, and the entries were made
by bookkeeping machines, this was impossible."
S.Rep. No.1965, 74th Cong., 2d Sess., pp. 1-2.
[Footnote 4]
It is clear that it does not come within the exceptions as to declarations by a deceased witness. See
Shepard v. United States, 290 U. S. 96; Wigmore, supra, chs. xlix-liv.
_____________________________________________________________________________

G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondentsappellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed
that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo
street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.),
Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge
of operation. Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores
was transferring gasoline from a tank truck, plate No. T-5292 into the underground tank
of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street,
this City, an unknown Filipino lighted a cigarette and threw the burning match stick near
the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling off the gasoline hose connecting the
truck with the underground tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was spouting. It burned the truck and
the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the installation of a
coca-cola and cigarette stand, the complainants furnished this Office a copy of a photograph
taken during the fire and which is submitted herewith. it appears in this picture that there are in
the premises a coca-cola cooler and a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted
by the trial court without objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador
Capacillo," the latter was presented as witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in any event the said reports are admissible
as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953
(pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by counsel

for each of respondents on the ground that they were hearsay and that they were "irrelevant, immaterial
and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted
without objection; the admission of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined and
he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he
said was that he was one of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore,
on which he need be cross-examined; and the contents of the report, as to which he did not testify, did
not thereby become competent evidence. And even if he had testified, his testimony would still have
been objectionable as far as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries in
official records made in the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made
by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were
the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred
at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as
"official information" acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have the duty to give
such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were
not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of
res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial court

and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its)
applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The doctrine has actually been
applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R.
No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by Mr.
Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna, with
clear weather and without any wind blowing, an electric transmission wire, installed and
maintained by the defendant Philippine Power and Development Co., Inc. alongside the road,
suddenly parted, and one of the broken ends hit the head of the plaintiff as he was about to
board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by the wire
and was knocked unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in
some parts and causing intense pain and wounds that were not completely healed when the case
was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa
loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its
defense. While it is the rule, as contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it is also a recognized
principal that "where the thing which caused injury, without fault of the injured person, is under
the exclusive control of the defendant and the injury is such as in the ordinary course of things
does not occur if he having such control use proper care, it affords reasonable evidence, in the
absence of the explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is
known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be on
the highway, and the electric wire was under the sole control of defendant company. In the
ordinary course of events, electric wires do not part suddenly in fair weather and injure people,
unless they are subjected to unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722;

159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the absence
of contributory negligence (which is admittedly not present), the fact that the wire snapped
suffices to raise a reasonable presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts
inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises
almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire
started with resulting damages to the building owned by Jones. Alleging that the damages to his
building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the recovery of
that amount. The judge of the district court, after hearing the testimony, concluded that plaintiff
was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of
Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show
with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any
of its agents or employees. Plaintiff applied to this Court for a Writ of Review which was
granted, and the case is now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the
fire and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses
were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established
by the record that the filling station and the tank truck were under the control of the defendant
and operated by its agents or employees. We further find from the uncontradicted testimony of
plaintiff's witnesses that fire started in the underground tank attached to the filling station while
it was being filled from the tank truck and while both the tank and the truck were in charge of
and being operated by the agents or employees of the defendant, extended to the hose and tank
truck, and was communicated from the burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain
the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the
doctrine of res ipsa loquitur. There are many cases in which the doctrine may be successfully
invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management
of defendant or his servants and the accident is such as in the ordinary course of things does not
happen if those who have its management or control use proper care, it affords reasonable
evidence, in absence of explanation by defendant, that the accident arose from want of care. (45
C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the
courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been applied
are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake
Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v.
Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1
Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of
occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district near the Obrero Market, a railroad
crossing and very thickly populated neighborhood where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire neighborhood
to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and
west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the
flames from leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only material damages
but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by
its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding
another risk to the possible outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the
basis of his own personal observation of the facts reported, may properly be considered as an exception
to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the
operation of the gasoline station in question, strengthen the presumption of negligence under the
doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than
those which would satisfy the standard of due diligence under ordinary circumstances. There is no
more eloquent demonstration of this than the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire broke out. He said: "Before
loading the underground tank there were no people, but while the loading was going on, there were
people who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout
"fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint
that "the fire was caused through the acts of a stranger who, without authority, or permission of
answering defendant, passed through the gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but assuming the allegation to be true certainly
any unfavorable inference from the admission may be taken against Boquiren it does not extenuate
his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of the present
case, states the rule which we find acceptable here. "It is the rule that those who distribute a dangerous
article or agent, owe a degree of protection to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the
actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that
the active and substantially simultaneous operation of the effects of a third person's innocent, tortious
or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from
liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention
of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from consequences of

negligence, if such negligence directly and proximately cooperates with the independent cause in the
resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an
agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence may be
passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3)
Caltex exercised control over Boquiren in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit
U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his
drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there
was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of
the gasoline station." It is true that Boquiren later on amended his answer, and that among the changes
was one to the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss
appellants' second amended complaint the ground alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as agent of Caltex, such that he could not have
incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts
alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the
business conducted at the service station in question was owned and operated by Boquiren. But Caltex
did not present any contract with Boquiren that would reveal the nature of their relationship at the time
of the fire. There must have been one in existence at that time. Instead, what was presented was a
license agreement manifestly tailored for purposes of this case, since it was entered into shortly before
the expiration of the one-year period it was intended to operate. This so-called license agreement
(Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as
to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility
with respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person
or property while in the property herein licensed, it being understood and agreed that LICENSEE
(Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of
the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by
Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement

in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in
the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not
to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the
latter could remove him or terminate his services at will; that the service station belonged to the
company and bore its tradename and the operator sold only the products of the company; that
the equipment used by the operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and maintenance; that an employee of the
company supervised the operator and conducted periodic inspection of the company's gasoline
and service station; that the price of the products sold by the operator was fixed by the company
and not by the operator; and that the receipts signed by the operator indicated that he was a
mere agent, the finding of the Court of Appeals that the operator was an agent of the company
and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name
or title given it by the contracting parties, should thereby a controversy as to what they really
had intended to enter into, but the way the contracting parties do or perform their respective
obligations stipulated or agreed upon may be shown and inquired into, and should such
performance conflict with the name or title given the contract by the parties, the former must
prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent relationship
of employer and independent contractor, and of avoiding liability for the negligence of the
employees about the station; but the company was not satisfied to allow such relationship to
exist. The evidence shows that it immediately assumed control, and proceeded to direct the
method by which the work contracted for should be performed. By reserving the right to
terminate the contract at will, it retained the means of compelling submission to its orders.
Having elected to assume control and to direct the means and methods by which the work has to
be performed, it must be held liable for the negligence of those performing service under its
direction. We think the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining
Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices
were presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales
contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the loss took place. However,

regardless of the silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower
court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over positive evidence of such value. The
heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily
to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively,
with interest from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar
and Sanchez, JJ., concur.
Dizon, J., took no part.
G.R. No. L-48727 September 30, 1982
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSEPH LEONES y DUCUSIN alias JESSIE, defendant-appellant.

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

San Fernando, La Union, May 8,1973.

(SGD.) IRENE DULAY Offended Party
WITH MY CONFORMITY:
(SGD.) GAUDENCIO DULAY
(Father of the Offended Party)
and sentencing him to suffer the penalty of reclusion perpetua and to pay the cost.
The facts are narrated in the People's brief as follows:
Complainant Irene Dulay was a salesgirl employed in the store of Mr. &
Mrs. Pepito Leones at San Fernando, La Union where she resided.
On April 22, 1973, the complainant who had headache stayed in her room.
Earlier that day, the members of the Leones family, including the accusedappellant Joseph Leones and his sister Elizabeth, had gone to nearby
beach resort for a picnic.
At about past noon the appellant and Elizabeth returned to their house.
While there, the appellant and Elizabeth entered the room where
complainant was lying down and forced her to take three tablets dissolved
in a spoon which according to them were aspirin. The complainant
refused to take the tablets but was forced to do so when the appellant held
her mouth while his sister pushed the medicine. Then the appellant and
Elizabeth left the room and after a while the complainant felt dizzy.
Later, the appellant returned to the complainant's room and took of her
panty. Then the appellant went on top of her. The complainant tried to
push him but as she was weak and dizzy, the appellant succeeded in
abusing her (pp. 2-8,15-16, tsn, June 27, 1975).
At about 4:30 P.M. of the same date, Natividad Leones, the stepmother of
the appellant, found the complainant unconscious near her room without
any panty on. She was then taken to the La Union Provincial Hospital by
the driver of the Leones family (pp. 3-5, tsn, June 10, 1976).
When admitted to the hospital at about 6:00 P.M. of the same date (April
22, 1973), the complainant was semiconscious, incoherent and hysterical.
She refused to talk and to be examined by the doctors. She was irritated
when approached by a male figure (Exhibit "B", Records, pp. 280-281). The
complainant was first attended to by Dr. Antonino Estioco who found out
that she had vaginal bleeding (Exhibit "2", Records, p. 786). The
complainant was then referred to Dr. Fe Cayao who was informed by Dr.
Estioco that she might have been a victim of rape (p. 28, tsn, May 15,
1974). In the presence of the complainant's father, Dr. Cayao examined her

on April 26, 1973 after which she issued a medical certificate with the
following findings:
1. Presence of erythema of the vestibular portion of external genitalia;
2. Healing lacerations of the hymen at 2 o'clock and 10 o'clock;
3. Easily admit one finger with pain;
4. Unclotted blood at the vaginal cavity;
5. Smear exam for sperm cell-negative;
6. D'plococci-negative
7. Florence test-reagent not available.
(Exhibit "A", Records, p. 3).
Because of the lack of facilities in the hospital, Dr. Cayao was not able to
make any examination to determine whether drug was given to the
complainant. (pp. 23- 24, tsn, May 15, 1974. 1
The accused-appellant denied the charge imputed to him, claiming that at the time of the alleged rape
between 2:00 o'clock and 3:00 o'clock p.m. on April 22, 1973, he was at the beach resort with the other
members of the family, namely his sister Elizabeth, his stepmother Natividad Leones, his younger
brothers and sisters named Marivic, Theresa, Carol, Pinky and Bongbong together with other
companions, for a picnic and had lunch thereat, swimming and picture-taking.
As indicated earlier, the trial court, holding that "viewed from all legal aspects of this case, in the light of
the recorded evidence, ... is fully convinced that the crime of rape charged in the criminal complaint was
committed by the accused. The evidence presented by the prosecution is not only clear and convincing
but has established the guilt of the accused beyond reasonable doubt."
From this sentence, the accused appeals to Us, strongly submitting that the trial court erred in finding
him guilty of the crime charged since the evidence presented against him did not prove his guilt beyond
reasonable doubt.
At the outset, We note a number of significant facts from the recorded evidence of the prosecution
which materially and substantially debunks and derails the theory of the Government and
correspondingly impresses considerable merit to the defense.
1. The clinical case record of Irene Dulay's admission and confinement at the Provincial Hospital of La
Union, marked Exhibit "2", contain entries which totally and completely belle the claim of the
complainant that she was raped by the accused in the afternoon of April 22, 1973. The same is
reproduced hereunder:
LA UNION PROVINCIAL HOSPITAL
San Fernando, La Union
CLINICAL CASE RECORD

Fis
cal
Yr.:
19
73

Physici
an:

Physici
an:

Ad
m.
No
.:
27
5

Admitt
ed by:

Fil
e
No
. or
Re
c.
No
.

Approv
ed by:

Dept.

Dr.
Estioc
o

Ped.:

City
Free:

Surg.:

Transi
ent
free:

Obs.:
Classif.

Govt.
free;

Med.:

Prvt.
free:

EENT:

Hosp.
pay:

C.U.

Off.
Hosp.
pay:

Dental:

Off.
Prvt.

pay:

Name of Patient: Irene Dulay

Maiden name: ____________________
Residence: San Fernando, La Union
In case of accident or death notify Natividad Leones, (employer)
Charge Hosp. Acct. to: _______________________________________
Age: 16 yrs. Single: Married; Widowed: Nationality Fil.
Admitted: 6:00 P.M. 4-22-1973 Assgd PR: I Bed by Dr. Estioco
Transf: P.M.____19____ to Dept: PR Ward #: ______ Bed # ______
Complaints: Vaginal bleeding
Diagnosis in full:
Healing lacerated wide at 2 o'clock and 10 o'clock hymen.

Re
sult
s:

R
e
c.
:

D
i
s
p
o
s
i
t
i
o
n
:
,

Dis
ch:

I
m
pr
v:

Dis
d:

U
ni
m
pr
o
v:

Ab
co
nd:

3:45
P.M.

D
ie
d:

Tra
nsf
Ho
sp.

5-1273

Operation: _____________________________________
Anesthesia: _____________________________________
History written by: APPROVED:
(SGD.) ESTIOCO (unintelligible)
(Resident Physician) Dept. Head
The entry written in the above clinical record when Irene Dulay was admitted under the item
"Complaints" reads: Vaginal Bleeding, and below this entry appears the Diagnosis-Healing lacerated
wide at 2 o'clock and 10 o'clock hymen. Assuming that the victim was raped between 2 and 3 o'clock
p.m., April 22, 1973 (the same day she was admitted in the hospital), then the lacerations of the hymen at
2 o'clock and 10 o'clock would not have been described and indicated to be Healing in the clinical case
record. It would be described as "laceration fresh" or by similar words like "bloody or new lacerations."
There is no instant formula, technique or process known to medical science or by human experience to
hasten the healing of a lacerated hymen within three (3) hours or so after defloration.
Citing from the book, Legal Medicine by Pedro P. Solis, M.D., Ll B Medico Legal Officer, National Bureau
of Investigation, Department (now Ministry) of Justice, We have the following comment on:
Healing time of laceration of the hymen:
Superficial laceration of the hymen may heal in two or three days.
More extensive tear may require longer time, usually seven to ten days.
Complicated types and those with intervening infection may cause delay in the healing depending upon
the extent of the involvement of the surrounding tissue and the degree of infection. Complicated
laceration may even require surgical intervention." (p. 302, Emphasis supplied.)
Since there was found laceration, wide, at 2 o'clock and 10 o'clock of the hymen which was then already
healing on April 22, 1973, it follows reasonably that the defloration occurred several days before, which
may have happened when Irene Dulay took a week-long vacation to her hometown in Pugo, La Union
(tsn, p. 10, June 27, 1975) and there is evidence that she had a suitor named Ferdinand Sarmiento who is
from nearby Agoo, La Union. And when she returned to the house of her employer in San Fernando, La
Union, she had already chest and stomach pains and a headache.
The written entries in the clinical case record, Exh. "2", showing the date of her admission in the
hospital on April 22, 1973, her complaint of vaginal bleeding and the diagnosis of "Healing lacerated
wide at 2 o'clock and 10 o'clock hymen" are prima facie evidence of the facts therein stated, the said
entries having been made in official records by a public officer of the Philippines in the performance of
his duty especially enjoined by law, which is that of a physician in a government hospital. (Rule 130, See.
38, Rules of Court). In the case at bar, Dr. Antonino Estioco was the admitting physician but
unfortunately, he was not presented as a witness for the government.

In connection with Exhibit "2", there is one piece of damaging evidence which not only derogates the
theory of the prosecution but also cannot be explained by the government, and that is the frank
testimony of Dr. Fe Cayao herself, thus:
Q The question is: did you not discover through reading the clinical history of the patient that
the woman was not complaining of alleged rape?
A It was not indicated here that she was complaining of an alleged rape.
Q There was not a single word in the clinical record of the victim that she was the victim of an
alleged rape, is that correct?
A Yes. (tsn, pp. 27-28, May 15,1974)
2. From the same clinical case record, Exhibit "2", it appears clearly that the alleged victim, Irene Dulay, was having her menstrual period
when she was supposedly raped for the Complaint indicated that she had vaginal bleeding. She herself admitted in her testimony that on
April 22, 1973, she was having her menstruation. (tsn, p. 9, June 27, 1975).
It is quite abnormal and unnatural, almost unheard of in human experience and behavior that a man would have sexual intercourse with a
woman then having her menstrual period, as was the admitted condition of the complainant when she was allegedly abused by the
accused. And because of this universal abhorrence, taboo and distaste to have sexual contact with a menstruating female and this is so
however passionate and lustful the man way be unless he is depraved or demented. We cannot believe that the accused-appellant, a young
fourth year college student of civil engineering studying in Baguio City, would break or violate such a taboo by drugging the complainant
girl with the help of her sister and afterwards have sex relations with her in her menstrual condition.
3. When the complainant was investigated by the police, she declared in her affidavit, Exhibit "5", the following answers to these questions:
5. Q Why are you in this office?
A I came here with the purpose of giving my voluntary statement in connection with the incident
that happened to me in the house of my employer and I want to file a formal complaint against the
persons who offended me, sir.
6. Q Who are those persons who offended you, if you know?
A They are Joseph alias Jessie and Elizabeth both surnamed Leones, the son and daughter of
Mr. Pepito Leones, my employer.
7. Q When did that incident happened?
A At about between the hours of 2:00 & 3:00 in the afternoon of April 22, 1973, sir.
8. Q What did these Joseph and Elizabeth do against you?
A Because I was suffering headache at that time because it was the first day of my menstrual
period, they were inviting me to go with them to Wallace and I told them that I have a headache
then later they forced me to take in aspirin tablets, three (3) tablets then after a few seconds, I
begun to feel dizzy and halfconscious.
9. Q Do you know if what you have forcely taken and given by the two, Joseph and Elizabeth
were really aspirin tablets?
A I do not know, but they were white in color similar to aspirin tablets but after I have taken them
I felt dizzy then unconscious.
10. Q In what manner did Joseph Leones and Elizabeth Leones force you to take in the tablets?
A At about that time and date I mentioned above, I was then lying on my bed in my room at their
residence, then Jessie and Elizabeth came in. Joseph alias Jessie took hold of my throat with one
hand and pressed it hard that I was almost choked up, his other hand held my both cheeks his
thumb and forefinger pressed hard to forcely. open my mouth while Elizabeth held a spoon
containing the three (3) tablets then I was told by them to swallow the pills. I could not resist so I
swallowed the pills then later I felt dizzy as if the world was turning around.

Thus, it would appear from the above recorded evidence that the accused Joseph Leones and his sister Elizabeth, helped and conspired
with each other in the commission of the crime of rape against the offended party, an assumption that is hardly believable for it would lead
to the absurb conclusions that Elizabeth was a principal by cooperation and that both Joseph and Elizabeth had planned the rape for they
conveniently provided themselves beforehand with the necessary drug.
It further appears in the record that the Philippine Constabulary in La Union did not believe the existence of rape when Felicidad Boado
reported the incident (tsn, p. 25, June 18, 1974), which disbelief may reasonably be attributed to the unnatural and unusual version of the
complainant that another of her own sex had conspired and confabulated in the commission of the alleged defilement.
4. The complainant, Irene Dulay, had declared in her affidavit, Exhibit " 5 ", in answer to question No. 9 that after she had taken the tablets
that were white in color similar to aspirin tablets, she felt dizzy, then unconscious. In her testimony at the trial, however, she testified that
after she had taken the tablets, she felt dizzy and felt the removal of her panty and that when he went on top of her, he inserted his private
parts into her private parts (tsn, pp. 6-7, June 27, 1975), but on cross-exmination, she said that she became unconscious when Joseph
Leones was already on top of her (tsn, p. 22, June 27, 1975). If she became unconscious when Leones was on top of her and yet she felt
pain when he placed his private parts into hers, then this is incredible for how could she have known what was done to her and how she
felt when she was already unconscious as admitted by her.
5. The record is replete with testimonies of the very witnesses of the prosecution itself revealing the irrational, if not immoral behavior and
conduct of the complainant which cuts deep into the morality, character and credibility of the complaining witness. To cite a few of her
immoral acts, when the police came to visit her, Irene Dulay took hold of the penis, of the policeman (Testimony of Felicidad Boado, tsn, p.
20, June 18, 1974). Whenever she sees a man, she goes after him and takes hold of his hand and places it in her private part (Testimony of
Leonida Dulay, p. 5, tsn, Sept. 20, 1974). Sometimes she is seated, sometimes she is standing and there are moments that she goes around
and whenever she sees a man, she calls for him and says "darling Jessie" (Cross-examination of Leonida Dulay, tsn, p. 14, Sept. 20, 1974).
She even said "have sexual intercourse with me," making particular mention of the person who wanted to do that to her as Joseph Leones
(Cross-examination of Leonida Dulay, tsn, pp. 27-28, Sept. 20, 1974). There are times when she gets a pillow and imitates the sexual act
(tsn, p. 29, Sept. 20, 1974). There are moments when she takes hold of a pillow, embraces it, and makes movements imitating the sexual act
(tsn, Testimony of Leonida Dulay, p. 5, Sept. 20, 1974).
6. The circumstances of persons, time and place attendant in the commission of the crime do not build up the case for the People. On the
contrary, We find facts and circumstances which contradict and contravene the theory of the prosecution, rendering it highly improbable
and questionable. Thus, the room of the complainant where the alleged rape was committed was at the ground floor of the house where her
employer lives with his family and maintains a canteen at the premises, the room being very near the washing place and had a door with
only wooden jalousies. There were several persons present in the house at the time of the alleged rape and they were Evelyn Estigoy, the
secretary of Natividad Leones, the cook Inocencia Gangad and her daughter, Mantes. With the presence of these persons at the premises
and the complainant's room was not secluded nor completely closed, the opportunity to commit the rape is hardly present. More than that
the alleged time being between 2:00 o'clock and 3:00 o'clock in the afternoon and with the supposed attendance of the perpetrator's elder
sister, Elizabeth the element of secrecy had been totally ignored or disregarded which is quite unbelievable and incredible in such a crime
as rape.
Indeed, rape is a most detestable crime. It should be severely and impartially punished. But a rape charge is easy to make, hard to prove
and harder to defend by the party accused, though innocent. Experience has shown that unfounded charges of rape have frequently been
preferred by women actuated of rape have frequently been preferred by women actuated by some sinister, ulterior or undisclosed motive.
Convictions for such crime should not be sustained without clear and convincing proof of guilt. On more than one occasion, it has been
pointed out that in crimes against chastity, the testimony of the injured woman should not be received with precipitate credulity. When the
conviction depends on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are
free from suspicion. A little insight into human nature is of utmost value in judging matters of this kind. (Cornelio Flores, 26 Phil. 262, 268;
Ignacio Landicho, 8 ACR 580; Rafael Lacson, CA 53 O.G. 1823; Francisco Salvador, CA 52 O.G. 7290; Lago, CA 45 O.G. 1356; Barbo, 56
SCRA 459; Bay, 27 Phil. 495; Pantaleon Ramos, 35 Phil. 671; Brocal, CA 36 O.G. 857; Topacio, CA 36 O.G. 1358; Fernando Fausto, 51 Phil.
852; cited in Aquino, The Revised Penal Code, 1977 Ed., Vol. III, pp. 1679-1680).
After carefully analyzing and weighing the evidence presented by the prosecution in the light of the legal principles above outlined and now
well-established in Our jurisprudence and guided by a little insight into human nature, We are persuaded and convinced that the guilt of the
accused has not been proven beyond reasonable doubt. That moral certainty or degree of proof which produces conviction in an
unprejudiced mind (Rule 133, Section 2, Rules of Court) has not been established by the prosecution. The constitutional mandate that the
accused is presumed innocent must prevail and, therefore, the accused-appellant, Joseph Leones, is entitled to an acquittal.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction is hereby REVERSED and the accused Joseph Leones y
Ducusin is ACQUITTED of the crime charged.
Costs de oficio.
SO ORDERED.
Barredo (Chairman), Aquino, Concepcion, Jr., Abad Santos and Escolin, JJ., concur.
De Castro, J., took no part.

EMILIO MANALO and CLARA SALVADOR, Plaintiffs-Appellees, vs. ROBLES

TRANSPORTATION COMPANY, INC., Defendant-Appellant.

DECISION
MONTEMAYOR, J.:
Robles Transportation Company, Inc., later referred to as the Company, is appealing from the decision
of the Court of First Instance of Rizal, civil case No. 2013, ordering it to pay Plaintiffs Emilio Manalo
and his wife, Clara Salvador, the sum of P3,000 with interest at 12 per cent per annum from November
14, 1952 plus the amount of P600 for attorneys fees and expenses of litigation, with costs.
The facts involved in this case are simple and without dispute. On August 9, 1947, a taxicab owned and
operated by Defendant Appellant Company and driven by Edgardo Hernandez its driver, collided with
a passenger truck at Paraaque, Rizal. In the course of and as a result of the accident, the taxicab ran
over Armando Manalo, an eleven year old, causing him physical injuries which resulted in his death
several days later. Edgardo Hernandez was prosecuted for homicide through reckless imprudence and
after trial was found guilty of the charge and sentenced to one year prision correccional, to indemnify
the heirs of the deceased in the amount of P3,000, in case of insolvency to suffer subsidiary
imprisonment, and to pay costs. Edgardo Hernandez served out his sentence but failed to pay the
indemnity. Two writs of execution were issued against him to satisfy the amount of the indemnity, but
both writs were returned unsatisfied by the sheriff who certified that no property, real or personal, in
Hernandez name could be found.
On February 17, 1953, Plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother
respectively of Armando, filed the present action against the Company to enforce its subsidiary
liability, pursuant to Articles 102 and 103 of the Revised Penal Code. The Company filed its
appearance and answer and later an amended answer with special defenses and counterclaim. It also
filed a motion to dismiss the complaint unless and until the convicted driver Hernandez was included as
a party Defendant, the Company considering him an indispensable party. The trial court denied the
motion to dismiss, holding that Hernandez was not an indispensable party Defendant. Dissatisfied with
this ruling, the Company filed certiorari proceedings with the Court of Appeals, but said appellate court
held that Hernandez was not an indispensable party Defendant, and consequently, the trial court in
denying the motion to dismiss acted within the proper limits of its discretion. Eventually, the trial court
rendered judgment sentencing the Defendant Company to pay to Plaintiffs damages in the amount of
P3,000 with interest at 12 per cent per annum from November 14, 1952, plus P600 for attorneys fees
and expenses for litigation, with costs. As aforestated, the Company is appealing from this decision.
To prove their case against the Defendant Company, the Plaintiffs introduced a copy of the decision in
the criminal case convicting Hernandez of homicide through reckless imprudence, the writs of
execution to enforce the civil liability, and the returns of the sheriff showing that the two writs of
execution were not satisfied because of the insolvency of Hernandez, the sheriff being unable to locate
any property in his name. Over the objections of the Company, the trial court admitted this evidence
and based its decision in the present case on the same.
Defendant-Appellant now contends that this kind of evidence is inadmissible and cites in support of its
contention the cases of City of Manila vs. Manila Electric Company (52 Phil., 586), and Arambulo vs.
Manila Electric Company (15 Phil., 75). This point has already been decided by this tribunal in the case
of Martinez vs. Barredo (81 Phil., 1). After considering the same two cases now cited by Appellant, this
court held that the judgment of conviction, in the absence of any collusion between the Defendant and
offended party, is binding upon the party subsidiarily liable.
The Appellant also claims that in admitting as evidence the sheriffs return of the writs of execution to
prove the insolvency of Hernandez, without requiring said officials appearance in court, it was

deprived of the opportunity to cross-examine said sheriff. A sheriffs return is an official statement
made by a public official in the performance of a duty specially enjoined by law and forming part of
official records, and is prima facie evidence of the facts stated therein. (Rule 39, section 11 and Rule
123, section 35, Rules of Court.) The sheriff making the return need not testify in court as to the facts
stated in his entry. In the case of Antillon vs. Barcelon, 37 Phil., 151, citing Wigmore on Evidence, this
court said:
chanroblesvirtuallawlibrary

To the foregoing rules with reference to the method of proving private documents an exception is
made with reference to the method of proving public documents executed before and certified to, under
the hand and seal of certain public officials. The courts and the legislature have recognized the valid
reason for such an exception. The litigation is unlimited in which testimony by officials is daily needed,
the occasions in which the officials would be summoned from his ordinary duties to declare as a
witness are numberless. The public officers are few in whose daily work something is not done in
which testimony is not needed from official sources. Were there no exception to official statements,
hosts of officials would be found devoting the greater part of their time to attending as witnesses in
court or delivering their depositions before an officer. The work of Administration of government and
the interest of the public having business with officials would alike suffer in consequence.
And this Court added:

chanroblesvirtuallawlibrary

The law reposes a particular confidence in public officers that it presumes they will discharge their
several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their
public duty may be given in evidence and shall be taken to be true under such a degree of caution as the
nature and circumstances of each case may appear to require.
chan

roblesvirtualawlibrary

The Appellant also contends that Articles 102 and 103 of the Revised Penal Code were repealed by the
New Civil Code, promulgated in 1950, particularly, by the repealing clause under which comes Article
2270 of the said code. We find the contention untenable. Article 2177 of the New Civil Code expressly
recognizes civil liabilities arising from negligence under the Penal Code, only that it provides that
Plaintiff cannot recover damages twice for the same act of omission of the Defendant.
ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the Plaintiff cannot
recover damages twice for the same act of omission of the Defendant.
Invoking prescription, Appellant claims that the present action is barred by the Statute of Limitations
for the reason that it is an action either upon an injury to the rights of the Plaintiff, or upon a quasi
delict, and that according to Article 1146 of the New Civil Code, such action must be instituted within
four years. We agree with the Appellee that the present action is based upon a judgment, namely, that in
the criminal case, finding Hernandez guilty of homicide through reckless imprudence and sentencing
him to indemnify the heirs of the deceased in the sum of P3,000, and, consequently may be instituted
within ten years.
As regards the other errors assigned by Appellant, we find it unnecessary to discuss and rule upon
them.
Finding the decision appealed from to be in accordance with law, the same is hereby affirmed, with
costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
and Endencia, JJ., concur.
G.R. No. 103292 January 27, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MODESTO CABUANG y FLORES, NARDO MATABANG y SALVADOR, JOHN DOE and RICHARD DOE, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Carlito M. Soriano for accused-appellant.

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

Later, Evelyn was again able positively to identify and point out Cabuang and Matabang from
a police line-up. However, the two (2) other suspects, i.e., the tricycle driver and the person who rode at the rear
of the tricycle remained unknown and at large.
road in front of the yard.

On 17 October 1988, the third day after the tragic night, the police found a book ("Laboratory Manual in Organic
Chemistry") and some articles of feminine underwear and other personal belongings of a woman scattered some
50 to 100 meters away from where they had first found Maria Victoria's body. Evelyn viewed these belongings
and identified them as owned by her cousin Maria Victoria who was a student at the Philippine Women's
University (PWU). Examination of the personal belongings so found also showed that cash in the amount of
P400.00, in Maria Victoria's possession the night before, was missing.
Dr. Nario Ferrer, a physician resident in Bayambang, Pangasinan, conducted an autopsy on the body of the
victim. He rendered an autopsy report which show the following findings:
Incised wound, 4.0 cm superficial, antero-lateral aspect neck (R);
Contusion hematoma, 1 x 1 cm. mid clavicular area (L);

Stab wound, 1.5 cm. 5th ICS, parasternal line (L), penetrating, perforating the heart at the
ventricular level, lacerating the lingular part of the (L) lung;
Hematoma, mediastinum;
Hemopericardium, 300 cc;
Hemothorax (L) 2 liters;
Stab wound, 1.5 cm. 7th ICS, para-vertebral line (R), penetrating and lacerating the posterior
basal part of (R) lung;
Hemothorax (R) 1 liter;
Incised wound, 3.0 cm. 2 points, parallel to each other, mons pubis;
Incised wound, 3.0 cm. posterior fourchet of the vagina, transecting the perineum down to the
anal canal;
Vagina with blood clots with fecaloid material;
Hymen carunculated.
The report also noted the stab wounds in the pubic region including the area between the vagina and the anal
canal, as well as the presence of lacerations and spermatozoa in the victim's vagina, indicating that Maria
Victoria had been raped and mutilated. Dr. Ferrer identified four (4) of the wounds as mortal in character, which
wounds were produced by a sharp edge and a pointed object. The cause of the death was listed as
"hypovolemic shock" resulting from severe decrease in the volume of blood supply, producing death about six (6)
hours before the autopsy. 2
On the basis of the foregoing evidence, and primarily on Evelyn de Vera's sworn statement which she later
repeated in substantially identical terms before the trial court, Modesto Cabuang and Nardo Matabang were
convicted of the crime of robbery with rape and homicide.
In the present appeal, appellants principally urge that the trial court had erred in finding that prosecution witness
Evelyn de Vera had positively identified Modesto Cabuang and Nardo Matabang as the assailants of Maria
Victoria. Appellants point to the entry in the Bayambang police blotter found on page 483, Entry No. 4436,
Volume IV, Series of 86 (Exhibit "I") which stated that the assailants were "still unidentified" although the entry
was made after prosecution witness Evelyn de Vera was questioned by the police. Accused accordingly argue
that Evelyn de Vera had never identified the appellants as the assailants of Maria Victoria, who in fact had later
to identify them from a police line-up.
We consider this contention bereft of merit. Upon receiving the report that a dead body was found in Barangay
Buenlag I, members of the Bayambang Police Station immediately proceeded to the reported crime scene on the
morning of 15 October 1988. The police investigator, Pfc. Elegio Lopez, who initially questioned witness De Vera
that morning, noticed that she was in a state of shock. 3 He accordingly chose to defer further questioning until
the afternoon of the same day when Evelyn had calmed down sufficiently to be able to give a sworn statement to
the police. Thus, there was the initial report prepared and recorded in the police blotter 4 at around 11 o'clock in
the morning, stating that the assailants were still unidentified; there was, upon the other hand, Evelyn de Vera's
sworn statement 5 made and completed in the afternoon of the same day, where she revealed the identifies of

the men she had seen the night before and who she believed were responsible for the rape and death of her
cousin Maria Victoria.
The failure of Evelyn to specify the accused-appellants as the doers of the horrific rape, killing and robbery of
Maria Victoria the first time she was questioned by the police, does not adversely affect her credibility. It is firmly
settled case law that the delay of a witness in revealing to the police authority what he or she may know about a
crime does not, by itself, render the witness' testimony unworthy of belief. 6
In People v. Savellano, 7 appellant Savellano argued that since the complaining witness had reported to the
police authorities the matter of her husband's death and identified the Savellanos' as her husband's killers only
after the lapse of two (2) days, rather than immediately when she had the very first opportunity to do so while the
police was conducting an "on the spot" investigation, the credibility of her testimony was greatly weakened. This
Court rejected this argument stating that:
It is quite understandable when the witnesses do not immediately report the identity of the
offender after a startling occurrence more especially when they are related to the victim as they
just had a traumatic experience. . . . [A] delay of about a few hours before the identification of
the offender by the prosecution witnesses does not thereby affect their credibility. 8
In People v. de Guzman, 9 the accused-appellant sought to capitalize upon the fact that the prosecution witness
did not volunteer the information covered by her testimony to the policeman who had investigated the crime
immediately after the murder was committed. Disposing of this contention, this Court ruled that:
The initial reluctance of witnesses to volunteer information about a criminal case and
unwillingness to be involved in criminal investigations due to fear of reprisal [are] common
occurrence(s) and [have] been judicially declared as not affecting their credibility, . . . .
xxx xxx xxx
The testimony of Gloria should be given full weight and credit. Her failure to give a sworn
statement to the police should not be taken against her. There is no law which requires that the
testimony of a prospective witness should first be reduced into writing in order that her
declaration in Court at a later date may be believed by the Judge. 10
The above rulings apply squarely to the case at bar. Evelyn de Vera was clearly traumatized, in a state of shock,
upon finding out that her cousin who had been with her just the night before, was brutally raped and killed. She
could not then and there clearly and calmly recount the events she had experienced and witnessed that dreadful
night in a logical sequence. The few hours delay which lapsed from the time the entry in the police blotter was
made, up to the time Evelyn gave her sworn statement on the afternoon of the same day, did not have the effect
of eroding the intrinsic credibility and strength of that statement. It may be noted that significantly longer delays
in informing investigating officers of what witnesses had seen, have been held understandable by this Court and
as not, in themselves, destructive of the otherwise credible character of such testimony, especially where the
witnesses' fear of possible retaliation from the accused could not be dismissed as merely fanciful. 11
It remains only to note that entries in a police blotter, though regularly done in the course of performance of
official duty are not conclusive proof of the truth of such entries. In People v. Santito, Jr., 12 this Court held that
entries in official records like a police blotter are only prima facie evidence of the facts therein set out, since the
entries in the police blotter could well be incomplete or inaccurate. Testimony given in open court during the trial
is commonly much more lengthy and detailed than the brief entries made in the police blotter and the trial court
cannot base its findings on a police report merely, but must necessarily consider all other evidence gathered in

the course of the police investigation and presented in court. 13 In the case at bar, we conclude that prosecution
witness Evelyn de Vera did positively and clearly identify Modesto Cabuang and Nardo Matabang as among
those who had raped and killed and robbed the hapless Maria Victoria Parana.
Appellants also set up the defenses of denial and alibi. Cabuang denied having had anything to do with the rape
and killing of Mari Victoria. He said that he was at the wake of the daughter of one Ben Juinio of Barangay
Buenlag I, the whole night of 14 October 1988 and until 6:30 in the morning of the following day. Cabuang was,
however, unable to offer any details in elaboration or corroboration of his claim of alibi. Matabang, for his part,
testified that on 14 October 1988, he was in his house in Karanglaan, Dagupan City, with his wife, his sister-inlaw, and his child and had never left his house. He testified further that he left his home for Bayambang only on
the next day 15 October 1988. His testimony was, however, found by the trial court to be flawed by
discrepancies and inconsistencies and by lack of sufficient corroboration.
The firmly settled doctrine is that the defense of alibi cannot prosper, unless the accused is able to prove that he
was at some other place during the commission of the crime and that it was impossible for him to have been at
the scene of the crime at the time of its commission. 14 Clearly, neither of the appellants was able to do so in the
case at bar. Modesto Cabuang was supposedly attending the wake held in the same barangay where Maria
Victoria was ravished and killed and robbed. Nardo Matabang, upon the other hand, was allegedly at home in a
town no more than an hour or so by bus from Bayambang.
It is equally settled doctrine that positive identification must prevail over simple denials and unacceptable alibis.
Appellants have not even tried to suggest that Evelyn de Vera might have had some ill motive to testify falsely
against them. To the contrary, she had all the reasons to speak the truth with respect to her cousin's ravishers
and killers. When there is no evidence to indicate that the principal witness for the prosecution was moved by
improper motives, the presumption is that such witness was not so moved, and that her testimony is entitled to
full faith and credit. 15
It is, of course, true that Evelyn de Vera did not witness the actual sexual assault and slaying of Maria Victoria
nor the talking of the P400.00 missing from Maria Victoria's belongings. The evidence presented by the
prosecution witness was circumstantial in nature. But circumstantial evidence can be and often is entirely
sufficient to support a conviction, where the multiple circumstances are proven and are consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that the accused is
innocent, as well as incompatible with every rational hypothesis except that of guilt on the part of the accused. 16
In brief, the circumstances must produce conviction of guilt beyond reasonable doubt. 17
In the case at bar, the circumstances forming an unbroken chain and leading to the conviction beyond
reasonable doubt that Cabuang and Matabang, among others, were guilty of robbery with rape and homicide,
were the following:
1. While Evelyn de Vera and Maria Victoria Parana were walking home through an uninhabited
place at about 11 o'clock at night on 14 October 1988, accused Cabuang and Matabang
suddenly appeared from the surrounding rice fields. Cabuang grabbed Maria Victoria and
covered her mouth. Evelyn ran away because she became terribly frightened and Matabang
followed in pursuit. Matabang lost sight of Evelyn along the road.
2. From her hiding place in the front yard of a house along the road, Evelyn saw Maria Victoria
pass by in a tricycle with the accused Cabuang, Matabang and two (2) other men and heard
Maria Victoria crying and pleading for help. Evelyn clearly recognized Cabuang and Matabang,
but not the other two (2).

3. Early the next morning, on 15 October 1988, the body of Mario Victoria was found in the
barangay traversed by the road on which Maria Victoria were walking the night before.
4. The claims of alibi by Cabuang and Matabang were not successfully established. Cabuang
acknowledged that he was in the same barangay where Maria Victoria had been assaulted and
killed, while Matabang asserted that he was in his house in Dagupan City which was no more
than an hour or so by bus from the scene of the crime. Neither Cabuang nor Matabang offered
and presented independent and reliable corroboration of their presence far away from the scene
of the crime at the time of occurrence of the crime.
The trial court found the circumstances, considered together, as adequate to prove appellants' guilt beyond
reasonable doubt. This Court agrees, having been unable to find any reason for overturning this conclusion of
the trial court.
WHEREFORE, the decision of the trial court finding the accused-appellants Modesto Cabuang and Nardo
Matabang guilty beyond reasonable doubt of robbery with rape and homicide and sentencing the accused to
reclusion perpetua is hereby AFFIRMED in toto except that the indemnity is hereby INCREASED from
P50,000.00 to P100,000.00 considering that Maria Victoria Parana was not only raped but also brutally mutilated
and killed by the accused. Costs against appellants.
SO ORDERED.
Narvasa, C.J., Regalado, Nocon and Campos, Jr., JJ, concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

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

which the assailants ran towards the highway leaving Tonog behind on the ground. He was then
brought to Mary Johnston Hospital where he was pronounced dead on arrival.
Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District, autopsied the cadaver of
the victim and reported that it sustained two (2) penetrating stab wounds each caused by a singlebladed instrument. He opined that both wounds were fatal.3
The accused has a different version. He testified that he saw Tonog drunk; Tonog even attempted to box
him but he parried his blow; Tonog continued walking but when he chanced upon Ramon he suddenly
and without provocation boxed and kicked Ramon; Ramon fought back but was subdued by his bigger
assailant so the former ran towards the highway; when Tonog met a certain "Mando" he boxed the
latter who however fought back despite his (accused) warning not to; at this moment he saw Ramon
return with a bolo on hand; he warned Ramon not to fight but his advice went unheeded; instead, with
bolo on hand Ramon struck Tonog on the belly; when "Mando" saw what happened he ("Mando")
pulled out his knife and also stabbed Tonog at the back; Ramon and "Mando" then fled towards the
highway.
The accused further claimed that he even stayed with the victim and called out the latter's companions
to bring him to the hospital; that prosecution witness Brenda Gonzales only arrived at the crime scene
after Tonog was already taken to the hospital; that Brenda even inquired from him what happened and
then prodded him to testify; that his refusal coupled with the fact that he owed Gonzales some money
earned him the ire of the latter and that was why he was charged for the death of Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in giving credence to the
testimonies of prosecution witnesses Brenda Gonzales and Pio Ochobillo, and for discrediting his; (b)
in finding that the killing was attended with evident premeditation; (c) in ruling that he committed
treachery and, (d) in convicting him of murder.4
We sustain the conviction of the accused for murder. It is settled that findings of fact of the trial court
are accorded greatest respect by the appellate court absent any abuse of discretion,5 and none is
perceivable in the case at bench; hence we affirm the factual findings of the trial court.
The accused contends that the testimonies of the prosecution witnesses are incredible and conflicting.
We however find otherwise. Gonzales and Ochobillo, as observed by the trial court, testified in a direct
and candid manner. No evil motive is attributed to them as to testify falsely against the accused. That
Gonzales harbored a grudge against the accused because he owed her some money, and even enticed
her customers into patronizing another carinderia, can hardly be believed. We are not convinced that
Brenda Gonzales would testify against accused-appellant for a crime so grave simply because he owed
her a measly sum of P300.00. That he enticed the customers of Gonzales into patronizing another
carinderia is belied by the fact that on the night of the incident he was, as he claimed, eating at the
carinderia of Gonzales. If there be any testimony that should be considered incredible and illogical it
must be that of the accused. His assertion that "Mando" stabbed the victim should not receive any

evidentiary value when weighed against the positive assertion of the prosecution witnesses that the
accused was the assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding the person and circumstances
of "Mando." Up to this date "Mando" remains a myth. Not a single witness was presented by the
defense to prove who "Mando" was, nor even a hint of his personal circumstances. During the entire
proceedings in the court below "Mando" was never mentioned by the prosecution witnesses. Nobody
ever implicated him except the accused. In fact, there should have been no difficulty procuring
witnesses to testify on the part of the accused as the incident was viewed openly by a multitude of
bystanders. His failure to present any witness pointing to "Mando" as the perpetrator of the crime
convinces us that "Mando" in fact existed only as a figment of the mind.
The accused also asserts that Gonzales arrived at the crime scene only after the victim was brought to
the hospital and that she even inquired from him about what happened.
Again we are not persuaded. The statement contradicts the earlier version of the accused that Gonzales
was prejudiced against him as he owed her some money. For, granting that Gonzales had a grudge
against him it was not likely that she would inquire from him about the incident as there were other
persons then present who could shed light on the startling occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at the crime scene only after the
victim was rushed to the hospital considering that the incident took place just in front of her store.
Besides, this claim was easily demolished by Gonzales' detailed account of the fight.
The fact that the witnesses did not immediately report the incident to the police does not necessarily
discredit them. After all, reports were made albeit by different persons. The accused banks on the
apparent inconsistency as to why Gonzales failed to give immediately her account of the killing to the
authorities. But the discrepancy is so minor that it cannot undermine her credibility nor detract from the
truth that she personally witnessed the incident and positively identified the accused.
The accused leans heavily on the Advance Information Sheet6 prepared by Pat. Steve Casimiro which
did not mention him at all and named only "Ramon Doe" as the principal suspect. Unfortunately this
cannot defeat the positive and candid testimonies of the prosecution witnesses. Entries in official
records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They
are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be
incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestions or
inquiries, without the aid of which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of his memory and for his accurate
recollection of all that pertain to the subject. It is understandable that the testimony during the trial
would be more lengthy and detailed than the matters stated in the police blotter7 Significantly, the
Advance Information Sheet was never formally offered by the defense during the proceedings in the
court below. Hence any reliance by the accused on the document must fail since the court cannot
consider any evidence which has not been formally offered.8

Parenthetically, the Advance Information Sheet was prepared by the police officer only after
interviewing Camba, an alleged eyewitness. The accused then could have compelled the attendance of
Camba as a witness. The failure to exert the slightest effort to present Camba on the part of the accused
should militate against his cause.
Entries in official records made in the performance of his duty by a public officer or by a person in the
performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated.9
But to be admissible in evidence three (3) requisites must concur: (a) The entry was made by a police
officer or by another person specially enjoined by law to do so; (b) It was made by the public officer in
the performance of his duties or by such other person in the performance of a duty specially enjoined
by law; and, (c) The public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information. 10
The Advance Information Sheet does not constitute an exception to the hearsay rule, hence,
inadmissible. The public officer who prepared the document had no sufficient and personal knowledge
of the stabbing incident. Any information possessed by him was acquired from Camba which therefore
could not be categorized as official information because in order to be classified as such the persons
who made the statements not only must have personal knowledge of the facts stated but must have the
duty to give such statements for the record. 11 In the case of Camba, he was not legally so obliged to
give such statements.
The accused enumerates discrepancies in the testimonies of the prosecution witnesses. Thus, according
to him, it was testified that the victim was stabbed by the accused at the back but failed to point out its
precise location. The stabbing admittedly occurred at around seven o'clock in the evening but the
Advance Information Sheet reported "6:30 p.m." One witness testified that the fistfight was only
between the victim and "Ramon Doe," while another reported that it involved the victim, "Ramon Doe"
and the accused. Further, it was not accurately determined whether Ramon and the accused returned to
the scene of the crime within five (5) minutes or after the lapse thereof.
As previously stated, the discrepancies do not militate against the fact firmly established by the
prosecution that Tonog was stabbed at the back by the accused and by "Ramon Doe" in the abdomen.
Any discordance noted is so minor and insignificant that no further consideration is essential. The most
honest witnesses make mistakes sometimes, but such innocent lapses do not necessarily impair their
credibility. The testimony of a witness must be considered and calibrated in its entirety and not by
truncated portions thereof or isolated passages therein. 12
The presence of the accused in the vicinity even after the commission of the crime does not in any way
extricate him from his dilemma. Certainly, it is no proof of his innocence.
The court a quo properly considered the aggravating circumstance of treachery in convicting the
accused of murder. Treachery is present when the offender commits any of the crimes against person,
employing means, methods or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might make. 13

Alevosia or treachery presumes an attack that is deliberate and unexpected. There is no treachery when
the victim is placed on guard, as when a heated argument preceded the attack, especially when the
victim was standing face to face with his assailants, and the initial assault could not have been foreseen.
14

It is true that in the case at bench the attack was preceded by a fistfight. It was however established that
they were already pacified by onlookers when the accused and Ramon returned. Lulled into
complacency the victim simply stayed where he was before the fistfight when after a brief moment the
accused together with Ramon returned with bladed weapons. Both approached the victim and circled
him surreptitiously. The attack was sudden and simultaneous that the victim was never given a chance
to defend himself. As we have held in People v. Balisteros, 15 where a victim was totally unprepared for
the unexpected attack from behind and had no weapon to resist it, the stabbing could not but be
considered as treacherous. The evidence proved that the victim was caught unaware by the sudden
assault. No weapon was found, nor even intimated to be, in his possession.
Conversely the court a quo should have disregarded evident premeditation. Evident premeditation
requires a showing that the execution of the criminal act was preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm
judgment. 16 Evidence for the prosecution showed that after the fight was broken up the accused and
"Ramon Doe" proceeded towards the highway. They returned only after a lapse of approximately five
(5) minutes. From the foregoing we cannot conclude that the accused had sufficient time within which
to meditate on the consequences of his acts. Meditation necessitates that it be evident and proven. Be
that as it may, treachery as a qualifying circumstance having attended the killing, the conviction of the
accused for murder still holds.
WHEREFORE, the decision of the court a quo in Crim. Case No. 90-81744 dated 25 July 1991
convicting accused-appellant RICARDO SAN GABRIEL Y ORTIZ of murder is AFFIRMED. The
penalty of life imprisonment however is MODIFIED to reclusion perpetua, 17 while the award of
P30,000.00 as indemnity is INCREASED to P50,000.00 conformably with existing jurisprudence.
Costs against accused-appellant.
SO ORDERED.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

tate v. Lunsford
Annotate this Case

336 S.W.2d 20 (1960)

STATE of Tennessee ex rel. G. Tillman STEWART, etc. v. Tommy LUNSFORD et al.
Supreme Court of Tennessee.

May 4, 1960.
Joe A. Appleby, Lexington, for appellant.
Barry & Walker, Lexington, for appellees.
BURNETT, Justice.
The question for determination in this case is whether or not the appellant, G. Tillman Stewart, has
qualified so that the Teachers Tenure Act (Chapter 76, Public Acts of 1951) as now carried in the Code,
Sections 49-1401 to 49-1420, T.C.A., applies. The Chancellor held that he had not qualified for tenure
status under the Act. An appeal has been seasonably perfected, briefs filed and able arguments heard.
We now have the matter for determination.
Stewart holds a professional teachers certificate of the State of Tennessee by reason of having
graduated from the University of Tennessee. He has not taught as a classroom teacher in Henderson
County since the enactment of the Tenure Statute in 1951, or during a period that would qualify him for
tenure status. He has not been connected with the school system from 1939 until he was elected by
popular vote by the people of the county as Superintendent of Schools in the summer of 1954. He took
office the 1st of September, 1954, and served a four-year term, at which date he was defeated by
popular vote. After this defeat he made application for a teaching position in one of the high schools in
the county, but was not elected by the Board of Education.
The case is predicated entirely upon the terms of the statute. Section 49-1401, T.C.A., gives the
definition of various words *21 and terms that are used in the Act. In the first subdivision under this
Section the word "teacher" is defined to include teachers, supervisors, principals, superintendents, etc.
Thus it is Stewart's position that since he was Superintendent of the County Schools for a period of four
years (1954 to 1958) that he under this definition, that is, that the Superintendent is a teacher under the
terms of the Act, and under other provisions of the Act, was eligible and entitled to permanent tenure
status.
The general purpose of this Teacher Tenure Act (one under which the claim is here made) was
discussed in some detail in State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635, and again in Shannon v.
Board of Education, 199 Tenn. 250, 286 S.W.2d 571. In view of our discussion of this Act and its
purposes, etc., it will not be again necessary to here go into any detail in reference to the purposes of
the Act. Among other things, we said in State v. Yoakum, supra, that "In solving this question, as in all
questions of statutory construction, the main object is to see what the legislative intent was as disclosed
by the provisions of the act in relation to the subject of legislation and what was the general purpose to
be accomplished." [201 Tenn. 180, 297 S.W.2d 640.]
Then in Shannon v. Board of Education, supra, [199 Tenn. 250, 286 S.W.2d 575] this Court conceded
that the primary purpose of this Act was to protect teachers from "unjust dismissal" by arbitrary action
of the Board, etc. We recognized in this case that the Act was entitled to a liberal construction but in

giving it this construction we could not read into the Act things that were not there, but must take the
Act as passed by the Legislature. In other words we held in that case that giving it this liberal
construction was not "to hold that the legislative intent was to automatically confer tenure status upon
all teachers and principals of schools with as much as three years' service prior to the effective date of
the Act, and without full knowledge of said boards of education." In this case we too held that the Act
was prospective only and not restrospective.
With the foregoing as a background we now come to the consideration of Section 49-1402, T.C.A.,
with reference to the instant case. This Section governs the two types of tenure. The first of which is
permanent tenure. One to acquire permanent tenure must have a degree from an approved four-year
college; (2) must hold a valid professional certificate based on not less than four years college training
covering the subjects that he is going to teach; (3) must have completed a probationary period of three
school years, or not less than twenty-seven months of teaching, "within the last five (5) year period,
and the last year to be employed as a regular teacher", and (d) must be reemployed by the board for
service after the probationary period. The second paragraph of this Act defines limited tenure and what
is necessary for limited tenure. This second provision of this Section is not applicable here.
Stewart comes within the definition, that is, is a Superintendent or teacher. He has shown that he has a
degree from a school and that he holds a valid certificate. Then, too, we would say that he has
completed the probationary period under the terms of the Act by serving as Superintendent for this
period, but he has not complied with the latter provision of this permanent tenure status, that is, he has
not been "reemployed by the board for service after the probationary period." Thus it is that not having
complied with all the essentials of the requisites for tenure status he does not come within the Act so
that he can take advantage of the terms of the Act. The board refused to employ him as a teacher after
his four years' service as Suprintendent.
The following Section of the Code, 49-1403, T.C.A., sets forth what a probationary period is, which in
effect uses almost the identical terms of what we designated as (3) in discussing the preceeding Code
Section, and this Section further says that after completing this probationary *22 period `any teacher
who is reemployed or retained in the system is entitled to the tenure status for which she is qualified by
college training and certification." Thus we see in at least two instances the Legislature has used the
plain and unambiguous language that one to qualify under the permanent Tenure Teachers Law must do
certain specified things for a certain period of time and then after completing this probationary period
must be reemployed or retained in the system to comply with the terms of this Act. There is, of course,
a very obvious reason for this fact. This reason being that the probationary period, as is defined in
Section 49-1401, T.C.A., "is a condition and period of trial during which a teacher is under observation
to determine his fitness for tenure status." Thus it is clear that the purpose of the Legislature was not to
make a teacher entitled as a matter of right to permanent tenure status after completing this
probationary period unless he or she was retained or reelected to the position.
What we have said above complies with the general law under similar statutes in many other states. See
78 C.J.S. Schools and School Districts sec. 5, p. 1023, wherein in part it is said: "So, under a statute to
such effect, reemployment after completion of the probationary or preliminary period is essential to

give the teacher a status and rights of permanent tenure; * * *." Among other cases cited is that of
Dugan v. School District, Supreme Court of Colorado, as reported in 128 Colo. 594, 265 P.2d 998,
1000, where among other things that court said: "It is provided in the Act that teachers in first-class
school districts who `shall be re-elected after the passage of this Act, shall without further election have
stable and continuous tenure of his or her position during efficiency and good behavior.' In order to
acquire `stable and continuous tenure' the Act requires an affirmative act on the part of the school
district `after the passage of' the Act. As expressed therein this had to be the re-election of the teacher."
Thus as we have seen under reason and authority the appellant has not acquired permanent tenure status
herein and as a result thereof the decree of the Chancellor must be affirmed.
PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner, vs. HONORABLE COURT
OF APPEALS and MARIA EFIGENIA FISHING CORPORATION, respondents.
DECISION
ROMERO, J.:
A party is entitled to adequate compensation only for such pecuniary loss actually suffered
and duly proved.i[1] Indeed, basic is the rule that to recover actual damages, the amount of
loss must not only be capable of proof but must actually be proven with a reasonable degree
of certainty, premised upon competent proof or best evidence obtainable of the actual amount
thereof.ii[2] The claimant is duty-bound to point out specific facts that afford a basis for
measuring whatever compensatory damages are borne. iii[3] A court cannot merely rely on
speculations, conjectures, or guesswork as to the fact and amount of damages iv[4] as well as
hearsayv[5] or uncorroborated testimony whose truth is suspect. vi[6] Such are the jurisprudential
precepts that the Court now applies in resolving the instant petition.
The records disclose that in the early morning of September 21, 1977, the M/V Maria Efigenia
XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the
waters near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when
it collided with the vessel Petroparcel which at the time was owned by the Luzon Stevedoring
Corporation (LSC).
After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard
Commandant Simeon N. Alejandro rendered a decision finding the Petroparcel at fault. Based
on this finding by the Board and after unsuccessful demands on petitioner,vii[7] private
respondent sued the LSC and the Petroparcel captain, Edgardo Doruelo, before the then
Court of First Instance of Caloocan City, paying thereto the docket fee of one thousand two
hundred fifty-two pesos (P1,252.00) and the legal research fee of two pesos (P2.00).viii[8] In
particular, private respondent prayed for an award of P692,680.00, allegedly representing the
value of the fishing nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest
at the legal rate plus 25% thereof as attorneys fees. Meanwhile, during the pendency of the
case, petitioner PNOC Shipping and Transport Corporation sought to be substituted in place
of LSC as it had already acquired ownership of the Petroparcel.ix[9]

For its part, private respondent later sought the amendment of its complaint on the
ground that the original complaint failed to plead for the recovery of the lost value of
the hull of M/V Maria Efigenia XV.x[10] Accordingly, in the amended complaint, private
respondent averred that M/V Maria Efigenia XV had an actual value of P800,000.00
and that, after deducting the insurance payment of P200,000.00, the amount of
P600,000.00 should likewise be claimed. The amended complaint also alleged that
inflation resulting from the devaluation of the Philippine peso had affected the
replacement value of the hull of the vessel, its equipment and its lost cargoes, such
that there should be a reasonable determination thereof. Furthermore, on account of
the sinking of the vessel, private respondent supposedly incurred unrealized profits
and lost business opportunities that would thereafter be proven. xi[11]Subsequently, the
complaint was further amended to include petitioner as a defendant xii[12] which the
lower court granted in its order of September 16, 1985. xiii[13] After petitioner had filed its
answer to the second amended complaint, on February 5, 1987, the lower court
issued a pre-trial orderxiv[14] containing, among other things, a stipulations of facts, to
wit:1.On 21 September 1977, while the fishing boat `M/V MARIA EFIGENIA owned by
plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, Batangas, on its
way to Navotas, Metro Manila, said fishing boat was hit by the LSCO tanker
Petroparcel causing the former to sink.
2. The Board of Marine Inquiry conducted an investigation of this marine accident and
on 21 November 1978, the Commandant of the Philippine Coast Guard, the
Honorable Simeon N. Alejandro, rendered a decision finding the cause of the accident
to be the reckless and imprudent manner in which Edgardo Doruelo navigated the
LSCO Petroparcel and declared the latter vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO),
executed in favor of PNOC Shipping and Transport Corporation a Deed of Transfer
involving several tankers, tugboats, barges and pumping stations, among which was
the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered into
an Agreement of Transfer with co-defendant Lusteveco whereby all the business
properties and other assets appertaining to the tanker and bulk oil departments
including the motor tanker LSCO Petroparcel of defendant Lusteveco were sold to
PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes,
without qualifications, all obligations arising from and by virtue of all rights it obtained
over the LSCO `Petroparcel.
6. On 6 July 1979, another agreement between defendant LUSTEVECO and PNOCSTC was executed wherein Board of Marine Inquiry Case No. 332 (involving the sea
accident of 21 September 1977) was specifically identified and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the
Ministry of National Defense, in its decision dismissing the appeal of Capt. Edgardo
Doruelo and Chief mate Anthony Estenzo of LSCO `Petroparcel.
8. LSCO `Petroparcel is presently owned and operated by PNOC-STC and likewise
Capt. Edgardo Doruelo is still in their employ.

9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
imprudent manner in which LSCO Petroparcel was navigated by defendant Doruelo,
plaintiff suffered actual damages by the loss of its fishing nets, boat equipments (sic)
and cargoes, which went down with the ship when it sank the replacement value of
which should be left to the sound discretion of this Honorable Court.
After trial, the lower courtxv[15] rendered on November 18, 1989 its decision disposing
of Civil Case No. C-9457 as follows:WHEREFORE, and in view of the foregoing,
judgment is hereby rendered in favor of the plaintiff and against the defendant PNOC
Shipping & Transport Corporation, to pay the plaintiff:
a.The sum of P6,438,048.00 representing the value of the fishing boat with interest
from the date of the filing of the complaint at the rate of 6% per annum;
b.

The sum of P50,000.00 as and for attorneys fees; and

c.

The costs of suit.

The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case against
defendant Edgardo Doruelo is hereby DISMISSED, for lack of jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence presented by private
respondent consisting of the testimony of its general manager and sole witness, Edilberto del
Rosario. Private respondents witness testified that M/V Maria Efigenia XV was owned by
private respondent per Exhibit A, a certificate of ownership issued by the Philippine Coast
Guard showing that M/V Maria Efigenia XV was a wooden motor boat constructed in 1965
with 128.23 gross tonnage. According to him, at the time the vessel sank, it was then carrying
1,060 tubs (baeras) of assorted fish the value of which was never recovered. Also lost with
the vessel were two cummins engines (250 horsepower), radar, pathometer and compass. He
further added that with the loss of his flagship vessel in his fishing fleet of fourteen (14)
vessels, he was constrained to hire the services of counsel whom he paid P10,000 to handle
the case at the Board of Marine Inquiry and P50,000.00 for commencing suit for damages in
the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court took into account the
following pieces of documentary evidence that private respondent proffered during trial:
(a)

Exhibit A certified xerox copy of the certificate of ownership of M/V Maria

Efigenia XV;

(b)

Exhibit B a document titled Marine Protest executed by Delfin Villarosa, Jr.

on September 22, 1977 stating that as a result of the collision, the M/V
Maria Efigenia XV sustained a hole at its left side that caused it to sink with
its cargo of 1,050 baeras valued at P170,000.00;

(c)

Exhibit C a quotation for the construction of a 95-footer trawler issued by

Isidoro A. Magalong of I. A. Magalong Engineering and Construction on

January 26, 1987 to Del Rosario showing that construction of such trawler
would cost P2,250,000.00;
(d)

Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan of

Power Systems, Incorporated on January 20, 1987 to Del Rosario showing
that two (2) units of CUMMINS Marine Engine model N855-M, 195 bhp. at
1800 rpm. would cost P1,160,000.00;

(e)

Exhibit E quotation of prices issued by Scan Marine Inc. on January 20,

1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar,
Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video
Sounder, Model FCV-501 would cost P45,000.00 so that the two units would
cost P145,000.00;

(f)

Exhibit F quotation of prices issued by Seafgear Sales, Inc. on January 21,

1987 to Del Rosario showing that two (2) rolls of nylon rope (5 cir. X 300fl.)
would cost P140,000.00; two (2) rolls of nylon rope (3 cir. X 240fl.),
P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass (6),
P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197, 150.00;

(g)

Exhibit G retainer agreement between Del Rosario and F. Sumulong

Associates Law Offices stipulating an acceptance fee of P5,000.00, per
appearance fee of P400.00, monthly retainer of P500.00, contingent fee of
20% of the total amount recovered and that attorneys fee to be awarded by
the court should be given to Del Rosario; and

(h)

Exhibit H price quotation issued by Seafgear Sales, Inc. dated April 10, 1987
to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18 3kts.
100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x 100mtrs.,
P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50
rolls of 400/18 10kts. 100md x 100mtrs., P146,500 and banera (tub) at
P65.00 per piece or a total of P414,065.00

The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing
boat and all its equipment would regularly increase at 30% every year from the date the
quotations were given.
On the other hand, the lower court noted that petitioner only presented Lorenzo Lazaro,
senior estimator at PNOC Dockyard & Engineering Corporation, as sole witness and it did not
bother at all to offer any documentary evidence to support its position. Lazaro testified that the
price quotations submitted by private respondent were excessive and that as an expert
witness, he used the quotations of his suppliers in making his estimates. However, he failed to
present such quotations of prices from his suppliers, saying that he could not produce a
breakdown of the costs of his estimates as it was a sort of secret scheme. For this reason, the
lower court concluded:
Evidently, the quotation of prices submitted by the plaintiff relative to the replacement
value of the fishing boat and its equipments in the tune of P6,438,048.00 which were
lost due to the recklessness and imprudence of the herein defendants were not
rebutted by the latter with sufficient evidence. The defendants through their sole
witness Lorenzo Lazaro relied heavily on said witness bare claim that the amount

afore-said is excessive or bloated, but they did not bother at all to present any
documentary evidence to substantiate such claim. Evidence to be believed, must not
only proceed from the mouth of the credible witness, but it must be credible in itself.
(Vda. de Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower courts decision
contending that: (1) the lower court erred in holding it liable for damages; that the
lower court did not acquire jurisdiction over the case by paying only P1,252.00 as
docket fee; (2) assuming that plaintiff was entitled to damages, the lower court erred
in awarding an amount greater than that prayed for in the second amended complaint;
and (3) the lower court erred when it failed to resolve the issues it had raised in its
memorandum.xvi[16] Petitioner likewise filed a supplemental motion for reconsideration
expounding on whether the lower court acquired jurisdiction over the subject matter of
the case despite therein plaintiffs failure to pay the prescribed docket fee. xvii[17]On
January 25, 1990, the lower court declined reconsideration for lack of merit. xviii[18]
Apparently not having received the order denying its motion for reconsideration,
petitioner still filed a motion for leave to file a reply to private respondents opposition
to said motion.xix[19] Hence, on February 12, 1990, the lower court denied said motion
for leave to file a reply on the ground that by the issuance of the order of January 25,
1990, said motion had become moot and academic. xx[20]Unsatisfied with the lower
courts decision, petitioner elevated the matter to the Court of Appeals which, however,
affirmed the same in toto on October 14, 1992.xxi[21] On petitioners assertion that the
award of P6,438,048.00 was not convincingly proved by competent and admissible
evidence, the Court of Appeals ruled that it was not necessary to qualify Del Rosario
as an expert witness because as the owner of the lost vessel, it was well within his
knowledge and competency to identify and determine the equipment installed and the
cargoes loaded on the vessel. Considering the documentary evidence presented as in
the nature of market reports or quotations, trade journals, trade circulars and price
lists, the Court of Appeals held, thus:Consequently, until such time as the Supreme
Court categorically rules on the admissibility or inadmissibility of this class of
evidence, the reception of these documentary exhibits (price quotations) as evidence
rests on the sound discretion of the trial court. In fact, where the lower court is
confronted with evidence which appears to be of doubtful admissibility, the judge
should declare in favor of admissibility rather than of non-admissibility (The Collector
of Palakadhari, 124 [1899], p. 43, cited in Francisco, Revised Rules of Court,
Evidence, Volume VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined to observe
the strict enforcement of the rules of evidence which crystallized through constant use
and practice and are very useful and effective aids in the search for truth and for the
effective administration of justice. But in connection with evidence which may appear
to be of doubtful relevancy or incompetency or admissibility, it is the safest policy to
be liberal, not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection
places them beyond the consideration of the court. If they are thereafter found
relevant or competent, can easily be remedied by completely discarding or ignoring
them. (Banaria vs. Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco,
Supra). [Underscoring supplied].
Stressing that the alleged inadmissible documentary exhibits were never satisfactorily
rebutted by appellants own sole witness in the person of Lorenzo Lazaro, the appellate court

found that petitioner ironically situated itself in an inconsistent posture by the fact that its own
witness, admittedly an expert one, heavily relies on the very same pieces of evidence (price
quotations) appellant has so vigorously objected to as inadmissible evidence. Hence, it
concluded:
x x x. The amount of P6,438,048.00 was duly established at the trial on the basis of
appellees documentary exhibits (price quotations) which stood uncontroverted, and
which already included the amount by way of adjustment as prayed for in the
amended complaint. There was therefore no need for appellee to amend the second
amended complaint in so far as to the claim for damages is concerned to conform
with the evidence presented at the trial. The amount of P6,438,048.00 awarded is
clearly within the relief prayed for in appellees second amended complaint.
On the issue of lack of jurisdiction, the respondent court held that following the ruling in Sun
Insurance Ltd. v. Asuncion,xxii[22] the additional docket fee that may later on be declared as still
owing the court may be enforced as a lien on the judgment.Hence, the instant recourse.
In assailing the Court of Appeals decision, petitioner posits the view that the award of
P6,438,048 as actual damages should have been in light of these considerations,
namely: (1) the trial court did not base such award on the actual value of the vessel
and its equipment at the time of loss in 1977; (2) there was no evidence on
extraordinary inflation that would warrant an adjustment of the replacement cost of the
lost vessel, equipment and cargo; (3) the value of the lost cargo and the prices quoted
in respondents documentary evidence only amount to P4,336,215.00; (4) private
respondents failure to adduce evidence to support its claim for unrealized profit and
business opportunities; and (5) private respondents failure to prove the extent and
actual value of damages sustained as a result of the 1977 collision of the vessels. xxiii
[23]Under Article 2199 of the Civil Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They
proceed from a sense of natural justice and are designed to repair the wrong that has
been done, to compensate for the injury inflicted and not to impose a penalty.xxiv[24] In
actions based on torts or quasi-delicts, actual damages include all the natural and
probable consequences of the act or omission complained of. xxv[25] There are two
kinds of actual or compensatory damages: one is the loss of what a person already
possesses (dao emergente), and the other is the failure to receive as a benefit that
which would have pertained to him (lucro cesante).xxvi[26] Thus:Where goods are
destroyed by the wrongful act of the defendant the plaintiff is entitled to their value at
the time of destruction, that is, normally, the sum of money which he would have to
pay in the market for identical or essentially similar goods, plus in a proper case
damages for the loss of use during the period before replacement. In other words, in
the case of profit-earning chattels, what has to be assessed is the value of the chattel
to its owner as a going concern at the time and place of the loss, and this means, at
least in the case of ships, that regard must be had to existing and pending
engagements.x x x.
x x x. If the market value of the ship reflects the fact that it is in any case virtually certain of
profitable employment, then nothing can be added to that value in respect of charters actually
lost, for to do so would be pro tanto to compensate the plaintiff twice over. On the other hand,
if the ship is valued without reference to its actual future engagements and only in the light of

its profit-earning potentiality, then it may be necessary to add to the value thus assessed the
anticipated profit on a charter or other engagement which it was unable to fulfill. What the
court has to ascertain in each case is the `capitalised value of the vessel as a profit-earning
machine not in the abstract but in view of the actual circumstances, without, of course, taking
into account considerations which were too remote at the time of the loss. xxvii[27] [Underscoring
supplied].As stated at the outset, to enable an injured party to recover actual or compensatory
damages, he is required to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available. xxviii[28] The
burden of proof is on the party who would be defeated if no evidence would be presented on
either side. He must establish his case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to that of the other.xxix[29] In other
words, damages cannot be presumed and courts, in making an award must point out specific
facts that could afford a basis for measuring whatever compensatory or actual damages are
borne.xxx[30]In this case, actual damages were proven through the sole testimony of private
respondents general manager and certain pieces of documentary evidence. Except for Exhibit
B where the value of the 1,050 baeras of fish were pegged at their September 1977 value
when the collision happened, the pieces of documentary evidence proffered by private
respondent with respect to items and equipment lost show similar items and equipment with
corresponding prices in early 1987 or approximately ten (10) years after the collision.
Noticeably, petitioner did not object to the exhibits in terms of the time index for valuation of
the lost goods and equipment. In objecting to the same pieces of evidence, petitioner
commented that these were not duly authenticated and that the witness (Del Rosario) did not
have personal knowledge on the contents of the writings and neither was he an expert on the
subjects thereof.xxxi[31] Clearly ignoring petitioners objections to the exhibits, the lower court
admitted these pieces of evidence and gave them due weight to arrive at the award of
P6,438,048.00 as actual damages.The exhibits were presented ostensibly in the course of
Del Rosarios testimony. Private respondent did not present any other witnesses especially
those whose signatures appear in the price quotations that became the bases of the award.
We hold, however, that the price quotations are ordinary private writings which under the
Revised Rules of Court should have been proffered along with the testimony of the authors
thereof. Del Rosario could not have testified on the veracity of the contents of the writings
even though he was the seasoned owner of a fishing fleet because he was not the one who
issued the price quotations. Section 36, Rule 130 of the Revised Rules of Court provides that
a witness can testify only to those facts that he knows of his personal knowledge.
For this reason, Del Rosarios claim that private respondent incurred losses in the total
amount of P6,438,048.00 should be admitted with extreme caution considering that,
because it was a bare assertion, it should be supported by independent evidence.
Moreover, because he was the owner of private respondent corporation xxxii[32]
whatever testimony he would give with regard to the value of the lost vessel, its
equipment and cargoes should be viewed in the light of his self-interest therein. We
agree with the Court of Appeals that his testimony as to the equipment installed and
the cargoes loaded on the vessel should be given credence xxxiii[33] considering his
familiarity thereto. However, we do not subscribe to the conclusion that his valuation
of such equipment, cargo and the vessel itself should be accepted as gospel truth. xxxiv
[34] We must, therefore, examine the documentary evidence presented to support Del
Rosarios claim as regards the amount of losses.The price quotations presented as
exhibits partake of the nature of hearsay evidence considering that the persons who
issued them were not presented as witnesses. xxxv[35] Any evidence, whether oral or

documentary, is hearsay if its probative value is not based on the personal knowledge
of the witness but on the knowledge of another person who is not on the witness
stand. Hearsay evidence, whether objected to or not, has no probative value unless
the proponent can show that the evidence falls within the exceptions to the hearsay
evidence rule.xxxvi[36] On this point, we believe that the exhibits do not fall under any of
the exceptions provided under Sections 37 to 47 of Rule 130. xxxvii[37]It is true that one
of the exceptions to the hearsay rule pertains to commercial lists and the like under
Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of
Appeals considered private respondents exhibits as commercial lists. It added,
however, that these exhibits should be admitted in evidence until such time as the
Supreme Court categorically rules on the admissibility or inadmissibility of this class of
evidence because the reception of these documentary exhibits (price quotations) as
evidence rests on the sound discretion of the trial court. xxxviii[38] Reference to Section
45, Rule 130, however, would show that the conclusion of the Court of Appeals on the
matter was arbitrarily arrived at. This rule states:Commercial lists and the like.
Evidence of statements of matters of interest to persons engaged in an occupation
contained in a list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation and is generally used and
relied upon by them there.
Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a
statement of matters of interest to persons engaged in an occupation; (2) such statement is
contained in a list, register, periodical or other published compilation; (3) said compilation is
published for the use of persons engaged in that occupation, and (4) it is generally used and
relied upon by persons in the same occupation.
Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and
Hxxxix[39] are not commercial lists for these do not belong to the category of other published
compilations under Section 45 aforequoted. Under the principle of ejusdem generis,
(w)here general words follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind or
class as those specifically mentioned.xl[40] The exhibits mentioned are mere price
quotations issued personally to Del Rosario who requested for them from dealers of
equipment similar to the ones lost at the collision of the two vessels. These are not
published in any list, register, periodical or other compilation on the relevant subject
matter. Neither are these market reports or quotations within the purview of commercial
lists as these are not standard handbooks or periodicals, containing data of everyday
professional need and relied upon in the work of the occupation. xli[41] These are simply
letters responding to the queries of Del Rosario. Thus, take for example Exhibit D which
reads:January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila

Attention: MR. EDDIE DEL ROSARIO

Gentlemen:
In accordance to your request, we are pleased to quote our Cummins Marine Engine, to
wit.
Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle, natural aspirated, 5
in. x 6 in. bore and stroke, 855 cu. In. displacement, keel-cooled,
electric starting coupled with Twin-Disc Marine gearbox model MG509, 4.5:1 reduction ratio, includes oil cooler, companion flange,
manual and standard accessories as per attached sheet.
Price FOB Manila - - - - - - - - - - - - - - - P 580,000.00/unit
Total FOB Manila - - - - - - - - - - - - - - - P 1,160,000.00
vvvvvvvvv
T E R M S : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these are, however,
subject to the general principles of evidence and to various rules relating to
documentary evidence.xlii[42] Hence, in one case, it was held that a letter from an
automobile dealer offering an allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a price current or commercial
list within the statute which made such items presumptive evidence of the value of the
article specified therein. The letter was not admissible in evidence as a commercial
list even though the clerk of the dealer testified that he had written the letter in due
course of business upon instructions of the dealer.xliii[43]But even on the theory that the
Court of Appeals correctly ruled on the admissibility of those letters or
communications when it held that unless plainly irrelevant, immaterial or incompetent,
evidence should better be admitted rather than rejected on doubtful or technical
grounds,xliv[44] the same pieces of evidence, however, should not have been given
probative weight. This is a distinction we wish to point out. Admissibility of evidence
refers to the question of whether or not the circumstance (or evidence) is to
considered at all.xlv[45] On the other hand, the probative value of evidence refers to the
question of whether or not it proves an issue. xlvi[46] Thus, a letter may be offered in

evidence and admitted as such but its evidentiary weight depends upon the
observance of the rules on evidence. Accordingly, the author of the letter should be
presented as witness to provide the other party to the litigation the opportunity to
question him on the contents of the letter. Being mere hearsay evidence, failure to
present the author of the letter renders its contents suspect. As earlier stated, hearsay
evidence, whether objected to or not, has no probative value. Thus:The courts differ
as to the weight to be given to hearsay evidence admitted without objection. Some
hold that when hearsay has been admitted without objection, the same may be
considered as any other properly admitted testimony. Others maintain that it is entitled
to no more consideration than if it had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held that
although the question of admissibility of evidence can not be raised for the first time
on appeal, yet if the evidence is hearsay it has no probative value and should be
disregarded whether objected to or not. `If no objection is made quoting Jones on
Evidence - `it (hearsay) becomes evidence by reason of the want of such objection
even though its admission does not confer upon it any new attribute in point of weight.
Its nature and quality remain the same, so far as its intrinsic weakness and
incompetency to satisfy the mind are concerned, and as opposed to direct primary
evidence, the latter always prevails.
The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rules of res inter alios
acta, or his failure to ask for the striking out of the same does not give such evidence
any probative value. But admissibility of evidence should not be equated with weight
of evidence. Hearsay evidence whether objected to or not has no probative value. xlvii
[47]Accordingly, as stated at the outset, damages may not be awarded on the basis of
hearsay evidence.xlviii[48]Nonetheless, the non-admissibility of said exhibits does not
mean that it totally deprives private respondent of any redress for the loss of its
vessel. This is because in Lufthansa German Airlines v. Court of Appeals,xlix[49] the
Court said:In the absence of competent proof on the actual damage suffered, private
respondent is `entitled to nominal damages which, as the law says, is adjudicated in
order that a right of the plaintiff, which has been violated or invaded by defendant,
may be vindicated and recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered. [Underscoring supplied].
Nominal damages are awarded in every obligation arising from law, contracts, quasicontracts, acts or omissions punished by law, and quasi-delicts, or in every case where
property right has been invaded.l[50] Under Article 2223 of the Civil Code, (t)he adjudication of
nominal damages shall preclude further contest upon the right involved and all accessory
questions, as between the parties to the suit, or their respective heirs and assigns.Actually,
nominal damages are damages in name only and not in fact. Where these are allowed, they
are not treated as an equivalent of a wrong inflicted but simply in recognition of the existence
of a technical injury.li[51] However, the amount to be awarded as nominal damages shall be
equal or at least commensurate to the injury sustained by private respondent considering the
concept and purpose of such damages.lii[52] The amount of nominal damages to be awarded
may also depend on certain special reasons extant in the case. liii[53]Applying now such
principles to the instant case, we have on record the fact that petitioners vessel Petroparcel
was at fault as well as private respondents complaint claiming the amount of P692,680.00
representing the fishing nets, boat equipment and cargoes that sunk with the M/V Maria

Efigenia XV. In its amended complaint, private respondent alleged that the vessel had an
actual value of P800,000.00 but it had been paid insurance in the amount of P200,000.00
and, therefore, it claimed only the amount of P600,000.00. Ordinarily, the receipt of insurance
payments should diminish the total value of the vessel quoted by private respondent in his
complaint considering that such payment is causally related to the loss for which it claimed
compensation. This Court believes that such allegations in the original and amended
complaints can be the basis for determination of a fair amount of nominal damages inasmuch
as a complaint alleges the ultimate facts constituting the plaintiff's cause of action. liv[54] Private
respondent should be bound by its allegations on the amount of its claims.With respect to
petitioners contention that the lower court did not acquire jurisdiction over the amended
complaint increasing the amount of damages claimed to P600,000.00, we agree with the
Court of Appeals that the lower court acquired jurisdiction over the case when private
respondent paid the docket fee corresponding to its claim in its original complaint. Its failure to
pay the docket fee corresponding to its increased claim for damages under the amended
complaint should not be considered as having curtailed the lower courts jurisdiction. Pursuant
to the ruling in Sun Insurance Office, Ltd. (SIOL) v. Asuncion,lv[55] the unpaid docket fee
should be considered as a lien on the judgment even though private respondent specified the
amount of P600,000.00 as its claim for damages in its amended complaint.Moreover, we note
that petitioner did not question at all the jurisdiction of the lower court on the ground of
insufficient docket fees in its answers to both the amended complaint and the second
amended complaint. It did so only in its motion for reconsideration of the decision of the lower
court after it had received an adverse decision. As this Court held in Pantranco North
Express, Inc. v. Court of Appeals,lvi[56] participation in all stages of the case before the trial
court, that included invoking its authority in asking for affirmative relief, effectively barred
petitioner by estoppel from challenging the courts jurisdiction. Notably, from the time it filed its
answer to the second amended complaint on April 16, 1985, lvii[57] petitioner did not question
the lower courts jurisdiction. It was only on December 29, 1989 lviii[58] when it filed its motion for
reconsideration of the lower courts decision that petitioner raised the question of the lower
courts lack of jurisdiction. Petitioner thus foreclosed its right to raise the issue of jurisdiction by
its own inaction.WHEREFORE, the challenged decision of the Court of Appeals dated
October 14, 1992 in CA-G. R. CV No. 26680 affirming that of the Regional Trial Court of
Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded actual damages to
private respondent Maria Efigenia Fishing Corporation in the amount of P6,438,048.00 for
lack of evidentiary bases therefor. Considering the fact, however, that: (1) technically
petitioner sustained injury but which, unfortunately, was not adequately and properly proved,
and (2) this case has dragged on for almost two decades, we believe that an award of Two
Million (P2,000,000.00)lix[59] in favor of private respondent as and for nominal damages is in
order. No pronouncement as to costs.
SO ORDERED.
Kapunan, and Purisima, JJ., concur.
Narvasa, C.J., (Chairman), on leave.
EN BANC
[G.R. No. L-2726. September 29, 1950.]

GREGORIO ESTRADA, Plaintiff, v. PROCULO NOBLE, Defendant.

Jose M. Peas, for Appellant.
De Leon & Tiuseco, for Appellee.
SYLLABUS
1. COURTS; SUPREME COURT; JURISDICTION; APPEALS INVOLVING ONLY THE ERRORS
OR QUESTIONS OF LAW. Among the cases over which the Supreme Court has exclusive
appellate jurisdiction, are those in which only errors or questions of law are involved. Where appellant
in his notice of appeal state that the issues to be raised in the appeal are mostly questions of law, and in
his brief he assigns errors involving questions of fact, the appeal falls within the exclusive appellate
jurisdiction of the Court of Appeals.
DECISION
PARAS, J.:
This is an action to redeem a parcel of land worth about P3,000. The Court of First Instance of
Camarines Sur rendered judgment in favor of the plaintiff. In the notice of appeal filed on November
22, 1948, the defendant announced his intention to appeal to the Supreme Court "inasmuch as the
issues involved therein are mostly questions of law." The record was accordingly elevated to this Court.
Several errors assigned in the brief for defendant-appellant unquestionably refer to questions of fact.
Among the cases over which the Supreme Court has exclusive appellate jurisdiction, are those in which
only errors or questions of law are involved. (Constitution, Art. VIII, see. 2, par. 5; see. 17, Rep. Act
No. 296.) Conformably to this constitutional and statutory precept, the Rules of Court (see. 3, Rule 42)
provide that "where the appeal is based purely on questions of law, the appellant shall so state in his
notice of appeal, and then no other questions shall be allowed, and the evidence need not be elevated."

cral aw virtua1aw

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The case at bar is clearly not one falling under the exclusive appellate jurisdiction of the Supreme
Court. In the first place, the appellant expressly stated in his notice of appeal that the issues involved in
the appeal are "mostly questions of law," an expression plainly not synonymous to "only errors or
questions of law." In the second place, in accordance with his notice of appeal, the appellant has
assigned in his brief several errors involving questions of fact. This, the appellant has undoubtedly the
right to do, because in his notice of appeal he did not state that the appeal is "based purely on questions
of law," as provided in section 3 of Rule 42 of the Rules of Court.
The present appeal, involving questions of fact and of law, falls within the exclusive appellate
jurisdiction of the Court of Appeals (sec. 29, Rep. Act No. 296) and must therefore be certified to said
court, pursuant to section 31 of Republic Act No. 296 which provides that "all cases which may be
erroneously brought to the Supreme Court or to the Court of Appeals shall be sent to the proper court,
which shall hear the same, as if it had originally been brought before it. "Wherefore, let this case be
forwarded to the Court of Appeals for further proceedings.

Moran, C.J., Ozaeta, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

iG.R. No. L-22793

May 16, 1967CARMELITA TAN and RODOLFO TAN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO TAN (alias Tan Uh Bak and Tan Seng Ka), respondents.
Amando Asis for petitioners.
Taada, Teehankee and Carreon for respondents.
SANCHEZ, J.:
The present is a suit aimed at establishing a children-to-father, illegitimate relationship between
petitioners and the principal respondent Francisco Tan, and to compel the latter to support petitioners.
The background facts follow:
On July 22, 1955, petitioners, thru their mother Celestina Daldo as guardian ad litem, sued respondent
Tan in the Court of First Instance of Manila for acknowledgment and support (Civil Case 26909).
1wph1.t
On March 26, 1956, Celestina Daldo after petitioners had already presented oral and documentary
evidence and were about to rest their case moved to dismiss the foregoing civil case upon the
ground that the parties had come to an amicable settlement, and prayed that the same be dismissed with
prejudice and without recourse of appeal.
On the same day, March 26, 1956, Celestina Daldo subscribed before the clerk of the Court of First
Instance of Manila to an affidavit categorically stating that respondent Francisco Tan, defendant in
Civil Case 26909, "is not the father of my said minor children named Carmelita and Rodolfo (herein
petitioners) but another person whose name I cannot divulge"; and that she prepared said affidavit
precisely "to record what is true and to correct what misinterpretation may arise in the future".
On March 26, 1956, the Court of First Instance of Manila issued the following order:
As prayed for by plaintiffs in their motion filed today for the dismissal of their complaint, on
the ground that the parties have already come to an amicable settlement, with the conformity of
counsel for defendant, the Court hereby orders this case dismissed with prejudice and without
pronouncement as to costs.
On November 25, 1957 one year and eight months after Civil Case 26909 was dismissed
petitioners, this time thru their maternal grandfather Servillano Daldo as guardian ad litem, commenced
the present action before the Juvenile & Domestic Relations Court (Civil Case 00855) for
acknowledgment and support, involving the same parties, cause of action and subject matter.
On September 10, 1960, then Judge Juan P. Enriquez (Judge of the Court of First Instance of Manila
detailed to preside over the Juvenile & Domestic Relations Court in the absence of the presiding Judge

thereof who was on leave rendered judgment declaring that "the present case is res judicata by reason
of the dismissal with prejudice of Civil Case 26909 of the Court of First Instance of Manila; and that,
even on the merits, plaintiffs [the present petitioners] have not made out their case with sufficient
evidence," and dismissed the complaint, without costs.
On October 8, 1960, petitioners herein, plaintiffs below, moved to reconsider.
On January 31, 1961, then Judge Natividad Almeda Lopez reconsidered the decision of Judge Enriquez
of September 10, 1960, and rendered judgment, viz:
In view of the foregoing considerations, this Court reconsider its decision of September 10,
1960, and declares the minors Carmelita and Rodolfo Tan to be the illegitimate children of the
defendant Francisco Tan alias Tan Uh Bak and Tang Seng Ka; and hereby orders the defendant
to support said minors in the amount of P200.00 a month, said amount to be paid within the first
five (5) days of each month directly to Carmelita Tan, for herself and for her younger brother
Rodolfo; and to help them defray their matriculation expenses, to pay semi-annually, on June
and November of such year, an additional sum of P300; to reimburse Servillano Daldo his
expenses in supporting plaintiff minors during the pendency of this case in the amount of
P2,000, or at the rate of P50 a month from November 25, 1957; to pay plaintiff minors'
attorney's fees of P500; and to pay the costs of this proceedings.
Respondent Francisco Tan appealed to the Court of Appeals.
On February 21, 1964, the Court of Appeals in turn reversed the last-named judgment of Judge
Natividad Almeda Lopez, and dismissed the complaint with costs against appellees in both instances.
Petitioners now come to this Court in forma pauperis on appeal by way of certiorari.
1. Threshold question is the admissibility of Exhibits H and I, testimony of petitioners' witnesses in the
former case. Petitioners balk at the ruling denying admissibility.
The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now Section 41, Rule 130,
viz:
SEC. 41. Testimony at a former trial. The testimony of a witness deceased or out of the
Philippines, or unable to testify, given in a former case between the same parties, relating to the
same matter, the adverse party having had an opportunity to cross-examine him, may be given
in evidence.
Concededly, the witnesses at the former trial were subpoenaed by the Juvenile & Domestic Relations
Court a number of times. These witnesses did not appear to testify.

But are their testimonies in the former trial within the coverage of the rule of admissibility set forth in
Section 41, Rule 130? These witnesses are not dead. They are not outside of the Philippines. Can they
be categorized as witnesses of the class unable to testify? The Court of Appeals, construing this term,
held that "subsequent failure or refusal to appear thereat [second trial] or hostility since testifying at the
first trial does not amount to inability to testify, but such inability proceeding from a grave cause,
almost amounting to death, as when the witness is old and has lost the power of speech. (Griffith vs.
Sauls, 77 Tex 630, 14 S.W. 230, 231; section 37 of Rule 123, Rules of Court)."
Here, the witnesses in question were available. Only, they refused to testify. No other person that
prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those
unable to testify.
Besides in the situation here presented, petitioners are not at all bereft of remedy. They could have
urged the court to have said witnesses arrested, punished for contempt.1 After all, these remedies are in
the statute books to help litigants in the prosecution of their cases. Petitioners failed to avail of these
remedies, went ahead and submitted their case.
We note petitioners' argument that to follow strictly the law of admissibility of testimony in former
trials, is to permit party litigants to buy witnesses to dissuade them from testifying again. Nothing
extant in the record will as much as intimate that respondent was responsible for the non-appearance of
these witnesses. The danger of tampering with witnesses is a problem that attends trials in many a time
and in number of imaginable situations. And, petitioners argument works both ways. Because,
witnesses at the former trial can be bought not to testify at the second trial, in just the same way that
they could have been bought to give their original testimony. Solution of this problem lies elsewhere,
not in the non-enforcement of Section 41, Rule 130 of the Rules of Court.
2. The procedural problem out of the way, we go direct to the merits.
Petitioners tried to prove that Celestina Daldo and respondent Francisco Tan lived together as husband
and wife for more than eight years commencing from 1936 to 1944. Petitioners Carmelita Tan and
Rodolfo Tan are allegedly the fruits of such cohabitation. Respondent stoutly denies this claim, avers
that he is very much a married man with children. Celestina Daldo, by her own admission, had been a
nursemaid (yaya) in respondent's residence but for l short period of not less than one year in 1939.
Carmelita was born on May 8, 1942 and Rodolfo, on September 11, 1944. The validity of the testimony
of petitioners' witnesses in the present case was considerably downgraded by the affidavit of Celestina
Daldo, heretofore adverted to, attached to the record of the former Case 26909. In that affidavit,
Celestina deposed that petitioners were not fathered by Francisco Tan, but, in Celestina's own words,
by "another person whose name I cannot divulge." Striking is the fact that this affidavit was executed
after petitioners in the former case had finished with their oral and documentary evidence and were
about to submit their case. By then, their counsel had a grasp of the situation. Petitioners and their
guardian ad litem could have known whether they had reasonably made out a case against respondent.

Correctly then did the Court of Appeals rule out the probative value of petitioners' evidence and found
for respondent. On this point the Court of Appeals said:
... we now come to the resolution of the second point; i.e., whether or not the plaintiffs have
sufficiently proved their case. We have gone over and examined thoroughly the arguments and
evidence of the parties, and we find that the evidence for the plaintiffs-appellees fall short of the
requirement of clear strong and convincing evidence. Such evidence is necessary whether to
prove legitimate or illigitimate paternity and filiation, considering the seriousness of the
relationship and its far-reaching consequences. As aptly expressed in the case of Serrano v.
Aragon, (22 Phil. 10),
"Public policy, indeed public necessity, demands that before an illegitimate child be admitted
into a legitimate family, every requisite of the law be completely and fully complied with. No
one should ever be permitted upon doubtful evidence to take from legitimate children the
property which they and their parents have, by industry, fidelity, and frugality, acquired. ..."
We agree with the findings of the trial court in its original correctly appreciating the evidence of
the plaintiffs as unsatisfactory and insufficient, in view of the following considerations;
(1) That Exhibits H and I, former testimonies of witnesses in Civil Case No. 26909, are
inadmissible. ...
(2) That the baptismal certificates, Exhs. A and C are not admissible proofs of filiation
(Malonda vs. Malonda, 45 O.G. 5468; Pareja vs. Pareja, G.R. L-3824, prom. May 31, 1954;
Capistrano vs. Gabino, 8 Phil. 135; Adriano vs. De Jesus, 23 Phil. 350; Madridejo vs. Leon, 55
Phil. 1) The birth certificate Exhibit B is likewise inadmissible against the defendant because it
failed to comply with Section 5 of Act 3753. The alleged illegitimate father did not sign under
oath the said birth certificate (Roces vs. Local Civil Registrar of Manila, G.R. L-10598, prom.
February 14, 1958; Crisolo vs. Macadaeg, G.R. L-7017 prom. April 29, 1954).
It should be noted that said baptismal certificates are also useless to prove the dates of birth of
the appellees-minors, considering that the period of cohabitation or any intimate relations at all
between their mother and the appellant has been denied and that same has not been
satisfactorily proved. Stated in another way, the date of birth as appearing in the birth certificate
would be material only if it coincides with the period of cohabitation as admitted or sufficiently
proved. To reason otherwise would be to put the cart before the horse, so to speak.
(3) The oral evidence for the plaintiffs, consisting principally of the testimonies of the
grandfather and of the mother of the minors, are unsatisfactory, being inconsistent and
contradictory on material points, and unbelievable. The loose character of the mother of the
minors who admittedly had lived and begotten children with several men of different
nationalities, cannot also be overlooked. Weighed against each other, the evidence for the
plaintiffs do not tip the scales in their favor as against the defendant-appellant. We are not

convinced, by preponderance of evidence, that appellant is the father of the minor appellees. ...
Section 2, Rule 45 of the Rules of Court, formerly Section 2, Rule 46 of the 1940 Rules, employs the
commanding language that "[o]nly questions of law may be raised" in an appeal by certiorari from a
judgment of the Court of Appeals. That judgment, jurisprudence teaches, is conclusive as to the facts.
We are not to alter said facts they bind us, or to review the questions of fact.2
Having reached the conclusion that, on the merits, petitioners made no case, it is unnecessary for us to
pass upon the other questions raised on appeal.
For the reasons given, we vote to affirm the judgment of the Court of Appeals under review. No costs in
all instances. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P. Zaldivar and Sanchez, JJ.,
concur.
Castro, J., took no part.
U.S. Supreme Court
Ohio v. Roberts, 448 U.S. 56 (1980)

Ohio v. Roberts
No. 78-756
Argued November 26, 1979
Decided June 25, 1980
448 U.S. 56
Syllabus
At respondent's preliminary hearing in an Ohio state court on charges of forgery of a check in the name
of one Bernard Isaacs and of possession of stolen credit cards belonging to Isaacs and his wife,
respondent's counsel called as a witness the Isaacs' daughter, who testified that she had permitted
respondent to use her apartment for several days while she was away. However, she refused to admit
that she had given respondent checks and the credit cards without informing him that she did not have
permission to use them. Respondent's counsel did not ask to have the witness declared hostile or to
place her on cross-examination. At respondent's subsequent criminal trial, he testified that the daughter
had given him her parents' checkbook and credit cards with the understanding that he could use them.
When the daughter failed to appear at the trial despite the State's having issued five separate subpoenas
to her at her parents' residence, the State offered in rebuttal the transcript of her preliminary hearing
testimony, relying on an Ohio statute which permits the use of such testimony when the witness

"cannot for any reason be produced at the trial." At a voir dire hearing on admissibility, conducted after
the defense objected to the use of the transcript as violative of the Sixth Amendment's Confrontation
Clause, the mother, as the sole witness, testified that the daughter had left home soon after the
preliminary hearing; that, about a year before the trial, a San Francisco social worker had
communicated with the parents about the daughter's welfare application filed there; that the last time
the daughter telephoned, some seven or eight months before trial, she told her parents that she "was
traveling" outside Ohio, but did not reveal where she was; that the mother knew of no way to reach the
daughter in case of an emergency; and that she did not know of anybody who knew where the daughter
was. The trial court admitted the transcript into evidence, and respondent was convicted. Affirming the
Ohio Court of Appeals' reversal of the conviction, the Ohio Supreme Court held that the transcript was
inadmissible because the daughter had not been actually cross-examined at the preliminary hearing and
was absent at trial, the admission of the transcript thus having violated respondent's confrontation right.
Held: The introduction in evidence at respondent's trial of the daughter's
Page 448 U. S. 57
preliminary hearing testimony was constitutionally permissible. Pp. 448 U. S. 62-77
(a) When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable. Even then, his statement is admissible only if it
bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded,
at least absent a showing of particularized guarantees of trustworthiness. Cf. Mancusi v. Stubbs, 408 U.
S. 204. Pp. 448 U. S. 62-66.
(b) The daughter's prior testimony at the preliminary hearing bore sufficient "indicia of reliability." Cf.
California v. Green, 399 U. S. 149. It need not be decided whether, under Green, the mere opportunity
to cross-examine satisfies the Confrontation Clause, for defense counsel tested the daughter's testimony
with the equivalent of significant cross-examination. His questioning, which was replete with leading
questions, clearly partook of cross-examination as a matter of form, and comported with the principal
purpose of cross-examination by challenging the daughter's veracity. Regardless of how state law might
formally characterize the questioning, it afforded substantial compliance with the purposes behind the
confrontation requirement. Nor can this case be distinguished from Green merely because the daughter
was not personally available for questioning at trial or because respondent had a different lawyer at trial
from the one at the preliminary hearing. Moreover, this case does not fall among those in which a
particularized search for "indicia of reliability" must be made. Pp. 448 U. S. 67-73.
(c) On the facts presented, the trial court and the Ohio Supreme Court correctly concluded that the
daughter's unavailability to appear at the trial, in the constitutional sense, was established. Pp. 448 U. S.
74-77.
55 Ohio St.2d 191, 378 N.E.2d 492, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART,
WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and STEVENS, JJ., joined, post, p. 448 U. S. 77.
Page 448 U. S. 58

ii

iii

iv

vi

vii

OPINION

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant.

DECISION
KAPUNAN, J.:
Pablo Adoviso appeals from the Joint Judgment[1] of the Regional Trial Court of Camarines Sur[2]
declaring him guilty beyond reasonable doubt for two counts of Murder.
Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was
originally charged with four unidentified persons who have, however, remained at large. The
information[3] charging appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079
alleges:
That on or about the 18th day of February 1990 at about 8:00 oclock [sic] in the evening at Sitio Tanagan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with assorted long
firearms, conspiring, confederating and mutually helping one another, with intent to kill and with
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one
Rufino Agunos several times with said firearms hitting the latter on the different parts of his body
which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of
said Rufino Agunos.
That the crime complained of against the accused is not service connected.
ACTS CONTRARY TO LAW.
Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the
killing of Emeterio Vasquez, contains the same allegations.[4]
Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P2080, the prosecution presented their version of the events that transpired on the evening of
February18, 1990, as follows:
The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay
Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested
rice. The spouses preferred to live there because it was cooler. The living area of the camalig had walls
of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning
(suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six
inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the
Vasquez grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever he tended the
irrigation pump. The spouses son Bonifacio occupied the other house eight (8) meters from the camalig
with his own son Elmer.

At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his
wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag.
Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio
then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, Why should you not be hit
when in fact there are guns in front of you. Anastacia saw the protruding edge of the gun on the wall
near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee
illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her
husband.
The Vasquez son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening,
Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking
when he noticed that Rufino had fallen asleep, the latters back against the bamboo wall. Bonifacio left
Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone
up when Bonifacio heard the gunshots. He and his 16-year-old son Elmer immediately went down the
front yard to investigate.
Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight
(8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the
outside. Looking through the bamboo slats of the camalig wall, Bonifacio recognized one of the
assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was
lighted inside the camalig. Of Rufinos assailants, only appellant was not wearing a mask. Appellant
was holding a long firearm wrapped inside a sack with its muzzle protruding and directed where Rufino
was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio
shout Pino, (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas
lamp. Appellant fired again, hitting Emeterio at the stomach.
For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons
aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their
faces. Three (3) of them were positioned in a ditch near the camalig while two (2) others were near its
door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag.
Although his back was hit, Rufino was able to crawl under the papag. Elmers grandfather was also hit
on the stomach but he managed to go up the camalig. When appellant and his companion by the
camalig door saw Elmer, they fired at him then, with the three others at the ditch, escaped to the banana
plantation. Elmer, on the other hand, fled towards the coconut plantation.
Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found
Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told
Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmers hand and
put it on his back. Elmer then moved Rufino sidewise. Upon returning to the camalig, Elmer carried his
grandfather and bandaged his stomach with diapers.

In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector
Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him.
The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional
Hospital. Both Emeterio and Rufino died early the next morning.
The certification[5] dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician
of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4)
gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the
inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez,
88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area,
hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm,
anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds
had contusion collars at the paraumbilical area, the hypogastrium, the right forearm and the left arm.[6]
Appellant Adoviso interposed alibi and denial as his defense.
Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay
Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio
Burabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco
Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria
Tragante until around 11:00 p.m.
Honoria Tragante and Francisco Bislombre corroborated appellants alibi. Antero Esteron likewise
testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking
spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan.
To support his denial, appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2
Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification[7] prepared by
Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated by unidentified armed
men. Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were
then still conscious. The victims told him that they did not know who shot them or why they were shot.
SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days
after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) vividly saw the incident and
recognized appellant as one of the perpetrators of the crime and that the killings had some something to
do with land dispute between Bonifacios parents and the Galicia family.
The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the
National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In
Polygraph Report No. 900175,[8] Lucena opined that appellants polygrams revealed that there were no
specific reactions indicative of deception to pertinent questions relevant to the investigation of the
crimes.

In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not
identify appellant as one of the culprits because he was afraid of appellant who was a member of the
CAFGU. Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the
perpetrators of the crime although he told them that he did not recognize appellants four (4)
companions. He did not mention to Lopez and Canabe appellants identity because he was confused
about what had happened in their house.
On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond
reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080
as follows:
WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered:
In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt
of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay
the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4) children
the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency;
In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond
reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION
PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia
Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine
Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both
instances.
SO ORDERED.[9]
Appellant hinges his bid for exoneration on whether he was properly identified by the two (2)
eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer
Vasquez presented an incredible story because it is highly improbable that they could have distinctly
and positively recognized accused-appellant as one of the perpetrators of the crimes."[10] According to
appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not
have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio
Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez,
who declared that he saw his grandfather shot by appellant, could have identified appellant because of
the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the
gas lamp carried by Elmer's grandfather was a small can about two (2) inches tall and the wick is
smaller than a cigarette and the lamp inside the camalig was placed inside a bigger can so that the
direction of the light emanating therefrom was upwards and not sidewise.[11]
Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have
identified the perpetrator of a crime. However, it is settled that when conditions of visibility are
favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the

malefactor should normally be accepted.[12] Illumination produced by kerosene lamp or a flashlight is

sufficient to allow identification of persons.[13] Wicklamps, flashlights, even moonlight or starlight
may, in proper situations be considered sufficient illumination, making the attack on the credibility of
witnesses solely on that ground unmeritorious.[14]
In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig
and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellants
contention therefore that one particular gas lamp could not have lighted the place because it was placed
inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident.
The defense counsel at the trial and appellants counsel misunderstood the testimonies of Elmer and his
grandmother on that matter. Thus, Elmer testified:
ATTY. CORTES:
QIs it not that the lamp you said placed along the door, which is already marked as lamp, is that not this
lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not
cause it to fall?
A

It was placed just on the floor not inside the can.[15] (Underlining supplied.)

For her part, Anastacia testified as follows:

ATTY. CORTES:
xxx.
Q
Because you were already about to retire, the doors and windows were already closed, is that
correct?
A

Yes, sir.

That you also shut down or closed the light, is that correct?

No, sir, we even placed the kerosene lamp inside a can.

You said, you placed the lamp inside a can so that the light is going up, is that correct?

Yes, sir.

So, the light was not illuminating sidewise because it was inside a can?

When we left, I got the kerosene lamp and brought it with me.

ATTY. CORTES:

I think, the witness did not get the question right, Your Honor.
COURT:
Repeat the question.
ATTY. CORTES:
Q

My question Madam Witness is, when you were about to retire?

The lamp was placed on the floor where my husband was drinking coffee.

COURT:
Q
can?

Who are the persons you are referring to as having left when you placed the light inside the

A
My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino
to the hospital.[16] (underlining supplied).
Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only
after the incident when Anastacia left with her son and the police to bring the victims to the hospital.
The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of
appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of
relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their
identities, and the manner in which the crime is committed.[17] A relative will naturally be interested in
identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s).[18]
It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had
known him for ten (10) years[19] while Elmer had been acquainted with him for four (4) years. Elmer
recalled that appellant used to join the rabuz at the barracks.[20] Familiarity with appellants face and
appearance minimized if not erased the possibility that they could have been mistaken as to his identity.
Appellants allegation that it was improbable for him to have committed the crimes without a mask,
unlike the other participants, deserves scant consideration. It is not contrary to human experience for a
person to commit a crime before the very eyes of people who are familiar to them. Indeed, some may
even take pride in their identification as the perpetrator of a criminal act.
Appellant also considers as a positive sign, Bonifacios failure to immediately identify him as the
perpetrator of the crime to the police.[21] The delay in reporting his participation to the police was
however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a
member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying
appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of

the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators
of the crime does not affect, much less, impair his credibility as a witness.[22] The general or common
rule is that witnesses react to a crime in different ways.[23] There is no standard form of human
behavioral response to a strange, startling and frightful event, and there is no standard rule by which
witnesses to a crime must react.[24]
There is no merit in appellants contention that Bonifacio had a motive in implicating him. According to
appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who
had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of
Bonifacio inasmuch as to credible witnesses had positively identified appellant as one of the
participants in the killing of Emeterio Vasquez and Rufino Agunos.
Appellants alibi thus crumbles in the face of his positive identification as one of the perpetrators of the
crimes.[25] For an alibi to prosper, moreover, there must be proof that the defendant was not only
somewhere else when the crime was committed but that he could not be physically present at the place
of the crime or its immediate vicinity at the time of its commission.[26] Appellant did not prove the
physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong
where he claimed to be when the incident happened. Both places are within the Municipality of Bula.
Appellant admitted that the distance between the two sitios could be negotiated in three hours even
without any means of transportation.[27] On the other hand, his alleged companion in Sitio Palsong,
Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by trimobile or
private vehicle.[28]
26

Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and
who were his companions at the time the crimes were committed. We quote the observation of the trial
court on this point:
On the premise that the trial court rendered the judgment of conviction on the basis of mere conjectures
and speculations,[29] appellant argues that the negative result of the polygraph test should be given
weight to tilt the scales of justice in his favor.
A polygraph is an electromechanical instrument that simultaneously measures and records certain
physiological changes in the human body that are believed to be involuntarily caused by an examinees
conscious attempt to deceive the questioner.[30] The theory behind a polygraph or lie detector test is
that a person who lies deliberately will have a rising blood pressure and a subconscious block in
breathing, which will be recorded on the graph.[31] However, American courts almost uniformly reject
the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or
innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for
the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means
of ascertaining truth or deception.[32] The rule is no different in this jurisdiction. Thus, in People v.
Daniel,[33] stating that much faith and credit should not be vested upon a lie detector test as it is not
conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him.

Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the
killings to murder. There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might make.
[34] In other words, there is treachery when the attack on an unarmed victim who has not given the
slightest provocation is sudden, unexpected and without warning.[35] The victims in this case were
totally unaware of an impending assault Rufino was sleeping and Emeterio was going down the stairs
when they were shot.
WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Pardo, and Ynares-Santiago, JJ., concur.

viii

ix

190 Or. 291 (1950)225 P.2d 771

STATE OF OREGON v. GARVER
Supreme Court of Oregon.
Argued October 3, 1950.
Reversed and remanded December 19, 1950.
*295 Claude M. Johns, Jr., of Portland, argued the cause for appellant. With him on the brief was Henry
A. Buehner, of Portland.

J. Raymond Carskadon and Charles E. Raymond, Deputy District Attorneys for Multnomah County, of
Portland, argued the cause for respondent. With them on the brief was John B. McCourt, District
Attorney for Multnomah County, of Portland.
Before LUSK, C.J., and BRAND, ROSSMAN, HAY, LATOURETTE and WARNER, Justices.
REVERSED AND REMANDED.
LUSK, C.J.
The defendant, Robert Edgar Garver, has appealed from a conviction of first degree murder. The jury,
by its verdict, did not recommend life imprisonment, and the death penalty followed as a matter of
course.
The indictment charged Garver and two others, Norman Carroll Andrus and Leland Delbert Marshall,
*296 with shooting and killing one Ancell Abbott in the course of an attempt to commit the crime of
assault and robbery being armed with a dangerous weapon.
The proof showed that on the early evening of January 3, 1949, Garver, then twenty-four years of age,
met his accomplices in a tavern in downtown Portland, and proposed to them that they rob Abbott, who
was a janitor in the Fred Meyer Store located at Fourth Avenue and Morrison Street. Garver claimed to
have information that Abbott would be leaving the store late in the evening carrying about $5,000.00 in
a shopping bag. Acting upon Garver's suggestions, the other two stole an automobile, secured two guns,
and rejoined Garver at about nine o'clock in the evening in the vicinity of the store. Garver armed
himself with one of the guns, a .32 automatic pistol. They waited until Abbott appeared carrying the
shopping bag, and followed him several blocks in the stolen automobile to Tenth Avenue and Alder
Street, where they parked the car in a parking lot. Andrus, the driver, remained in the car while the
other two got out and held up Abbott with guns in hand. The defendant Garver shot Abbott three times,
and the three desperadoes fled in the automobile, taking with them the victim's shopping bag, which, as
it turned out, contained no money but only some clothes. As they sped away from the scene of the
crime, Garver said, according to Marshall's testimony, "he had to shoot the fellow, he started to fumble
for a gun." In fact, Abbott was not armed. He died of the gunshot wounds.
1. In bare outline that is the story of the commission of the crime. It occurred on a brightly lighted
street at about the hour of ten o'clock at night, and was witnessed by several persons who testified to
what they *297 saw. Marshall and Andrus pleaded guilty and were witnesses for the state. There is a
suggestion in the defendant's brief that the testimony of these accomplices was not sufficiently
corroborated, but there was no motion for a directed verdict and no assignment of error based upon
such a claim. Nevertheless, we have examined with care the entire transcript, which contains 953 pages
of testimony, and find that, without the evidence of the accomplices, the crime and the defendant's part
in it were established by uncontradicted evidence which fully warranted submission of the case to the
jury.
The actual substantial controversy arises out of the defense of insanity.
2, 3. It is contended that the court erred in instructing the jury that, in determining whether this defense
had been established, they should be guided by the so-called right or wrong test. The question was

raised on the trial by requests for instructions and exceptions to instructions given. The instructions
given are almost word for word identical with those which this court in State v. Brumfield, 104 Or. 506,
537, 209 P. 120, approved as covering "all phases of insanity as a defense and of the evidence
necessary to establish it", and included the following:
"Insanity, to excuse crime, must be such a disease of the mind as dethrones reason and renders the
person incapable of understanding the nature, quality and consequences of his act, or of distinguishing
between right and wrong in relation to such act. It is not every eccentricity of mind, however wellestablished, that will excuse the commission of an act otherwise criminal. "A morbid propensity or
inclination to commit prohibited acts, existing in the mind of a person *298 who is not shown to have
been incapable of knowing the wrongfulness of such acts, forms no defense to the prosecution therefor.
The test of criminal responsibility is the power to discriminate between right and wrong."
4. These instructions conform to the law as laid down by this court in numerous cases, among which
are State v. Layton, 174 Or. 217, 226, 148 P.2d 522; State v. Wallace, 170 Or. 60, 79, 131 P.2d 222;
State v. Riley, 147 Or. 89, 99, 30 P.2d 1041; State v. Grayson, 126 Or. 560, 575, 270 P. 404; State v.
Hassing, 60 Or. 81, 86, 118 P. 195. The defendant freely recognizes this, but insists that the doctrine of
our decisions should be abandoned in favor of what is claimed to be the modern and more enlightened
and civilized rule, applied in many courts, which includes irresistible impulse within the definition of
insanity as a defense to crime. This contention has been repeatedly urged upon this court and as often
rejected, both on grounds of general law and because of the legislative command of 23-122, which
reads: "A morbid propensity to commit prohibited acts, existing in the mind of a person, who is not
shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a
prosecution therefor." As indicated in State v. Wallace, supra, and State v. Hassing, supra, this statute
ties the hands of the court and prevents it from liberalizing the rules governing the insanity defense,
even though the court should be of the opinion that those rules do not take sufficient account of the
discoveries of modern medical science. We are unable, therefore, to sustain this assignment of error.
The most serious question in the case is presented by the defendant's contention that the court erred in
*299 refusing to give to the jury in its charge the following instruction requested by the defendant:
"I instruct you that the law presumes that insanity having once been shown to exist continues until the
contrary is made to appear. In other words, a person who has been adjudicated insane is to be deemed
to continue in such a mental state until such a time as evidence of his sanity is introduced."
It appears from the evidence that the defendant was born on August 24, 1925. He had a record of
juvenile delinquency, commencing at about the age of 10. He was in the Army during World War II,
and was honorably discharged on May 5, 1943, for disability, upon the basis of a diagnosis made when
he was admitted into Barnes General Hospital, Vancouver, Washington, on March 27, 1943, as follows:
"Psychoneurosis, conversion hysteria, severe, manifested by complete amnesia of 19 days duration,
cause undetermined."
In September, 1945, the defendant was held in the Multnomah County jail on a burglary charge. With
eleven other prisoners he broke jail. He was later indicted and entered a plea of not guilty on the ground
of insanity. He waived his right to a trial by jury, and, on October 29, 1945, after a trial before the
court, he was found not guilty on the ground of insanity, the order reciting that he was unable to
appreciate the consequences of his act, that he was insane both at the time of its commission and at the

time of the trial, and unable to participate and assist in the conduct of his defense.
On November 7, 1945, he was admitted to the Veterans' Hospital at Roseburg, Oregon, which is
maintained principally for the care of nervous and *300 mental diseases. A diagnosis, "Without
psychosis; psychopathic personality with asocial trends", was made. On December 17, 1945, he was
granted leave of absence from the hospital in custody of his mother. This was changed to a ninety-day
trial visit, at the expiration of which, on March 17, 1946, he was discharged. The hospital record
recites: "No communications have been received from the veteran, and it is presumed that he is
adjusting well outside the hospital."
The presumption proved to be ill-founded, as on March 18, 1946, the day after his discharge from the
Roseburg hospital, the defendant was committed by the county judge of Coos County to the Oregon
State Hospital as a mentally diseased person. This action followed his arrest for attempted burglary in a
bus station in Coos Bay. He was admitted to the State Hospital on March 20, 1946. A provisional
diagnosis of "psychoneurosis hysteria" was made. On April 2, 1946, he escaped, and on April 3 was
given the status of parolee in care of his mother. In May, 1948, while still paroled to his mother, he was
in jail in Clark County, Washington, and, at his mother's request, was there examined by Dr. Gerhard B.
Haugen, a psychiatrist. In the report of his examination made to the district attorney of Clark County
under date of June 3, 1948, Dr. Haugen, after stating, on the basic of what he considered reliable
history, that "The basic pattern present is that of a Psychopathic Inferiority", concluded: "He is not fit to
be at large either from the standpoint of the protection of society or for his own safety." Dr. Haugen
made the following, among other, suggestions: "In view of the fact that there is a strong possibility that
this man is at this time psychotic and does not clearly know right from wrong, a *301 period of
observation in a hospital equipped to handle mentally ill persons would aid in clearing up this
question." "Inasmuch as in his previous hospitalization the sympathies of his family have prompted
them to obtain his release, it would seem advisable that the court maintain, if possible, some sort of
custody over him to prevent his premature return into free society." Apparently Dr. Haugen was not
aware that at that time Garver was a parolee from the State Hospital. He was never discharged from
that institution, and the parole status was in effect at the time of the commission of the crime of which
he stands convicted on January 3, 1949.
As bearing on his mental condition, there is the history of a head injury received by the defendant in
November, 1940, when an automobile in which the defendant was a passenger left the highway and
plunged 160 feet down an embankment. The state, however, introduced evidence tending to show that
he was not seriously injured in this accident.
Dr. Haugen, as a witness for the defendant, gave it as his opinion, based on an examination made the
day before he testified, that if the defendant were observed in an institution for a period of two or three
months a diagnosis of psychomotor epilepsy would be established. A person so afflicted, he said,
sometimes loses consciousness for periods of hours or even days "while continuing the activity which,
to a person who didn't know him well, might not seem to be out of the way." The afflicted person then
has no knowledge of what he is doing. The disease may be treated with medication, Dr. Haugen
testified, and, so long as the patient continues with the medicine, he carries on just as well as a diabetic
using insulin.
*302 In addition to the foregoing there was lay testimony of the defendant's mother and others tending
to show the defendant's chronic condition of mental abnormality.

The expert testimony on behalf of the state was devoted largely to proving that the defendant was not
legally insane at the time of the homicide; there was no attempt to show that during any of the times
covered by the testimony which we have recited the defendant was not suffering from some form of
mental malady.
It is in the light of this evidence that the present contention must be considered.
The question whether there is a legal presumption that insanity continues has been before the courts of
this country many times. As stated in Weihofen's "Insanity as a Defense in Criminal Law", p. 164:
"The courts of a score or more of jurisdictions have said that when permanent, chronic, or continuous
insanity is once proved to have existed at some time prior to the alleged crime, it will be presumed to
have continued, and to have existed at the time of the alleged crime, unless the contrary is proved. This
presumption arises especially upon proof of a prior adjudication of insanity, by proceedings de lunatico
inquirendo, etc., but the cases do not seem to limit the rule to such proof; the presumption seems to
hold, by whatever evidence the prior insanity may be proved. "However, no such presumption arises
from proof of a prior insane condition which was merely temporary in character. Delirium tremens, or
other mental derangement immediately resulting from the use of intoxicating liquor, is therefore not
presumed to continue."
5. We have examined the cases cited in the note to the foregoing text (as well as many others) and find
*303 that they support the author's statement. This court has twice in civil cases held that there is such a
presumption. Johnson v. Johnson, 124 Or. 480, 264 P. 842, was an adoption proceeding. The case
turned on the question whether the mother of the child, who opposed the petition for adoption, was
insane. She had previously been so adjudged, committed to the State Hospital, and, after a period of
confinement there, discharged. The court held that, in view of the presumption that insanity once
established continues until it is overcome by proof to the contrary, the burden was upon the mother to
establish her sanity. In In re Dugan, 158 Or. 439, 76 P.2d 961, the question was whether Dugan was an
insane person for whom a guardian should be appointed. He had previously been adjudicated insane
and committed to the State Hospital. The court said:
"* * * It is well-established that an adjudication of insanity is conclusive evidence of such mental status
at the time the same was made. It is also well settled that the law presumes that insanity, having once
been shown to exist, continues until the contrary is made to appear." (158 Or. 442)
See, to the same effect, the specially concurring opinion of Belt, J., in Wenker v. Landon, 161 Or. 265,
279, 88 P.2d 971.
Our decisions are in accord with what our research convinces us is the decided weight of authority on
this question, although they have failed to mark the distinction between temporary and chronic types of
insanity. The presumption is a disputable one, founded in the statutory provision in 2-407 (33),
O.C.L.A., that "a thing once proved to exist continues as long as is usual with things of that nature".
Obviously, it would be difficult to attach the probability of continuance *304 to mere temporary
insanity, such, for example, as delirium tremens. There are authorities to the contrary, notably, among
the text writers, Professor Wharton, who criticizes the presumption as a "mere petitio principii, it being
tantamount to saying that chronic insanity is chronic, and transient insanity is transient". He maintains
that the presumption is one of fact varying with the particular case. 2 Wharton on Evidence (2d ed.),

388, 1253. To the same effect see Underhill's Criminal Evidence (4th ed.) 595, 303; State v. Austin,
71 Oh. St. 317, 73 N.E. 218; Leache v. State, 22 Tex. App. 279, 312, 3 S.W. 539, 58 Am. Rep. 638.
Greenleaf has also been cited by some courts in support of this view, but we think without justification,
as Greenleaf treated the presumption of continuing insanity as a presumption of law. It is apparent that
reliance has been placed on the bracketed sentence inserted by Professor Redfield at the end of 42 in
Vol. 1 of the Twelfth Edition of Greenleaf on Evidence. The sentence reads: "But those presumptions
[of continuing sanity and insanity] are rather matters of fact than of law; or at most partly of law, and
partly fact." This sentence is omitted from later editions, and the text today reads as it did originally:
"In like manner, every man is presumed to be of sane mind, until the contrary is shown; but, if
derangement or imbecility be proved or admitted at any particular period, it is presumed to continue,
until disproved, unless the derangement was accidental, being caused by the violence of a disease." 1
Greenleaf on Evidence (16th ed.) 140, 42, and see Note 3. Other texts supporting this view are: 3
Bishop's New Criminal Procedure 1650, 674; 2 Chamberlayne, The Modern Law of Evidence, 1241,
1043; 28 Am. Jur., Insane and Other Incompetent Persons, 751, 121; 20 *305 Am. Jur., Evidence,
207, 209; 31 C.J.S., Evidence, 740, 124. See, also, Annotations, 68 A.L.R. 1315 and 7 A.L.R. 588.
In view of the wealth of authority that accords with our own precedents, we are not disposed to depart
from them.
6, 7. In numerous cases the presumption has been given effect as determining where the burden of
proof lies. See, In re Dugan, supra, Johnson v. Johnson, supra; In re Kehler (CCA 2d), 159 Fed. 55;
Francks v. State, 109 Tex. Crim. Rep. 440, 5 S.W.2d 157; Armstrong v. State, 30 Fla. 170, 11 So. 618,
17 L.R.A. 484; Criez v. Sunset Motor Co., 123 Wash. 604, 213 P. 7; State ex rel. Thompson v. Snell, 46
Wash. 327, 89 P. 931, 9 L.R.A. (n.s.) 1191; In re Brown, 39 Wash. 160, 81 P. 552. In this state the
burden of proof in cases of this kind is governed by statute. The defense of insanity must be proved
beyond a reasonable doubt: 26-929, O.C.L.A. (held constitutional in State v. Grieco, 184 Or. 253, 195
P.2d 183). The effect of the presumption, therefore, is not to shift the burden of proof, though it may be
to impose upon the state the burden of going forward with the evidence. Weihofen, supra. See, Hansen
v. O.-W.R. & N. Co., 97 Or. 190, 210, 188 P. 963, 191 P. 655. Under our decisions a presumption of
law is evidence, and it is the duty of the court, when requested, to instruct the jury upon such a
presumption: Ritchie v. Thomas, 190 Or. 95; Wyckoff v. Mutual Life Insurance Co., 173 Or. 592, 147
P.2d 227; and, after all the proofs are in, "the presumption remains in the case to be considered by the
jury as evidence." Hansen v. O.-W.R. & N. Co., supra, 97 Or. 224.
The following decisions are authority for the propriety *306 of instructing on the presumption in
criminal cases: Weatherford v. State, 51 Tex. Crim. Rep. 430, 103 S.W. 633; Yantis v. State, 95 Tex.
Crim. Rep. 541, 255 S.W. 180; Allams v. State, 123 Ga. 500, 51 S.E. 506; State v. Reddick, 7 Kan. 143;
Wagner v. State, 116 Ind. 181, 18 N.E. 833; State v. Brown, Houst. Cr. (Del.) 539 (nisi prius); People v.
Francis, 38 Cal. 183; State v. Lowe, 93 Mo. 547, 5 S.W. 889; State v. Robbins, 109 Ia. 650, 80 N.W.
1061; State v. Wilner, 40 Wis. 304.
In the last three of the foregoing cases judgments of conviction were reversed because the trial court
refused to instruct on the presumption. In State v. Wilner, a homicide case, the requested instruction
was substantially in the language of the one here under consideration. Notwithstanding the
imperfection in the request, it was held to be reversible error to refuse to give a proper instruction on
the subject. The court said:

"The instruction would doubtless have been more accurately phrased had it been restricted in terms of
habitual insanity. But the prisoner's delusion did not appear to be occasional, but permanent. The jury
could not have misunderstood the application of the instruction to the case before them. And we could
not sustain judgment for a high crime, upon refusal to give an important instruction, solely on the
ground of verbal inaccuracy. In such a case, it would be the duty of the presiding judge to correct the
inaccuracy and give the instruction."
The court concluded by saying, in answer to the state's contention that the defendant's conduct in the
commission of the homicide did not indicate insanity:
"* * * It is universally recognized that, except perhaps in cases of total loss of reason, insanity *307
does not always exhibit itself in the language or acts of the insane. And it may well be that the jury
believed, for want of the instruction refused, that they might assume the prisoner's sanity, at the time of
the homicide, from the circumstances accompanying and immediately preceding it, without giving any
effect to the evidence of her previous delusion. That evidence, as we read it in the bill of exceptions,
appears to us so convincing as to make it difficult to account for the verdict of guilty in any other way."
As in the Wisconsin case, the defendant's requested instruction here is defective in that it is not limited
to a chronic, habitual or permanent type of insanity. Ordinarily, we would apply the established rule
and not reverse the court below for declining to give a requested instruction which is technically
inaccurate. But the same reasons which influenced the Wisconsin court to take a different course should
govern our decision. The evidence points with great force, not to intermittent insanity or temporary
aberration, but to a mind diseased over a long period of years, probably since 1943 when the defendant
was discharged from the Army. It shows "insanity of a continuing nature, or possessed of the
characteristics of an habitual or confirmed disorder of the mind, as distinguished from temporary or
spasmodic mania, or disorders of mind produced by the violence of disease". Thomson v. State, 78 Fla.
400, 83 So. 291. It is highly improbable that the jury would have been misled by the instruction or
would have taken it as applicable to any other state of affairs than that revealed by the evidence. The
defendant is under sentence of death, and the consequences of a possible miscarriage of justice should
weigh heavily in the scales against considerations of the niceties of trial practice. Either the instruction
as *308 requested, or a technically correct instruction involving its principle, should have been given;
to refuse it was reversible error. We are the more inclined to this view because of the harshness of the
statute which imposes on the defendant the burden of proving his insanity beyond a reasonable doubt.
U.S. Court of Appeals for the Sixth Circuit - 433 F.2d 431 (6th Cir. 1970)
October 29, 1970

William F. Hopkins, Cincinnati, Ohio, for appellant.

Harry E. Pickering, Cleveland, Ohio, for appellee; Robert B. Krupansky, U. S. Atty., Harry E.
Pickering, Asst. U. S. Atty., Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, EDWARDS and McCREE, Circuit Judges.
EDWARDS, Circuit Judge.

This is a strange and disturbing case. Appellant Orville Stifel, was indicted for violating 18 U.S.C.
1716 (1964), by murdering another young man, Dan Ronec, by sending him a bomb (an "infernal
machine") through the United States mails. The bomb exploded when Ronec opened the package
containing it. Stifel had previously been known in the community in which he lived as something
approaching a model young man.
Stifel was convicted after jury trial before the United States District Court for the Northern District of
Ohio, Eastern Division. He appeals from his conviction and life sentence, raising at least two important
issues. First, denying his guilt at trial and on appeal, Stifel contends that the largely circumstantial
proofs were inadequate to support a jury verdict of guilt beyond a reasonable doubt and that the District
Judge erred by denying his motion for acquittal. Second, he contends that reversible error was
committed by the trial judge in the admission over objection of the expert testimony of a government
witness concerning the results of attempts to identify the source of certain bomb package fragments by
a process known as neutron activation analysis.
I THE PROOFS
The victim, Daniel Ronec, then a recent graduate school student at Ohio State University, was killed
July 8, 1968, at his parents' home in Lorain, Ohio, by an explosion which tore open his abdomen and
tore off his arms. A postman had just delivered a package addressed to him consisting of a mailing tube
with a screw-on top. The evidence supports the inference that the bomb went off when Ronec
unscrewed the top of the package.
Prosecution evidence bore primarily upon Stifel's possible motive for sending the bomb, upon his
capability in relation to fashioning it, and upon the availability to him of materials from which
government evidence sought to establish that the bomb and bomb package were made.
As to motive, the government presented evidence concerning appellant Stifel's relationship with a
young lady named Cheryl Jones, a student at Ohio State University, to whom Ronec was engaged to be
married as of the time of his death. This record leaves no doubt that Stifel and Miss Jones had
previously during 1965 and 1966 had a somewhat tempestuous romance which she had sought to
terminate in the fall of 1966.

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