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Rules of Evidence

Thursday, June 25, 2009 11:14 AM

The Lawphil Project - Arellano Law Foundation Rules 128-134 REVISED RULES ON EVIDENCE

REVISED RULES ON EVIDENCE

(Rules 128-134, Rules of Court)

AS AMENDED PER RESOLUTION

ADOPTED ON MARCH 14, 1989

PART IV RULES OF EVIDENCE

RULE 128 General Provisions

Section 1. Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a

judicial proceeding the truth respecting a matter of fact. (1)

Section 2. Scope. The rules of evidence shall be the same in all courts and in all trials and hearings,

except as otherwise provided by law or these rules. (2a)

Section 3. Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not

excluded by the law of these rules. (3a)

Section 4. Relevancy; collateral matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a)

RULE 129 What Need Not Be Proved Section 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiraltyand maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Section 2. Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Section 3. Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

Section 4. Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

RULE 130 Rules of Admissibility

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A. OBJECT (REAL) EVIDENCE

Section 1. Object as evidence. Objects as evidence are those addressed to the senses of the court.

When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

(1a)

B. DOCUMENTARY EVIDENCE

Section 2. Documentary evidence. Documents as evidence consist of writing or any material

containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n)

1. Best Evidence Rule

Section 3. Original document must be produced; exceptions. When the subject of inquiry is the

contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on

the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is

offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in

court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

(2a)

Section 4. Original of document.

(a)

The original of the document is one the contents of which are the subject of inquiry.

(b)

When a document is in two or more copies executed at or about the same time, with identical

contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another at or

near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)

2. Secondary Evidence

Section 5. When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital

of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a) Section 6. When original document is in adverse party's custody or control. If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a) Section 7. Evidence admissible when original document is a public record. When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a) Section 8. Party who calls for document not bound to offer it. A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

3. Parol Evidence Rule

Section 9. Evidence of written agreements. When the terms of an agreement have been reduced to

writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading:

(a)

An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b)

The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c)

The validity of the written agreement; or

(d)

The existence of other terms agreed to by the parties or their successors in interest after the

execution of the written agreement. The term "agreement" includes wills. (7a)

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4.

Interpretation Of Documents

Section 10. Interpretation of a writing according to its legal meaning. The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8) Section 11. Instrument construed so as to give effect to all provisions. In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9) Section 12. Interpretation according to intention; general and particular provisions. In the

construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10) Section 13. Interpretation according to circumstances. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereofand of the parties to it, may be shown, so that the judge may be placed in the position of those who language he is to interpret. (11) Section 14. Peculiar signification of terms. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12)

Section 15. Written words control printed. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13)

Section 16. Experts and interpreters to be used in explaining certain writings. When the characters in

which an instrument is written are difficult to be deciphered, or the language is not understood by the

court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14) Section 17. Of Two constructions, which preferred. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) Section 18. Construction in favor of natural right. When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16) Section 19. Interpretation according to usage. An instrument may be construed according to usage, in order to determine its true character. (17) C. TESTIMONIAL EVIDENCE

1. Qualification of Witnesses

Section 20. Witnesses; their qualifications. Except as provided in the next succeeding section, all

persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a) Section 21. Disqualification by reason of mental incapacity or immaturity. The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for examination, is such that they are

incapable of intelligently making known their perception to others;

(b) Children whose mental maturityis such as to render them incapable of perceiving the facts

respecting which they are examined and of relating them truthfully. (19a)

Section 22. Disqualification by reason of marriage. During their marriage, neither the husband nor

the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a)

Section 23. Disqualification by reason of death or insanity of adverse party. Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or

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demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a) Section 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases:

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; (b) An attorney cannot, without the consent of his client, be examined as to any communication made

by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the

consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was

necessary to enable him to act in capacity, and which would blacken the reputation of the patient;

(d) A minister or priest cannot, without the consent of the person making the confession, be examined

as to any confession made to or any advice given by him in his professional character in the course of

discipline enjoined by the church to which the minister or priest belongs;

(e) A public officer cannot be examined during his term of office or afterwards, as to communications

made to him in official confidence, when the court finds that the public interest would suffer by the

disclosure. (21a)

2. Testimonial Privilege

Section 25. Parental and filial privilege. No person may be compelled to testify against his parents,

other direct ascendants, children or other direct descendants. (20a)

3. Admissions and Confessions

Section 26. Admission of a party. The act, declaration or omission of a party as to a relevant fact may

be given in evidence against him. (22)

Section 27. Offer of compromise not admissible. In civil cases, an offer of compromise is not an

admission of any liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a) Section 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration,

or omission of another, except as hereinafter provided. (25a) Section 29. Admission by co-partner or agent. The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a) Section 30. Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (27) Section 31. Admission by privies. Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (28) Section 32. Admission by silence. An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to

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call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a)

Section 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged,

or of any offense necessarily included therein, may be given in evidence against him. (29a)

4. Previous Conduct as Evidence

Section 34. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a) Section 35. Unaccepted offer. An offer in writing to pay a particular sum of money or to deliver a

written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a)

5. Testimonial Knowledge

Section 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his

own perception, except as otherwise provided in these rules. (30a)

6. Exceptions To The Hearsay Rule

Section 37. Dying declaration. The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a) Section 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it

was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32a) Section 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a) Section 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a) Section 41. Common reputation. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35) Section 42. Part of res gestae. Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a) Section 43. Entries in the course of business. Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a) Section 44. Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38) Section 45. Commercial lists and the like. Evidence of statements of matters of interest to persons

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

(39)

Section 46. Learned treatises. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a) Section 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness

deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a)

7. Opinion Rule

Section 48. General rule. The opinion of witness is not admissible, except as indicated in the following

sections. (42) Section 49. Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a) Section 50. Opinion of ordinary witnesses. The opinion of a witness for which proper basis is given, may be received in evidence regarding

(a)

the identity of a person about whom he has adequate knowledge;

(b)

A handwriting with which he has sufficient familiarity; and

(c)

The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a

person. (44a) 8. Character Evidence

Section 51. Character evidence not generally admissible; exceptions:

(a)

In Criminal Cases:

(1)

The accused may prove his good moral character which is pertinent to the moral trait involved in the

offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the

moral trait involved in the offense charged.

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any

reasonable degree the probability or improbability of the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of

character involved in the case.

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

RULE 131 Burden of Proof and Presumptions

Section 1. Burden of proof. Burden of proof is the duty of a party to present evidence on the facts in

issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)

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

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to

another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the

relation of landlord and tenant between them. (3a) Section 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a)

That a person is innocent of crime or wrong;

(b)

That an unlawful act was done with an unlawful intent;

(c)

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

(d)

That a person takes ordinary care of his concerns;

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(e)

That evidence willfully suppressed would be adverse if produced;

(f)

That money paid by one to another was due to the latter;

(g)

That a thing delivered by one to another belonged to the latter;

(h)

That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker

and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him;

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of

anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the

lawful exercise of jurisdiction;

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it;

and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p)

That private transactions have been fair and regular;

(q)

That the ordinary course of business has been followed;

(r)

That there was a sufficient consideration for a contract;

(s)

That a negotiable instrument was given or indorsed for a sufficient consideration;

(t)

That an endorsement of negotiable instrument was made before the instrument was overdue and at

the place where the instrument is dated;

(u)

That a writing is truly dated;

(v)

That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes,except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall

be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been

heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four

years;

(3) A person who has been in danger of death under other circumstances and whose existence has not

been known for four years;

(4) If a married person has been absent for four consecutive years, the spouse present may contract a

subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or

fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of

life;

(z) That persons acting as copartners have entered into a contract of copartneship;

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful

contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void

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marriage, has been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other

and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three

hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is

considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is

considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so

printed or published;

(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the

country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has

actually conveyed it to him when such presumption is necessary to perfect the title of such person or his

successor in interest;

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as

wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,

if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have

survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as

to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in

the absence of proof, they shall be considered to have died at the same time. (5a) Section 4. No presumption of legitimacy or illegitimacy. There is no presumption of legitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)

RULE 132 Presentation of Evidence A. EXAMINATION OF WITNESSES

Section 1. Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given

orally. (1a)

Section 2. Proceedings to be recorded. The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder

and certified as correct by him shall be deemed prima facie a correct statement of such proceedings.

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(2a)

Section 3. Rights and obligations of a witness. A witness must answer questions, although his answer

may tend to establish a claim against him. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting

demeanor;

(2)

Not to be detained longer than the interests of justice require;

(3)

Not to be examined except only as to matters pertinent to the issue;

(4)

Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise

provided by law; or

(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue

or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a) Section 4. Order in the examination of an individual witness. The order in which the individual witness may be examined is as follows;

(a)

Direct examination by the proponent;

(b)

Cross-examination by the opponent;

(c)

Re-direct examination by the proponent;

(d)

Re-cross-examination by the opponent. (4)

Section 5. Direct examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (5a) Section 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) Section 7. Re-direct examination; its purpose and extent. After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (12) Section 8. Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13) Section 9. Recalling witness. After the examination of a witness by both sides has been concluded,

the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14) Section 10. Leading and misleading questions. A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

(a)

On cross examination;

(b)

On preliminary matters;

(c)

When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or

a child of tender years, or is of feeble mind, or a deaf-mute;

(d)

Of an unwilling or hostile witness; or

(e)

Of a witness who is an adverse party or an officer, director, or managing agent of a public or private

corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary

to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)

Section 11. Impeachment of adverse party's witness. A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (15)

Section 12. Party may not impeach his own witness. Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his

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credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a) Section 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (16)

Section 14. Evidence of good character of witness. Evidence of the good character of a witness is not admissible until such character has been impeached. (17)

Section 15. Exclusion and separation of witnesses. On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (18)

Section 16. When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (10a)

Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (11a) Section 18. Right to respect writing shown to witness. Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a)

B. AUTHENTICATION AND PROOF OF DOCUMENTS

Section 19. Classes of Documents. For the purpose of their presentation evidence, documents are

either public or private. Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and

tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to the entered therein.

All other writings are private. (20a) Section 20. Proof of private document. Before any private document offered as authentic is received

in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. (21a) Section 21. When evidence of authenticity of private document not necessary. Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22a)

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Section 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23a)

Section 23. Public documents as evidence. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (24a) Section 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25a)

Section 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26a)

Section 26. Irremovability of public record. Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27a) Section 27. Public record of a private document. An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) Section 28. Proof of lack of record. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29) Section 29. How judicial record impeached. Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30a) Section 30. Proof of notarial documents. Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved.

(31a)

Section 31. Alteration in document, how to explain. The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a)

Section 32. Seal. There shall be no difference between sealed and unsealed private documents insofar as their admissibilityas evidence is concerned. (33a)

Section 33. Documentary evidence in an unofficial language. Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34a) C. OFFER AND OBJECTION

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Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35)

Section 35. When to make offer. As regards the testimony of a witness, the offer must be made at the

time the witness is called to testify.

Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n) Section 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as

soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified. (36a)

Section 37. When repetition of objection unnecessary. When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (37a) Section 38. Ruling. The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a) Section 39. Striking out answer. Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n) Section 40. Tender of excluded evidence. If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the

witness and the substance of the proposed testimony. (n)

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

Section 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (3)

Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for

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conviction if:

(a) There is more than one circumstances;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable

doubt. (5)

Section 5. Substantial evidence. In cases filed before administrative or quasi-judicial bodies, a fact

may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)

Section 6. Power of the court to stop further evidence. The court may stop the introduction of further

testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6)

Section 7. Evidence on motion. When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7)

RULE 134 1

Perpetuation of Testimony Section 1. Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, any file a verified petition in the court of the province of the residence of any expected adverse party.

Section 2. Contents of petition. The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to

be a party to an action in a court of the Philippines by is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names of a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

Section 3. Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of a petition, stating that the petitioner will apply to the court, at a time and place named therein, for the

order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for service of summons. Section 4. Order of examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 24 before the hearing. Section 5. Reference to court. For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition wasfiled. Section 6. Use of deposition. If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 24.

Section 7. Depositions pending appeal. If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an appeal if the time therefor has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show (a) the name and the addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony.If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the Regional Trial Court. (7a) Footnote This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery.

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First Meeting: Preliminaries and Rule 128

June 16, 2009

Grading System:

10% Attendance

10% Recit

30% Midterms

50% Finals

Though Pro Reyo - in favor of the Accused 6 Film Showings!

Textbooks: Regalado/Herrera

Evidence

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

Elements of Evidencein a judicial proceeding …the truth …of a matter of fact "Litigation is 90% research, and

"Litigation is 90% research, and 10% Tiyaga"

1. Means: a method, a procedure, a guide

2. ROC: "sanctioned by these rules"

3. Judicial Proceeding: Under Judiciary branch (3 branches of government essential)

4. Truth: Not moral truth but legal truth: what is proven by the evidence presented by the parties, not what really happened

5. Matter of fact

Means

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

Rules of Court

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

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

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

Can the ROC be modified by the Congress? Yes. Primarily, the ROC is created and can be modified by the Supreme Court BUT Yes. Primarily, the ROC is created and can be modified by the Supreme Court BUT its law -making power

is limited to the preservation of substantive rights. Only Congress could alter, modify, or revise (?) rules

on substantive rights.

Are Evidentiary Rules just procedural? (Hanging question. Was asked because law making powers of the SC and Congress were differentiated, (Hanging question. Was asked because law making powers of the SC and Congress were differentiated,

in that SC can only make procedural laws governing the operation of the courts and other activities in

line with their judiciary powers while Congress makes substantive laws)

Judicial Proceedings

Differentiate the 3branches of government

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

Branches of Governmentown republic when it finally achieved independence in 1945. 1. Executive: it implements/enforces/execute laws. Does

1. Executive: it implements/enforces/execute laws. Does not make laws Administrative proceedings: under the executive.

A Quasi-Judicial Agency is under the Executive but it performs quasi -judicial functions. Its proceedings

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

2. Legislative: they make laws; they can either make you sad or happy

who the legislature? Congress: Both houses

who the legislature? Congress: Both houses

But are local legislative bodies considered part of the legislature? They do make laws in

But are local legislative bodies considered part of the legislature? They do make laws in the form of ordinances but they are not part of Congress YES, local legislative bodies are part of the legislative branch of government BUT they have only local jurisdiction. The Congress has national jurisdiction to make laws, i.e. the laws they make apply to the whole State.

 

3. Judicial: Adjudicate. They decide rights and obligations of parties. Judicial Power (As defined in Article VIII, Section 1of the 1987 Constitution):

 

The judicial power shall be vested in one Supreme Court and in such lower courts as maybe established bylaw.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are

legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

What are Judicial Proceedings?  

What are Judicial Proceedings?

 
are these the ones performed by the Courts? NO. It is inaccurate to say that

are these the ones performed by the Courts? NO. It is inaccurate to say that judicial proceedings are those performed by the courts, as opposed to those performed by other branches of government as the Courts are vested also with executive powers to supervise and administer the members of the court (Article VIII, Section 6of the Constitution:

Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. )

 
Do these involve solving of conflicts? Yes, but still inaccurate. Other agencies of the government,

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

Answer: Judicial proceedings, as governed by the ROC, are these when the Court of law

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

Example ni ma'am:

   
 

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

NO. The judge should only use the EVIDENCE which was presented to him and the law governing the

case in deciding the case. Aspects of the lady justice with blindfold applies here. The judge should not let his prejudices hinder his judgment and should decide only on the basis of evidence and law.

Truth

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

 

Matter of Fact

Look for truths in respect to facts

 
2 Kinds of Facts:

2 Kinds of Facts:

1. Factum Probandum (UF) - the proposition which is sought to be proven. Usually an element of the offense that is needed to establish the injury

 

2. Factum Probans (EF) - the facts that would support or establish the factum probandum How to answer? Answer the 5Ws and 1H of journalists

Proof - the effect of evidence -it is when the evidence presented is sufficient to

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

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

Example: A case for Quasi

-

Delict. A car bumps the vehicle.

 

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

 
Example: When Hubert Webb presented as defense an Alibi that he was in the US,

Example: When Hubert Webb presented as defense an Alibi that he was in the US, skiing at Lake Ohayo,

when the crime was committed

 

UF (for defense): He did not kill the Vizcondes Intermediate Fact (which is both a EF and a UF): He has an Alibi that he was in the US

EF: Photos taken of him skiing (Object Evidence) Testimony that he was in US (Testimonial
EF:
Photos taken of him skiing (Object Evidence)
Testimony that he was in US (Testimonial Evidence)
His passport showing that he was in the US (Documentary Evidence)

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

June 18 Meeting

Wednesday, June 24, 2009 11:49 PM

12 Angry Men

-film showing and exercises on Tuesday

Types of Evidence Form a. Object b. Documentary c. Testimonial Relevance -logical -does the rule
Types of Evidence
Form
a.
Object
b.
Documentary
c.
Testimonial
Relevance
-logical
-does the rule give a criterion for relevance? YES
WON the evidence would induce belief in the existence or non
-
existenceof the fact in issue
Someone is killed
-
homicide
Fact in issue: WON the person is dead
Evidence: Body of the victim
*but Death is a Conclusion, not UF (there is presumptive death)
ULIT: if someone wants to claim as a successor of a person who dies, what should he show?
-
Death Certificate from Register of Deeds
Existence/nonexistence: What does it mean? WON it happened? Is it true or false? How do ou know if
evidence would inducebelief?
Common sense: Practice and experience
Nicole Case (rape)
-she was drunk
-she was dancing sexily
-she had to be piggy-backed ride
…these facts were presented by the defense to constitute CONSENT TO Sex
Are the said circumstances, taken together, relevant?
Relevant for the defense: shows consent, therefore, when there's consent, there is no rape
Induce belief…not completely convince you to believe but would INDUCE you to believe
…if more than 50%, Relevant
So if show picture of Nicole sexy dancing, relevant/irrelevant?
Relevant. May induce belief that Nicole consented to the sexual act
Vs.
Irrelevant. Doesn't mean that if she danced sexily, she consented to being raped
If the picture is merely circumstantial, it requires other evidences to make an inference on what
happened. But ma'am A said that each evidence should be relevant on its own.

ADMISSIBILITY vs. CREDIBILITY

Admissibility: WON the evidence is relevant and competent

Credibility: concerned with the weight each evidence is given

*look first if relevant before looking if competent

FINAL ANSWER Re: Sexy Dancing Picture of Nicole: IRRELEVANT!!!! For defense

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-would not induce beliefthat Nicole consented to sex just because she danced sexily

Circumstantial evidence Collateral Evidence

For Prosecution: Picture of Nicole dancing sexily is RELEVANT

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

happened to her

A lady confessed to a priest and left her bag with diamonds in the confession
A
lady confessed to a priest and left her bag with diamonds in the confession booth. Since the said bag
was not found, the lady accused the priest of stealing the bag with diamonds. Priest presents evidence
that he had not committed a single crime in his life; he had been a sacristan when he was young and
even then, he showed signs that he would become a priest…
Are the evidence presented by the Accused Relevant?
YES. R130.4 As character evidence: it is relevant to prove MORAL CHARACTER
RELEVANT: Induce beliefto existence/nonexistence of a fact in issue: WON he stole the diamonds
RELEVANCE
-degree
-reasonability
So if irrelevant, unreasonable + less than 50% degree of certainty
*if IRRELEVANT, not admissible
-
so relevance is stilla rule of competence
Collateral facts: not so much in issue
Circumstantial vs. Direct Evidence
There was a robbery. A guy emerged from inside the bank after the robbery. He has a bag with an
unlicensed gun inside. The police saw the guy and went after the guy. The guy threw his bag. The police
went to see the bag first before going after the guy, and upon inspection, he saw the unlicensed gun.
Is the unlicensed gun a circumstantial evidence of illegal possession of firearms?
No. It is a direct evidence of illegal possession. The gun itself, without a license, would constitute
evidence to prove such. As to the element of possession, the policeman saw the guy possessing the bag
and the guy only let go of the bag when he was already being chased.
Instead of a gun, the policeman saw a driver's license upon inspection of the bag. The policeman did not
see the face of the man who was running from inside the bank.
Is the driver's license circumstantialevidence?
is not even relevant! It is relevant to the police to establish leads of who the suspects are but this
alone could not be admissible before the court
It
TO CHECK RELEVANCE, ALWAYS LOOK AT THE FACTUM PROBANDUM(THE FACT IN ISSUE) and check if
the evidence would induce belief as to the existence or nonexistence of the factum probandum

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12 Angry Men Thursday, June 25, 2009 7:51 AM Facts of the case: At around7pm,
12 Angry Men
Thursday, June 25, 2009
7:51 AM
Facts of the case:
At around7pm, the accused and his father had a fight
At around 8pm, the boy was hit twice by his father (and his father has hit him almost everyday)
At around 8:45, the boy met with his friends
At around 9:45, the boy left
At around 10, the boy went home
At around 11, he allegedly watched a movie but cannot remember the names of the actors nor the film
he watched
At around 12, the victim father was killed
Around 15 seconds after being killed, the man downstairs heard the killer rushing downstairs. The man
downstairs allegedly saw the boy
At around 3 am, he went back home and saw his father dead. He was arrested by the police in the
hallway and was questioned in the kitchen near the body of his father
Evidence of the prosecution
Testimonial evidence
Old man downstairs - allegedly heard the accused and his father fighting then heard the accused say, "I
will kill you!" then heard a thud. He allegedly rushed to his door, 43 feet from his bedroom, and saw the
accused pass by his door rushing downstairs.
There was the lady from across the street (and in between their buildings were the El Train) who
allegedly saw the accused stabbing his father right when the last two trains of the El Train passed by.
Shopkeeper of the Knife store - said that at the night of the murder, the accused bought from him a
switchblade which is unique. The said switchblade was the same one left on the body of the victim.
There was also the fact that the kid was an expert in handling knives.
Object Evidence
The switchblade:
-the switchblade was allegedly brought by the accused at the night of the crime from a neighborhood
shop. The man at the shop said that it was a unique knife, and that the murder weapon (the
switchblade) was the same one the kid bought from him.
DEFENSE: the switchblade fellfrom his pocket before he went home
Another fact: Jury member #11 (James Fonda) bought another switchblade which is the same as the
murder weapon, showing that the switchblade is not the only one existing and thus, could show that the
accused did not own the knife, and thus, could not have been the person who killed his father
*note: there was no one who could positively identify the killer. The accused was linked to the murder
weapon because the shop owner said it was a unique knife and the accused was the one who bought it
from him at the night of the crime
Exercises:

(sagot ng group)

Group 3 Azura, Jonas Julius Caesar (3A) Miura, Kiyoharu (3A)

Tabamo, Jose Jat (3A) Arcilla, Juan Antonio (4E) Mendoza, Charisse Mae (4E)

Pineda, Giulia Francesca (4E)

Villanueva, Aida Rose (4E)

Group members:

Bauza, Brian Ashley

Cantre, Recolito Ferdinand

Capones, Joanna Eileen Capul, Christopher

Estoy, Mary Grace Mendoza, Charisse Mae

Po, Glaisa Christine Sicat, Melissa

Evidence Exercise on 12 Angry M en (last year)

Relev

1. Childhood background of the accused Relevant

It is relevant to the PROSECUTION to establish the accused's character and history of violence. It reasonably induces one to believe that the accused has the capacity/tendency to be violent.

2. School delinquency Irrelevant

It is irrelevant as evidence because a person who is deliquent in school does not necessarily mean that he/she could murder someone. This, on its own, does not induce belief as to the probability or improbability of the accused committing the murder.

State whether the following are relevant:

1. That the accused is an 18

-year-

old man who was “kicked and

slapped around” since he was 5 whose father was jailed for

 

forgery, was abandoned by his mother at age 12, and then was

 

committed to an orphanage where he grew up.

 

-The following statements tend to establish the motive of the accused for killing his father, as he was “kicked and slapped around”.

Relevant: Motive would be useful for the prosecution to prove who would most likely kill the victim when the identity of the accused is in doubt. If the testimony of the witness who alleged that she saw the accused stab his father would be discredited on the grounds that it was not certain whether or not she correctly identified the attacker as the accused as she does not have 20/20 vision, then the identity of the real killer is in doubt. Therefore, the said statements would be relevant for the

Evidence Page 18

3.

Frequent quarrels of the accused with his father Relevant

Relevant to the PROSECUTION because it would induce belief that the son has tumultuous relationship with his father and could possibly have committed the crime of murdering his father.

4.

Identical knife produced Relevant It is relevant to the DEFENSE because the prosecution relied on the uniqueness of the knife to link the murder weapon to the accused. In addition having an identical knife presented in court would reasonably induce belief that the murder weapon is not unique as claimed by the prosecution and that at the time of the murder, some other person could have possessed the knife and committed the crime.

5.

Height or direction of the stab wound Relevant

It is relevant to the DEFENSE because it would induce belief that the accused could not have committed the crime because a person who is used to handling a switchblade knife, like the accused, would most likely plunge the knife from below with an upward motion.

It is relevant to the PROSECUTION because it would establish the position of

the

accused relative to the victim when

the latter was stabbed.

6.

Impressed marks on the ridge of the nose Relevant

It is relevant to the DEFENSE because the witness, whose testimony was being relied on in identifying the accused as the killer, could not have clearly seen the accused in the act of committing the crime.

7.

Limp of the old man Relevant It is relevant to the DEFENSE because it tends to show that the old man could not have made it to the door in time to see the accused rushing down the stairs.

8.

Personal and emotional history of the witness Irrelevant This is irrelevant because the witness' personal and emotional history does not erase the fact that he/she did not see or hear something.

9.

Time and motion demonstration Irrelevant This is irrelevant because the demonstration could not accurately depict the speed and manner of the old man walking down the hallway.

10.

Location of the scene of the crime beside the El Train Relevant This is relevant to the DEFENSE because the presence of the El Train obscures sight and sound and could thus affect the accuracy of the perception of the witness.

11.

That the accused left in a hurry Relevant

It is relevant to the PROSECUTION since flight refutes the alibi by pointing out that the person was at home instead of being at the movies.

12.

That the accused couldn't remember the titles and names of the actors in the movie It is relevant to the PROSECUTION because it is a way of disproving the alibi offered by the accused.

prosecution to bolster their allegation that indeed it was the accused who killed the victim.

Irrelevant: The accused was positively identified by a witness as the one who stabbed the victim so there is no doubt as to the identity of the accused; therefore, statements as to the existence of a motive is not relevant to the fact in issue of whether or not the accused did kill the victim. The statements do not have a relation to the fact in issue as to induce belief in the existence of the fact that the accused killed his father. Further, it does not necessarily follow that when a child is “kicked and slapped around”, he would kill his father.

*Group’s decision: Irrelevant

2. The witness’ testimony that he heard the accused shout, “I’ll

2. The witness’ testimony that he heard the accused shout, “I’ll

kill you!” during a fight with his father.

2. The witness’ testimony that he heard the accused shout, “I’ll kill you!” during a fight

Relevant: For the prosecution, the statement is relevant as it tends to establish the fact that the accused was so angry that he even threatened to kill the victim. Irrelevant: The statement does not induce belief that the accused indeed killed the victim. First, they were fighting and during a fight, one could get emotional to the point that he may hurl threats to the other. The statement made by the accused could just be an expression of anger towards his father and is not really a threat on the latter’s life. Second, there is no indication that the said fight happened right before the victim was stabbed as to lead one to believe that the accused stabbed his father out of anger. The witness may have heard the accused shout the said statement in another time, not particularly before the victim was killed. *Group’s decision: Irrelevant

3. That the murder weapon found by the police beside the body

of the victim was identified as the same knife earlier bought by

the accused from a neighborhood junkshop

 

Relevant: The statement tends to induce belief that the accused did kill the victim as the knife he bought was identified as the same knife found by the police beside the body of the victim which was used as the murder weapon. He bought the knife, more likely he keeps it with him, and unlikely that he would let other persons borrow it (as who would want to borrow a knife???). *Group’s decision: Relevant

4. That the accused “lied” about being in the theater at the time

of the murder because upon questioning, he could not even

 

remember the titles of the movies he viewed, let alone the actors

who played in them

 

Relevant: The statement could weaken the alibi of the accused that he was at the theater as it tends to establish the improbability of the fact that he was indeed at the said place. After having established that it was impossible for the accused to be at the theater when the victim was killed, then it could induce one to believe that he was at their house and that he indeed killed his father.

Irrelevant: It does not mean that when the accused cannot remember the titles of the movies he viewed nor the actors who played in them, he did not watch the film and was not in the theater as to lead one to believe that he was at the scene of the crime and was the one who killed the victim. If he was indeed lying, i.e. he was not really at the theater, it does not automatically mean that he killed his father. He might even be a pathological liar.

*Group’s decision: Irrelevant

*5. That a juryman (a witness) once lived through the L-line and said the sound of the passing train was “almost unbearable”, belying the witness’ claim of hearing something as to have prompted her to look out and thus saw the stabbing through the last two cars of the passing train

Relevant: The statement of the jury-witness bolsters the testimony of the witness who said that she heard something which prompted her to look out. The said witness claims that she saw the stabbing right after looking out which strengthens her credibility as a witness, therefore, would lead one to believe that the witness positively saw the accused stabbing the victim.

Irrelevant: The sound of the passing train being “almost unbearable” does not have any relation to the fact being established, i.e., that the witness indeed saw the accused stabbing the victim. Whatever she did or did not hear does not determine whether or not the son killed the father. *Group’s decision: Irrelevant

6. The compression marks on the ridge of the witness’ nose

Relevant: Compression marks could be seen on someone who

Evidence Page 19

wears glasses often. People who wear glasses do not have 20/20 vision. The witness in the movie testified that she was already in bed but could not fall asleep when she saw the stabbing. People who wear glasses do not usually wear them to bed. Therefore, if the witness did not have 20/20 vision and she probably did not have her glasses on at that time, then she testified that she saw the accused stab the victim, there is doubt if she was certain of the identity of the accused. As the compression marks tend to induce one to believe that the accused did not kill his father (although indirectly), then it is relevant. Irrelevant: The statement alone would not be relevant to the case, as the compression marks would not prove anything. Granted that the said marks could be seen on someone who wears glasses and that the witness’ eyesight was not 20/20, still there was no showing that the witness was not wearing her glasses when she saw the stabbing. The witness could have been wearing her glasses at that time so that she clearly saw the accused stab the victim.

*Group’s decision: Relevant

7. Jury Number 8 confessed to his colleagues (a witness testified) that he’d bought a switchblade from a pawnshop in the neighborhood of the accused, brought it out and everyone saw it looked just like the “murder weapon” even as another member of the jury earlier emphasized that it was “a most unusual looking knife.” Relevant: The fact that there is another knife which looked just like the “murder weapon” leads one to conclude that the knife which was used in the murder was not unique so that there may be other persons who owns similar-looking knives. If there are other persons who own a knife similar to the murder weapon then the said fact would induce one to believe that the accused may not be the killer, and there may be other persons who could have killed the victim. *Group’s decision: Relevant

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

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

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

*Group’s decision: Relevant

10. The reenactment

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

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

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

Air France vs. Carrascoso

Thursday, July 02, 2009 8:45 AM

AIR FRANCE vs. CARRASCOSO 18 SCRA 155 SANCHEZ; Sep 28, 1966 (athe)

NATURE: Review on certiorari

FACTS

Carrascoso, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a 'first class' round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff trav eled in 'first class', but at Bangkok, the Manager of the defendant airline forced plaintiff to v acate the 'first class' seat that he w as occupyingbecause, in the w ords of the w itness Ernesto G. Cuento, there was a 'white man', who, the Manager alleged, had a 'better right to the seat. When asked to v acate his 'first class' seat, the plaintiff, as w as to be ex pected, refused, and told defendant's Manager that his seat would be taken over his dead body; a

commotion ensued; plaintiff reluctantly gave his 'first class' seat in the plane.

After transferring to the tourist class seat, one flight attendant approached him and requested from him his ticket and said that she w ill note of his transfer. He refused because for him it is tantamount to accepting his transfer. Later, he w ent to the pantry that w as next to him and the purser was there. He told him that he recorded the

incident in his notebook. He read it and translated to him because it w as recorded in French. "First class passenger w as forced to go to the tourist class against his will, and that the captain refused to interv ene." Carrascoso, during trial, included this incident in his testimony.

ISSUES

1. WON Carrascoso was entitled to the first class seat he claims

2. WON the CA erred in finding that the purser madean entry in his notebooks reading "First class passenger was

forced to go to the tourist class against his w ill, and that the captain refused to interv ene" is predicated upon

ev idence which is incompetent, therefore not admissible (because the defendant was saying that the best

evidence in this case is theentry and not the testimony)

HELD

1. YES. The testimony of the defendant‟s w itnesses that the issuanceof first class ticket w as no guarantee that the passenger w ould have a first class ride, but such would depend upon the availability of first class seat cannot hold w ater. Oral evidence cannot prevail over written evidence, in this case, the first class tickets of the plaintiff w ithout any reservation whatever and even marked with OK, meaningconfirmed.

2. NO. The subject of inquiry is not the entry , but the ouster incident. Testimony of the entry does not come

w ithin the proscription of the best ev idence rule. Such testimony is admissible.

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The ex citement had not as yet died down. Statements then,

in this env ironment, are admissible as part of the res gestae. For, they grow "out of the nerv ous excitement and

mental and phy sical condition of the declarant". Theutterance of the purser regarding his entry in the notebook

w as spontaneous, and related to the circumstances of the ouster incident. Its trustw orthiness has been

guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res gestae. Moreov er, if it w ere really true that no such entry was made, the deposition of the purser could have cleared up the matter.

DISPOSITION: Decision of CA affirmed.

Air France v Carrascoso

BER dsnt apply bec subj if inquiry wasn’t the contents of the notebook, but the subj of inquiry was WON the ousting of Mr Carrascoso actually happened Carrascoso actually happened

Witness said he left his seat bec the space w as confiningwas WON the ousting of Mr Carrascoso actually happened o This is w hen he saw

o

This is w hen he saw the purser

o

Who said “I noted the incident in my notebook,” shld him the note, etc

o

This entire testimony of this incident w the purser w as told to prov e that the ousting happened? This is

w

hy its relevant? NO

o

the contents of the ntbk is relev ant to prov e the ouster?

o

The ntbk became relevant bec the entry saida 1 st class passenger was forced to transfer to 2 nd class wo this, it w ld be irrelev ant

When the v ictim w as telling his story, he include this anecdote, why is this relevant? That the purser talked to him, etcto 2 nd class – wo this, it w ld be irrelev ant o Its relev

o

Its

relev ant bec it tends to prov e his was wrongfully

o

Purser w ho‟s the EE wont say anything detrimental to his boss unless its true

So w hen the entry was made, it really records the ouster EE wont say anything detrimental to his boss unless its true It‟s the entry w c

It‟s the entry w c makes the purser say soimpt & relevant

So if the other party objects, if try ing to prov e E of the ouster thru the ntbk, y ou shld present the ntbk/the entry!

Carrascoso said:

o

I w ent to the purser.

 

He w as in full possession of his capacity, was in full possession of his senses

Thus, hes not disqualified from being a witness

*S20: y ou canperceive only thru 5 senses (hear, see, taste, feel, smell)

 
  Any person who can perceive, senses aren‟t disabled – can relate it to the Ct

Any person who can perceive, senses aren‟t disabled – can relate it to the Ct correctly

 

competent

o

The purser talked to me.

Competent

o

The purser said

If testify ing that the person talked can be = competent

But if presented to offer the truth of w hat the purser said = hearsay

o

The purser showed his note, saying he alrdy noted the incident in the ntbk & translated it.

Translated: competent he heard it

Content of the note subj to BER? Therefore, the note is the crux of the testimony ! He wldnt hav e relayed this story if not for this note

Can he talk abt the contents of the note?

Air france‟s argument: when you begin quoting the contents, don‟t relay the story but show the note itself for this note  Can he talk abt the contents of the note? SC: said the

SC: said the testimony was only abt the ouster, the issue wsnt the contents of the ntbks per se, but the ouster

COA of Carrascoso: tort for damages (not just for breach of contract but also bec there w as BF)

o

His story abt the purser is merely factum probans

Pt of Carrascoso‟s testimony: Whether its really in the ntbk or not, fact that the purser said it to Carrascoso – its alrdy against the airline

o The ntbk w ld only corroborate this fact

Evidence Page 22

Hernaez vs. McGrath

Thursday, July 02, 2009 8:48 AM

HERNAEZ v McGRATH

TUASON; July 9, 1952

G.R. No. L-4044 (jojo)

NATURE

- On action of ejectment and for damages commenced in the CFI of Manila by Pedro C. Hernaez and Asuncion de la Rama

Vda. de Alunan, in her ow n behalf and as an administratix of the estate of her deceased husband, Rafael R. Alunan, against

the Philippine Alien Property Administration (PAPA).

FACTS

- Rafael Alunan and Pedro Hernaez formerly were registered owners in equal share of a land, 8 contiguous parcels with a

combined area of 4,533.34 sqm covered by TCT Nos. 46872-46880 and situated in the corner of Cortabitarte and Dew ey

Boulev ard, Manila. 8 residential houses were built on these lots but they were destroyedby war operations in the early partof

1945.

In Feb. 1943, a deed of sale, on w hich Alunan's and Hernaez names were signed as sellers and the Hakodate Dock Co., Ltd., a

Japanese commercial firm, as buyer, in consideration of P170,000, was presented for registration in the office of register of deeds, and on March 3, TCT Nos. 66832-66839 in the name of the purchaser were issued in lieu of the old CT Nos. 53930-53938, w hich were totally cancelled. On the strength of this registration,the lots and all improvements still existing

thereon w ere v ested as property of an enemy national by the PAPA, a US Government instrumentality, In April 1947, under the authority of the US Trading w ith the Enemy Act, as amended, the Philippine Property Act of 1946, and Ex ecutive Order No.

9818.

- The RP as the transferee of the property in litigation came into the case as interv enor on the side of the defendant. Dr.

Nicanor Jacinto also filed a complaint in intervention but in opposition to the defendant as w ell as the plaintiffs. The questioned

property has been mortgaged to Jacinto before the outbreak of the w ar to secure a promissory note for P160,000, and although the mortgage had been paid and cancelled in 1943, Dr. Jacinto alleged that he had accepted the pay ment and agreed to the

cancellation in fear of Japanese reprisal.

- The issue w as complicated by the theft after liberation from the office of the register of deeds, of the deed of sale, the transfer

certificates of title by v irtue thereof, and other papers pertaining to the last registration. The plaitiff‟s representation made determined and repeated efforts to block the attempts of appellants any oral ev idence touching on the alleged contents of the

documents supposedly executed by Alunan and Hernaez in fav or of the Hakodate, w hich efforts were futile.

- As maters stand, only one unsigned copy of the aforesaid deed, which had been secured from the file of the Hakodate home

office in Hokaido, Japan, was introduced. Hakodate's signed copy is said to have been lost or destroyed in the bombing of Toky o in 1945 along with the company's office in that city . And the copy or the copies which had been kept by the notary public

before w hom the document w as acknowledged had also been burnedwith his other papers during the fight for liberation of Manila. As a result, defendant's proofs on the controverted execution of the lost deed are only the entries thereof in the registrar's office, collateral documents, and parol testimony, some direct, some circumstantial, but none precise or unequivocal in term.

- Hernaez w as the lone w itness on his behalf and for his co-plaintiff. The gist of Hernaez' testimony is that if any document w as

presented the register of deeds' office purporting to hav e been ex ecuted by him and his co-owner, that document was a forgery. Hernaez in part declared: "We w ere forced by the Japanese to vacate the houses. They told me they needed the property and I had to cooperate, collaborate w ith them and I had no other alternativ e but to sell my property. They detained at the Port Area until midnight; it w as midnight when they sent me back to my house but they retained the titles. I think there w ere eight titles. They told me that I had to sign the deed of sale. I had been ex pecting that they w ill appear there to make me sign the deed of sale in my house or in the office of the Nav y at Legaspi Landing, but what happened is that they did not appear in my house,

and afterw ards I found out that Captain Tanabe (Watanabe, Hakodate's manager) was sent back to Tokyo."

- The principal w itness for the defendant on the dispute sale w ere Satoru Watanabe, Napoleon Garcia and Jose Ma. Recto.

- Watanabe: testifies that he w as in the Philippines in the early part of the w ar as acting managerof the Manila Branch of the

Hakodate Dock. Co., Ltd; that he knew Hernaez and Alunan. He recalls the transaction between the Hackodate Dock Co., Ltd.,

on the one hand and Hernaez and Alunan on the other, concerning the sale of the land and buildings located at the corner of

Cortabitarte and Cav ite (Dew ey) Boulevard. He says that the deed of sale w as prepared in Doctor Recto's office but he w as not present hav ing gone to that office only after he had been informed that the document w as ready; that after he had been

assured that the document w as complete, he affixed his signature thereto; that according to his memory he was asked to sign

the document after the v endors, Alunan and Hernaez, had signedit; that as he left Manila for Japan shortly after he had signed the deed of sale, he does not know what happened to the copy of said document which was delivered to Hakodate Dock. Ltd., that after he had returned to Toky o, the document was forw arded to the Tokyo office, at the beginning of the follow ing y ear; that the duplicate original and the unsigned copies thereof w ere kept in the Tokyo office; that the duplicate original w as burned

w

hen the Tokyo office was bombed by the United States Airforce in 1945, but that a copy (made by the Hakodate Manila office)

of

the duplicate original w hich was kept by the Manila Branch office was not destroyed and he brought it along w hen he came

to

the Philippines to testify ; that he saw that copy of the first time in the Hokaido office of the Hakodate Dock Co. w hen hew ent

there before coming to the Philippines.

- Garcia, an assistant in the office of Atty . Recto, declares that he w as a notary public and recall that, as such, he ratifieda

document in w hichAlunan and Hernaez and the Hakodate Dock. Ltd., were the parties; and all the notarial copies were lost or destroy ed; that he made at least fiv e copies of which he retained tw o and handed over the rest and the original to the parties;

that Hakodate at least receiv ed one copy. He says he did not remember to w hom he delivered the original. On cross-

ex amination by the attorney for Dr. Jacinto, Garcia says that he does not know who engagedhis firm; he only knows that Recto

requested him to notarize the document. Nevertheless he recalls that the v endors were Hernaez and Alunan and the vendee the Hakodate Dock. Ltd, He say s that the documents were signed in his presence and that he must have given Alunan or Hernaez a copy . He further says he cannot exactly tell where the document was ratified but that it must hav e been either in his

office or in the office of the parties w hether he w ent w ith his notarial equipment. He thinks he says, that he w ent to the office of

Secretary Alunan in the old legislative building.

- Recto: testifies that during the Japanese occupation his law office was on the 3rd floor of the Soriano Building. He recalls a

transaction betw een Alunan and hernaez on the one hand and the Hakodate Dock. Ltd., on the other. He thinks that he drew a

deed of sale and that the document w as signed in his office; that he w as in the same room. He was asked if he w as one of the

w itnesses to the document but the question w as objected to and the objection w as sustained. He further declares that he took

charge of registering the deeds of sale and that after the registration he succeeded in getting the certificates of title inthe name

of the v endee and deliv ered them to the latter. He say s he did not remember if his firm was the retained the counsel for the

Hakodate Dock Co., nor is he sure where the transaction took place. He would not be able to identify the document if only a copy thereof w as shown to him. He states that he does not remember if the transaction w as a sale; all he remembers is that it

w as a transaction betweenHernaez and Alunan and the Hakodate Doc Ltd., and the papers were signed at his office at the

Soriano Building by alunan and Hernaez, as afar as he can recall. He recalls another transaction of Hakode in which the preparation of the document w as more or less entrusted to him by the Hakodate Dock Co. He says that he w as informed by Messrs. Hernaez and Alunan regarding the transaction that there had been an argument betw eenthem. The trial Judge did not make ex press findings on Watanabe's credibility, and referring to Garcia's and Recto's testimony, noting that the same are beclouded w ith the phrases "it could have been", "it must have been signed, in his presence". Moreover, the judge insinuated that Hakodate's signed copy existed at the time of the trial and had been suppressed, and acting on this belief, disregarded all parol ev idence by which the defendant had attempted to establish the genuineness of the deal. Said the court:

There is no sufficient ev idence on record to show the loss of all the signed copies of the questioned document. Loss of the original and the signed copies must be satisfactorily established before secondary evidence can be admitted. Specially when

the signatures on the document is claimed to have been forged, it becomes absolutely necessary and indispensable the production on original or a signed copy of the document. Thus, no secondary evidence can be entertained to prov e the document of the lost document, especially if the supposed document is contested to be falsified of forged. RTC ruled in fav or of the plaintiffs and dismissed the complaints in intervention.

ISSUE

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

HELD

YES

- No v alid ground can be perceived for the insinuation that the defendant or the Hakodate Dock Co. concealed any of the

signed copies of the disputed deed. It is highly inconceivable that the United States Gov ernment or the Philippine Government representativ es would be capable or resorting to such dishonorable and shyster tactics in order to w in the case and dispossess legitimate ow ners of their property . Much less canit be imagined that those representatives had a hand in the loss of pertinent papers in the register of deeds' office. It w ould hav e been nonsensical on their part to steal the v ery documents on which they based their action in v esting the property.

As for Hakodate Dock Company, his firm had no interest in the result of the suit. It could not hav e entertained any hope of getting the property under any circumstances. Furthermore, Watanabe has no longer connected with Hakodate when he testified at the trial.

Be that as it may , the court below was entirely mistaken in holding that parol ev idence of the ex ecution of the instrument was barred. The court confounded the execution and the contents of the document. It is the contents, w hich in this case are not in dispute, w hichmay not be proved by secondary evidence when the instrument itself is accessible. Proofs of the ex ecution are not dependent on the ex istence or non-existence of the document, and as a matter of fact, such proofs of the contents: due

ex ecution, besides the loss, has to be shown as foundation for the introduction of secondary evidence of the contents.

Section 46 ROC:

There can be no evidence of a writing other than the writing itself the contents of which is thesubject of inquiry, except in the following cases:

x x x

x x x

x x x

Hernaez v McGrath

Do you agree w the ruling of the Ct?

BER dsnt apply bec the issue is the existence of a docum & not its contents

C t admitted the PE presented by the Jap Co to prove the existence of a deed of sale executed by Hernaez

Ruling of the C t: when its not the contents of a docum (a writing, matl containing a writing) that is the subj of inquiry, BER dsnt apply

Subj of inquiry was the existence of a deed of sale was claiming that he ddnt sell his props

o But they did execute a sale

If the Q is WON there was a sale, aren’t you asking abt the contents of the deed of sale? sale?

C ontents of the deed of sale weren’t in inquiry – so BER dsnt apply

C t didn’t consider it as the contents as in issue but the existence of the deed of sale

o

o

Seems like you should

Bec how wld you know if there was a sale if you don’t examine if there was a sig or not wc is part of the contents

Was saying it was a forgery, was being forced by the Jap to sell – he claimed the deed of sale was fake bec he ddnt sign he claimed the deed of sale was fake bec he ddnt sign

If someone is claiming there was a deed of sale, isn’t he in effect talking abt the contents bec he’s telling you who the subjs are, what the subj of the sale was, etc?

Why ds/dsnt BER apply?

Ruling of the C t is correct but 2 misleading sentences in the case

o

Proofs of the execution aren’t dependent on the existence/non - existence of the docum

If its non-existent then why need proof for execution?!?!

To prove the existence of a docum, you have to prove its due execution

J. Tuason shldve said: proofs of the execution aren’t dependent on the existence/non-existence of the ORIG of the docum

Bec even if the orig no longer exists, bec destroyed/lost, you can still prove its execution thru 2ndary E

Bec when talking abt execution, you aren’t talking abt the contents w/in the meaning of the BER

C ant talk abt execution if it really didn’t exist

You’re talking abt execution so that 2ndary E may be applied

When want to prove execution, you’re talking abt the contents (vendor, vendee, when it tk place, etc) but if you’re proving the contents wrt to the terms of the agreement, but to its execution, then BER dsnt apply

o

Be that as it may the C t below was wrong in holding that PE of the

execution was barred, the Ct confused/confounded the execution & contents of the docum…wc in this case aren’t in dispute …it’s the contents wc cant be proved by 2ndary E when the inst itself is accessible….due execution must be shown…

(underlined) is wrong bec whats in dispute that there was no sale

All they’re claiming is that they ddnt sign C t said the argument was wrong bec he was confusing execution w content

Evidence Page 23

Section 51 ROC:

When the original writing has been lost or destroyed upon proof of its execution and loss or destruction, its contents may be

proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.

- Ev idence of the ex ecution of a document is, in the last analy sis, necessarily collateral or primary. It generally consists ofparol

testimony or extrinsic papers. Even when the document is actually produced, its authenticity is not necessarily, if at all, determined from its face or recital of its contents but by parol ev idence. At the most, failure to produce the document, when

av ailable to establish its execution may affect the w eight of the ev idence presented out not the admissibility of such evidence.

In spite of the defects w hich the trial court noted in Garcia's and Recto's testimony, the same and Watanabe's leave little or no

room for doubt that Alunan and her Hernaez did affix their signatures to the deed of sale. Hernaez' testimony which the trial court say s "it finds no reason to doubt" actually has to many serious flaws to justify the court's faith. The testimony is highly improbable in many important respects and is directly or indirectly contradicted by evidence more trustworthy and by well-

established facts. Without going to minute detail, the follow ing considerations should suffice to illustrate the point.

- The ev asiveanswers Hernaez in his cross-examination cast serious reflection on the truth of the protestations that the stolen

document w as forged. Hernaez did not hav e to be shown the deed to be able to tell that he had not signed it if that had been the case. The point sought by the questions was very specific and must have been uppermost in the w itness‟ mind. It w as the

thesis of his complaint and had been the subject of a prolonged inv estigation before the suit w as filed. “Dates and years and figures" "difficult to remember" had nothing to do w ith, and could not hav e obscured the right answer to the simple question

w hether Hernaez and Alunan had disposed of their property which they were trying to recover. In fact prev iously Hernaez and

v ehemently affirmed. "I nev er signed a deed of sale to any body, much less to Hakodate Dock Co."

- One other notable feature of Hernaez' testimony is the absence therefrom of any reference to Alunan in connection with the

alleged seizure of their houses and certificates of title. Although there is no proof on the record relativ e to Alunan's official position at the time other than that he had an office in the legislativ e building, the court may take judicial notice of thefact that Alunan w as a member of the Ex ecutive Commission and later cabinet minister in the Japanese sponsored Government of the Philippines. The point is that if w hat Hernaez says were correct, it does not seem probable that Alunan w ould not have known the occurrence, and knowing it, taken steps to recover the seized titles or compensation for the property . It does not seem likely

that he w ould not hav e at least complained to the Japanese higher authorities and secured some information about what we became of their certificates.

- Yet Hernaez w ould hav e the court believe, as we gather from his testimony, that neither he nor his partner learned of the

w hereabouts of their titles until after the Japanese had been driv en away from the Philippines and that for the tw o y ears they

allow ed themselves to be deprived of the use of their property w ithout protest. Let it be remembered that the property had not been taken by the armed forces for war purposes but by a private concern if attached to and operating under the superv ision of the Japanese Navy. Contrary to Hernaez' assertions, Watanabe did not hold any military rank or status, and the houses and lots w ere used as quarters for the firm's civilianemployees and acquired in the firm's name with its own money. The charge suggested by the line of plaintiff's ev idence that the Hakodate Dock Co. resorted to frauds and coercion so as notto pay for the plaintiffs' land and houses is discredited by the fact that it settled the mortgage, pay ing an amount w hich was only P10,000 short of the purchase price. This payment bears witness to Hakodate's good faith and w illingness to spend for w hat it got. At the same time, and this is more important to the immediate issue, it is mute testimony to the due ex ecution of the sale by Alunan and Hernaez; for it is not logical to suppose that the Hakodate w ould hav e parted with a huge amount of cash, huge at the time, if the ow ners had not ex ecuted a valid deed of conveyance.

Another idea that suggests itself is that the officers of the Hakodate, of the Hahodate, if they had a mind to commit frauds,

w ould not hav e been chosen Doctor Jacinto for the v ictim of its felony in preference to a senator-elect, which Mr. Hernaez was,

and a member of the Cabinet. To forge a deed of cancellation held by a private citizen who wielded no official influence would

hav e been undoubtedly the easier and the risks of failure, not to say punishment, the lesser.

- The premise of his ratiocination is wrong in that Hernaez testified that he and no the Hakodate Dock Co. paid off the

mortgage. How ever, the clear weight of the ev idence both as to quality and the number of witnesses is against the plaintiffs.

- Against the plaintiffs' ev idence there is the testimony of Watanabe and Jacinto who said the payment was affected by the

former, and of Recto and Garcia w ho said that the cancellation was arranged and perfected in their law office at the instance of

the Hakodate representativ es.

- In contract, Hernaez said he did "not know who handled the cancellation," a matter which seemed too important not to be

remembered, contenting himself w ith the statement that "The thing is that w hen he paid him (Jacinto) he gave us the release." And as to the place of cancellation, he said that it w as somewhere on the Escolta, in the office of the law firm of Duran, Lim &

Bausa, w hen, it is conclusively established, Attuy. Lim, who was Jacinto's attorney, and whom Hernaez apparently had in mind, separated from that firm as early as the beginning of the Japanese occupation in 1942, and, as a matter of fact, the cancellation

w

as executed, as above, seen, in the Recto Law Office and not in the law office of Duran, Lim & Bausa. Note that the attesting

w

itnesses to the cancellation were Napoleon Garcia and Jose Ma. Recto and the document was acknowledge before Garcia

w

as notary public.

-

The fact that the deed of cancellation w as made in the name of Alunan and Hernaez cannot be any means be taken as

ev idence of plaintiff's theory . The payment was in reality made in their name although the money came was receivedby the

pay ee from Watanabe. For the purpose of registration, the deed of cancellation had to be deframed the w ay it w as drawn.

- The ov erwhelming preponderance of the ev idence likewise discredits Hernaez' declaration that his and Alunan's certificates of

title w ere in his possession. Jacinto said he had them, and it could not hav e been otherwise. It is the inv ariable and sensible

practice of mortgagees to keep the title to the property mortgaged as a necessary measure of protection. In the testimony before the court (he had lenghtly testified before the claim committee of the PAPA Hernaez admitted that Doctor Jacinto did not depart from this practice. In answ er to the court's question whether he turned over to Doctor Jacinto the said certificates when

he ex ecuted the mortgage, he answeredin the affirmativ e. How then couldHernaez have those certificates when he was

allegedly carried to the Legaspi Landing where, he said, they were taken away from him? The deed of sale and the deed of cancellation w ere executed on the same date, February 20, and the genuineness of the latter deed is admitted. This being so, Hernaez could not have had the certificates of title and these could not hav e been taken away from him before that date. If it be asserted that the certificates might hav e been handed ov er to the Japanese on the same date the mortgage w as cancelled and the cancellation was registered, the assertion would contradict Hernaez' testimony from which the clear inference is that he had the titles in his home for day s or w eeks before the Legaspi Landing incident. Besides, Watanabe and his attorney s and notary could not by any possibility have drawn or registered the deed of sale on the same date

the certificates w ere returned to Hernaez to Doctor Jacinto.

- One of the arguments adv anced to drive home the point that the questioned sale w as fake is that, it is said, Alunan and

Hernaez did not hav e any need to sell this property. Moreover, it is alleged purchase price was far below its actual value.

- Jacinto testified that hav ing heard that the property in question w as being sold to the Japanese, he immediately gave

instructions to his then attorney , Manuel Lim, to see Alunan and Hernaez and offer in his behalf to buy it. And Atty . Lim, who

w as SolGen whenhe testified corroborated his formerclient, stating that about the end of 1942 or the early part of 1943, he

requested Alunan to let Doctor Jacinto buy the said property, and proposed easy terms. He said that he called on Alunan tw ice

or three times in the latter's office in the Legislativ e Building; that in the first v isit Alunan said that he w ould consultw ith his

partner, Senator Hernaez, and in the second, that he and his partner w erestill undecided, but remarked that he had received

an offer from a Japanese firm and that he (Alunan) and Hernaez w ould prefer to make the sale of the Japanese. We have no

reason to suspect the v eracity at these witnesses.

That Alunan and Hernaez w ere not averse to selling the property in question may be inferred from the plaintiffs' ow n evidence.

Hernaez testified that he had sold to a Chinese in 1944 the land on Dew ey Boulevard where the Riviera is now located, for P360,000 or P375,000 and a parcel, location not revealed, to Toyo Menka Kaisha for P40,000 "nearly the same time, March 1943," a lot by w hich the w ay, according to Hernaez he was also claiming from the PAPA. He also disclosed that he had "sold

many jewelries, watches and other things," which goes to show that they were not oversupplied with cash. Of equal significance

is the statement indicating that Hernaez and Alunan w ere engaged in real estate business. Hernaez stated, "We used to hav e

here some properties that w e sold on ten years installment before the w ar and after the w ar."

- In the matter of the v alue of the houses and lots registered by the Hakodate Dock Co., the trial court believ ed that the price

stated in the deed w as highly inadequate and regarded this alleged inadequate as supporting the contention that the sale w as forged. The court seems to have overlooked the fact that the property sold to Hakodate Dock Co., was only eight parcels containing a total area of 4,533,34 square meters, whereas the property whichthe plaintiff had bought from Chuan & Sons for P185,000 and of w hich the property in questionedformed a part, measured 8,027.72 squaremeters. So that by selling the abov e portion of P170,000, they were able to recoup nearly all their investment, without counting the rents they had theretofore realized on the houses, and keep nearly one-half of their original acquisition as a clear profit. That was not a bad bargain. It is a matter of common knowledge that in February 1943 Japanese war notes werestill about at par w ith the Commonwealth peso.

The sale of the plaintiff's other land in Dew ey Boulevard for a much higher price in proportion to its size took place in 1944, or in the latter part of 1943 at the earliest, w hen the Japanese war notes had been shipping downfast. At any rate, the proceeds of the sale w ere more than enough to liquidate their mortgage debt, the pay ment of w hich the purchaser took charge of attending

to. As Hernaez said, "the thing is that w hen w epaid him (Jacinto) he gave us the release."

- For another thing, it is a mistake to take the alleged inadequacy of the price stated in the deed of ev idence of forgery, for

figures are easy to fabricate and a forger w ould endeavor to fix an amount in accord with the prevailing rates of real estate

v alue precisely to forestall such suspicion as is put forward in this case.

- The appealed decision says "another issue raised by the plaintiffs is the illegality of the alleged acquisition by the Hakodate

Dock Co. Ltd., of the property under litigation, assuming that a contract w as duly executed by Messrs. Alunan and Hernaez in fav or of the said company," And citing Krivenco vs. Register of Deeds, the court concluded that the sale w ould be null and void

any w ay.

- As the appellants hav e noted, nowhere in the pleadings did the plaintiffs impeach the validity of the sale to Hakodate Dock

Co., on constitutional grounds. And evenif they had, the present case would not be controlled by the doctrine laid down in the Kriv enko case. The Philippine Constitution was not in force during the Japanese occupation of the Philippines. The constitution

w as inoperative at least with reference to Japanese citizens. Military Ordinance No. 2, promulgated on March 14, 1942,

ex pressly excluded "Japanese subjects from the operation of prohibition and limitations on civil rights, benefits and privileges,

w hich by reason, of their nationality are denied them by laws, statutes, administrative orders or regulations of the Philippines."

There is no doubt about the rights under the international law of the belligerent occupants to issue this decree.

- The court w ould also invalidate the sale on the theory "that the Hakodate Dock Co. Ltd., a purely Japaneseconcern, was

nev er registered as such in the Philippines nor was it authorized to transact business in accordance with existing Philippine Corporation Law ." This question, like the just discussed, has not been raised in the pleadings. What is more, we know of no law

or prov ision of the Corporation Law which prohibits a business concern not authorized to transact business from buying or

ow ning real property. As to counsel's observation that "there w as no proof that Satoru Watanabe, w ho was then merely an acting Manila manager of the company, was duly authorized to represent said company," the defect if there w as a defect was

one w hich the only principal or the party for whom Watanabe purported to act could use to rescind the sale.

- The probabilities of forgery are v ery remote and the direct ev idencefor the defendant has abundantly and convincingly

established that the property w as sold by its former owners for valuable consideration. The loss of the pertinent records in the office of the register of deeds cannot be av ailed of to bolster the plaintiffs' case or w eaken the defense. If the loss is toproduce any effect, the effect should be rev erse, considering all circumstances surrounding the theft.

Doctor Jacinto's case: Doctor Jacinto testified: He w as paid the amount of the mortgage by a Japanese, who said that he represented the Hakodate Dock Co., at the beginning of 1943, and deposited the check, signed by a Japanese, in the Philippine Bank of Commerce. He executed a release of the mortgage because he was told by the Japanese, accompanied by a Filipino from the law firm of Mr. Recto that the document of cancellation was already prepared. He was informed that they had purchased the property for the Hakodate Dock Co. He w as reluctant to sign the deed of cancellation because, in the first place, the amount did not cov er the w hole balance, and in the second place, it w as not the money which he had loaned. When they

noticed his reluctance they told him that he could be grateful because they could have taken the property without anything for it.

The court can sy mpathize with the mortgagee and believe that at heart he w as opposed to the pay ment of his credit in Japanese money and would not have rejected or protested against the payment if it had been tendered by the debtor directly . Under the applicable law and uniform decisions of this Court, however, the payment w as enforceable irrespective of the attitude of the creditor. The debtor or his successor-in-interest had the right to pay the mortgage in Japanese war notes, which were the authorized currency in circulation, not to say the only currency available. In other w ords, the pay ment would have released the mortgage ev en if it had been tendered by the mortgagor personally and had been turned down by the mortgagee. That was the unfortunate situation into w hich thousands of prewar creditors were thrust by the war, most of them being forced to accept

Japanese military notes when these were little better than useless.

- The disparity in value, if any , between Japanese warnotes and the Philippine peso in February 1943 was not great, however.

According to the Ballanty ne conversion table, the exchange ratio between the tw o currencies in February 1943 was P1 to P1.10. It is to be kept in mind that the scale did not pretend to be ex act. The ratio could hav e been still even. The beliefis, perhaps, confirmed by the price of the absolute sale which was only P10,000 more than the mortgage debt.

In any ev ent, the mortgagee, whatever his feelings, did accept the payment, deposit the cash in the bank in current account, and could hav e made use of it. At the then prev ailing value of Japanese war notes, the amount could have been invested profitably in other real estate or business transactions. Under the circumstances, the principle of estoppel is not to be ruled out.

DISPOSITION:

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

Alvarez vs. Ramirez

Saturday, July 18, 2009 9:49 PM

ALVAREZ V. RAMIREZ GR No. 143439;

Sandov al-Gutierrez; 14 October 2005

(ice)

NATURE Petition for rev iew on certiorari

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

ISSUE WON Esperanza Alvarez can testify against her husband

HELD/ RATIO Yes. Section 22, Rule 130 of the RevisedRules of Court has an exception, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury basedon that identity is non-existent. Likewise, in such a situation, the security and confidences of priv ate life, w hich the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a voidin the unhappy home. This is in lieu of the justification for the rule w hich are

1. There is identity of interests betw een husband and wife;

2. If one w ere to testify for or against the other, there is consequent danger of perjury ;

3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and

4. Where there is w ant of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.

In Ordoño v s. Daquigan, this Court held: „The rule that the injury must amount to a phy sical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and

v itally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a w itness againstthe other ex cept in a criminal prosecution

for a crime committee (by ) one against the other.‟” Obviously, the offense ofarson attributed to petitioner, directlyimpairs the conjugal relation between him and hiswife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues theconjugal relationship survives and flourishes. “The act of priv ate respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his w ife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences ofmarital relation which thedisqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic

relations betw een her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life w hich the law aims to protect are nothing but ideals w hich through their absence, merely leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504).Thus, there is no longer any reason to apply the Marital Disqualification Rule.”

It should be stressed that as show n by the records, prior to the commission of the offense, the relationship betw een petitioner and his wife was already strained.

In fact, they w ere separated de facto almost six months before the incident. Indeed, the ev idence and facts presented reveal that the preservation of the marriage

betw een petitioner and Esperanza is no longer an interest the State aims to protect.

DISPOSITION

AFFIRMED

Evidence Page 26

Res Gestae to Public records from Reviewer

Tuesday, September 15, 2009 6:08 PM

Res Gestae

Section 42 PART OF THE RES GESTAE

Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae

Res gestae (“things done”) refers to:

1.

Spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming part thereof

2.

Statements accompanying an equivocal act (verbal act) on the theory that they are the verbal parts of the act to be explained

Requirements:

1.

The principal act (res gestae) is a startling occurrence

2.

The statements forming a part thereof were made before the declarant had the opportunity to contrive

3.

Statements refer to the occurrence in question and its attending circumstances

»

Only such statements as appear to have been involuntarily wrung from the witness by the impact of the occurrence are admissible

Interval of time between the startling occurrence and the statement depends upon the circumstances

» But statement must have been made while the declarant was under the immediate influence of the startling occurrence

If declarant rendered unconscious after the startling occurrence, his statement relative to thereto upon regaining consciousness still forms part of re gestae regardless of the time that intervened between

People vs. Berame (1976) If the statement was made under the influence of a startling event and the declarant did not have time to concoct or contrive a story, even if made 9 hours after the killing, the statement is admissible as part of res gestae

Statements or outcries as part of res gestae had been admitted to establish the identity of assailant, prove the complicity of another person to the crime, establish admission of liability on part of the accused

Requirements for verbal acts to be admissible:

1.

Res gestae be characterized as equivocal

2.

Such act must be material to the issue

3.

Statements must accompany the equivocal act

4.

Statements give a legal significance to the equivocal act

»

“Verbal act” – used to denote that such statements are the verbal parts of the equivocal act of which such statements are explanatory

Borromeo vs. CA (1976)

Notes taken regarding a transaction by a person who is not a party thereto and who has

not been requested to take down such notes are not part of the res gestae

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

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

Evidence Page 27

incident

Where the elements of both are present, may be admitted as both

Res Gestae

Sec. 42 Part of the Res Gestae Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae

Res gestae: “things done”

- refers to:

1. Spontaneous statements in connection with a startling occurrence relating to that fact and in

effect forming part thereof

2. Statements accompanying an equivocal act (verbal act) on the theory that they are the

verbal parts of the act to be explained

Basis: under external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.

Since this utterance is made during the brief period when considerations of self -interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy

Requisites of the 1 st Type:

1. The principal act (res gestae) is a startling occurrence

2. The statements forming a part thereof were made before the declarant had the opportunity

to contrive

3. Statements refer to the occurrence in question and its attending circumstances

- Only such statements as appear to have been involuntarily wrung from the witness by the

impact of the occurrence are admissible

To be admissible, the statement must:

1.

be spontaneous

2.

be made while the startling occurrence is taking place or immediately prior or subsequent

thereto

3. relate to the circumstances of the startling occurrence

Interval of time between the startling occurrence and the statement depends upon the circumstances

But statement must have been made while the declarant was under the immediate influence of the startling occurrence

If declarant rendered unconscious after the startling occurrence, his statement relative to thereto upon regaining consciousness still forms part of re gestae regardless of the time that intervened between

If the statement was made under the influence of a startling event and the declarant did not have time to concoct or contrive a story, even if made 9 hours after the killing, the statement is admissible as part of res gestae

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

1. establish the identity of assailant 2. prove the complicity of another person to the
1.
establish the identity of assailant
2.
prove the complicity of another person to the crime
3.
establish admission of liability on part of the accused
Res Gestae (re a homicidal act)
Dying Declaration
Statement may also be made by the killer
himself or by a third person
Declaration can only be made by the victim
Statement may precede, accompany, or be
made after the homicidal act was committed
Declaration made only after the homicidal
attack was committed
Has its justification in the spontaneity of the
statement
Trustworthiness is based upon its being given
under the awareness of impending death

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

Evidence Page 28

incident

Where the elements of both are present, may be admitted as both

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

Requisites of the 2

nd

Type Verbal Acts:

1. Res gestae or principal act be characterized as equivocal

2. Such act must be material to the issue

3. Statements must accompany the equivocal act

4. Statements give a legal significance to the equivocal act

Presupposes that there is an act, relevant in some way under the issue, which needs for its full support to be construed together with the words of the actor.

The conduct has intrinsically no definite significance, or only an ambiguous one and its whole legal purport or tenor is to be more precisely ascertained by considering the words accompanying it.

Verbal acts must have been made at the time and NOT after the equivocal act was being performed, unlike spontaneous exclamations which may have been made before, during or immediately subsequent to the startling occurrence.

“Verbal act” – used to denote that such statements are the verbal parts of the equivocal act of which such statements are explanatory

Examples: cases involving statements accompanying

- delivery of money or property

- act of entering a land

- tearing up a document

DELA CRUZ v CA

FACTS

Father Garabato shot to death by de la C ruz. SPO3 Patriarca testified on the spontaneous exclamations he heard from the spectators who witnessed the crime. Per his investigation conducted shortly after the shooting incident, he inquired from several spectators whom he found hovering at the locus criminis, as to who shot the victim and the spontaneous response he got was “Yun hong pulis na nakatira sa tapat.”

The people confided to him the name “Pablo de la Cruz”. It turned out that indeed, the

informants were referring to the house of the accused, who was later determined and identified as the assailant. HELD The statements of the spectators are admissible.

Their statement was part of res gestae. Although the people who gave this information were not presented on the witness stand, this Court still resolved to admit and consider this spontaneous exclamation from the spectators competent as “PART OF RES GESTAE”. ―RES GESTAE‖ refers to those exclamations and statements made by either the participants, the victim(s) or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as

a spontaneous reaction or utterance inspired by excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.

As borne by evidence on record, all the elements of res gestae are sufficiently established, insofar as the aforequoted spontaneous utterance is concerned:

a) the principal act (res gestae) the killing of Fr. Garabato in broad daylight is a startling

occurrence;

b) the statements were made before the declarants had time to contrive or devise that is, within several minutes after the victim was shot; and c) that the statements must concern the occurrence in question and its immediately attending circumstances the identity of the assailant is a material and vital information that concerns

the aforementioned startling occurrence.

PEOPLE v CARIQUEZ

FACT

 

Ethel, 2 ½ years old; Ava her mother;Leezel her stepdad. When Lilia visited Ethel, she was shocked to see Ethel's appearance; her hair was shaven, her face was full of contusions, her neck had faded cigarette burns while her arms and legs had traces of pinching and maltreatment. When Lilia asked the little girl to identify who inflicted the injuries on her body, Ethel tearfully pointed to Ava and Leezel.

Neighbors asked what happened, Ethel replied: "pinaso po ako." When Michelle further asked who burned her and caused her bruises, Ethel said, "Papa ko po," referring to Leezel.

HELD

Ethel’s statements are admissible. The declarations of Lilia and neighbors as to what they observed on ETHEL were not hearsay. They saw her and personally noticed the injuries and telltale marks of torture.

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- While the answer of ETHEL as to who inflicted the injuries may have been, indeed, hearsay because ETHEL could not be confronted on that, yet it was part of the res gestae and,

therefore, an exception to the hearsay rule. - There are three requisites to the admission of evidence as constituting part of the res gestae.

1) that the principal act, the res gestae, be a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) that the statements must concern the occurrence in question and its immediately attending circumstances.

- In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked

who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed between the infliction of the injuries and the disclosure, it must however, be pointed out that there has been no uniformity as to the interval of time that should separate the occurrence of

the startling event from the making of the declarations.

PEOPLE v VELASQUEZ FACTS

Halang ang kaluluwa, mahalay at nakakatakot na lolo!

While his daughter Regail was folding clothes, Aira walked into the room crying. Aira

complained that her grandfather did something to her, which she demonstrated by opening her right leg and moving one of her right fingers toward her vagina.

The trial court based its conviction of accused-appellant for acts of lasciviousness against Aira Velasquez on the testimony of Regail Velasquez, Aira’s mother, who testified on what her daughter had told her. Aira herself was not presented in court,

being a mere child of two and a half years old.

HELD

The testimony of Regail Velasquez is admissible. Aira’s acts and statements constitute exceptions to the hearsay rule because they were part of the res gestae.

Aira’s statements and acts constitute res gestae, as it was made immediately subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity, without prior opportunity to contrive the same. Regail’s account of Aira’s words and, more importantly, Aira’s gestures, constitutes independently relevant statements distinct from hearsay and admissible not as to the veracity

thereof but to the fact that they had been thus uttered.

ABALLE v PEOPLE

It is well to note that even before the taking of the extrajudicial confession, the accused, upon being picked up in the morning of November 8, 1980 as he was coming out of the communal bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing.

- The declaration of an accused expressly acknowledging his guilt of the offenses charged may

be given in evidence against him.

- The rule is that any person, otherwise competent as a witness, who heard the confession, is

competent to testify as to the substance of what he heard if he heard and understood all of it.

An oral confession need not be repeated verbatim, but in such case it must be given in its substance.

PEOPLE v TAMPUS

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

"Surrender po kami, sir. Gumanti lang po kami."

HELD

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

PEOPLE V REYES

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

PEOPLE v TULAGAN

FACTS

Catungal allegedly killed by the accused.

- TC : the testimony of the prosecution witness Natalia Macaraeg is clear that when she asked

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de Guzman, Tulagan and Mendoza what they did to her neighbor who is working with the PNR, accused Vicente de Guzman, while standing side by side with Tulagan and Mendoza told her that they killed atungal, her neighbor, an employee of the PNR.

HELD

The statement of the accused is not admissible as part of the res gestae. There is no evidence

whatsoever that the statement attributed to de Guzman was made by him "immediately

subsequent" to the startling occurrence which the TC obviously had in mind: the slaying of Catungal. Not every statement made on the occasion of a startling occurrence is admissible as part of the res gestae; only such are admissible as appear to have been involuntarily and spontaneously wrung from an observer by the shock or impact of the occurrence such that, as has aptly been said, it is the event speaking through the witness, not the witness speaking of the event.

The startling occurrence must produce so powerful an effect or influence on the observer as to extract from his lips some description of the event practically without being conscious of his utterance. There is no indication in the record that de Guzman was so affected when he made the statement in question under the circumstances related by Macaraeg.

- Indeed, it may reasonably be inferred from Natalia's testimony that he was in nowise

agitated, stunned or shocked but was, on the contrary, calm, composed, in full possession of

his faculties and fully aware of what he was doing and saying.

AIR FRANCE v CARRASCOSO

Purser made an entry in his notebooks reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene."

- Testimony of the entry does not come within the proscription of the best evidence rule. Such testimony is admissible.

- Besides, from a reading of the transcript just quoted, when the dialogue happened, the

impact of the startling occurrence was still fresh and continued to be felt. The excitement had

not as yet died down. Statements then, in this environment, are admissible as part of the res gestae.

- For, they grow "out of the nervous excitement and mental and physical condition of the declarant".

- The utterance of the purser regarding his entry in the notebook was spontaneous, and

related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed.

- It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

BORROMEO v CA

FACTS-

Deed of absolute sale alleged to be eqitable mortgages. Crispina claimed to have been present when the transactions took place. She presented notes and memoranda which, according to her, were her notations allegedly representing the deductions made by the

vendor Aznar for advance interest, attorney's fees and miscellaneous expenses, are corroborative of her testimony that the transactions in controversy were really loans with mortgages.

HELD

We cannot see how the disputed notes and memoranda can be considered in any sense as part of the res gestae as this matter is known in the law of evidence.

- It must be borne in mind, in this connection, that C rispina was not a party to the transaction

in question. The record does not reveal why Crispina was with her father at the time, hence, there can be no basis for holding that she actually took part in the transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party.

- It cannot be said, therefore, that her taking down of her alleged notes, absent any showing

that she was requested or directed by the parties to do so or that the parties, more particularly

the Aznars, who are being sought to be bound by them, knew what she was doing, constitute part of the transaction, the res gestae itself.

- If such alleged taking of notes by Crispina has to be given any legal significance at all, the

most that it can be is that it is one circumstance relevant to the main fact in dispute. It other

words it could be at the most be only circumstantial evidence.

- The trouble however is that the admission of said notes and memoranda suffers from a fatal

defect. No witness other than Crispina has testified as to the veracity of her testimony relative

to her alleged notes and memoranda.

- Not even her husband who, according to her, was present on one of the occasions in issue,

was called to testify. It cannot be denied that C rispina is interested in the outcome of this case.

- In the words of the Court of Appeals itself in its original decision, "her testimony cannot be

considered as absolutely unbiased or impartial", hence "unreliable and insufficient to justify the reformation of the instruments in question." Such being the case, how can the notes and memoranda in dispute and any weight to her testimony, when she herself created them? Surely, they cannot have anymore credibility than her own declarations given under oath in open court.

- The extensive and repeated arguments of the parties relative to the issue of whether or not

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self-serving statements may be admitted in evidence as parts of the res gestae are very interesting and illuminating, but We feel they are rather off tangent. The notes supposedly

prepared by witness Alcantara during the transaction between her father and the Aznars do not partake at all of the nature of hearsay evidence.

- If anything they constitute memoranda contemplated in Section 10 of Rule 132.

- As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not the case here.

- Nowhere in the record is there any indication that Alcantara needed during her testimony the

aid of any memorandum in respect to the matters contained in the notes in dispute.

- Besides, under the above provision, the memorandum used to refresh the memory of the

witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open -court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of C rispina.

DBP POOL v RADIO MINDANAO NETWORK

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion

and there was no opportunity for the declarant to deliberate and to fabricate a false statement.

- The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies with the following requisites:

1. that the principal act, the res gestae, be a startling occurrence

2. the statements were made before the declarant had the time to contrive or devise a

falsehood

3. that the statements must concern the occurrence in question and its immediate attending

circumstances.

- The Court is not convinced to accept the declarations as part of res gestae. While it may

concede that these statements were made by the bystanders during a startling occurrence, it cannot be said however, that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood.

- Both SFO III Rochar and Lt. Col. Torres received the bystanders’ statements while they were

making their investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and

speculations, as is the usual experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances may be mere idle talk is not remote.

- At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were

made may be considered as independently relevant statements gathered in the course of their investigation, and are admissible not as to the veracity thereof but to the fact that they had been thus uttered.

- Furthermore, admissibility of evidence should not be equated with its weight and sufficiency.

Admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade. Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such declarations are sufficient proof. These declarations should be calibrated vis-à-vis the other evidence on record.

MARTURILLAS v PEOPLE

- The fact that the victim’s statement constituted a dying declaration does not preclude it from being admitted as part of the res gestae, if the elements of both are present.

- Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement.

- An important consideration is whether there intervened, between the occurrence and the

statement, any circumstance calculated to divert the mind and thus restore the mental balance

of the declarant; and afford an opportunity for deliberation.

- A declaration is deemed part of the res gestae and admissible in evidence as an exception to

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the hearsay rule, when the following requisites concur:

1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and

3) the statements concerned the occurrence in question and its immediately attending circumstances.

- All these requisites are present in this case. The principal act, the shooting, was a startling

occurrence.

- Immediately after, while he was still under the exciting influence of the startling occurrence,

the victim made the declaration without any prior opportunity to contrive a story implicating petitioner.

- Also, the declaration concerned the one who shot the victim.

- Aside from the victim’s statement, which is part of the res gestae, that of Ernita -- “Kapitan,

ngano nimo gipatay ang akong bana?” (“Captain, why did you shoot my husband?”) -- may be

considered to be in the same category.

- Her statement was about the same startling occurrence; it was uttered spontaneously, right

after the shooting, while she had no opportunity to concoct a story against petitioner; and it

related to the circumstances of the shooting.

CAPILA v PEOPLE FACTS

 

Robbery of P1.3M from Pilipinas Bank. Guard on duty told employee and police that the accused was one of the robbers.

HELD

Part of res geatae.

 

-

Res gestae is a Latin phrase which literally means “things done.” As an exception to the

hearsay rule, it refers to those exclamations and statements by either the participants, victims,

or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no opportunity for the declarant to deliberate and fabricate a false statement.

-

The reason for the rule is human experience. It has been shown that under certain external

circumstances of physical or mental shock, the state of nervous excitement which occurs in a spectator may produce a spontaneous and sincere response to the actual sensations and perceptions produced by the external shock. As the statements or utterances are made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, such statements or utterances may be taken as expressing the real belief of the speaker as to

the facts he just observed. The spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the declarant rather than the declarant speaking for himself.

-

For the admission of the res gestae in evidence, the following requisites must be met:

1) that the principal act or the res gestae be a startling occurrence; 2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately or subsequent thereto; and 3) the statement made must concern the occurrence in question and its immediately attending circumstances.

Entries in the Course of Business

Section 43 ENTRIES IN THE COURSE OF BUSINESS

Entries made at, or near the time of the transactions to which they refer, by a person

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

Requisites:

 

1. The person who made the entry must be dead or unable to testify

2. The entries were made at or near the time of the transaction to which they refer

3. The entrant was in a position to know the facts stated in the entries

4. The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious

5. The entries were made in the ordinary or regular course of business or duty

Basis

- admissible on the ground that they were made in the due course of business as part of the

res gestae; and this is deemed to afford sufficient probability that the facts are as stated in the memorandum.

- based on necessity; they are the best available evidence

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- A learned judge: “what a man has actually done and committed to writing under obligation to do the act, it being in the course of business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.”

Terms “business” and “record” must be construed in the broadest sense.

Business activity: can encompass schools, churches, hospitals, and every kind of business, profession, occupation, and institution, WON carried on for profit.

Based on the American counterpart provision: “record” may be any form of memorandum, report, record or data compilation, including electronic computer storage.

Language and form of entry are of no importance provided that the words are fairly intelligible and distinctly communicate the facts which is sought to be proved.

Declaration or entry may be in a public or a private writing or a book.

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

If the entrant is available as a witness, the said entries will not be admitted as an exception to

the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein

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

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

A witness may be allowed to refresh his memory respecting a fact, by anything written or

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

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

1 st

sentence: rule on “Revival of Present Memory”

- applies if the witness remembers the facts regarding his entries and is entitled to greater weight.

2 nd

sentence: rule on “Revival of Past Recollection”

- applies where the witness does not recall the facts involved and is entitled to lesser weight.

Memorandum use to refresh the memory of the witness does not constitute evidence. And may not be admitted as such for the simple reason that the witness has just the same to testify on the basis of refreshed memory.

Cang Yui vs. Gardner (34 Phil 376) If the entrant is available as a witness, the said entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein

Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122):

In the presentation and admission as evidence of entries made in the regular course of business, there is no overriding necessity to bring into court all the clerks or employees who individually made the entries in a long account. It is sufficient that the person who supervises the work of the clerks or other employees making the entries testify that the account was prepared under his supervision and that the entries were regularly entered in the ordinary course of business.

CANQUE v CA (1999)

FACTS

RDC had construction contracts with the govt. it hired SOCOR as subcontractor. RDC refused to pay SOCOR the amount claimed, alleging that the latter failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the

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

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

1. The person who made the entry must be dead, outside the country or unable to testify;

2. The entries were made at or near the time of the transactions to which they refer;

3. The entrant was in a position to know the facts stated in the entries;

4. The entries were made in his professional capacity or in the performance of a duty, whether

legal, contractual, moral or religious; and

5. The entries were made in the ordinary or regular course of business or duty.

Basis of Admissibility

- Necessity is given as a ground for admitting entries, in that they are the best available evidence.

- The person who may be called to court to testify on these entries being dead, there arises the

necessity of their admission without the one who made them being called to court be sworn and subjected to cross-examination. And this is permissible in order to prevent a failure of justice. “What a man has actually done and committed to writing when under obligation to do the act,

it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the court.”

- The business entries in question do not meet the first and third requisites.

As to the 1 st Requisite

- Bookkeeper presented in court. There was, therefore, neither justification nor necessity for

the presentation of the entries as the person who made them was available to testify in court. As to the 3 rd Requisite

- Bookkeeper admitted that she had no personal knowledge of the facts constituting the entry.

She said she made the entries based on the bills given to her. But she has no knowledge of the

truth or falsity of the facts stated in the bills.

- The deliveries of the materials stated in the bills were supervised by “an engineer for such

functions.” The person, therefore, who has personal knowledge of the facts stated in the entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the

company’s project engineer.

- Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts

and on the dates indicated was a fact that could be established by the project engineer alone

who, however, was not presented during trial.

AZNAR V CITIBANK (2007) FACTS

Aznar filed suit for damages vs Citibank, claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard. To prove his claim, he presented “Exh. G” a computer print-out [On-Line Authorizations Foreign Account Activity Report] issued to

him by Ingtan Agency w/ the signature of one Nubi which shows that his card in question was declared over the limit.

To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Dept Head Flores, presented Warning Cancellation Bulletins which contained the list of its canceled

cards covering the period of Aznar’s trip.

HELD

Citibank not liable. Aznar puts much weight on computer print-out handed to him by Ingtan Agency, to prove that his Mastercard was dishonored for being blacklisted. But such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by petitioner. -R132.20 provides that whenever a private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. This was not complied with. -Even if examined under the Rules on Electronic Evidence, the authentication of Exh. G would

still be found wanting. Aznar failed to demonstrate how the information reflected on the print - out was generated and how the said information could be relied upon as true. The computer print out is not admissible as entries in the course of business.

Under Rule 130.43, the following conditions are required: [SBTC v Gan, 2006]

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether

legal, contractual, moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.

-It is not clear if it was Nubi who encoded the information and printed the document. The handwritten annotation “Sorry for the delay since the records had to be retrieved. Regards.

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

LLEMOS v LLEMOS (2007)

FACTS Deed of Sale allegedly fraudulently executed because vendor was already dead at the

time of sale.

HELD The certificate of death issued by the church is not admissible under the rule on entries in the course of business or entries in official record.

Respondents rely principally on the Certificate of Death issued by Rev. Fr. Natividad, attesting that “Salvatin Salvatin”, widow of Andres Llemos died on the 12th day of March 1938 and was buried in the Roman Catholic Cemetery of the parish of St. John Metropolitan Cathedral, Dagupan City. The Certificate further attests that it is a true copy of the original records as it appears in the Register of Dead of said Parish, Book No. 20, Folio No. 91.

Inadmissible Under Rule on Entries in Official Records

- It is well-settled that Church registries of births, marriages, and deaths made subsequent to

the promulgation of General Orders No. 68 and the passage of Act No. 190 are no longer public

writings, nor are they kept by duly authorized public officials.

- They are private writings and their authenticity must therefore be proved as are all other

private writings in accordance with the rules of evidence.

- Respondents failed to establish the due execution and authenticity of the Certificate of Death

in accordance with Section 20, Rule 132 of the Rules of Court: Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved

either:

a) By anyone who saw the document executed or written; or

b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be.

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

Inadmissible Under the Rule on Entries in the Course of Official Business

- Respondents did not submit as evidence the Register of Dead, Book No. 20 of St. John

Metropolitan Cathedral and they failed to comply with the provisions of Section 5, Rule 130,

when original document is

- None of the exceptions are attendant in the present case

- The Register of Dead is in the custody of St. John Metropolitan Cathedral but respondents

failed to show that it presented the Certificate of Death because the Register of Dead cannot be produced in court.

- There is no showing that the Register of Dead consists of numerous documents which cannot

be examined in court without great loss of time and the fact sought to be established from it is

only the general result of the whole.

- Further, respondents failed to present an authentic document that recites the contents of the Register of Dead.

- As earlier held, the Certificate of Death is a private document and not a public document; and respondents failed to prove its authenticity by their failure to present any witness to testify on the due execution and genuineness of the signature of Fr. Natividad, pursuant to Section 20,

Rule 132.

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

Distributorship agreement between Nestle and FY. FY filed a complaint for damages against petitioner, alleging that petitioner breached the distributorship agreement by committing various acts of bad faith wrote petitioner to complain about the latter’s

breaches of their agreement and the various acts of bad faith committed by Nestle against FY.

In turn, Nestle interposed a counterclaim for the balance of respondent’s overdue accounts. It presented its Credit and Collection Mgr Rayos, who prepared the statement of account on the basis of the invoices and delivery orders corresponding to the alleged overdue accounts of respondent.

HELD The testimony of Rayos is not admissible. Rule 130. 43 does not apply to this case because it does not involve entries made in the course of business.

- Rayos testified on a statement of account she prepared on the basis of invoices and delivery

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orders which she, however, knew nothing about. She had no personal knowledge of the facts on which the accounts were based since, admittedly, she was not involved in the delivery of goods and was merely in charge of the records and documents of all accounts receivable as part of her duties as credit and collection manager.

- She thus knew nothing of the truth or falsity of the facts stated in the invoices and delivery

orders, i.e., whether such deliveries were in fact made in the amounts and on the dates stated,

or whether they were actually received by respondent.

- She was not even the credit and collection manager during the period the agreement was in

effect.This can only mean that she merely obtained these documents from another without any

personal knowledge of their contents.

- The foregoing shows that Rayos was incompetent to testify on whether or not the invoices

and delivery orders turned over to her correctly reflected the details of the deliveries made. Thus, the CA correctly disregarded her testimony.

- Furthermore, the invoices and delivery orders presented by petitioner were self-serving.

Having generated these documents, petitioner could have easily fabricated them. Petitioner’s failure to present any competent witness to identify the signatures and other information in

those invoices and delivery orders cast doubt on their veracity.

SECURITY BANK v GAN (2006) FACTS

Gan opened a current account with petitioner. Petitioner, thru its branch mngr, alleged that it had a special arrangement with Gan, wherein the latter was allowed to transfer funds from his account to another person’s account also within the same branch.

Gan purportedly incurred an overdraft or negative balance in his account. As Gan

allegedly refused to heed petitioner’s demand for payment, the latter filed a complaint for sum of money. Gan denied liability to petitioner and alleged overdraft resulted from transactions done without his knowledge and consent.

Petitioner presented Mercado who was the bookkeeper who handled the account of respondent and recorded his transactions in a ledger. Based on this ledger, Gan had a negative balance which resulted from transfers of funds from his current account to another person’s account. These transfers were made under the authority of the branch mngr.

HELD

The ledger cards and the testimony of Mr. Patricio Mercado are inadmissible. The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that Gan consented to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Admittedly, Mercado had no personal knowledge of this arrangement. In fact, when asked about the details of the alleged consent given by respondent to the transfers, he stated that he could not remember because respondent talked to Qui and not to him. Petitioner could have presented Qui whom they alleged allowed the special arrangement with respondent. But it did not. Neither can we accept petitioner’s argument that the entries made by Mercado in the ledger were competent evidence to prove how and when the negative balance was

incurred. Petitioner invokes Section 43 of Rule 130 - Entries in the course of business.

- Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether

legal, contractual, moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.[15]

- The ledger entries did not meet the first and third requisites.

On the 1 st Requisite

- Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the

transactions pertaining to the account of respondent. It was in the course of his testimony that

the ledger entries were presented. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. On the 3 rd Requisite

- Mercado had no personal knowledge of the facts constituting the entries, particularly those

entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries.

- CA: there is no question that the entries in the ledgers were made by one whose duty it was

to record transactions in the ordinary or regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule interposes a very important condition,

one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that the entrant must be “in a position to know the facts therein stated.” Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals. But the transfers of funds through the debit memos in question?

Debit Memos

- They are, at bottom, credit accommodations said to have been granted by the bank’s branch

Evidence Page 37

manager Mr. Qui to the defendant, and they are, therefore loans, to prove which competent testimonial or documentary evidence must be presented.

- In the face of the denial by the defendant of the existence of any such agreement, and the

absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. Qui, or of any witness to the same, would be necessary.

- The plaintiff failed to explain why it did not or could not present any party or witness to the

transactions, but even if it had a reason why it could not, it is clear that the existence of the agreements cannot be established through the testimony of Mr. Mercado, for he was not in a position to know those facts.

- As a subordinate, he could not have done more than record what was reported to him by his

superior the branch manager, and unless he was allowed to be privy to the latter’s dealings

with the defendant, the information that he received and entered in the ledgers was incapable of being confirmed by him.

- There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business

records which spring from the duty of other employees to communicate facts occurring in the ordinary course of business are prima facie admissible, the duty to communicate being itself a badge of trustworthiness of the entries, but not when they purport to record what were independent agreements arrived at by some bank officials and a client.

- In this case, the entries become mere casual or voluntary reports of the official concerned. To permit the ledgers, prepared by the bank at its own instance, to substitute the contract as

proof of the agreements with third parties, is to set a dangerous precedent.

- Business entries are allowed as an exception to the hearsay rule only under certain conditions specified in Section 43, which must be scrupulously observed to prevent them from being used as a source of undue advantage for the party preparing them.

Rule 132, Section 16 WHEN WITNESS MAY REFER TO MEMORANDUM A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution.

Yek Tong Fire & Marine Insurance Co., Inc. vs. Gutierrez, et al (CA, 59 OG 8122)

In the presentation and admission as evidence of entries made in the regular course of business, there is no overriding necessity to bring into court all the clerks or employees

who individually made the entries in a long account. It is sufficient that the person who supervises the work of the clerks or other employees making the entries testify that the account was prepared under his supervision and that the entries were regularly entered in the ordinary course of business

Entries in Official Records

Section 44 ENTRIES IN OFFICIAL RECORDS

Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated

Merely prima facie evidence of the facts therein stated

Requisites:

1.

Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law

2.