Evidence Case Digests - Hearsay

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People vs. Cerilla

The dying declaration was of the victim was applied in this case as sufficient to prove the criminal liability of the accused Cerilla.

At around 6:00 pm on 24 April 1998, the victim, Alexander Parreño (Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of Cerilla. They were cordially welcomed and entertained by Cerilla and his wife. An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged. On their way home, Michelle was walking ahead of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 meters from Cerilla’s house, Michelle heard an explosion. Michelle immediately turned her back and saw Cerilla pointing a gun at Alexander who, at that moment, was staggering towards her. Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreño. Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was Cerilla who shot him. Twenty minutes later, Alexander’s other daughter arrived. She was also told by Alexander at that moment that it was Cerilla who shot him. Police officers rushed to the crime scene and helped carry Alexander to an ambulance. A police officer was able to ask Alexander who shot him to which he answered "Pato." "Pato" is an alias by which Cerilla is known. Alexander’s wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him. Alexander died the following day.

Ariate vs. People

The dying declaration was of the victim was not applied in this case since it lacked the third requisite re: that the declarant would have been competent to testify as the victim was not shown to have the opportunity to see the assailants.

Petitioners Jesus Geraldo and Amado Ariate were charged with homicide for the death of Arthur Ronquillo. At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel, among other persons, on being informed of the shooting of Ronquillo, repaired to where he was, not far from his residence, and found him lying on his side and wounded. Although gasping for breath, he was able to utter to Mirasol, within the hearing distance of Arnel that he was shot by Badjing and Amado. Petitioners who were suspected to be the "Badjing" and "Amado" responsible for the shooting of the victim were subjected to paraffin tests which yielded negative results. In a document dated July 1, 2002, the victim's son Arnel gave a statement in a question and answer style that herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father.

A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death. NOTE: Requisites for a dying declaration to be admissible – (1) The declaration must concern the cause and surrounding circumstances of the declarant's death. This refers not only to the facts of the assault itself, but also to matters both before and after the assault having a direct causal connection with it. (2) At the time the declaration was made, the declarant must be under the consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders the dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. (3) The declarant is competent as a witness. The rule is that where the declarant would not have been a competent witness had he survived, the proffered declarations will not be admissible. (4) The declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim. Anent this requisite, the same deserves no further elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court on the substance of Alexander’s ante mortem statement in the present criminal case for murder. The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. The statements of victim complied with all the requisites of a dying declaration. First, Alexander’s declaration pertains to the identity of the person who shot him. Second, the fatal quality and extent of the injuries he suffered underscore the imminence of his death as his condition was so serious that his demise occurred the following morning after a thirteen (13)hour operation. Third, he would have been competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder where he was the victim. The fact that the crime was committed during a blackout does not cast doubt on Alexander’s and Michelle’s positive identification of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range. The positive identification of appellant must necessarily prevail over his alibi. It was not physically impossible for appellant to have been present at the scene of the crime at the time of its commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150 meters, more or less. A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarant's death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant's death. There is no dispute that the victim's utterance to his children related to the identities of his assailants. As for the victim's consciousness of impending death, it is not necessary to prove that he stated that he was at the brink of death; it suffices that, judging from the nature and extent of his injuries, the seriousness of his condition was so apparent to him that it may safely be inferred that such ante mortem declaration was made under consciousness of an impending death. The location of the victim's two gunshot wounds, his gasping for breath, and his eventual death before arriving at the hospital meet this requirement. It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front, the post-mortem 1

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People vs. De Joya

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The dying declaration was of the victim was not applied in this case since the purported dying declaration was incomplete and it did not correspond to the question asked.

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In another document dated July 4, 2002, Mirasol also gave a statement in a question and answer style that her father uttered that herein petitioners shot him. At the witness stand, Mirasol echoed her father's declaration that "Badjing" and "Amado" shot him. Arnel substantially corroborated Mirasol's statement.

examination report having merely stated that the points of entry of the wounds were at the "right lumbar area" and the "right iliac area." At all events, even if the victim's dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance. However, it is the prosecution, not petitioners, which had the burden of proving that petitioners were, at the material time, the only ones in the barangay who bore such nicknames or aliases. This, the prosecution failed to discharge. When there is doubt on the identity of the malefactors, motive is essential for their conviction. The Court notes that in their affidavits supporting the criminal complaint, the victim's wife and children Mirasol and Arnel proffered not knowing any possible motive for petitioners to shoot the victim. At the trial, no evidence of any motive was presented by the prosecution. Petitioners' defense of denial and alibi thus assumes importance. It must be noted that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. The statement as offered must not be merely a part of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia. The quarrel over the use of the bicycle which was supposed to have taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a person to slay another in such a violent and gory manner. The testimony of Herminia about the single slipper that she found near or under the cabinet in the living room where Eulalia was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife.

Respondent was charged with the crime of robbery with homicide to which the respondent pleaded not guilty. After trial, the court a quo rendered a decision convicting De Joya of the crime charged. The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten year old son Alvin and Herminia’ 88-year old mother, Eulalia, are residents of Baliuag, Bulacan. In the afternoon of January 31, 1978, Herminia left for school to teach. Her mother Eulalia was then sitting at their sofa watching the television set. Her son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and he proceeded home. At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria looked back to the direction of the Valencia's house. She noticed respondent standing and holding a bicycle at the yard of the Valencia's. When Alvin reached home, he saw his grandmother Eulalia lying down prostrate and drenched with her own blood. He immediately threw his bag and ran towards her. He then held her hands and asked her what happened, to which Eulalia answered “Si Paqui”. After saying these words, she let go of Alvin's hand and passed away. Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia. The said doctor declared that said Eulalia had a heart attack which caused her death. When asked by Herminia Valencia why her mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr. Tolentino did not issue one and instead immediately left. Herminia found out that the two gold rings worn by her mother were missing. The right earring of her mother was likewise missing. All of these were valued at P300. That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed. On the same night, Herminia found a beach walk step-in by the side of the cabinet near the door of their room downstairs, more or less one meter from where the victim was lying prostrate. Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for her husband Arnedo but which she gave to Socorro De Joya, the wife of the respondent.

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Fuentes vs. CA

The declaration made by Zolio was not given credence as an exception to the hearsay rule under declaration against interest because the socalled declarant was not shown to be dead or unable to testify.

Petitioner Fuentes seeks the reversal of the decision of the CA affirming his conviction for murder. At four o'clock in the morning of 24 June 1989, Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short hair." Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Fuentes stabbed him. Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24 June 1989 while he was in a store in the barangay.

People vs. Bernal

The deceased’s declaration to another person that he was having an affair with the wife of the accused was admitted in

Respondent, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Davao city. A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses. On the other hand, Theodore Bernal testified for his defense.

RULING The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance that would show that appellant had perpetrated the slaying or the robbery. Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day wake, does not give rise to any inference that appellant was the slayer of Eulalia. Appellant had explained that he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the afternoon Eulalia was killed and had viewed the body (before it was lying in state) along with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt. One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. There are three essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence. The Court noted, however, that no less than petitioner's own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie" Fuentes are one and the same person. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accusedappellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo. But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as shown by their concerted acts evidentiary of a unity of thought and community of purpose." Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only. The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr. Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.: The declaration made by a person deceased, or unable to testify, against the interest of the 3

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Parel vs. Prudencio

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evidence since it complied with all the requisites for a declaration against interest to be considered as an exception to the hearsay rule.

On August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them. After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat." When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him "not to run because they were policemen" and because he had an "atraso" or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latter's mother of the abduction. The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernal's wife and this was the motive behind the former's kidnapping. Until now, Openda, Jr. is still missing. On the other hand, the defense asserts that Openda Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped. A certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernal's wife were having an affair. Undoubtedly, his wife's infidelity was ample reason for Bernal to contemplate revenge. On February 27, 1992, respondent filed a complaint for recovery of possession and damages against petitioner with the RTC alleging that he is the owner of a two-storey residential house located at No. 61 Forbes Park National Reservation near DPS compound in Baguio City. Such property was constructed solely from his own funds and declared in his name under Tax Declaration No. 47048. He commenced the construction of said house in 1972 until its completion three years later. When the second floor of said house became habitable in 1973, he allowed petitioner’s parents to move therein and occupy the second floor while the construction of the ground floor was on-going to supervise the construction and to safeguard the materials. When the construction of the second floor was finished in 1975, respondent allowed petitioner’s parents and children to transfer and temporarily reside thereat; it was done out of sheer magnanimity as petitioner’s parents have no house of their own and since respondent’s wife is the older sister of Florentino, petitioner’s father. In November 1985, respondent wrote petitioner’s father a notice for them to vacate the said house as the former was due for retirement and he needed the place to which petitioner’s parents heeded when they migrated to U.S. in 1986. However, without respondent’s knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of respondent’s house. Petitioner’s refusal to vacate the house despite repeated demands prompted respondent to file the instant action for recovery of possession. Petitioner filed his Answer with Counterclaim alleging that his parents are the co-owners of the said residential house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioner’s parents. In deciding in favor of the petitioner, RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the property all in respondent’s name since tax declarations are not conclusive proof of ownership. It rejected the

declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true. Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment.

The declaration made by the petitioner’s father to the effect that he is the occupant of the residential building and not the owner of such building, was admitted and considered as a declaration against interest (against the heir, who is the petitioner in this case) as an exception to the hearsay rule.

We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of possession of the ground floor of the subject house as the exclusive owner thereof. The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest. The affiant, Florentino, who died in 1989 was petitioner’s father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his children’s interests as his heirs. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. Notably, during Florentino’s lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latter’s will and held that the remedy of respondent was to file an action for ejectment; and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground that respondent’s action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court. Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioner’s cross-examination that the existing structure of the two-storey house was in accordance with said building plan. Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name since 1974. In fact, petitioner during his cross-examination admitted that there was no occasion that they paid the real estate taxes nor declared any portion of the house in their name. In this case, the records show that although petitioner’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same. Thus, the CA did not consider the documentary evidence presented by petitioner. 4

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Tison vs. CA

The declaration made by Teodora Domingo to the effect that the petitioners are her niece and nephew was admitted in evidence despite the absence of any independent evidence of pedigree or relationship. This involves the first scenario of an act or declaration about pedigree wherein the claim is directed against the declarant, in this case against her estate.

Mendoza vs. CA

The act or declaration (about pedigree) made by the mother and brother of the alleged father of Teopista Toring to a certain Isaac Mendoza, who was the nephew of the alleged

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affidavit executed by Florentino declaring the house as owned by respondent saying that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement addressed to the late Florentino by the City Treasurer concerning the property’s tax assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for being hearsay.

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party. Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials to be used; and as a young boy he would follow-up some deliveries upon order of his father and never saw respondent in the construction site. The fact that not one of the witnesses saw respondent during the construction of the said house does not establish that petitioner’s father and respondent co-owned the house. There is no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. And well settled is the rule that the issue of legitimacy cannot be attacked collaterally. The issue as to whether petitioners are the legitimate children of Teodora Guerrero’s father cannot be properly controverted in the present action for reconveyance. This is aside, of course, from the further consideration that private respondent is not the proper party to impugn the legitimacy of herein petitioners. The presumption consequently continues to operate in favor of petitioners unless and until it is rebutted. The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon. The general rule is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family. The declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid a failure of justice.

Petitioners filed an action for reconveyance against the private respondent Teodora Domingo for the parcel of land with a house an apartment located in Quezon City. The properties were originally owned by the spouses Martin and Teodora Guerrero. Petitioners claim to be the niece and nephew of Teodora Guerrero who died leaving only Martin and the petitioners as the heirs. Upon the death of his wife, Martin Guerrero then executed an Affidavit of Extrajudicial Settlement adjudicating unto him, allegedly as the sole heir, the land in dispute. Subsequently, a TCT was issued to Martin, which he used in selling the property to respondent Domingo. Respondent Domingo thereafter acquired a TCT in her name. The petitioners claim that they are entitled to inherit ½ of the property by right of representation. Petitioner Corazon Dezoller Tison was presented as the lone witness, with the following documentary evidence offered to prove petitioners' filiation to their father and their aunt, to wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates of destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin and Teodora Guerrero. Private respondent filed a Demurrer to Plaintiff's Evidence on the ground that petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance with Article 172 of the Family Code. It is further averred that the testimony of petitioner Corazon Dezoller Tison regarding her relationship with her alleged father and aunt is self-serving, uncorroborated and incompetent, and that it falls short of the quantum of proof required. The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring Tufiacao, the herein private respondent, alleged that she was born on August 20, 1930, to Brigida Toring, who was then single, and defendant Casimiro Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a recognized illegitimate child. Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and set up a counterclaim for damages and attorney's fees. Two witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both relatives of Casimiro.

An illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. The Court noted that it was only Isaac Mendoza who testified on this question of pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter. Such acts or declarations may be received in evidence as an exception to the hearsay rule. Nevertheless, there are certain safeguards against its abuse. The following requisites have to be 5

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Solinap vs. Locsin, Jr.

DOCTRINE

FACTS

RULING

father, was admitted in evidence as it complied with the needed requisites.

Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted as a gobetween for their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro frequently handed him money to be given to Brigida. Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various amounts to be delivered to Teopista. Isaac also declared that Casimiro intended to give certain properties to Teopista.

As a general rule, entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. However, in the case at bar, the certificate, which issued by the Local Civil Registrar, presented by the respondent bore irregularities and differences from the certificate, which was acquired from the Civil Registrar General, presented by the petitioners. The glaring discrepancies between the two Certificates of Live Birth have overturned the genuineness of the certificated entered in the

Eleven months after Juan "Jhonny" Locsin, Sr. died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed with the RTC a Petition for Letters of Administration praying that he be appointed Administrator of the Intestate Estate of the deceased. He alleged, among others, (a) that he is an acknowledged natural child of the late Juan C. Locsin; (b) that during his lifetime, the deceased owned personal properties which include undetermined savings, current and time deposits with various banks, and 1/6 portion of the undivided mass of real properties owned by him and his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c) that he is the only surviving legal heir of the decedent. Before the hearing scheduled by the RTC, the heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed an opposition to respondent's petition for letters of administration. They averred that respondent is not a child or an acknowledged natural child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name. Another opposition to the petition was filed by Lucy Salinop (sole heir of the late Maria Locsin Vda. De Araneta, sister of the deceased), Manuel Locsin and the successors of the late Lourdes C. Locsin alleging that respondent's claim as a natural child is barred by prescription or the statute of limitations. To support his claim that he is an acknowledged natural child of the deceased, respondent submitted a machine copy of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Clerk Registrar of Iloilo City. It contains the information that respondent's father is Juan C. Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by his signatures. To prove the existence and authenticity of the document, respondent presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City, who produced and identified in court the bound volume of 1957 records of birth where the alleged original of Certificate of Live Birth No. 477 is included. Respondent also offered in evidence a photograph showing him and his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead body. The photograph, respondent claims, shows that he and his mother have been recognized as family members of the deceased. In their oppositions, petitioners claimed that Certificate of Live Birth No. 477 is spurious. They submitted a certified true copy of Certificate

complied with before the act or declaration regarding pedigree may be admitted in evidence: (1) the declarant is dead or unable to testify; (2) the pedigree must be in issue; (3) the declarant must be a relative of the person whose pedigree is in issue; (4) the declaration must be made before the controversy arose; and (5) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs. The records of births from all cities and municipalities in the Philippines are officially and regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil Registrars. Since the records of births cover several decades and come from all parts of the country, to merely access them in the Civil Registry General requires expertise. To locate one single birth record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely that any of these employees in Metro Manila would have reason to falsify a particular 1957 birth record originating from the Local Civil Registry of Iloilo City. With respect to Local Civil Registries, access thereto by interested parties is obviously easier. Thus, in proving the authenticity of the certificate presented by the respondent, more convincing evidence than those considered by the trial court should have been presented. The trial court held that the doubts respecting the genuine nature of certificate presented by the respondent are dispelled by the testimony of Rosita Vencer, Local Civil Registrar of Iloilo City. However, it was shown that Vencer's knowledge of respondent's birth record allegedly made and entered in the Local Civil Registry in January 1957 was based merely on her general impressions of the existing records in that Office. When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary from those appearing in the copy transmitted to the Civil Registry General, pursuant to the Civil Registry Law, the variance has to be clarified in more persuasive and rational manner. In this regard, the Court found Vencer's explanation not convincing. Further, it is logical to assume that the 1956 forms would continue to be used several years thereafter. But for a 1958 form to be used in 1957 is unlikely. There are other indications of irregularity relative to the certificate presented by the respondent:  The back cover of the 1957 bound volume in the Local Civil Registry of Iloilo is torn. The assailed certificate is merely pasted with the bound volume, not sewn like the other entries.  The documents bound into one volume are original copies. The assailed certificate is a carbon copy of the alleged original and sticks out like a sore thumb because the entries therein are typewritten, while the records of all other certificates are handwritten.  Unlike the contents of those other certificates, the assailed certificate does not indicate important particulars, such as the alleged father's religion, race, occupation, address and business.  The space which calls for an entry of the legitimacy of the child is blank. On the back, there is a purported signature of the alleged father, but the blanks calling for the date and other details of his Residence Certificate were not filled up. It bears stressing that Section 44, Rule 130 of the Rules of Court provides that: Entries in official records made in the performance of his duty by a public officer of the Philippine, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. 6

TITLE

Jison vs. CA

DOCTRINE

FACTS

RULING

Local Civil Registry; thus, the certificate presented by the respondent was held inadmissible and insufficient to prove filiation to the deceased.

of Live Birth No. 477 found in the Civil Registrar General, Metro Manila, indicating that the birth of respondent was reported by his mother, Amparo Escamilla and that the same does not contain the signature of the late Juan C. Locsin. They observed as anomalous the fact that while respondent was born on October 22, 1956 and his birth was recorded on January 30, 1957, the certificate presented by the respondent was recorded on a December 1, 1958 revised form. On the other hand, the certificate presented by the petitioners appears on a July, 1956 form, which was already used before respondent's birth. This scenario dearly suggests that the certificate presented by the respondent was falsified. Petitioners presented as witness a handwriting expert who testified that the signatures of Juan C. Locsin and Emilio G. Tomesa, then Civil Registrar of Iloilo City, appearing in the respondent’s certifcate are forgeries. He thus concluded that the said Certificate is a spurious document surreptitiously inserted into the bound volume of birth records of the Local Civil Registrar of Iloilo City. The trial court rendered a decision, which was affirmed by the CA on appeal, holding that the certificate and photograph are sufficient proofs of respondent’s illegitimate filiation with the deceased. In her complaint filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar, who was then employed as the nanny of FRANCISCO's daughter. As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo. MONINA claimed that since childhood, she had enjoyed the continuous and implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO gave her support and spent for her education, such that she obtained a Master's degree, became a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial declaration of her illegitimate status and that FRANCISCO support and treat her as such. In his answer, FRANCISCO alleged that he could not have had sexual relations with Esperanza Amolar during the period specified in the complaint as she had ceased to be in his employ as early as 1944, and did not know of her whereabouts since then. Further, he never recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint. At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. These witnesses explained individual circumstances, which induced them to believe that MONINA was Francisco’s daughter. On 21 October 1986, MONINA herself took the witness stand. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar and baptismal certificates, she was born on 6 August 1946 to Esperanza Amolar and FRANCISCO. MONINA first studied at Sagrado

In this case, the glaring discrepancies between the two Certificates of Live Birth (the one presented by the respondent from the Local Civil Registrar and the one presented by the petitioners from the Civil Registrar General) have overturned the genuineness of the certificated entered in the Local Civil Registry. What is authentic is the certificate recorded in the Civil Registry General. Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation

The letters and notes written by the relatives of the alleged father, acknowledging the illegitimate status of the respondent, does not fall under the second scenario contemplated under acts or declaration about pedigree as independent evidence of pedigree as to the relationship between the declarant and the person against whom the claim is directed was not presented. It also does not fall within the purview of the second type of family reputation or tradition regarding pedigree as the letters is not

The testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: (1) FRANCISCO is MONINA's father and she was conceived at the time when her mother was in the employ of the former; (2) FRANCISCO recognized MONINA as his child through his overt acts and conduct; and (3) Such recognition has been consistently shown and manifested throughout the years publicly, 35spontaneously, continuously and in an uninterrupted manner. MONINA's reliance on the certification issued by the Local Civil Registrar concerning her birth is clearly misplaced. It is settled that a certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person. Simply put, if the alleged father did not intervene in the birth certificate, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latter's part. In like manner, FRANCISCO's lack of participation in the preparation of the baptismal certificates and school records renders these documents incompetent to prove paternity. However, despite the inadmissibility of the school records per se to prove the paternity, they may be admitted as part of MONINA's testimony to corroborate her claim that FRANCISCO spent for her education. The certificates issued by the Local Civil Registrar and the baptismal certificates may not be taken as circumstantial evidence to prove MONINA's filiation. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. As to the various notes and letters written by FRANCISCO's relatives, allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in issue, as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarantsauthors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question. Rule 130, Section 40, provides: 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 7

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DOCTRINE

FACTS

RULING

similar to family possessions such as family bibles, family books, engravings, etc.

where she stayed as a boarder. While at Sagrado, from 1952 until 1955 (up to Grade 4), FRANCISCO paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give the money to her mother, or Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools, but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two semesters at University of San Agustin, she transferred to De Paul College and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974 and took up an M.B.A. at De La Salle University as evidenced by her transcript, wherein FRANCISCO was likewise listed as “Guardian”. In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the RTC. As additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iñigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Esperanza’s employment ceased as of October, 1944, and that while employed by him, Esperanza would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three female workers and two (2) male workers. After Esperanza left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Esperanza and disavowed any knowledge about MONINA’s birth. In the same vein, he denied having paid for MONINA’s tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter. The trial court ruled against Monina but the Court of Appeals reversed the trial court’s decision. Plaintiffs Rafael and Maria Angelina Ferrer filed a complaint praying for a declaration that Rosa Matilde Viademonte, mother of the plaintiffs herein, had the right to succeed to the inheritance left by Isabel Gonzales in the same proportion and capacity as the other four children of the latter namely, Ramon, Rafael, Joaquin, and Clotilde. The plaintiffs allege that they are the only legitimate heirs of Rosa Viademonte and are entitled to receive the latter’s share, that is, one-fifth of the estate left by Isabel Gonzales.

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. It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. The scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. These have been described as objects "openly exhibited and well known to the family," or those "which, if preserved in a family, may be regarded as giving a family tradition." Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates. Clearly, the various notes and letters written by FRANCISCO’s relatives, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation. Section 41, Rule 130 of the Rules of Court provides that “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 reputations.” The weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in the family, and not the common reputation in community, that is a material element of evidence going to establish pedigree. Thus, matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community. However, their inadmissibility notwithstanding, such letters and notes, may properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter. As to FRANCISCO's other witnesses, the testimonies of the witnesses are considered insufficient to overcome MONINA's evidence. It merely consist of denials, which being in the form of negative testimony, necessarily stand infirm as against positive testimony. All told, MONINA's evidence hurdled "the high standard of proof" required for the success of an action to establish one's illegitimate filiation when relying upon the provisions regarding "open and continuous possession'' or "any other means allowed by the Rules of Court and special laws;" moreover, MONINA proved her filiation by more than mere preponderance of evidence.

Further, it also cannot form part of common reputation. Matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community.

Ferrer vs. de Inchausti

The testimony of Joaquin de Inchausti, referring to the statement made by his half-brother Ramon Martinez de Viademonte, to

Evidence adduced at the trial to prove the origin of the cause of action shows, in a manner which leaves no room for doubt, that Rosa was not a legitimate daughter of Isabel Gonzales and it follows that her children have no right to a part of the hereditary property of Isabel Gonzales. On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in the evening a children three days old named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was baptized by the priest Don Remegio Rodriguez with the authority of 8

TITLE

In Re Mallari

DOCTRINE

FACTS

RULING

the effect that Rosa Matilde (mother of the platintiff) is the same Rosa Matilde Robles, thereby rebutting the contention that Rosa Matilda is a legitimate daughter of Isabel Gonzales, was admitted in evidence as part of family reputation or tradition regarding pedigree.

They allege that Isabel was first married to Ramon Martinez Viademonte and that their mother Rosa was the fruit of their relationship. Isabel was then married Jose Joaquin de Inchausti, father of defendants herein. Counsel for the plaintiffs sought to establish that Rosa Matilde Viademonte, mother of the plaintiffs, has been treated and considered as a daughter of Isabel Gonzales and that on one occasion, the said Gonzales remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte. Also, that Joaquin C. de Inchausti, the son of Isabel Gonzales and Jose Joaquin de Inchausti, dedicated a picture to Rosa in the following manner: “To my dear and unforgettable sister Rosa.” College records of the latter at Collegio de Santa Isabel were shown to establish filiation. The defendants presented an entry in the notebook of Ramon Viademonte Jr. which showed that true name of Rosa Matilde Viademonte was Rosa Matilde Robles, born of unknown parents in September 1, 1952. Notwithstanding the arguments of the plaintiff, Joaquin de Inchausti testified that one day he was assured by his halfbrother Ramon Martinez Viademonte that Rosa Matilde was not his sister but a mere protégée and that her true name was Rosa Matilde Robles and that on occasion the said brother showed him a copy of the certificate of birth which he took from the parochial church. The SC ordered the investigation of the matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar on March 5, 1962, for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines. After an investigation, a decision was rendered by this Court holding that by preponderance of evidence, it appeared that respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother admittedly being a Chinese, respondent is likewise a Chinese national. Consequently respondent Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to him. On February 4, 1969, respondent petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the introduction of which could alter the decision previously promulgated. The evidence proposed to be presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Estaben Mallare, respondent's father, is the natural son of Ana Mallare, a Filipino; and (2) testimonies of certain persons who had a known Esteban Mallare and his mother during their lifetime. Specifically, the respondent presented the following witnesses:  Damiana Cabangon who declared that she was with her mother, the "hilot" who attended to Ana Mallare during her delivery, when Esteban Mallare was born; that she was present when Esteban was baptized; that Ana Mallare had lived continuously in Macalelon and was reputed to be unmarried; that she had never met or seen Esteban's father, a certain Mr. Dy.  Rafael Catarroja, the former mayor of Macalelon, who declared that he knew Esteban Mallare even as a child; that Esteban was

said rector, and according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-mentioned baptismal certificate of Rosa Matilde Robles. Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that on that occasion the said brother showed him the certificate of birth, a copy of which he took from the parochial church. In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are members of the same family, in accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde Robles which is mentioned and because she was born in 1852, in no manner could she be the legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose marriage was dissolved in 1836 by the death of the husband. Rule 130, Section 40, provides: 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.

The testimonies of the witnesses, who lived in the same community of respondent’s paternal grandmother, to the effect that his paternal grandmother was unmarried and was a Filipino citizen, was admitted in evidence as an exception to the hearsay rule under common reputation. Since respondent’s paternal grandmother was a Filipino citizen, his father was consequently a Filipino citizen, making the respondent also a Filipino citizen and not a Chinese national.

The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare (respondent’s father). Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations. The public reputation in Macalelon that Esteban was Ana's natural child, testified to by the witness, would constitute proof of the illegitimacy of the former. Besides, if Estaban were really born out of legal union, it is highly improbable that he would be keeping the surname "Mallare" after his mother, instead of adopting that of his father. The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog (and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of evidentiary value. The declarations were not only based on the reputation in the community regarding her race or race-ancestry, which is admissible in evidence, but they must have certain factual basis. For it must be realized that in this Philippine society, every region possesses certain characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same region even from the way the latter speaks. Considering that the witnesses testified having known, and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should receive a high degree of credibility. Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship. Neither could any act taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled. And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928, and that as early as 1925 (when he was about 22 years old), Esteban was already 9

TITLE

DOCTRINE

DBP Pool vs. RMN

The utterances made by the bystanders, made as basis by the police investigators in their report, was not considered as part of res gestae since spontaneity was not sufficiently proven. At best, the testimonies made by the police investigators can 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.

Talidano vs.

The copies of the fax messages were not considered as falling within the

FACTS

RULING

then living with his mother, Ana Mallare, a Tagala, who was cohabiting with a Chinese; that Esteban started voting in 1934, and became one of his campaign leaders.  Salomon Gimenez, the former mayor of Macalelon, who declared having known Esteban Mallare; that in the elections of 1925, when Esteban campaigned for a rival candidate against him, he wanted to seek for Esteban's disqualification; that he sought the counsel of Judge Gaudencio Eleazar who advised him that a disqualification move would not prosper because Esteban's mother was not married to Esteban's Chinese father.  Joaquin Enobal who declared that he was a classmate and playmate of Esteban Mallare; that he had not seen the husband of Ana Mallare; that Ana was a Tagalog who had lived in Macalelon. This involves a civil case filed by Radio Mindanao Network, Inc. (RMN) against DBP Pool of Accredited Insurance Companies and Provident Insurance Corporation for recovery of insurance benefits. Respondent owns several broadcasting stations all over the country. Provident covered respondent’s transmitter equipment and generating set for the amount ofP13,550,000.00 under Fire Insurance Policy No. 30354, while petitioner covered respondent’s transmitter, furniture, fixture and other transmitter facilities for the amount of P5,883,650.00 under Fire Insurance Policy No. F-66860. In the evening of July 27, 1988, respondent’s radio station located in SSS Building, Bacolod City, was razed by fire causing damage in the amount of P1,044,040.00. Respondent sought recovery under the two insurance policies but the claims were denied on the ground that the cause of loss was an excepted risk (i.e., any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following consequences, namely: (c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil war; (d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power). The insurance companies maintained that the evidence showed that the fire was caused by members of the Communist Party of the Philippines/New People’s Army (CPP/NPA); and consequently, denied the claims. The RTC rendered a decision, which was subsequently affirmed by the CA, in favor of respondent RMN. The lower court held that the only evidence that can be considered to determine if the fire was due to the intentional act committed by the members of the NPA are the testimonies of witnesses Lt. Col. Nicolas Torres and SPO3 Leonardo Rochar who were admittedly not present when the fire occurred. Their testimonies were limited to the fact that an investigation was conducted and in the course of the investigation they were informed by bystanders that heavily armed men entered the transmitter house, poured gasoline and then lighted it. After that, they went out shouting "Mabuhay ang NPA". The persons whom they investigated and who actually saw the burning of the station were not presented as witnesses.

participating in the elections and campaigning for certain candidate. These acts are sufficient to show his preference for Philippine citizenship. NB: Section 41, Rule 130 of the Rules of Court provides that “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 reputations.”

Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation which is based in Korea.

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.23 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.24 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. And the trial court aptly noted that there is a need for additional convincing proof, viz.: The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional burning of the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that persons who burned the radio facilities shouted "Mabuhay ang NPA" does not furnish logical conclusion that they are members of the NPA or that their act was an act of rebellion or insurrection. Additional convincing proof need be submitted. Defendants failed to discharge their responsibility to present adequate proof that the loss was due to a risk excluded.25 While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that the perpetrators were members of the CPP/NPA. Consequently, the insurance companies are liable to pay the respondent for the damage it incurred. Section 42 of Rule 130 of the Rules of Court mentions two acts which form part of the res gestae, namely: spontaneous statements and verbal acts. In spontaneous exclamations, the res gestae is the startling occurrence, whereas in verbal acts, the res gestae are the statements 10

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DOCTRINE

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RULING

Falcon Maritime

meaning of res gestae, either as a spontaneous statement (as spontaneity was not proven) or as a verbal act (as there was no accompanying statement to the equivocal act).

Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessel’s Filipino crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed on 21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999. Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned several times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude toward his superiors. It cited an incident involving petitioner’s incompetence wherein the vessel invaded a different route at the Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As proof, it presented a copy of a fax message, sent to it on the date of incident, reporting the vessel’s deviation from its course due to petitioner’s neglect of duty at the bridge, as well as a copy of the report of crew discharge issued by the master of M/V Phoenix Seven two days after the incident. The Labor Arbiter rendered judgment dismissing petitioner’s complaint, holding that he was validly dismissed for gross neglect of duties, however, this was subsequently reversed by the NLRC on appeal. The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have no probative value and are self-serving. It added that the ship’s logbook should have been submitted in evidence as it is the repository of all the activities on board the vessel, especially those affecting the performance or attitude of the officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew member. The NLRC also noted that private respondent failed to comply with due process in terminating petitioner’s employment.

People vs. Esoy

The testimony of the victim to the effect that his cellphone was snatched by the respondents, right after the commotion, was considered by the court as admissible for being part of res gestae (of the first kind – but not categorically held by the court in this case as to what

On January 18, 2001, around 8:00 p.m., the victim Lorenzo Coro and Andrea Pabalan, rode a jeepney bound for Buendia Avenue at Taft Avenue in Manila. Upon reaching Taft Avenue corner Pedro Gil Street, respondents boarded the jeepney. Respondent Bolalacao sat beside the victim while respondents Esoy and Ciano sat on the opposite side. Pabalan noticed that Esoy and Ciano were staring at all the passengers and seemed to be high on drugs. When she again looked at Esoy and Ciano, the two suddenly drew out their balisongs and swung the same at them. In the ensuing commotion, the other passengers including respondents alighted from the jeepney. Then Pabalan saw the victim’s bloodied chest. The victim then told her that his cellular phone was snatched. The victim was immediately brought to the nearby hospital where he was operated on. Unfortunately, however, the victim died at 11:00 p.m. that same night. Several days after, Pabalan informed the police investigator that she saw the three respondents inside the WPD jail and positively identified them as the assailants. Respondents, for their part, denied any involvement in the robbery-homicide incident. They claimed that they

accompanying the equivocal act. The Court held that the fax messages cannot be deemed part of the res gestae. To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances. Assuming that petitioner’s negligence, which allegedly caused the ship to deviate from its course, is the startling occurrence, there is no showing that the statements contained in the fax messages were made immediately after the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be admitted as part of the res gestae of the first kind. The requisites for its admissibility under the second class of res gestae are: (1) the principal act to be characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act. Petitioner’s alleged absence from watch duty is simply a harmless act or at least proved to be one. Assuming arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine whether the fax messages were made simultaneously with the purported equivocal act. Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained such information only from the Japanese port authorities. Verily, the messages can be characterized as double hearsay. The ship’s logbook is the repository of all activities and transactions on board a vessel. Had the route invasion been so serious as to merit petitioner’s dismissal, then it would have been recorded in the logbook. Private respondent would have then had all the more reason to preserve it considering that vital pieces of information are contained therein. The vessel’s logbook is an official record of entries made by a person in the performance of a duty required by law. It is a respectable record that can be relied upon to authenticate the charges filed and the procedure taken against the employees prior to their dismissal. It is a vital evidence as the ship captains are required to keep a record of the decisions he had adopted as the vessel's head. Therefore, the non-presentation of the logbook raises serious doubts as to whether the incident did happen at all. Though Pabalan’s testimony as to the victim’s utterance that his cellular phone was taken is only hearsay, the testimony is considered an exception to the hearsay rule, the victim’s spontaneous utterance being part of res gestae. Res gestae refers to those exclamations and statements made by either the participants, the victim or spectator 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. In the instant case, all the elements of res gestae are sufficiently established insofar as the aforequoted spontaneous utterance is concerned: (1) the principal act (res gestae) – the robbery and stabbing of the victim – is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise, that is, within minutes after the victim was stabbed and his cellular phone was snatched; and (3) the statement concerns the occurrence in question and its immediately attending circumstances – his cellular phone was stolen during the startling occurrence. The testimony being an exception to the hearsay rule, the trial court did not err in admitting the same.

11

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FACTS

type of res gestae).

were at their workplace in Sta. Mesa, Manila, when the incident happened. The trial court then rendered a decision finding the respondents guilty of the crime charged, which was affirmed with modification on the amount of damages by the CA. However, the respondents argue that (1) no evidence was presented by the prosecution establishing that personal property was taken from the victim except for the hearsay allegation of Pabalan; and (2) no witness testified that the victim or Pabalan actually saw one of the appellants take something from the victim. Petitioner Canque is a contractor doing business under the name and style RDC Construction. She had contracts with the government for the restoration and asphalting of different roads in Cebu. In connection with these projects, petitioner entered into two contracts with private respondent Socor Construction Corporation (SOCOR). On May 28, 1986, private respondent SOCOR sent petitioner a bill, containing a revised computation representing the balance of petitioner's total account for materials delivered and services rendered by private respondent under the two contracts. However, petitioner refused to pay the amount, claiming that private respondent failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance thereof by the government. Thereafter, the private respondent filed a collection suit with the RTC against the petitioner. In her answer, the petitioner admitted the existence of the contracts with private respondent as well as receipt of the billing, however, she disputed the correctness of the bill. Petitioner subsequently amended her answer denying she had entered into subcontracts with private respondent. During the trial, private respondent, as plaintiff, presented its vicepresident, Sofia O. Sanchez, and Dolores Aday, its bookkeeper. On the other hand, petitioner's evidence consisted of her lone testimony. The RTC rendered a decision ordering petitioner to pay private respondent. It analyze the respondent’s Book of Collectible Accounts and found that the entries (both payments and billings) recorded thereat are credible. Undeniably, the book contains a detailed account of SOCOR's commercial transactions with RDC which were entered therein in the course of business. This was subsequently affirmed by the CA.

Canque vs. CA

The Book of Collectible Accounts presented by the private respondent to show the petitioner’s indebtedness was not considered as within the purview of entries in the course of business as it lacked the first and third requisites. It was considered as a mere memorandum, used to refresh the memory of the witness, and not an evidence. Thus, it was used to corroborate the witness’ testimony.

Wallen Maritime vs. NLRC

The typewritten excerpts, which were supposedly from the ship captain’s logbook and which were presented in evidence by the petitioner, was not considered as

Private respondent Joselito Macatuno was hired by Wallem Shipmanagement Limited thru its local manning agent, Wallem Maritime Services, Inc., as an able-bodied seaman on board the M/T Fortuna. On June 24, 1989, while the vessel was berthed at the port of Kawasaki, Japan, an altercation took place between private respondent and fellow Filipino crew member, Julius Gurimbao, on the one hand, and a cadet/apprentice officer of the same nationality as the captain of the vessel on the other hand.

RULING

Section 43, Rule 130 of the Rules of Court provides that: Entries made at, or near the time of the transactions to which they refer, by a person deceased, outside of the Philippines 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. 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. The business entries in question do not meet the first and third requisites. Dolores Aday, who made the entries, was presented by private respondent to testify on the account of RDC Construction. It was in the course of her testimony that the entries were presented and marked in evidence. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Moreover, Aday admitted that she had no personal knowledge of the facts constituting the entry. She said she made the entries based on the bills given to her. But she has no knowledge of the truth or falsity 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. The entries made by Aday show only that the billings had been submitted to her by the engineer and that she faithfully recorded the amounts stared therein in the books of account. Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts and on the dates indicated was a fact that could be established by the project engineer alone who, however, was not presented during trial. When the witness had no personal knowledge of the facts entered by him, and the person who gave him the information is individually known and may testify as to the facts stated in the entry which is not part of a system of entries where scores of employees have intervened, such entry is not admissible without the testimony of the informer. As the entries in question were not made based on personal knowledge, they could only corroborate Dolores Aday's testimony that she made the entries as she received the bills. The ship captain's logbook is a vital evidence as Article 612 of the Code of Commerce requires him to keep a record of the decisions he had adopted as the vessel's head. A copy of an official entry in the logbook is legally binding and serves as an exception to the hearsay rule. However, because no investigation was conducted by the ship captain before repatriating private respondent, the contents of the logbook have to be duly identified and authenticated lest an injustice result from a blind adoption of such contents which merely serve as prima facie evidence of the incident in question. Moreover, petitioners did not submit as evidence to the POEA the logbook itself, or even authenticated copies of pertinent pages thereof, which could have been easily xeroxed or photocopied considering the present technology on reproduction of documents. What was 12

TITLE

Northwest Airlines vs. Chiong

DOCTRINE

FACTS

RULING

entries in official records. It does not have probative value at all. The logbook itself should have been presented and duly identified and authenticated by the ship caption considering that no investigation took place before the repatriation of the private respondent.

After being shouted at by the cadet/apprentice for not having initially followed its orders, Macatuno, together with Gurimbao, went to the cadet/apprentice and reminded him that as a mere apprentice and not an officer of the vessel, he had no right whatsoever to order around any member of the crew. However, the cadet/apprentice reacted violently by shouting invectives and gesturing as if challenging the two to a fight. To prevent him from intimidating them, Macatuno pushed twice the cadet/apprentice's chest while Gurimbao mildly hit his arm. Frantic and shouting, the cadet/apprentice ran to the captain who happened to witness the incident from the cabin's window. Thereafter, the captain summoned private respondent and Gurimbao and told them to pack up their things as their services were being terminated. The two attempted to explain their side of the incident but the captain ignored them and firmly told them to go home. Upon arrival in the Manila, the private respondent and Gurimbao reported the matter to the POEA, which rendered a decision finding their dismissal to be illegal. This was subsequently affirmed by the NLRC. Petitioner contend that the alleged incident was not the first infraction of Macatuno and Gurimbao and that, as shown in the logbook, the two have been given several warnings after they left the vessel during working hours without permission.

The Passenger Manifest and Passenger Name Record were not admitted as exceptions to the hearsay rule, particularly as entries in the course of business, as the requisites were not complied with. Although there is no necessity to bring into court all the employees who individually made the entries, it is sufficient that the person who supervised them while they were making the entries testify that the account was prepared under his supervision and that the entries were

On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation (Philimare), as the authorized Philippine agent of TransOcean Lines (TransOcean), hired respondent Steven Chiong as Third Engineer of TransOcean’s vessel M/V Elbia, which was set to sail on April 1, 1989. Subsequently, Philimare purchased for Chiong a Northwest plane ticket for San Diego, California with a departure date of April 1, 1989 from Manila. On said date, Chiong arrived at the airport three hours before the scheduled time of departure. Marilyn Calvo, Philimare’s Liaison Officer, met Chiong at the departure gate, and the two proceeded to the Philippine Coast Guard (PCG) Counter to present Chiong’s seaman service record book for clearance. Thereafter, Chiong’s passport was duly stamped, after complying with government requirements for departing seafarers. Calvo remained at the PCG Counter while Chiong proceeded to queue at the Northwest check-in counter. When it was Chiong’s turn, the Northwest personnel informed him that his name did not appear in the computer’s list of confirmed departing passengers. Chiong was then directed to speak to a "man in barong" standing outside Northwest’s counters from whom Chiong could allegedly obtain a boarding pass, however, the man demanded US$100.00 in exchange for the boarding pass. Ultimately, Chiong was not allowed to board Northwest Flight No. 24 bound for San Diego that day and, consequently, was unable to work at the M/V Elbia by April 1, 1989. It appears that Chiong’s name was crossed out and substituted with "W. Costine" in Northwest’s Air Passenger Manifest. Chiong then filed a Complaint for breach of contract of carriage before the RTC. Northwest contradicted the claim that it breached its contract of carriage with Chiong, reiterating that Chiong had no cause of

offered in evidence was merely a typewritten collation of excerpts from what could be the logbook because by their format, they could have been lifted from other records kept in the vessel. The entry in the logbook is so sketchy that, unsupported by other evidence, it leaves so many questions unanswered. Although private respondent candidly admitted in his affidavit having hit Sason on the chest twice, he did not admit using a spanner. The conflicting versions of the incident rendered it impossible to determine whether it was private respondent or Gurimbao who wielded said tool. In the absence of a more detailed narration in the logbook entry of the circumstances surrounding the alleged assault, the same cannot constitute a valid justification to terminate private respondent's employment. Hence, as the typewritten excerpts from the "logbook" were the only pieces of evidence presented by petitioners to support the dismissal of private respondent, have no probative value at all, petitioners' cause must fail. Their failure to discharge the onus probandi properly may have no other result than a finding that the dismissal of private respondent is unjustified. NB: Under the Table of Offenses and Corresponding Administrative Penalties appended to the contract of employment entered into by petitioners and private respondent, the offense described by the logbook entry may well fall under insubordination and may constitute assaulting a superior officer "with the use of deadly weapon" punishable with dismissal if the victim is indeed a "superior officer." However, an "apprentice officer" cannot be considered a "superior officer." An apprentice is a person bound in the form of law to a master, to learn from him his art, trade, or business, and to serve him during the time of his apprenticeship. In other words, Sason was merely a learner or a trainee and not a regular officer on board M/T Fortuna. Chiong was able to prove his case through preponderance of evidence. In addition to his testimony, Chiong’s evidence consisted of a Northwest ticket for the April 1, 1989 Flight No. 24, Chiong’s passport and seaman service record book duly stamped at the PCG counter, and the testimonies of Calvo, Florencio Gomez, and POEA personnel who all identified the signature and stamp of the PCG on Chiong’s passport. Chiong’s Northwest ticket for Flight No. 24 on April 1, 1989, coupled with the PCG stamps on his passport showing the same date, is direct evidence that he was present at MIA on said date as he intended to fly to the United States on board that flight. It is of no moment that Chiong’s witnesses – who all corroborated his testimony on his presence at the airport on, and flight details for, April 1, 1989, and that he was subsequently bumped-off – are, likewise, employees of Philimare which may have an interest in the outcome of this case. A witness’ relationship to the victim does not automatically affect the veracity of his or her testimony. It is true that Chiong’s passport and seaman service record book indicate that he had left the country on April 17, 1989 and come back on October 5 of the same year. However, this evidence fails to debunk the facts established to have transpired on April 1, 1989, more particularly, Chiong’s presence at the airport and his subsequent bumping-off by Northwest despite a confirmed ticket. Furthermore, Northwest did not present as a witness their check-in agent on that date. This omission was detrimental to Northwest’s case considering its claim that Chiong did not check-in at their counters on said date. It simply insisted that Chiong was a "no-show" passenger and totally relied on the Flight Manifest, which, curiously, showed a horizontal line drawn across Chiong’s name, and the name W. Costine written above it. The reason for the insertion, or for Chiong’s allegedly being a "no-show" passenger, is not even recorded on the remarks column of the Flight Manifest beside the Passenger Name column. It was error for the petitioner to insist that since there is now a pending criminal case for False Testimony against Chiong, that a falsified part of his testimony would indicate the falsity of his entire testimony, consistent with the “falsus in uno, falsus in omnibus” doctrine. Before this maxim can be applied, the witness must be shown to have willfully falsified the truth on one or more material points. The principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the testimony. However, the records show 13

TITLE

Patula vs. People

DOCTRINE

FACTS

RULING

regularly entered in the ordinary course of business. However, the supervisor-onduty had no personal knowledge of the entries in the manifest as he did not supervise its preparation.

action against it because per its records, Chiong was a "no-show" passenger. In the course of proceedings, Northwest, on September 14, 1990, filed a separate criminal complaint for False Testimony14 against Chiong based on the latter’s testimony that he did not leave the Philippines after April 1, 1989 contrary to the notations in his seaman service record book that he had left the country on April 17, 1989, and returned on October 5 of the same year. The RTC rendered a decision finding preponderance of evidence in favor of Chiong. On appeal, the CA affirmed in toto said ruling.

The ledgers presented by the prosecution to prove the misappropriation made by the petitioner was deemed inadmissible since it did not comply with the conditions required for entries in the course of business, as an exception to the hearsay rule. Further, the documents being private documents, authentication of said documents was necessary before it can be admitted in evidence; however, this was also not complied with by the prosecution.

Petitioner was charged with estafa. It was established that she was employed as a saleswoman for Footlucker's Chain of Stores, Inc. and that being such, she collected and received payments from customers with the express obligation to account for the proceeds of the sales and deliver the collection to the company. However, failed to remit the proceeds but instead misappropriated the amount received to the prejudice of the company. During trial, prosecution presented as its first witness, Lamberto Go, who testified that he was the branch manager of the company and that petitioner was also an employee of said company. Petitioner became a sales representative and such, she was authorized to take orders from wholesale customers coming from different towns and to collect payments from them. She could also issue and sign official receipts for the payments, which she would then remit for tallying and reconciliation. When the accounting clerk told him that erasures were noted on some collection receipts, he decided to subject her to an audit by company auditor Karen Guivencan. He then learned from a customer of petitioner's that the customer's outstanding balance had already been fully paid although that balance appeared unpaid in Footlucker's records. The other witness for the Prosecution was Karen Guivencan, the company auditor required to check the accounts and ledgers handled by the petitioner. She discovered in the course of her audit that the amounts appearing on the original copies of receipts in the possession of various customers differed from the amounts written on the duplicate copies of the receipts that petitioner submitted to the office. Upon completing her audit, she submitted a written report denominated as "List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly Verified March 1620, 1997" which shows that petitioner had misappropriated the total amount of P131,286.92. During Guivencan's testimony, the Prosecution marked the ledgers of petitioner's various customers allegedly with discrepancies as Exhibits B to YY and their derivatives, inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second that identified the invoices by the number, a third that stated the debit, a fourth that

that Chiong’s testimony did not contain inconsistencies. As to the criminal case, it is well to note that there is no final determination yet of Chiong’s guilt by the courts. The RTC and CA correctly excluded the manifest and passenger name record. In order to be admissible as entries in the course of business, it is necessary that: (a) the person who made the entry must be dead or unable to testify; (b) the entries were made at or near the time of the transactions to which they refer; (c) the entrant was in a position to know the facts stated in the entries; (d) the entries were made in his professional capacity or in the performance of a duty; and (e) the entries were made in the ordinary or regular course of business or duty. Tested by these requirements, the manifest and passenger name record are mere hearsay evidence. While there is no necessity to bring into court all the employees who individually made the entries, it is sufficient that the person who supervised them while they were making the entries testify that the account was prepared under his supervision and that the entries were regularly entered in the ordinary course of business. In the case at bench, while MENDOZA was the supervisor on-duty, he has no personal knowledge of the entries in the manifest since he did not supervise the preparation thereof. More importantly, no evidence was presented to prove that the employee who made the entries was dead nor did the defendant-appellant set forth the circumstances that would show the employee’s inability to testify. Guivencan conceded having no personal knowledge of the amounts actually received by petitioner from the customersor remitted by petitioner as persons other than Guivencan prepared Exhibits B to YY and their derivative. Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioner’s misappropriation or conversion through cross-examination by petitioner. The denial of that opportunity rendered the entire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. The nature of documents as either public or private determines how the documents may be presented as evidence in court. A public document, by virtue of its official or sovereign character, or because it has been acknowledged before a notary public (except a notarial will) or a competent public official with the formalities required by law, or because it is a public record of a private writing authorized by law, is self-authenticating and requires no further authentication in order to be presented as evidence in court. In contrast, a private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. It requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party; (c) when the genuineness and authenticity of the document have been admitted; or (d) when the document is not being offered as genuine. There is no question that Exhibits B to YY and their derivatives were private documents because private individuals executed or generated them for private or business purposes or uses. Considering that none of the exhibits came under any of the four exceptions, they could not be presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to their authentication in the manner provided in Section20 of Rule 132 of the Rules of Court: Section 20. Proof of private documents. – 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. It was error for the RTC to consider the ledgers from the application of the hearsay rule by stating that the ledgers were prepared in the regular course of business. For a document to be considered as within the purview of entries in the course of business provided for in Section 43 14

TITLE

DOCTRINE

Africa vs. Caltex

The reports from the police and fire departments were not admitted in evidence as entries in the official records, as an exception to the hearsay rule, since the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so.

People vs. Gabriel

Contrary to respondent’s contention, the Advance Information Sheet does not constitute as entries in official records, an exception to the hearsay rule, since the public officer who prepared the document had no sufficient and personal knowledge of the incident. The

FACTS

RULING

noted the amounts paid, and a fifth that summed the balances. In the course of Guivencan's direct-examination, petitioner's counsel interposed a continuing objection on the ground that the figures entered in Exhibits B to YY and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court. On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted not to present evidence for her defense the Prosecution's evidence remained unrefuted and uncontroverted, rendered its decision finding petitioner guilty of estafa. In the afternoon of March 18, 1948, a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among them petitioners here, sued respondents Caltex and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire. The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in the premises and with respect to the supervision of their employees. Contrary to the CA’s view that the reports presented by the petitioners are double hearsay and hence inadmissible, petitioners contend that the reports from the Police Department, Fire Department and by a certain Captain Tinio of the AFP are admissible as entries in the official records, which is an exception to the hearsay rule.

of Rule 130, the following requisites must concur: (a) The person who made the entry must be dead or unable to testify; (b) The entries were made at or near the time of the transactions to which they refer; (c) The entrant was in a position to know the facts stated in the entries; (d) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral, or religious; (e) The entries were made in the ordinary or regular course of business or duty. In this line, the Court acquitted the petitioner for failure of the State to establish her guilt beyond reasonable doubt.

At around 7 o'clock in the evening of 26 November 1989, within the vicinity of Pier 14 at the North Harbor, a fistfight ensued between Jaime Tonog on one hand and the accused Gabriel together with "Ramon Doe" on the other. The fight was eventually broken up when onlookers pacified the protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were back with bladed weapons. They approached Tonog surreptitiously, surrounded him and simultaneously stabbed him in the stomach and at the back, after which the assailants ran towards the highway leaving Tonog behind on the ground. He was then brought to Mary Johnston Hospital where he was pronounced dead on arrival. The accused has a different version. He testified that he saw Tonog drunk; Tonog even attempted to box him but he parried his blow; Tonog continued walking but when he chanced upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon fought back but was subdued by his bigger assailant so the former ran towards the highway; when Tonog met a certain Mando he boxed the latter who however fought back despite his (accused) warning not to; at this

Section 44, Rule 130 of the Rules of Court provides that: Entries in official records made in the performance of his duty by a public officer of the Philippine, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record. The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so. The respondents are liable for damages pursuant to the application on the principle of res ipsa loquitur, which states that “where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant’s want of care.” The gasoline station was under the control of Caltex and Boquiren. The persons who knew or could have known how the fire started were Boquiren, Caltex and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that pertain to the subject. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. Significantly, the Advance Information Sheet was never formally offered by the defense during the proceedings in the court below. Hence any reliance by the accused on the document must fail since the court cannot consider any evidence which has not been formally offered. Parenthetically, the Advance Information Sheet was prepared by the police officer only after interviewing Camba, an alleged eyewitness. The accused then could have compelled the attendance of Camba as a witness. The failure to exert the slightest effort to present Camba on the part of the accused should militate against his cause. Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in evidence three requisites must concur: (a) The entry was 15

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Barcelon vs. CIR

Malayan Insurance vs. Reyes

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information contained in the report cannot be classified as official information since the informant was not legally obliged to give statements to be made as basis for the report. The BIR record book (showing the name of the taxpayer, the kind of tax assesses, the registry receipt number and the date of the mailing) was not admitted as entries in official records as the entrant was not shown to have personal knowledge of the facts in the book nor did she acquire the facts from reports made by persons under a legal duty to submit the same.

moment he saw Ramon return with a bolo on hand; he warned Ramon not to fight but his advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when Mando saw what happened he (Mando) pulled out his knife and also stabbed Tonog at the back; Ramon and Mando then fled towards the highway. The trial court convicted the accused as charged and sentenced him to life imprisonment and to pay the heirs of Jaime Tonog. In his defense, the accused leans heavily on the Advance Information Sheet prepared by Pat. Steve Casimiro which did not mention him at all and named only "Ramon Doe" as the principal suspect.

The police report made by the investigator was not considered as entries in the official records as it lacked the third requisite (i.e., that the public officer or other person

At around 5 o’clock in the morning of December 17, 1995, an accident occurred at the corner of EDSA and Ayala Avenue, Makati City, involving four vehicles: (1) a Nissan Bus operated by Aladdin Transit; (2) an Isuzu Tanker; (3) a Fuzo Cargo Truck; and (4) a Mitsubishi Galant. Based on the Police Report issued by the on-the-spot investigator, the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus on their right side shortly before the vehicular incident. All three vehicles were at a halt along EDSA facing the south direction when the Fuzo Cargo Truck simultaneously bumped the rear portion of the Mitsubishi Galant and the rear left portion of the Nissan Bus. Due to the strong impact, these

made by a police officer or by another person specially enjoined by law to do so; (b) It was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and, (c) The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. The Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. The public officer who prepared the document had no sufficient and personal knowledge of the stabbing incident. Any information possessed by him was acquired from Camba which therefore could not be categorized as official information because in order to be classified as such the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for the record. In the case of Camba, he was not legally so obliged to give such statements. An assessment is made within the prescriptive period if notice to this effect is released, mailed or sent by the CIR to the taxpayer within said period. Receipt thereof by the taxpayer within the prescriptive period is not necessary. However, the rule does not dispense with the requirement that the taxpayer should actually receive, even beyond the prescriptive period, the assessment notice which was timely released, mailed and sent. When a mail matter is sent by registered mail, there exists a presumption that it was received in the regular course of mail. The facts to be proved in order to raise this presumption are: (a) that the letter was properly addressed with postage prepaid; and (b) that it was mailed. While a mailed letter is deemed received by the addressee in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee. The respondent presented the BIR record book where the name of the taxpayer, the kind of tax assessed, the registry receipt number and the date of mailing were noted. The BIR records custodian, Ingrid Versola, also testified that she made the entries therein. Respondent offered the entry in the BIR record book and the testimony of its record custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules of Court, which states that: 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. An entrant must have personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same. In this case, the entries made by Ingrid Versola were not based on her personal knowledge as she did not attest to the fact that she personally prepared and mailed the assessment notice. Nor was it stated in the transcript of stenographic notes 26 how and from whom she obtained the pertinent information. Moreover, she did not attest to the fact that she acquired the reports from persons under a legal duty to submit the same. Thus, the evidence offered by respondent does not qualify as an exception to the rule against hearsay evidence. Furthermore, independent evidence, such as the registry receipt of the assessment notice, or a certification from the Bureau of Posts, could have easily been obtained. Yet respondent failed to present such evidence. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. The requisites for the admissibility in evidence, as an exception to the hearsay rule of entries in official records, thus: (a) that the entry was made by a public officer or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his or her duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him or her stated, which must have been acquired by the public officer or other person personally or through official information.

Petitioner is a corporation engaged in the trading of securities. It filed its Annual Income Tax Return for taxable year 1987. Thereafter, the respondent CIR issued an assessment for deficiency income tax arising from the disallowance of the item on salaries, bonuses and allowances as part of the deductible business expense since petitioner failed to subject the salaries, bonuses and allowances to withholding taxes. The Final Assessment Notice (FAN) was sent to the petitioner through registered mail on 6 February 1991. However, petitioner denies receiving the formal assessment notice. Petitioner was served with a Warrant of Distraint and/or Levy to enforce collection of the deficiency income tax for the year 1987. Petitioner filed a formal protest, however, the respondent denied the protest with finality. Petitioner filed a petition for review with the CTA, which ruled in favor of petitioner. The CTA ruled that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption. It reasoned that the direct denial of the petitioner shifts the burden of proof to the respondent that the mailed letter was actually received by the petitioner. The CTA found the BIR records submitted by the respondent immaterial, self-serving, and therefore insufficient to prove that the assessment notice was mailed and duly received by the petitioner. Upon appeal, the CA reversed the decision of the CTA and found the evidence presented by the respondent to be sufficient proof that the tax assessment notice was mailed to the petitioner, therefore the legal presumption that it was received should apply.

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PNOC Shipping vs. CA

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had sufficient knowledge of the facts by him or her stated, which must have been acquired by the public officer or other person personally or through official information). However, since the respondents failed to make a timely objection to its presentation in evidence, it was still considered as admissible in evidence.

two vehicles were shoved forward and the front left portion of the Mitsubishi Galant rammed into the rear right portion of the Isuzu Tanker. Previously, Malayan Insurance issued Car Insurance Policy in favor of First Malayan Leasing and Finance Corporation, insuring the Mitsubishi Galant against third party liability, own damage and theft, among others. Having insured the vehicle against such risks, Malayan Insurance claimed in its Complaint that it paid the damages sustained by the assured. It maintained that it has been subrogated to the rights and interests of the assured by operation of law upon its payment to the latter. Thus, Malayan Insurance sent several demand letters to respondents Rodelio Alberto and Enrico Alberto Reyes, the registered owner and the driver, respectively, of the Fuzo Cargo Truck, requiring them to pay the amount it had paid to the assured. When respondents refused to settle their liability, Malayan Insurance was constrained to file a complaint for damages for gross negligence against respondents. The trial court ruled in favor of the petitioner and declared the respondents liable for damages. However, this was reversed by the CA, on appeal. It held that the evidence on record has failed to establish not only negligence on the part of respondents, but also compliance with the other requisites and the consequent right of Malayan Insurance to subrogation. It noted that the police report, which has been made part of the records of the trial court, was not properly identified by the police officer who conducted the on-the-spot investigation of the subject collision. In the early morning of September 21, 1977, the M/V Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing Corporation, was navigating the waters near Fortune Island in Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with the vessel Petroparcel which at the time was owned by the Luzon Stevedoring Corporation (LSC). After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard Commandant rendered a decision finding the Petroparcel at fault. Based on this finding by the Board and after unsuccessful demands on petitioner, private respondent sued the LSC and the Petroparcel captain, Edgardo Doruelo, for the value of the fishing nets, boat equipment and cargoes of the M/V Maria Efigenia XV, with interest. Meanwhile, during the pendency of the case, petitioner PNOC Shipping and Transport Corporation sought to be substituted in place of LSC as it had already acquired ownership of the Petroparcel. After trial, the lower court rendered a decision in favor of the respondent and against PNOC, which was later affirmed in toto by the CA. The lower court cited the evidence presented by private respondent consisting of the testimony of its general manager and sole witness, Edilberto del Rosario. As to the award of P6,438,048.00 in actual damages, it took into account the following pieces of documentary evidence that private respondent proffered during trial, among others:  Exhibit B — a document titled "Marine Protest" stating that as a result of the collision, the M/V Maria Efigenia XVsustained a hole at its left side that caused it to sink with its cargo valued at P170,000.00;

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

The price quotations issued to the GM of the private respondent corporation was not considered as within the purview of a commercial list, which is an exception to the hearsay rule. Such were neither published in any list, register, periodical or other compilation on the relevant subject matter nor were they standard handbooks or periodicals, containing data of everyday professional need and relied upon in

The price quotations are ordinary private writings which under the Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del Rosario could not have testified on the veracity of the contents of the writings even though he was the seasoned owner of a fishing fleet because he was not the one who issued the price quotations. Del Rosario’s his testimony as to the equipment installed and the cargoes loaded on the vessel should be given credence considering his familiarity thereto. However, his valuation of such equipment, cargo and the vessel itself should not be accepted as gospel truth. The price quotations presented as exhibits partake of the nature of hearsay evidence considering that the persons who issued them were not presented as witnesses. Section 45, Rule 130 of the Rules of Court provides that: Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them there. Under the said rule, a document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation. Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H are not "commercial lists" for these do not belong to the category of "other published compilations". The exhibits mentioned are mere price quotations issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation." These are simply letters responding to the queries of Del Rosario. 17

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the work of the occupation. The price quotations were simply letters responding to the queries of the private respondent corporation’s GM.

 Exhibit C — a quotation for the construction of a 95-footer trawler issued to Del Rosario showing that construction of such trawler would cost P2,250,000.00;  Exhibit D — pro forma invoice issued to Del Rosario showing that two units of CUMMINS Marine Engine would cost P1,160,000.00;  Exhibit E — quotation of prices issued to Del Rosario showing that a unit of Furuno Compact Daylight Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video Sounder, Model FCV-501 would cost P45,000.00 so that the two units would cost P145,000.00;  Exhibit F — quotation of prices issued to Del Rosario showing that rolls of nylon rope, a binocular P1,400.00, a compass and floats would total P197,150.00;  Exhibit H — price quotation issued to Del Rosario showing the cost of poly nettings totalling P414,065.00. On July 1955, petitioners, thru their mother Celestina Daldo as guardian ad litem, sued respondent Francisco Tan for acknowledgment and support. On March 1956, Celestina Daldo, after petitioners had already presented oral and documentary evidence and were about to rest their case, moved to dismiss the foregoing civil case upon the ground that the parties had come to an amicable settlement, and prayed that the same be dismissed with prejudice and without recourse of appeal. On the same day, Daldo subscribed before the Clerk of Court to an affidavit categorically stating that Francisco Tan is not the father of her minor children but rather another person who she cannot divulge. Thereafter, the case was dismissed by the lower court. On November 1957, petitioners, this time thru their maternal grandfather Servillano Daldo as guardian ad litem, commenced the present action for acknowledgment and support, involving the same parties, cause of action and subject matter. Thereafter, Judge Enriquez, who was detailed to preside over the assigned court in the absence of the presiding judge, rendered judgment declaring that "the present case is res judicata by reason of the dismissal with prejudice of the previous case. However, upon motion for reconsideration, the presiding judge, Judge Lopez, declared the minors to be the illegitimate children of Francisco Tan. This decision was subsequently reversed by the CA, upon appeal. Petitioners tried to prove that Celestina Daldo and respondent Francisco Tan lived together as husband and wife for more than eight years commencing from 1936 to 1944. Petitioners Carmelita Tan and Rodolfo Tan are allegedly the fruits of such cohabitation. Respondent denies this claim and avers that he is very much a married man with children. Celestina Daldo, by her own admission, had been a nursemaid in respondent's residence but for a period of not less than one year in 1939. Carmelita was born on May 8, 1942 and Rodolfo, on September 11, 1944.

Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay evidence. Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private respondent of any redress for the loss of its vessel. This is because in the absence of competent proof on the actual damage suffered, private respondent is "entitled to nominal damages which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated or invaded by defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered." However, the amount to be awarded as nominal damages shall be equal or at least commensurate to the injury sustained by private respondent considering the concept and purpose of such damages.

Tan vs. CA

The testimonies of the petitioners’ witnesses in the first case, which was dismissed with prejudice, was not admitted in evidence as a testimony or deposition at a former proceeding since the witnesses were not shown to be unable to testify but rather were only unwilling to testify.

Manliclic

The testimonies of the respondent’s

This case involved a vehicular collision between a Philippine Rabbit Bus, which was owned by petitioner PRBLI and driven by petitioner

Section 47, Rule 130 of the Rule of Court provides that: The testimony of a witness deceased or out of the Philippines, or unable to testify, given in a former case between the same parties, relating to the same matter, the adverse party having had an opportunity to cross-examine him, may be given in evidence. The testimonies of the petitioners’ witnesses in the previous case was held to be inadmissible as it did not fall within the purview of the abovementioned provision. The witnesses at the former trial were subpoenaed a number of times by the lower court but the witnesses did not appear to testify. They were neither dead nor outside the Philippines. They cannot be classified as unable to testify since the Court held that subsequent failure or refusal to appear thereat [second trial] or hostility since testifying at the first trial does not amount to inability to testify, but such inability proceeding from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. Here, the witnesses in question were available. Only, they refused to testify. No other person that prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those unable to testify. Besides in the situation here presented, petitioners are not at all bereft of remedy. They could have urged the court to have said witnesses arrested, punished for contempt.1 After all, these remedies are in the statute books to help litigants in the prosecution of their cases. Petitioners failed to avail of these remedies, went ahead and submitted their case. Moreover, the validity of the testimony of petitioners' witnesses in the present case was considerably downgraded by the affidavit of Celestina Daldo which stated that Francisco Tan is not the father of her minor children. Striking is the fact that this affidavit was executed after petitioners in the former case had finished with their oral and documentary evidence and were about to submit their case. By then, their counsel had a grasp of the situation. Petitioners and their guardian ad litem could have known whether they had reasonably made out a case against respondent. The baptismal certificates are also useless to prove the dates of birth of the petitioners, considering that the period of cohabitation or any intimate relations at all between their mother and the appellant has been denied and that same has not been satisfactorily proved. Thus, the date of birth as appearing in the birth certificate would be material only if it coincides with the period of cohabitation as admitted or sufficiently proved. The oral evidence for the petitioners, consisting principally of the testimonies of the grandfather and of the mother of the minors, are unsatisfactory, being inconsistent and contradictory on material points, and unbelievable. The loose character of the mother of the minors who admittedly had lived and begotten children with several men of different nationalities, cannot also be overlooked. For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or 18

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vs. Calaunan

witnesses in the criminal case were admitted in evidence in the civil case. Although these were not classified as within the purview of a testimony or deposition at a former proceeding, considering that petitioner PRBLI was not a party to the criminal case but only to the civil case and thus did not have an opportunity to cross-examine the witnesses, the testimonies were still admitted in evidence as such were not timely objected to by the petitioners. In petitions for writ of amparo, considering the nature of the case, evidence otherwise considered as inadmissible under the usual rules of evidence may be considered if it is consistent with the admissible evidence adduced. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test of reason (i.e., to the relevance of the evidence to the issue at hand

Mauricio Manliclic and an owner-type jeep, which was owned by respondent Modesto Calaunan and driven by Marcelo Mendoza. At around 6:00 to 7:00 o’clock in the morning of 12 July 1988, respondent Calaunan, together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The bus was likewise bound for Manila from Tarlac. At approximately Kilometer 40 of the NLEX in Bulacan, the two vehicles collided. The front right side of the bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall on a ditch with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision. By reason of such collision, a criminal case was filed before the RTC charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries. Subsequently on 2 December 1991, respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the. The criminal case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes (TSN) of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil case in as much as these witnesses are not available to testify in the civil case. For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN of the testimony of Donato Ganiban, investigator of the PRBLI in the criminal case was marked and allowed to be adopted in the civil case on the ground that he was already dead. After trial, the lower court rendered a judgment in favor of the respondents and against the petitioners, to which the CA affirmed. Engineer Morced N. Tagitis (Tagitis), a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, together with Arsimin Kunnong (Kunnong), an IDB scholar, arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around. Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based secretary, who advised Kunnong to simply wait for Tagitis’ return. On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police Station. More than a month later, or on December 28, 2007, the respondent, May Jean Tagitis, through her attorney-in-fact, filed a Petition for the Writ of Amparo (petition) directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet (collectively referred to as “petitioners”), with the Court of Appeals (CA). On the same day,

proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case. Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party in the criminal case, had no opportunity to cross-examine the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLI’s employee. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees. Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSN of the testimonies of plaintiff’s witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It cannot argue that the TSN of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSN of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair.

Gen. Avelino Razon vs. Tagitis, et. al.

The requirement that the pleader must state the ultimate facts must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty – The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security – are present. Burden of proof of Amparo petitioner – The Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence 19

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and its consistency with all other pieces of adduced evidence).

the CA immediately issued the Writ of Amparo and set the case for hearing on January 7, 2008. In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis’ alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an “enforced disappearance” under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances. The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. Hence, the CA extended the privilege of the writ to Tagitis and his family, and directed the petitioners to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved. On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution dated April 9, 2008. Aggrieved, the petitioners filed a petition for review with the Supreme Court.

required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. Substantial evidence required in amparo proceedings – The characteristics of amparo proceedings – namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) – reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required – the duty of public officials and employees to observe extraordinary diligence – point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extrajudicial killings and enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. The landmark case of Ang Tibay v. Court of Industrial Relations provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay: Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Minor inconsistencies in the testimony should not affect the credibility of the witness – As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication and only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story. NB: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness. These requisites for admission find their counterpart in the present case under the above-described conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases.

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