Evidence R132 S10-34

Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

RULE 132 SEC. 10 - LEADING AND MISLEADING QUESTIONS 1.

PEOPLE V. CAPARAS DOCTRINE: The probative value of a witness' testimony is very much lessened where it is obtained by leading questions which are so put that the witness merely assents to or dissents from a statement or assertion of an examining consul put with such vocal inflection as to be question. (There are more allegations and so on, but these are the only facts as well as issue relating to the topic) FACTS: This case concerns the two motions for reconsideration for the decision dated 20 February 1980 convicting Caparas and Diamsay for the killing Simeon Patricio.  As regards appellant appellan t Caparas, the motions for reconsideration reconsid eration seek the review of the testimonies of the two principal witnesses, Laureano Salvador and Lydia Posadas, upon which said appellant was convicted, on ground of conspiracy between him and Diamsay. Caparas points out some facts and circumstances which are alleged to impair the credibility of the aforesaid witnesses and thereby leaves the fact of conspiracy unproven beyond reasonable doubt as it should be. Thus, Caparas points out that Laureano's testimony was extracted through leading questions, and he quotes: Q Do you know the purpose of Carlos Gregorio in coming to your house?  A Yes, sir. Q What was his purpose?  A Regarding Rega rding the landholding landhold ing I was wa s farming and his help I requested re quested.. Q Did you go to any place with Carlos Gregorio after that?  A Yes, sir. Q Where?  A To his house. Q You are referring to the house o f Carlos Gregorio?  A Yes, sir. xxx

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Q When you arrived at the house of Carlos Gregorio, who were with you?

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

 A Carlos Gregorio, sir. Q Who were the persons, ff any, that you have seen at the house of Carlos Gregorio?  A Eufemio Caparas and Diamsay, Diam say, sir. xxx

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Q Now, when you arrived in that house, what happened?  A We talked t alked regarding reg arding the t he landholding, land holding, sir. Q You said, 'we' to whom a re you referring?  A Eufemio Eufe mio Caparas, Capa ras, sir. Q What did you talk about that landholding?  A Regarding Regardin g the landholding landhold ing which he said would be given to me. He said there is already one. Q And what did you answer when this was said to you by Eufemio Caparas?  A I said, sa id, 'if ' if there th ere is, I give thanks', but he said that the land he was giving me had some trouble. Q And what did you say?  A I said' said ' that seems se ems hard',but hard ',but he h e said,'th at is easy'. easy '. Q What else transpired?  A I asked him what he meant by easy and he said 'it is easy under this condition', condition ', and I asked him what condition, and he said you kill him. Q During all that time, who were present inside that house?  A Tisio Diamsay. Dia msay. Q Who else?  A Eufemio Eufe mio Caparas, Capa ras, sir. Q Anybody else?  A Carting Gregorio, sir. Q And you?  A I was present. pre sent. xxx

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Q Now, in the vernacular, in Tagalog Language that you have been testifying, you said, 'Patayin n'yo, means plural, do you know to whom this word 'n'yo' referred to?

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

 A Carlos Gregorio, sir. Q Who were the persons, ff any, that you have seen at the house of Carlos Gregorio?  A Eufemio Caparas and Diamsay, Diam say, sir. xxx

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Q Now, when you arrived in that house, what happened?  A We talked t alked regarding reg arding the t he landholding, land holding, sir. Q You said, 'we' to whom a re you referring?  A Eufemio Eufe mio Caparas, Capa ras, sir. Q What did you talk about that landholding?  A Regarding Regardin g the landholding landhold ing which he said would be given to me. He said there is already one. Q And what did you answer when this was said to you by Eufemio Caparas?  A I said, sa id, 'if ' if there th ere is, I give thanks', but he said that the land he was giving me had some trouble. Q And what did you say?  A I said' said ' that seems se ems hard',but hard ',but he h e said,'th at is easy'. easy '. Q What else transpired?  A I asked him what he meant by easy and he said 'it is easy under this condition', condition ', and I asked him what condition, and he said you kill him. Q During all that time, who were present inside that house?  A Tisio Diamsay. Dia msay. Q Who else?  A Eufemio Eufe mio Caparas, Capa ras, sir. Q Anybody else?  A Carting Gregorio, sir. Q And you?  A I was present. pre sent. xxx

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Q Now, in the vernacular, in Tagalog Language that you have been testifying, you said, 'Patayin n'yo, means plural, do you know to whom this word 'n'yo' referred to?

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

 A He was wa s ordering me, Carling, Carling , and Tisio T isio Diamsay,sir. Diamsa y,sir. Q Ordering to what?  A To kill. Q To kill Simeon Paez?  A Yes, sir.

ISSUE:  ISSUE:  W/N the testimony of Laureano may be appreciated in light of the leading questions HELD: No. We are constrained to agree that the testimony of Laureano on the supposed conspiracy was elicited by means of leading questions, the probative value of which, according to accepted legal authorities, is thus diminished or lessened. The probative value of a witness' testimony is very much lessened where it is obtained by leading questions which are so put that the witness merely assents to or dissents from a statement or assertion of an examining consul put with such vocal inflection as to be question. To make matters worse, the credibility of Laureano Salvador was further assailed by the court as it noted that it is not without significance that he was not listed in the information to be among the prosecution witnesses. Only during the trial on June 2, 1973, and after more than two years after the commission of the crime, that he surfaced and testified on what he allegedly knew about the crime. From his testimony, it would appear that he did not inform the authorities nor his relatives what he knew about the crime, and that it was only to Pablo Paez that he told his story about the crime, but only after almost two years after its commission. This fact in itself is contrary to human experience because the natural reaction of one who has knowledge of the crime is to reveal it to the authorities, except only if he is the author thereof. Indeed, as held in People vs. Basuel, the silence of the witnesses for abou t two years detracts from their trustworthiness. This witness, of course, explained that his silence was due to his fear for his life, for which reason he went into hiding in Dupax Nueva Viscaya, where he allegedly worked at Diplong Sawmill. We cannot, however, give credence to this explanation, since counsel for appellant was not given the opportunity to cross examine Salvador Laureano on this matter. It appears that this witness testified that while hiding in Dupax he worked in "Diplong Sawmill." But upon investigation by counsel for appellant, it was found out that there is no Diplong Sawmill and because of this, counsel for appellant moved to cross examine further the witness. But said witness failed to appear in the hearing despite summons, until the court, after a third failure to appear, issued an order for his arrest.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

When the said witness finally appeared, counsel for appellant requested to postpone the cross examination on a very valid ground that he had another case which was earlier scheduled on the same date. The trial court, however, refused to postpone the cross examination. This, in Our opinion, is a prejudicial error on the part of the trial court, which should have granted the postponement. As it is, his testimony cannot but create some doubts in Our mind, specially as on his own admission, he never went to the Office of the Provincial Fiscal to inform the government prosecutors that he would be a witness in this case. In the case of People vs. Maisug, this Court held that the conduct such as shown by the witness is unnatural and contrary to ordinary experience. Lawyers do not usually present witnesses without informing themselves regarding the facts that they would prove by the testimonies they would present in court.

RULE 132, SEC 13 - HOW WITNESS IS IMPEACHED BY EVIDENCE 1.

US V. BALUYOT Doctrine: Where an attorney desires to impeach a witness of the adversary by proof of contradictory statements, he should, in the cross examination of such witness, lay a basis for the introduction of the contradictory proof by asking the witness if he did not, at a time and place specified, make certain statements different from those testified to by him. Facts: (Note: below are just clarifications to the merits and are irrelevant to the subject matter) 1. In this case, Baluyot was convicted of the crime of murder for killing (using a revolver) Bataan Gov. Conrado Lerma in the latter’s office. (Lerma had 3 gun shot wounds) ! Baluyot was an opponent of Lerma in the gubernatorial race wherein the former came out 3rd. ! Baluyot had a pending case of estafa and was requested to resign as captain of the National Guard which he did not but was thereafter temporarily relieved from the position pending investigation. ! Baluyot attributed these misfortunes to the machinations of Gov. Lerma. ! For this reason, he went to Gov. Lerma to asked him (Lerma) to leave him (Baluyot) in peace. 2. From the testimonies given by the prosecution’s witnesses (Pedro Gonzales – the recorder, Antonino Aranjuez, and Gregorio de Guzman – the provincial assessor), the court irrefutably established that the first shot was fired within 9-10 seconds after Baluyot reentered the governor’s office. Note that they had a previous conversation but was interrupted to ! accommodate other’s appointment and was resumed immediately thereafter.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

The court deduced that immediately upon asking the Governor about his revolver, and discovering he was defenseless, Baluyot drew his own revolver and fired. To establish treachery, the 3 witnesses also testified as to what took place between Baluyot and Gov. Lerma at the time when the two were alone in the office of the latter. However, they have not heard Baluyot and Gov. Lerma’s conversation as ! they were in the anteroom (waiting room). Based upon a computation as to the time interval of the 3 shots heard, the ! court adduced that the attacked was treacherous. !

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At the trial: (Pertinent facts related to the subject matter) 4. The prosecution presented Gonzales, De Guzman, and Aranjuez as its witnesses who were in the secretary’s office when the crime took place. 5. Thereafter, they were cross-examined by the defense. 6. The defense presented its sundry witnesses. 7. Afterwards, but before Baluyot was placed upon the stand, the defense counsel made a request that the written declarations or statements made by the prosecution’s witnesses in the preliminary inquiry conducted by the fiscal preparatory to the prosecution should be produced. 8. The court denied the motion. Issue: Whether the trial court was in error in refusing to compel the production of the written statements made by the prosecution’s witnesses with a view to impeach the declarants? Held: NO! The Court held that the trial court was not in error in refusing to compel the production of the documents in question. They were not original or independent evidence of such a character as to give the accused an unqualified right to compel their production, and no proper basis was laid in the cross-examination of the witnesses who had made those statements to justify their production with a view to the impeachment of the declarants. The request was of course based upon the supposition or expectation that if the statements of the witnesses before the fiscal were produced, they might be found to contain something different from what was contained in their testimony given in court. Moreover, such declarations pertain to the official file in the office of the public prosecutor and are not subject to production at the mere request of the attorney for the accused where no ground therefor had been laid.1 1

 The statements in question were not the sworn declarations of witnesses taken in conformity with the requirements of section 13 of General Orders, No 58, and which are commonly attached to the "expediente" transmitted by the committing magistrate to the Court of First Instance. In the case at bar the preliminary examination before the committing magistrate was waived by the accused, and the declarations of the witnesses for the prosecution were therefore not taken before the magistrate . The declarations referred to were, on the contrary, taken in an investigation conducted by the fiscal under the authority of section 1687 of the Administrative Code.With this, the fiscal is authorized to conduct an investigation into the matter of any crime or misdemeanor for the purpose of instituting or carrying on a criminal prosecution but not to act as a justice in any preliminary investigation. The proceeding is

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

RELEVANT TO THE SUBJECT MATTER The Court for the purpose of clarifying the practice in such matters explained the proper mode of proceeding in a case where a party wishes to get before the court contradictory statements made by a witness who is testifying for the adversary party. The court explained that for instance, if the a ttorney for the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when cross-examining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts "laying a predicate" for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court. The Court further explained that if the accused had, by affidavit or otherwise, made it appear to the satisfaction of the court that the witnesses named had made statements in their declarations before the fiscal materially at variance with their statements in court and that the production of said declarations was necessary or even desirable, in the interests of justice, the court would have had ample power to order their production. No such showing, or intimation, was made in this case; and the attorney who made the motion was merely angling at random to discover something that might prove to be favorable to his client.  To put a court in error for refusing to entertain such a motion would encourage frivolous delays and tend to embarrass the speedy and proper administration of justice. Dissenting opinion of Araullo: The crime committed by Baluyot is that of Homicide. (The opinion refuted several conclusions made by the majority not warranted by evidence presented.) - irrelevant to subject matter

2.

PEOPLE V. RELUCIO

administrative in character, and the information thereby acquired is intended for the use of the fiscal in the conduct of the prosecution.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

Doctrines: It is a basic postulate in the law on evidence that every witness is presumed to be " truthful and perjury is not to be readily inferred just because apparent inconsistencies are evinced in parts of his testimony. Every effort to reconcile the conflicting points should first be exerted before any adverse conclusion can be made therefrom. These considerations are at the base of the familiar rule requiring the laying of a predicate, which is essence means simply that it is the duty of a party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should be deemed impeached. "

The omission to object on the ground of failure to lay the predicate is waived by the omission to interpose the same when the impeaching contradictory statement is offered.

Nature: This case is an appeal from the judgment of conviction against appellant Rosendo Velasco of the crime of murder by the Circuit Criminal Court of the Fourth Judicial District dated January 4, 1974. Facts: "

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Appellant was previously charged with murder in the court below, together with Federico Relucio, alias "Pedring", Edri Pineda, Dante Ariola, Miguel Espejo Padrones. alias "Egi" Peter Doe and Richard Doe. Of the four witnesses in chief presented by the prosecution only two, Crispen Angeles and Miguel Padrones, can be said to have given incriminatory evidence against appellant. There were material discrepancies between the testimony of Angeles in open court and the sworn statement of the same witness given to Detective Justiniano E. Fernandez of the Cabanatuan City Police (marked as Exhibit 17), which the defense presented for impeachment purposes, strangely without objection on the part of the prosecution notwithstanding that the defense failed to lay the predicate therefor. The material discrepancies between the contents of the sworn statement, on the one hand, and the testimony of Angeles in open court, on the other, are so irreconcilable that even if the proper predicate had been laid upon proper objection of the fiscal it is doubtful, if any believable reconciliation could have been given by him. ! In open court, he testified that in the afternoon of June 23, 1971, it was at the entrance of the Capital Theater that he met Talastas and invited him to see the movie but the latter said that he was waiting for Amanda. It turned out, according to Exhibit 17, that he and Talastas were still in Barrio Aduas, where they were staying, when Manda arrived with a woman companion and invited them to go to the "cine". ! In his testimony, he said that it was Amanda who left and did not go back anymore, while in the above statement, he declared that both of their two female companions told them they would only go to the comfort room but eventually

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

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disappeared. In court, he said that when Manda did not return, he invited Talastas to leave but the latter answered he would wait for Manda's return. In Exhibit 17, it appears that he and Talastas agreed to follow and look for their lady companions and that he went ahead and Talastas stopped by the ticket booth. Whereas in court, he testified that he was already in the middle or across Burgos Street near the Avenue Theater when he heard shots inside the Capital Theater where Talastas had returned, as they met Federico Relucio with a companion, unknown to him, who were going inside, hence, he did not see who fired the shots, in the above sworn statement, he categorically stated that upon seeing Relucio, who had separated from his two armed companions and gone inside, he (Angeles) went back inside the theater and actually saw Relucio firing at Gonzalo and the latter retaliating with his own gun. In court, he said that when Talastas came out of the theater already wounded and running towards the east, the two companions of Relucio, referring to Velasco and Padrones, chased Talastas, with Relucio riding in a jeep and Padrones going on foot.

Issue: WON testimony of witness Angeles should be impeached by evidence of inconsistent statements. Held: Yes. " In brief, in court, Angeles' account of the participation of appellant in the shooting of Talastas was vague and inconclusive; in his statement, Exhibit 17, nothing points definitely and specifically to appellant as having fired any shot at all; importantly the one clearly and categorically referred to as having shot Talastas is Egi or Padrones. " It results, therefore, that at least insofar as herein appellant Velasco is concerned, the testimony of Angeles has been completely impeached or discredited. " It is a basic postulate in the law on evidence that every witness is presumed to be truthful and perjury is not to be readily inferred just because apparent inconsistencies are evinced in parts of his testimony. Every effort to reconcile the conflicting points should first be exerted before any adverse conclusion can be made therefrom. These considerations he at the base of the familiar rule requiring the laying of a predicate, which is essence means simply that it is the duty of a party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should be deemed impeached. Thus, Section 16 of Rule 132 provides: ! Section 16. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements if so, to explain them. If the statements be in writing they must be to the witness before any question is put to him concerning them.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

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In United States vs. Baluyot, 40 Phil 385, at pp. 406-407, the Court made a clear exposition of the universal rule of laying a predicate as follows: ! In order that we may not be misunderstood, as wen as for the purpose of clarifying the practice in such matters, a few words may here be properly said in respect to the proper mode of proceeding in a case where a party wishes to get before the court contradictory statements made by a witness who is testifying for the adversary party. For instance, if the attorney for -the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when cross-examining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This process of crossexamining a witness upon the point of prior contradictory statements is called in the practice of the American courts 'laying a predicate' for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court. ! We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it appear to the satisfaction of the court that the witnesses named had made statements in their declarations before the fiscal materially at variance with their statements in court and that the production of said declarations was necessary or even desirable, in the interests of justice, the court would have had ample power to order their production. But it, as in the instant case of the witness Angeles, the prosecution did not object to the presentation of Exhibit 17 which was offered expressly for impeachment purposes, notwithstanding that the defense did not give the witness the opportunity to give his own explanation of the apparent contradictions in his testimony, the trial judge and the appellate courts have no alternative but to determine, if they can, possible reconciliation on the basis alone of logic and common experience. The omission to object on the ground of failure to lay the predicate is waived by the omission to interpose the same when the impeaching contradictory statement is offered. (Evidence, [Rules of Court] Vol. VII, 1973 ed. by Vicente Francisco, p. 398.) On this score, We find the inconsistencies in the two versions of Angeles utterly beyond possible rational explanation. The various discrepancies We have pointed out above - and there are still others We have not mentioned — are so disparate that there can be no other conclusion than that the witness must have lied in either of them. Accordingly, We have to reject both of them.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

3.

PEOPLE V. WINSTON DE GUZMAN

DOCTRINE: It is universally accepted that a witness cannot be impeached by evidence of contradictory or prior inconsistent statements until the proper foundation or predicate has been duly laid by the party against whom said witness was called  FACTS:  Winston de Guzman was accused of raping 14-year-old Jovelyn Geram. Geram was sleeping at around two o’ clock that afternoon when she was awakened by the weight of something on top of her. Upon opening her eyes, she saw De Guzman naked and sitting on her thighs. Geram instinctively tried to shout for help but De Guzman covered her mouth and nose with his hand and warned her not to resist or she would be killed. A struggle between the two ensued thereafter. The strength of appellant and the strain of Geram’s efforts at resistance took its toll on the latter, causing her to feel weak and faint. On recovering her senses, Geram discovered that she was already undressed and she saw blood on her vagina. She also noticed some white fluid on her abdomen and thighs. She felt pain on her genitals and other parts of her body. De Guzman was no longer around, and Geram was left crying over the tragedy which had befallen her. De Guzman was convicted by the trial court and on appeal, he assails the fact that Geram stated in her complaint and in her testimony given during the preliminary investigation that he committed the crime of rape through the application of odorous chemicals over her nose and mouth which caused her to sleep. This fact was not repeated by complainant in the trial court but she merely claimed the crime was consummated by De Guzman through force and intimidation. Such inconsistency, according to De Guzman, destroys Geram’s credibility, thus warranting a reversal of the lower court’s judgment of conviction. ISSUE: WON Geram’s inconsistent statements destroys Geram’s credibility? NO HELD: In affirming the conviction, the Supreme Court said that it is universally accepted that a witness cannot be impeached by evidence of contradictory or prior inconsistent statements until the proper foundation or predicate has been duly laid by the party against whom said witness was called. The American rule on laying the predicate is embodied in Rule 132 of our own Rules of Court, to wit: SEC. 13. How witness impeached by evidence of inconsistent statements. - Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

 Although the whole record of the testimony of complainant at the preliminary examination was offered in evidence by the defense and admitted by the trial court, complainant cannot now be discredited through any of her extrajudicial statements which were not brought to her attention during the trial. Thus, it has been held that granting arguendo the alleged contradictions, previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them. In People vs. Resabal, the Court explicitly ruled that the mere presentation of the prior declarations of a witness without the same having been read to the witness while he was testifying in court is insufficient for the desired impeachment of his testimony. As explained therein, the apparent contradiction between the declarations of the witness before the former  justice of the peace court and those before the then court of first instance was insufficient to discredit him since he was not given ample opportunity, by reading to him his declarations before the lower court, to explain the supposed discrepancy. In this case, Geram was never confronted during the proceedings in the trial court with her answers allegedly given in the same testimony at the preliminary investigation regarding De Guzman’s resort to sleep-inducing chemicals. In fact, no sub-markings for such particular answers as exhibits were made in the records of her testimony in the preliminary investigation, much less offered by the counsel of De Guzman for that purpose during the trial of the case

RULE 132, SECTION 19 - CLASSES OF DOCUMENTS 1. JOSON V. BALTAZAR DOCTRINE: Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its a uthenticity. FACTS: " This is an administrative case for disbarment instituted by Marciano Joson against Atty. Gloria M. Baltazar for a violation of the RPC and grave malpractice. ! Baltazar made it appear in the deed of sale that Joson sold 150 sq.m of his land, instead of only 50 sq.m which was the real agreement of the parties. ! At the time Baltazar notarized the deed of sale, she was no longer authorized to do so since he r notarial commission had already expired. " The complaint and answer were referred to the Office of the Solicitor General for investigation, report and recommendation. " Baltazar’s Defenses: ! She applied for the renewal of her commission prior to its expiration. ! The court employee in charge of renewal already prepared the necessary documentation and she left money to cover the fees and services of that employee. ! She forgot about the matter and in good faith continued to act as notary public in the honest belief that her commission had been renewed with the filing of the petition which she considered a routine formality.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

When she learned that her petition had not been filed, she applied anew for renewal and was then re-commissioned as notary public. Solicitor General’s findings: Charge of Malpractice: not substantiated. ! # The only evidence submitted by Joson was his own testimony. Joson even made admissions that he signed the deed of sale voluntarily # having seen "that the document was prepared correctly ("Mahusay ang  pagkakita ko sa paggawa ng dokumento" ). Charge of RPC violation: Baltazar did not deny that her commission as notary ! public had expired by the time she notarized the deed of sale. !

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ISSUE: WON Baltazar wrongfully notarized the deed of sale. – YES HELD: (As to the charge of Malpractice) Joson’s testimony is not competent, in view of the parole evidence rule, to vary the terms of the written agreement of the parties with respect to the area of land sold. By itself, Joson’s testimony is insufficient to show the existence of a mistake or imperfection in the writing or that the deed of sale failed to express the true intent and agreement of the parties. (MAIN TOPIC: As to the violation of the RPC) The Court is unable to accept her plea of good faith simply on the basis of her claimed belief that her commission would be approved upon the filing of her petition for renewal of her commission. " In  In the Matter of the Disbarment of Dominador E .  Flores,  the SC characterized the conduct of notarizing documents at a time when one’s commission had expired as "reprehensible", "constituting not only a malpractice but also the commission, in separate and distinct occasions, of the crime of falsification of public documents, which justifies disbarment. !  Baltazar's conduct must be similarly characterized as malpractice and falsification of a public document. " Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. ! Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. ! Notarization is not an empty routine; it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public, the courts, and administrative offices. SC: Since only 1 instance of unauthorized notarization is involved, rather than repeated acts, and considering the circumstances of this case, the Court considers that suspension from the practice of law for 3 months would be an ad equate administrative penalty.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

2. SALES and BERMUDEZ V. CA and LEONILO GONZALES Doctrine:  A notarial acknowledgment attaches full faith and credit to the document concerned. It also vests upon the document the presumption of regularity unless it is impugned by strong, complete and conclusive proof. Non-registration of a deed of donation under Sec. 1 of Act No. 3344 does not bind other parties ignorant of a previous transaction, notwithstanding the provision that “any registration made under this section shall be understood to be without prejudice to a third party with a better right.” TD - tax declaration Location of the property: Bugallon, Pangasinan Place of Notarization: San Manuel, Tarlac Facts: "

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Severo Sales owned an unregistered parcel of land in Bugallon, Pangasinan. Covered by TD No. 5861, property area: more or less 5,733 sqm. 04 July 1955, Sales mortgaged said property, to spouses Agpoon to secure the payment of a loan. ! 30 October 1957, TD No. 5861 was canceled and TD No. 13647 was issued to Sales but the area of the property was stated therein as more or less 5,229 sqm. 24 December 1958, Sales, with the consent of his wife, donated 900 sqm of the same property in favor of their daughter, Bermudez. ! The duly notarized deed of donation was presented to the Assessor’s Office on the day of its execution. ! Hence, TD No. 13647 was replaced by 2 TDs: i. TD No. 138755 in the name Bermudez for the 900 sqm. lot donated to her; and ii. TD No. 138746 in the name of Sales covering the remaining portion or 4,339 sqm. As a consequence of the case filed by Agpoon against Sales in the CFI, sometime in January 1959, the mortgaged property of Sales was set for foreclosure. ! Sales requested Ernesto Gonzales (a friend) to pay his total indebtedness to the  Agpoon spouses to prevent foreclosure. ! Ernesto Gonzales acceded to the request and asked sps. Sales to sign a document transferring the mortgage to him. " According to the Sales spouses, they were not given a copy of said document. ! A month later, Sales had the land covered by TD No. 5861 surveyed by a private surveyor. 03 February 1959, a document entitled “Deed of Sale” between Severo Sales and Leonilo Gonzales was registered with the Register of Deeds of Pangasinan.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

"

"

"

"

"

October 1968, Sales received a photostat copy of the deed of sale appearing to have been signed by him and his wife on January 29, 1959 before Notary Public Arturo Malazo in San Manuel, Tarlac. The document stated that the Sales spouses had sold the land described under ! TD No. 5861 in consideration of the amount to Leonilo Gonzales, son of Ernesto Gonzales. In the Intestate Estate Proceedings of Ernesto Gonzales, the land in question was claimed by Leonilo Gonzales. Subsequently, upon submission of the Deed of Sale between Severo Sales and Leonilo Gonzales, the questioned land was excluded therefrom. Said parcel of land was declared by Leonilo Gonzales under TD No. 12483. 07 November 1968, Leonilo Gonzales filed an action for illegal detainer against Sales in the MTC. Before the case could be tried, Sales and Bermudez filed in the CFI Tarlac, a ! complaint for annulment of the deed of sale between Sales and Gonzales on the ground of fraud. Consequently, the MTC suspended the illegal detainer proceedings before it ! pending the outcome of the annulment case. CFI: The allegation of fraud was not supported by convincing evidence, favoring Gonzales. ! Sales and Bermudez appealed. CA: CFI’s decision affirmed. ! Sales and Bermudez argued that granting that the deed of sale is valid, the CFI failed to take into consideration the fact that the deed of donation was executed ahead of the deed of sale and must not, therefore, be disregarded considering that with reference to unregistered lands, an earlier instrument prevails over a later one.

Issue: 1. W/n the deed of donation executed by spouses Sales in favor of their daughter (Bermudez) is valid and will affect third parties. (Yes, it is valid as to Spouses Sales and Bermudez but will not affect third parties.) 2. W/n the deed of sale between spouses Sales and Gonzales is valid. (Yes) Held: 1. It was established in the facts that the deed of donation was not registered at all, wherein the subject property was unregistered land. ! Yes, the deed of donation is valid between the donor and the donee thereby effectively transmitting the rights to said property from spouses Sales to Bermudez, such deed, however, did not bind Leonilo Gonzales, a third party to the donation. This is because non-registration of a deed of donation under Sec. 1 of Act No. 3344 does not bind other parties ignorant of a previous transaction, notwithstanding the provision therein which petitioners invoke that “any registration made under this section shall be understood to be without prejudice to a third party with a better right.”

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

2. Yes. !

!

The deed of sale itself, specifically the notarial acknowledgment thereof, contains a statement that its executors were known to the notary public to be the persons who executed the instrument; that they were “informed by me (notary public) of the contents thereof” and that they acknowledged to the notary public that the instrument was freely and voluntarily executed. When he testified at the hearing, notary public Arturo Malazo stated, “I know Mr. Severo Sales and he appeared before me when I notarized that document.” Later, he added that “the document speaks for itself and the witnesses were there and those were the persons present.” Thus, the stark denial of the petitioners, specially Sales, that he executed the deed of sale pales in the face of Malazo’s testimony because the testimony of the notary public enjoys greater credence than that of an ordinary witness. A notarial acknowledgment attaches full faith and credit to the document concerned. It also vests upon the document the presumption of regularity unless it is impugned by strong, complete and conclusive proof.

SC noted of the fact that while the Deed of Donation was not registered, the Deed of Sale was registered as evidenced by the notation made by the Register of Deeds of Lingayen, Pangasinan and the official receipt issued by the Registry of Deeds. SC: CA’s decision affirmed, favoring Gonzales.

3.

LUCENTE V. EVANGELISTA

DOCTRINE: By certifying true copies of the subject deeds, Atty. Cleto L. Evangelista, Jr. engaged in an unlawful and deceitful conduct. He was not the notary public before whom said documents were acknowledged and he was neither the custodian of the original copies thereof. The Records Management and Archives Office, Manila, certified that there was no copy on file of the Deed of Quitclaim notarized by respondent’s father. Rule 1.01 of Canon 1 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is broad enough to cover any form of misconduct of a lawyer in his professional and personal capacity. FACTS: "

"

Winnie C. Lucente and Alicia G. Domingo (herein complainants) in a sworn lettercomplaint filed with the IBP Commission on Bar Discipline charged Atty. Cleto L. Evangelista, Jr (herein respondent). with gross misconduct, deceit, malpractice and crimes involving moral turpitude for falsification of public documents. Complainants alleged that respondent is the son of the late Atty. Cleto Evangelista, who during his lifetime notarized a Deed of Quitclaim and a Deed of Absolute Sale involving Lot No. 5514 and Lot No. 1187-B.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

"

"

"

Respondent issued certified true copies of the said instruments. On the basis of the certified true copies of the subject deeds, the Register of Deeds of Ormoc City issued Transfer Certificate of Title No. 23889 in favor of Asuncion T. Yared. Respondent filed a motion to dismiss the complaint interposing Res adjudicate ! and another Civil Case filed against Yared et al. for declaration of nullity of the quitclaim and deed of absolute sale covering TCT No. 23889, raised a prejudicial question in the disbarment proceeding. Respondent also contended that one Carmen Solidor together with Francisco Aves came to their law office, Evangelista Law Office in Ormoc City, Leyte, and asked him to certify true copies of the subject deeds. He acceded to the request considering that the documents were notarized by his late father as notary public. He alleged that he issued the assailed certification as a partner of the law office After investigation, the IBP Board of Governors, recommended the reprimand of Atty. Cleto L. Evangelista with stern warning that a repetition of the same would be dealt with more severely. The recommendation was noted by this Court

ISSUE: WON Atty. Evangelista, Jr. should be held liable for having issued certified true copies of the instruments-in-issue? YES HELD: Records disclose that Atty. Cleto L. Evangelista, Jr. admitted having certified true copies of the Deed of Quitclaim executed on May 7, 1977 and the Deed of Absolute Sale executed on January 7, 1972. His late father, Atty. Cleto P. Evangelista, notarized the subject deeds. Section 245 of the Administrative Code of 1917 reads: Notarial Register . — Every notary public shall keep a register to be known as the notarial register, wherein record shall be made of all his official acts as notary; and he shall supply a certified copy of such record , or any parts thereof, to any person applying for it and paying the legal fees therefor. x x x. Sections 246 and 247 of the same Code also require the notary public to forward his notarial register to the Clerk of Court of the Court of First Instance (now Regional Trial Court) of the province or city wherein he exercises his office for safekeeping. By certifying true copies of the subject deeds, Atty. Cleto L. Evangelista, Jr. engaged in an unlawful and deceitful conduct. He was not the notary public before whom said documents were acknowledged and he was neither the custodian of the original copies thereof. The Records Management and Archives Office, Manila, certified that there was no copy on file of the Deed of Quitclaim notarized by respondent’s father. Rule 1.01 of Canon 1 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is broad enough to cover any form of misconduct of a lawyer in his professional and personal capacity. In this connection, we have consistently held that notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

qualified or authorized authorized may act as notaries notaries public. The protection of that interest necessarily necessarily requires that those not qualified or authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in general. It must be underscored that the notarization by a notary public converts a private document into a public document making that document admissible in evidence without further proof of the authenticity thereof. For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties. SC: Suspended for 6 months

4.

YTURRALDE V. AZURIN DOCTRINES: Stenographic Notes – effect of failure to correct alleged errors in transcript  Where the integrity of the stenographic stenographic record is intact, and no one takes any step to correct to correct the alleged error in the transcript before the records are elevated to the appellate court, the presumption that the stenographer regularly performed her duty stands Notarial Document  –  – proof necessary to overcome notarial document To contradict the facts obtained in a notarial document and the presumption of regularity in its favor, there must be evidence that is clear, convincing and more than mere preponderant FACTS: Carmen Yturralde donated (10) (10) parcels of land land to Consuelo Azurin. The notarial deed of donation bore the signatures of Cipriano Yturralde and Apolonio Yturralde (as witnesses). Plaintiffs Cipriano & Nenita Yturralde now seek to annul the notarial deed of donation as they are alleging that the execution is tainted with fraudulent misrepresentation and the document is merely one for the administration of properties and not a donation Consuelo Azurin was the childhood friend of Carmen Yturralde. Consuelo was the Physician of Carmen and on one occasion Carmen asked Consuelo to assist her with the collection of her deceased son’s back-pay and pension for services rendered with the USAFFE. Due to the help rendered by Consuelo, Carmen was able to obtain a lump sum payment for the back pay of her son, and a monthly pension of P75. Likewise, every time Carmen got ill, Consuelo Consuelo Consuelo would always assist assist her. (In short, close close sila) On December 1955, Carmen informed Consuelo of her desire to donate the (10) parcels of land to him. The reason for the donation was the fear entertained by Carmen that her

17

Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

brother, Cipriano a gambler, would only waste her properties if she predeceased him. Carmen then wanted an assurance that from the produce of the lands, the Azurins would support her and her brother, Cipriano, construct a house for them, and repair, put in good condition, and maintain Carmen's family mausoleum. The Azurins accepted. All of these were taken up in the presence of Cipriano and Apolonio. The draft of the deed of donation was prepared by Atty. Tayco with the use of data taken from the tax declarations and certificates of title obtained by Consuelo Azurin from the Provincial Assessor and the Register of Deeds. On December 10, 1955, Consuelo Azurin went back to Carmen Yturralde at Sibalom with the deed of donation. Plaintiff and his nephew, Apolonio Yturralde, were there. Consuelo Azurin read the document in the presence of plaintiff, translated and explained the contents thereof to Carmen in the Visayan dialect. Having expressed her conformity, Carmen was asked by Consuelo Azurin to affix her thumbmark on the document. Plaintiff looked for something hard on which to place the papers. Consuelo Azurin helped Carmen imprint her thumbmark. Consuelo Azurin then gave the document to plaintiff for the latter to sign as witness. Plaintiff scanned the pages thereof, signed, and in turn asked his nephew, Apolonio, to do likewise. On December 15, 1955, Consuelo  Azurin brought Atty. Tayco to the t he house h ouse of Carmen Ca rmen to have h ave the deed of donation d onation ratified by the latter. Atty. Tayco read and translated the deed and explained the contents to her. Carmen told Atty. Tayco that she was agreeable to what was stated in the document. The back of the said deed of donation reads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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

#A. 82B.4 /2045 -*1., 651 O0,;:.+5 2+ 5A. 5.156:2+7 23 ?I282+62 E5044*8,. BA6/A 4.*,1 *1 32882B1P Q! D2) BA68. 720 B.4. 5A.4.) B*1 5A.4. *+7 2//*162+ BA.4. =6I46*+2 5*8L., 52 A.4 1615.4 =*4:.+R ?! !"#$ #&'$ !"#$ &#'# !#(()*+ ,!-')#,( ,!-')#, ( Q! #A.7 B.4. 5*8L6+; 52 .*/A 25A.4) =*4:.+ *+, =6I46*+2) 61 65 +25R S015 *+1B.4 5A. T0.1562+! ?! !"#$ #&'$ !"#$ &#'# !.(/)*+ !- #.0" -!"#' ( U8*6+5633 +2B *4;0.1 5A*5 5A. 15.+2;4*IA6/ +25.1 61 +25 * 3*65A308 54*+18*562+ 23 5A. V61*7*+ ,6*8./5 01., -7 ?I282+62 E5044*8,. BA68. 5.156376+;! CKKF%K W $%GHX )( *+",+"' ,+" -./&0,&11 2/0 034 230,"#, ,+" &0,"5'&,6 31 ,+" #,"035'/-+&2 03,"#7

NO. Plaintiff is bound by the transcription of Apolonio Yturralde's testimony just reproduced. Plaintiff did not move to amend the same below. His failure to do so stops him from raising this question on appeal. Very recently, we held that where the integrity of the stenographic record is intact, and no one takes any step to correct the alleged error in the transcript before the records are elevated to the appellate court, "the presumption that the stenograph earlier regularly performed her duty stands 2. Whether there was fraud in the signing of the notarial deed of donation? NO. There was no fraud in the signing of the document. Where the notarial document is expressed in a clear and unequivocal manner, it has in its favor the presumption of regularity. To contradict all these, there must be evidence that is "clear, convincing and more than merely preponderant Plaintiff failed to present clear and convincing evidence in order to overcome the presumption of regularity of the notarial deed of donation. Moreover, Cipriano’s testimony states that during the signing of the deed of donation he witnessed that Consuelo forcibly grabbed the thumb of Carmen in order to affix the latter’s thumb mark on the document. If plaintiff really believed that Dr. Azurin acted in a manner which would evoke suspicion, coupled with his own alleged knowledge that said Dr. Azurin was interested in the wealth of his sister, then it stands to reason to say that he must have been on guard. His normal reaction would have been to stave off execution of the deed of donation. But according to him, he did not.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

Consuelo Azarin could not have misled Cipriano, as Cipriano knew how to read English, he also knew Spanish well and the trial judge observed that he was not feeble minded. The English word "DONATION" was present in the face of the document. That is the equivalent of the Spanish word "DONACION", which, of course he understands We find, as did the lower court, that the deed of donation was properly executed. Since the donation was made in a public document specifying the immovables donated, and the conditions for the donation, and that acceptance thereof was made in the same deed of donation, that donation should be given effect.

ELECTRONIC EVIDENCE (AS DOCUMENTARY EVIDENCE

FUNCTIONAL

EQUIVALENT

OF

1. MC INDUSTRIAL V. SSANGYONG DOCTRINE: Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. FACTS: Petitioner MCC Industrial Sales (MCC), a domestic corporation engaged in the business of " importing and wholesaling stainless steel products. Ssangyong Corporation (Ssangyong), an international trading company with head office in " Seoul, South Korea and regional headquarters in Makati City, Philippines is one of its suppliers. The two corporations conducted business through telephone calls and facsimile or " telecopy transmissions. Ssangyong would send the  pro forma  invoices containing the details of the steel ! product order to MCC; if the latter conforms thereto, its representative affixes his signature on the faxed copy and sends it back to Ssangyong, again by fax. " Ssangyong Manila Office sent, by fax, a letter to Gregory Chan, MCC’s manager (also president of Sanyo Seiki Stainless Steel Corporation) to confirm MCC's and Sanyo Seiki's order of 220MT  of hot rolled stainless steel. The manager, on behalf of the corporation, affixed his signature on the conforme portion of the letter. " Ssangyong forwarded to MCC Pro Forma Invoice containing the terms and conditions of the transaction which MCC sent back by fax the invoice bearing the signature. ! stated in the pro forma invoice is their agreement to pay via an irrevocable letter of credit (L/C) at sight in favor of Ssangyong.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

Because of the confirmed transaction, Ssangyong placed its order for the manufacture of the steels which it paid in full. " The order was eventually split into two necessitating 2 invoices because MCC could only open only a partial letter of credit. " A month after, Ssangyong informed Sanyo Seiki and Chan by way of fax that they are ready to deliver the steels. Chan affixed his signature on the fax transmittal and returned the same, by fax, to ! Ssangyong. 2 days after, Ssangyong informed Sanyo Seiki thru Chan that they were able to get a ! price adjustment and reiterated their request for Sanyo to open a L/C. further demands were made to open the L/C thru letters. ! Ssangyong received, by fax, a reply letter signed by Chan, requesting an extension of time " to open the L/C because MCC's credit line with the bank had been fully availed of in connection with another transaction, and MCC was waiting for an additional credit line. " MCC failed to open a letter of credit. Eventually, 2 pro forma invoices were were issued by Ssangyong and sent via fax to MCC. " This new pro forma invoices are slightly varied from the first one such that the quantity was now officially 100MTper invoice and the price was reduced. As can be gleaned from the photocopies of the said August 16, 2000 invoices submitted to the court, they both bear the conformity signature of MCC Manager Chan. MCC finally opened an L/C with PCIBank covering payment for 100MT of stainless ! steel coil which was shipped to and received by MCC. MCC then faxed to Ssangyong a letter requesting for a price adjustment for the order ! covered by the remaining pro forma invoice based on the prevailing price at that time and that MCC lost a lot of money d ue to a strike. " Ssangyong through counsel wrote a letter to MCC, canceling the sales contract and demanding payment representing losses, warehousing expenses, interests and charges. " Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court " After Ssangyong rested its case, defendants filed a Demurrer to Evidence alleging that Ssangyong failed to present the o riginal copies of the pro forma invoices on which the civil action was based. ! TC Ruling on the Demurrer : Court denied the demurrer, ruling that their admissibility finds support in Republic Act (R.A.) No. 8792, otherwise known as the Electronic Commerce Act of 2000. Considering that both testimonial and documentary evidence tended to substantiate the material allegations in the complaint, Ssangyong's evidence sufficed for purposes of a prima facie case. TC ruling on the case: in favor of Ssangyong CA ruling on the case: affirmed TC’s ruling but absolved Chan of any liability ! The copies of the said pro-forma invoices submitted by the appellee are admissible in evidence, although they are mere electronic facsimile printouts of appellant's orders. Such facsimile printouts are considered Electronic Documents under the New Rules on Electronic Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 "

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

[h], A.M. No. 01-7-01-SC). $  An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC) Petitioner is now contending that the photocopies of the  pro forma  invoices presented by respondent Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best evidence the original  fax transmittal. ISSUE: WON the the print-out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such? HELD: NO, the ruling of the appellate court is incorrect. The terms " electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate courts. R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, considers an electronic data message or an electronic document as the functional equivalent of a written document for evidentiary purposes. The Rules on Electronic Evidence regards an electronic document as admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the said Rules. An electronic document is also the equivalent of an original document under the Best Evidence Rule, if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Thus, to be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document."  The Electronic Commerce Act of 2000 defines electronic data message and electronic document as follows: Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows: xxx

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

c. "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means. xxx f. "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. The Implementing Rules and Regulations (IRR) of R.A. No. 8792, which was signed on July 13, 2000 by the then Secretaries of the Department of Trade and Industry, the Department of Budget and Management, and then Governor of the Bangko Sentral ng Pilipinas, defines the terms as: Sec. 6. Definition of Terms. For the purposes of this Act and these Rules, the following terms are defined, as follows: xxx (e) "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. Throughout these Rules, the term "electronic data message" shall be equivalent to and be used interchangeably with "electronic document."  xxxx (h) "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Throughout these Rules, the term "electronic document" shall be equivalent to and be used interchangeably with "electronic data message." The phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy " in the IRR's definition of "electronic data message" is copied from the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law (UNCITRAL), from which majority of the provisions of R.A. No. 8792 were taken. While Congress deleted this phrase in the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The deletion by Congress of the said phrase is significant and pivotal, as discussed hereunder. While "data message" has reference to information electronically sent, stored or transmitted, it does not necessarily mean that it will give rise to a right or extinguish an obligation, unlike an electronic document. Evident from the law, however, is the legislative intent to give the two terms the same construction.

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Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

The term "ELECTRONIC RECORD" fixes the scope of our bill. The record is the data. The record may be on any medium. It is electronic because it is recorded or stored in or by a computer system or a similar device. The amendment is intended to apply, for example, to data on magnetic strips on cards or in Smart cards. As drafted, it would not apply to telexes or faxes, except computer-  generated faxes, unlike the United Nations model law on electronic commerce. It would also not apply to regular digital telephone conversations since the information is not recorded. It would apply to voice mail since the information has been recorded in or by a device similar to a computer. Likewise, video records are not covered. Though when the video is transferred to a website, it would be covered because of the involvement of the computer. Music recorded by a computer system on a compact disc would be covered . In short, not all data recorded or stored in digital form is covered. A computer or a similar device has to be involved in its creation or storage. The term "similar device" does not extend to all devices that create or store data in digital form. Although things that are not recorded or preserved by or in a computer system are omitted from this bill, these may well be admissible under other rules of law. This provision focuses on replacing the search for originality proving the reliability of systems instead of that of individual records and using standards to show systems reliability . Paper records that are produced directly by a computer system such as printouts are themselves electronic records being just the means of intelligible display of the contents of the record. Photocopies of the printout would be paper record subject to the usual rules about copies, but the original printout would be subject to the rules of admissibility of this bill. However, printouts that are used only as paper records and whose computer origin is never again called on are treated as paper records. In that case, the reliability of the computer system that produces the record is irrelevant to its reliability . There is no question then that when Congress formulated the term "electronic data message," it intended the same meaning as the term "electronic record" in the Canada law. This construction of the term "electronic data message," which excludes telexes or faxes, except computer-generated faxes, is in harmony with the Electronic Commerce Law's focus on "paperless" communications and the "functional equivalent approach" that it espouses. In fact, the deliberations of the Legislature are replete with discussions on paperless and digital transactions. Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based.  A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and

24

Evidence | Atty. Custodio | November 22, 2014 | Rule 132 Sections 10 – 34

the correct shade. The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.

RULE 132 SECTION 20 - PROOF OF PRIVATE DOCUMENT 1.

RAZ V. IAC

DOCTRINE: Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. FACTS: Reva Raz and Encarnacion Villanueva entered into a Conditional Assignment of Rights and Interests over a Foreclosure Judgment. The said judgment was rendered in favor of Villanueva and ordered the defendants to pay her the amount of P35,000.00, with 12% per annum interest from August 7, 1965, and other amounts, in default of which the property subject of the proceeding would be sold at public auction to satisfy the amounts owing her. This property was a parcel of land located at Quezon City which had been mortgaged by the defendants to secure the payment of a loan she had extended to them. The judgment was pending appeal before the respondent court at the time of the execution of the Conditional  Assignment. In compliance with the agreement, Villanueva transferred all her rights and interests in the said  judgment to Raz in consideration of the sum of P75,000.00 to be paid by the petitioner under the following conditions: 1. Payment of P22k upon the signing of the agreement 2. Payment of P20k within one year from August 7, 1972, and not later than August 7, 1973 3. Payment of P33k plus costs mentioned in the judgment within the next following year and not later than August 7, 1974. 4. Payment of the full consideration mentioned in paragraph 3, and the costs mentioned in the last payment to be fully liquidated in two (2) years’ time from the signing of this agreement and not later than August 7, 1974. 5. Villanueva shall, as soon as the decision in the aforementioned case shall become final and executory, proceed with the execution of the judgment and the auction sale if allowed by law of the property subject matter of the aforementioned case. 6. Villanueva and/or her heirs shall as soon as the full consideration hereof is fully satisfied, and if by operation of law shall become the legitimate owner of the said property, execute a Deed of Sale in favor of Reva Raz or her heirs, and/or assigns in order to make this conditional assignment permanent. All expenses for such execution and auction sale and other expenses necessary thereto shall be for the account of Reva Raz. The petitioner paid the first installment of P22,000.00 on August 7, 1972, and the second installment of P20,000.00 on August 7, 1973. However, she refused to pay the third installment

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of P33,000.00, which was supposed to be due on August 7, 1974, on the ground that Villanueva had not complied with her obligation under their agreement. Petitioner filed a complaint for specific performance and damages against the private respondent, claiming that the latter had reneged on her duty to deliver the property to the assignee in accordance with their agreement. Villanueva alleged that it was the petitioner who had defaulted in her payments and thus given just cause for the rescission of the agreement. This was authorized in its Par. 3(h) which provided that if for any reason, any of the above terms and conditions cannot fully be complied, the same may be considered rescinded by either party, in which event Villanueva shall return whatever money she or her heirs may have received from the Reva Raz, and that she shall relinquish any and all rights which if any she or her heirs may have, and this contract shall be considered null and void. Villanueva presented two letters 3 she said she had sent Raz, the first to remind her of the third installment that had not yet been paid and the second to tender her the refund of her earlier payments in view of the rescission of their contract. Raz contended that it was the private respondent who had incurred in delay and bad faith. The petitioner pointed out that the motion to dismiss the appeal was filed by the appellants on  August 16, 1972, and was granted by the Court of Appeals in a resolution dated December 15, 1972. Yet it was only on August 16, 1973, that the private respondent filed a motion for execution of the foreclosure judgment. This motion was granted by the trial court and the property was sold at public auction on and the certificate of sale was issued in favor of Villanueva. This was registered in 1975, and the period of redemption expired one year later. However, it was only in 1978 that the court, on Villanueva's motion, ordered the confirmation of the sale and a new certificate of title was issued in her name.  According to the petitioner, the two letters allegedly sent to her by the private respondents should not have been admitted in evidence not only because there was no proof that she had received them. No less importantly, their genuineness had not been established in accordance with R132, S21 (now 20) which provides that any private writing may be received in evidence, its due execution and authenticity must be proved by evidence of the genuineness of the handwriting of the maker. ISSUE: W/N the lower court erred in sustaining the dismissal of the case by finding that the signatures on the letters were genuine. HELD: No. Decision a ffirmed. The petitioner was actually arguing against herself in invoking Rule 132, Section 21, for one of the modes prescribed therein for proving the execution and authenticity of any private writing is "by evidence of the genuineness of the handwriting of the maker." This mode must be read with Section 23 of the same Rule, which says that “Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge.” We have made such comparison and find that the signature of Villanueva on the Conditional  Assignment (which is not disputed) is similar to the signatures affixed to the two letters sent to the petitioner. There is no doubt that the agreement and the two letters were signed by private

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respondent Villanueva. Their authenticity and execution having been established, we hold that the letters were admissible as evidence of the private respondent. The Court is also convinced that the two letters were correctly sent to and personally delivered at the petitioner's address as stated in the Conditional Assignment, were actually received there and later presumably conveyed to her. Indeed, the signature of the person who received the first letter closely resembles that of one of petitioner's counsel as an examination of her pleadings will reveal.

2. ONG V. PEOPLE Doctrines: 1. Prior to the admission in evidence of a private writing, the identity and authenticity of the document sought to be presented must first be reasonably established. 2. The due and valid execution of private instruments, as well as their genuineness and authenticity, must first be established either by the testimony of any one who saw the writing executed or by evidence of the genuineness of the handwriting of the maker thereof. 3. It is elementary that the SC cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document, much less accord it evidentiary value. Facts: 1. The case came about when Solid Cement Corp. failed to deliver the paper bag-making machine sold to Zeny Alfonso because its creditor refused to release the machine as a mortgaged property. 2. As such, the corp. offered to return the money but Zeny refused and instead filed a complaint against the officers of the corp. 3. Initially, the city prosecutor dismissed the case as the case was civil in nature but was reversed by the DOJ. 4. Accordingly, an information for estafa and other deceit was filed with the MeTC Makati against Ong and co. (involved in the sale) 5. In the presentation of evidence, the prosecution presented Zeny as its sole witness and offered documentary evidence (total of 10), which were all photocopies, and rested its case. 6. The defense (Ong’s group) objected to the admission of these pieces of evidence, claiming that the same were only unauthenticated photocopies of the originals. 7. With this, the defense filed a motion for leave to file demurrer to evidence. 8. However, MeTC denied the demurrer stating that there was a prima facie case that would warrant a trial on the merits based from the documentary evidence on record. 9. Thereafter, Ong’s group raised the denial to the RTC via certiorari, which was granted. (There’s no cause to hold Ong & co. for further trial.) 10. The RTC’s order was raised to the CA, which was granted. ISSUE: Are the prosecution’s evidence admissible in evidence? HELD: NO!

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 All documentary evidence submitted by private complainant were uncertified photocopies of certain documents, the signatures on which were either unidentified or unauthenticated. Section 20, Rule 132 of the Revised Rules of Court provides that "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. Thus, prior to the admission in evidence of a private writing, the identity and authenticity of the document sought to be presented must first be reasonably established. Where there is no proof as to the authenticity of the executor's signature appearing in a private document, such private document should be excluded. The documentary evidence submitted by the complaining witness are private instruments, being instruments executed by private persons without the intervention of a public notary or of other persons legally authorized, by which document some disposition or agreement is proved, evidenced, or set forth. Being private instruments, their due and valid execution and their genuineness and authenticity must first be established, either by the testimony of any one who saw the writing executed or by evidence of the genuineness of the handwriting of the maker hereof. A perusal of Zeny’s testimony reveal that the due execution and authenticity of these documents were never proved. In fact, the prosecution took no effort to prove the due execution and authenticity of these documents during the presentation of their sole witness. Absent such proof, these documents are incompetent as evidence. It is elementary that this Court cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document; much less, accord it evidentiary value. The Rules of Court provide that private documents require proof of their due execution and authentication before they can be received in evidence. When there is no such proof, the substitutionary documents may be excluded. The due execution and authenticity of the documentary evidence presented not having been proved, and since these are mere photocopies, the loss of the originals of which was not previously established, the same are clearly inadmissible in evidence. Being incompetent evidence, the only evidence the p rosecution could rely on to prove petitioners' guilt would be the sole testimony of the private complainant. Unsupported by any other evidence, said testimony is insufficient to sustain a finding of culpability. Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient, therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. In

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the instant case, the prosecution miserably failed to establish by sufficient evidence the existence of the crime of estafa and other deceit.

RULE 132 SECTION 22 - HOW GENUINENESS OF HANDWRITING PROVED 1.

LAYNO V. PEOPLE

2. DE JACOB V. CA FACTS: Petitioner Tomasa Vda. de Jacob claimed to be the surviving spouse of deceased Dr.  Alfredo E. Jacob and was appointed Special Administratix for the various estates of the deceased by virtue of a reconstructed Marriage Contract between herself and the deceased. Respondent Pedro Pilapil on the other hand, claimed to be the legally-adopted son of Alfredo, purportedly supported by an Order issued by then Presiding Judge Jose L. Moya, CFI, Camarines Sur, granting the petition for adoption filed by deceased Alfredo in favor of Pedro Pilapil. Pedro sought to intervene during the proceeding for the settlement of the estate of  Alfredo, claiming his share of the deceased’s estate as Alfredo's adopted son and sole surviving heir. Pedro likewise questioned the validity of the marriage between Appellant Tomasa and his adoptive father Alfredo.  Appellant claims that the marriage between her and Alfredo was solemnized by one Msgr. Florencio C. Yllana, CBCP, Intramuros, Manila sometime in 1975. She could not however present the original copy of the Marriage Contract stating that the original document was lost when Msgr. Yllana allegedly gave it to Mr. Jose Centenera for registration. In lieu of the original, Tomasa presented as secondary evidence a reconstructed Marriage Contract issued in 1978. Several irregularities on the constructed Marriage Contract were observed by the court such as: (1) no copy of the Marriage Contract was sent to the local civil registrar by the solemnizing officer; (2) a mere “thumbmark” was purportedly placed by the late Alfredo Jacob on said reconstructed marriage contract on 16 September 1975 (date of the marriage), instead of his customary signature as affixed in their Sworn Affidavit; (3) inconsistencies in the circumstances and personalities surrounding the lost Marriage Contract mentioned in the affidavit executed by Msgr. Yllana and in the testimony admitted by the appellant; and (4) appellant admitted that there was no record of the purported marriage entered in the book of records in San Agustin Church where the marriage was allegedly solemnized. EVIDENCE-RELATED FACTS:  Appellee Pilapil presented the Order in Special Proceedings No. 192 issued by then Presiding Judge Moya granting the petition for adoption filed by deceased Alfredo which declared therein Pedro Pilapil as the legally adopted son of Alfredo.  Appellant Tomasa however questioned the authenticity of the signature of Judge Moya.

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In an effort to disprove the genuineness and authenticity of Judge Moya’s signature in the Order granting the petition for adoption, the deposition of Judge Moya was taken and he attested that he could no longer remember the facts in judicial proceedings taken about twenty-nine (29) years ago when he was then presiding judge since he was already 79 years old and was suffering from “glaucoma”. The trial court then consulted two (2) handwriting experts to test the authenticity and genuineness of Judge Moya’s signature.  A handwriting examination was conducted by Binevenido C. Albacea, NBI Document Examiner. Examiner Albacea used thirteen (13) specimen signatures of Judge Moya and compared it with the questioned signature. He pointed out irregularities and “significant fundamental differences in handwriting characteristics/habits existing between the questioned and the ‘standard’ signature” and concluded that the questioned and the standard signatures “JOSE L. MOYA” were NOT written by one and the same person. On the other hand, to prove the genuineness of Judge Moya’s signature, appellee presented the comparative findings of the handwriting examination made by a former NBI Chief Document Examiner Atty. Desiderio A. Pagui who examined thirty-two (32) specimen signatures of Judge Moya inclusive of the thirteen (13) signatures examined by Examiner Albacea. In his report,  Atty. Pagui noted the existence of significant similarities of unconscious habitual pattern within allowable variation of writing characteristics between the standard and the questioned signatures and concluded that the signature of Judge Moya appearing in the Order dated 18 July 1961 granting the petition for adoption was indeed genuine. Confronted with two (2) conflicting reports, the trial court sustained the findings of Atty. Pagui declaring the signature of Judge Moya in the challenged Order as genuine and authentic. Based on the evidence presented, the trial court ruled for defendant-appellee sustaining his claim as the legally adopted child and sole heir of deceased Alfredo and declaring the reconstructed Marriage Contract as spurious and non-existent. CA affirmed ISSUES: 1. WON the marriage between plaintiff Tomasa Vda. De Jacob and deceased Dr.Alfredo E. Jacob was valid; and 2. WON defendant Pedro Pilapil is the legally adopted son of Alfredo E. Jacob HELD: ON THE FIRST ISSUE: Pilapil’s claim that the marriage was void due to absence of a marriage license was misplaced. An affidavit executed by the appellant and the late Dr. Jacob that they lived together as husband and wife for at least five years exempted them from the marriage license requirement (Article 76 of the Civil Code).

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 Also misplaced was Pilapil’s argument that the marriage was void because of the absence of a marriage contract and the absence of entry of such in the Books of Marriage of the Local Civil Registrar and in the National Census and Statistics Office. A marriage contract is the best evidence of a marriage ceremony. However, “the contents of a document may be proven by competent evidence other than the document itself, provided that the offeror establishes its due execution and its subsequent loss or destruction. Accordingly, the fact of marriage may be shown by extrinsic evidence other than the marriage contract.” In the instant case, appellant provided competent evidence to prove that a marriage ceremony was solemnized between her and the late Dr. Jacob. Such evidence was supplied by appellant Tomasa, witness Adela Pilapil and the solemnizing officer Msgr. Yllana through their sworn testimonies both in open court and in writing, and through the photographs taken during the ceremony. RELATED TO TOPIC ON GENUINENESS OF HANDWRITING ON THE SECOND ISSUE: Central to the present question is the authenticity of Judge Moya’s signature on the questioned Order of Adoption. To enlighten the trial court on this matter, two expert witnesses were presented, one for petitioner and one for Respondent Pilapil. The trial court relied mainly on respondent’s expert and brushed aside the Deposition of Judge Moya himself. Judge Moya could not recall having ever issued the Order of Adoption. More importantly, when shown the signature over his name, he positively declared that it was not his. The fact that he had glaucoma when his Deposition was taken does not discredit his statements. At the time, he could with medication still read the newspapers; upon the request of the defense counsel, he even read a document shown to him. Indeed, we find no reason – and the respondent has not presented any – to disregard the Deposition of Judge Moya. Other considerations also cast doubt on the claim of respondent. The alleged Order was purportedly made in open court. In his Deposition, however, Judge Moya declared that he did not dictate decisions in adoption cases. The only decisions he made in open court were criminal cases, in which the accused pleaded guilty. Moreover, Judge Moya insisted that the branch where he was assigned was always indicated in his decisions and orders; yet the questioned Order did not contain this information. Furthermore, Pilapil’s conduct gave no indication that he recognized his own alleged adoption, as shown by the documents that he signed and other acts that he performed thereafter. In the same vein, no proof was presented that Dr. Jacob had treated him as an adopted child. Likewise, both the Bureau of Records Management in Manila and the Office of the Local Civil Registrar of Tigaon, Camarines Sur,issued Certifications that there was no record that Pedro Pilapil had been adopted by Dr. Jacob. Taken together, these circumstances inexorably negate the alleged adoption of respondent. JACOB VS. CA

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DOCTRINE: The Escritura complied with all the requisites laid down in the above provision. It was more than 51 years old when it was presented in court; it was produced by the proper custodians thereof who were the heirs of the person who would validly keep it; and there is no question it was unblemished by any suspicious alteration or erasure. It was therefore unnecessary to prove its execution and authenticity as evidence of the transfer of the disputed  property to Leon Cabida, the petitioners' predecessor-in-interest. FACTS: The respondents (grandchildren of Bobiles and Boragay) sued the petitioners for recovery of possession and ownership of a parcel of land located in Tagas, Tabaco, Albay, with an area of approximately 794 square meters. The plaintiffs Jacob allege that the land was covered by OCT. RO-3334 issued in the name of Manuela Bobiles on June 30, 1932. The spouses Agaton Boragay and Manuela Bobiles had only one child named Gregoria Boragay. When the parents died, the property passed on to Gregoria who stayed on the land together with her husband, Alejandro Alcera, and their three children. When the Alcera children got married, they left the property and lived with their respective husbands. In 1974, Venancio Bonto a nd Felicidad Boragay constructed a shanty on the subject property. In 1977, Bonifacio Bobiles and Rosalina Base also built their house on the said lot. In the same year, OCT No. RO-3334 was canceled and TCT No. T-50318 in the name of the private respondents was issued. In 1981, two more houses were erected on the land by Buenaventura Jacob, Ledita Burce, Edilberto Bonto and Elena Borebor. In May, 1984, Trinidad Alcera Cruz demanded verbally that the petitioners vacate the premises but the latter refused. TC: Dismissed the complaint and declared Leditha Jacob and Buenaventura Jacob "to be in lawful possession and owners of the 297.5 portion of the lot in question which came from Consolacion Burce Elaco and the other 297.5 . . . belongs to the vendee thereof, Ricardo Burce or his heir, which is presently legally possessed by defendants Ledita Jacob and Buenaventura Jacob." The remaining area of 199 square meters was declared as belonging to Emilio Bonto. CA reversed

ISSUE: WON the respondents are the real owners of the land? YES WON the CA erred in disregarding the Deed of Sale with a Right to Repurchase? YES HELD: The land is still registered under the name of Manuela Bobiles when the transfer to the petitioners was made. And in 1977, the respondents had the land registered under their name.

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Thus, they are the p resent holders of a registered title. (Indefeasibility of a Torrens Certificate of Title) The CA erred when it disregarded the Escritura de Venta con Pacto de Retro as a mere scrap of paper. In fact, it was an important piece of evidence that it should not have dismissed out of hand. Rule 132, Section 22, of the Rules of Court provides: Sec. 22. Evidence of execution not necessary.  — Where a private writing is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given.

The Escritura complied with all the requisites laid down in the above provision. It was more than 51 years old when it was presented in court; it was produced by the proper custodians thereof who were the heirs of the person who would validly keep it; and there is no question it was unblemished by any suspicious alteration or erasure. It was therefore unnecessary to prove its execution and authenticity as evidence of the transfer of the disputed property to Leon Cabida, the petitioners' predecessor-in-interest. Even so, that document cannot prevail against the transfer certificate of title in the name of the private respondents, who remain and are recognized as the registered owners of the disputed land. That title is good as against the whole world.

3. SECURITY BANK V. TRIUMPH LUMBER G.R. No. 126696 January 21, 1999 SECURITY BANK & TRUST COMPANY vs. TRIUMPH LUMBER AND CONSTRUCTION CORPORATION DOCTRINE: " The initial step in the investigation of a disputed handwriting is the introduction of the genuine handwriting of the party sought to be charged with the disputed writing – this is to serve as a standard of comparison. " In proving the genuineness of a handwriting Section 22, Rule 132 must be applied. " BA Finance v. Court of Appeals: genuineness of a standard writing may be established by any of the following – (1) by the admission of the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) by witnesses who saw the standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.

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FACTS: Triumph Lumber is a depositor in good standing of Security Bank. Triumph claims that 3 " checks (P150,000, P130,000, and P20,000) all payable to cash and all drawn against its account were presented for encashment at Security Bank’s Sucat Parañaque branch. " It claims that due to the bank's gross negligence the checks were encashed by unauthorized persons. Triumph requested the bank to credit back and restore to its account the value of the " checks which were wrongfully encashed. Despite due demand, the bank failed to pay. ! Triumph claims that per findings of the PC Crime Laboratory, the signatures of its " authorized signatories were forged. -----------------------------------------------------------------------------------------------------------Security Bank claims that in order to open a current and savings account, Triumph " provided the bank with the requisite specimen signature cards. ! This authorized the bank to honor withdrawals on the basis of any 2 of 3 the signatures (those of Triumph’s president, treasurer and general manager). " The bank claims that the savings account pass book and the check booklets were kept by Triumph in its filing cabinet but on March 23, 1987 it was discovered that the door of the office was forced open including that of the filing cabinet. ! It claims that the incident was not reported to the police authorities nor was there any advise given to the bank and that on the same day the burglary was discovered, Triumph even made 3 separate deposits. The bank also claims that immediately after the deposits, 3 checks all payable to cash " were successively presented to it for encashment. ! After the checks passed through the standard procedure for verification of the signatures and the regularity of the material particulars, said checks were encashed. " TC: dismissed the complaintr – found no preponderance of evidence to support it. ! Triumph failed to show that the signatures were forged. It did not even present in court the originals of the checks. It could be presumed that the original checks were willfully suppressed and would be adverse to its case if produced. ! The bank exercised due care and diligence in determining the authenticity of the checks before they were encashed. " CA: reversed the TC and ordered Security Bank to reimburse Triumph. " Security Bank’s contentions: the opinion of Triumph’s expert witness, a Senior Document Examiner of the PC Crime Laboratory, has no weight and deserves no consideration. She did not use as basis of her analysis the standard signatures of the signatories on the specimen signature cards. What she used for comparisons were signatures that were not even authenticated by such signatories. ISSUE: WON the Document Examiner’s expert testimony is sufficient to prove the alleged forgery. – NO HELD:

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Forgery was not duly established. Section 3, Rule 130 of the Rules of Court (Best Evidence Rule) was not complied with by " Triumph. The Section explicitly provides that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. ! In this case, the originals of the alleged forged check had to be produced. What Triumph offered were mere photocopies of the checks and it never explained the reason why it could not produce the originals. The proper procedure in the investigation of a disputed handwriting was not observed. " The initial step in such investigation is the introduction of the genuine handwriting ! of the party sought to be charged with the disputed writing – this is to serve as a standard of comparison. The standard or the exemplar must be proved to be genuine. For the purpose of proving the genuineness of a handwriting Section 22, Rule 132 of the Rules of Court must be applied. In BA Finance v. Court of Appeals, it was ruled that genuineness of a standard ! writing may be established by any of the following: (1) by the admission of the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) by witnesses who saw the standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns. " The records only contain photocopies, not the originals, of the "long bond papers" containing the alleged specimen signatures. Nobody was presented to prove that the specimen signatures were in fact signatures affixed by the authorized signatories. Clearly then, Section 22 of Rule 132 and the guidelines in BA Finance v. Court of  Appeals were not complied with. In Addition: The specimen signatures were not directly turned over to the Document Examiner by those who purportedly wrote them. They, together with the checks, were passed along various individuals within the PC Crime Laboratory before they finally reached her. She never saw the parties write the specimen signatures, she just presumed them to be genuine signatures. " The testimony of Triumph’s expert witness fails to convince that she was a credible document examiner. ! She was candid enough to admit that although she had testified about 300 times as an expert, her findings were sustained by the courts in about 10 cases only. " In this case, the Document Examiner could not be considered to have adequate knowledge of the genuine signatures of the parties whose signatures were claimed to be forged. ! Such knowledge could be obtained either by (a) seeing the person write some other documents or signatures (ex visu scriptionis); (b) seeing documents otherwise known to him to have been written by the person in question (ex scriptis olim visis); or (c) examining, in or out of court, for the express purpose of

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"

obtaining such knowledge, the documents said to have been written by the person in question (ex comparatione scriptorum). She tried to be a witness under the 3rd. But under such, it is essential that (a) certain specimens of handwriting were seen and considered by her and (b) they were genuinely written by the person in question.

4.

FILIPINA SY V. CA and FERNANDO SY Note: No handwriting issue mentioned in the case. This is a case for declaration of absolute nullity of marriage of the spouses Filipina Sy and Fernando Sy. RTC and CA denied the petition for declaration of absolute nullity of marriage. Doctrine: Photocopied documents that are admitted as evidence are deemed sufficient proof of the facts contained therein if the adverse party fails to timely object thereto. Facts: "

"

"

"

"

1973, Filipina and Fernando contracted marriage. Both were then 22 years old. Their union was blessed with two children. The spouses first established their residence in Manila, then in Apalit, Pampanga, and later at San Matias, Sto. Tomas, Pampanga. They operated a lumber and hardware business in Sto. Tomas, Pampanga. 1983, Fernando left their conjugal dwelling. Since then, the spouses lived separately, and their two children were in the custody of their mother. However, their son transferred to his father’s residence at Masangkay, Tondo, Manila on 1988, and from then on, lived with his father. 1987, Filipina filed a petition for legal separation before the RTC Pampanga. ! Later, upon motion of Filipina, the action was later amended to a petition for separation of property on the grounds that her husband abandoned her without  just cause; that they have been living separately for more than one year; and that they voluntarily entered into a Memorandum of Agreement on 1983, containing the rules that would govern the dissolution of their conjugal partnership. # RTC Pampanga: rendered dissolving their conjugal partnership of gains and approving a regime of separation of properties based on the Memorandum of Agreement executed by the spouses. The trial court also granted custody of the children to Filipina. 1988, Filipina filed a criminal action for attempted parricide against her husband before the RTC Manila. ! Filipina testified that on May 15, 1988, she went to the dental clinic owned by her husband but operated by his mistress, to fetch her son and bring him to San Fernando, Pampanga.

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!

!

"

While she was talking to her son, the boy ignored her and continued playing with the family computer. Filipina got mad, took the computer away from her son, and started spanking him. At that instance, Fernando pulled Filipina away from their son, and punched her in the different parts of her body. Filipina also claimed that her husband started choking her when she fell on the floor, and released her only when he thought she was dead. RTC Manila: convicted Fernando only of slight physical injuries. #

Filipina later filed a new action for legal separation against Fernando on the following grounds: (1) repeated physical violence; (2) sexual infidelity; (3) attempt by respondent against her life; and (4) abandonment of her by her husband without justifiable cause for more than one year. RTC: granted the petition on the grounds of 1 and 2, and issued a decree of legal ! separation.

Below are the main facts of the case related to our topic: (Issue on the marriage certificate (as evidence) was not mentioned in the facts of the case, it was mentioned on the decision part.) Later, Filipina filed a petition for the declaration of absolute nullity of her marriage to " Fernando on the ground of psychological incapacity. ! She also cites as manifestations of her husband’s psychological incapacity the following: (1) habitual alcoholism; (2) refusal to live with her without fault on her part, choosing to live with his mistress instead; and (3) refusal to have sex with her, performing the marital act only to satisfy himself. Moreover, Filipina alleges that such psychological incapacity of her husband existed from the time of the celebration of their marriage and became manifest thereafter. # RTC: denied the petition of Filipina for the declaration of absolute nullity of her marriage to Fernando. " It stated that the alleged acts of Fernando, as cited by Filipina, do not constitute psychological incapacity which may warrant the declaration of absolute nullity of their marriage. # CA: affirmed RTC’s decision. " Filipina’s testimony concerning Fernando’s purported psychological incapacity falls short of the quantum of evidence required to nullify a marriage celebrated with all the formal and essential requisites of law. Moreover, the CA held that Filipina failed to show that the alleged psychological incapacity of respondent had existed at the time of the celebration of their marriage in 1973. Filipina appealed by certiorari and raises that CA overlooked that their marriage on 1973 lacks marriage license and was not disputed by Fernando. Issue: 1. W/n the marriage between Filipina and Fernando is void from the beginning for lack of marriage license at the time of the ceremony. YES

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2. W/n the photocopied marriage certificate and marriage license can be admitted as evidence in the case. YES Held: 1. Yes, the marriage is void from the beginning. Date of Marriage: November 15, 1973 ! Date of Issuance of Marriage License: September 17, 1974 ! 2. Yes, SC noted that their marriage certificate and marriage license are only photocopies. So are the birth certificates of their children. Nevertheless, these documents were marked as Exhibits during the course of the trial below, which shows that these have been examined and admitted by the trial court, with no objections having been made as to their authenticity and due execution. Likewise, no objection was interposed to Filipina’s testimony in open court when she affirmed that the date of the actual celebration of their marriage was on November 15, 1973.  Therefore, that having been admitted in evidence, with the adverse party failing to timely object thereto, these documents are deemed sufficient proof of the facts contained therein. SC: Petition is GRANTED. The marriage celebrated on November 15, 1973 between petitioner Filipina and Fernando is hereby declared void ab initio for lack of a marriage license at the time of celebration.

RULE 132 SECTION 23 - PUBLIC DOCUMENTS AS EVIDENCE 1.

REALUBIT V. JASO

DOCTRINE: 1. It is a settled rule that documents acknowledged before notaries public are public documents which are admissible in evidence without necessity of preliminary proof as to their authenticity and due execution. 2. A public document not only enjoys a presumption of regularity but is also considered prima facie evidence of the facts therein stated 3. A party assailing the authenticity and due execution of a notarized document is, consequently, required to present evidence that is clear, convincing and more than merely preponderant

FACTS: "

Petitioner Josefina Realubit (as industrial partner) entered into a Joint Venture  Agreement (JVA) with Francis Eric Amaury Biondo (as capitalist partner) a French national, for the operation of an ice manufacturing business. ! The parties agreed that they would each receive 40% of the net profit, with the remaining 20% to be used for the payment of the ice making machine which was purchased for the business.

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"

"

"

"

" "

Biondo subsequently executed a Deed of Assignment dated 27 June 1997, transferring all his rights and interests in the business in favor of Respondents Eden and Prosencio Jaso. With Biondo’s eventual departure from the country, the Spouses Jaso caused their lawyer to send Josefina a letter apprising her of their acquisition of said Biondo’s share in the business and formally demanding an accounting and inventory thereof as well as the remittance of their portion of its profits. Demand left unheeded ! Spouses filed for specific performance, accounting, examination, audit and inventory of assets and properties, dissolution of the joint venture, appointment of a receiver and damages. Served with summons, the Spouses Realubit filed their Answer dated 21 October 1998, specifically denying the material allegations. Claimed the ff: That they have been engaged in the tube ice trading business under a single ! proprietorship even before their dealings with Biondo, The Spouses Realubit, in turn, averred that their said business partner had ! left the country in May 1997 and could not have executed the Deed of Assignment which bears a signature markedly different from that which he affixed on their Joint Venture Agreement; that they refused the Spouses Jaso’s demand in view of the dubious circumstances surrounding their acquisition of Biondo’s share in the business; ! That said business had already stopped operations and, that it was their own tube ice trading business that the Spouses Jaso mistook for the ice manufacturing business established in partnership with Biondo RTC: Spouses Jaso was subrogated to Biondo’s rights CA: The Spouses Jaso validly acquired Biondo’s share in the business

The Spouses Realubit argue that, in upholding its validity, both the RTC and the CA inordinately gave premium to the notarization of the 27 June 1997 Deed of Assignment executed by Biondo in favor of the Spouses Jaso. Calling attention to the latter’s failure to present before the RTC said assignor or, at the very least, the witnesses to said document, the Spouses Realubit maintain that the testimony of Rolando Diaz, the Notary Public before whom the same was acknowledged, did not suffice to establish its authenticity and/or validity. They insist that notarization did not automatically and conclusively confer validity on said deed, since it is still entirely possible that Biondo did not execute said deed or, for that matter, appear before said notary public. ISSUE:  WON the notarization automatically and conclusively confer validity on the Deed of  Assignment? YES HELD: The dearth(lack/shortage) of merit in the Spouses Realubit’s position is, however, immediately evident from the settled rule that documents acknowledged before notaries public are public

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documents which are admissible in evidence without necessity of preliminary proof as to their authenticity and due execution. It cannot be gainsaid that, as a public document, the Deed of  Assignment Biondo executed in favor of Eden not only enjoys a presumption of regularity but is also considered prima facie evidence of the facts therein stated. A party assailing the authenticity and due execution of a notarized document is, consequently, required to present evidence that is clear, convincing and more than merely preponderant. In view of the Spouses Realubit’s failure to discharge this onus, we find that both the RTC and the CA correctly upheld the authenticity and validity of said Deed of Assignment   upon the combined strength of the above-discussed disputable presumptions and the testimonies elicited from Eden and Notary Public Rolando Diaz.  As for the Spouses’ Realubit’s bare assertion that Biondo’s signature on the same document appears to be forged, suffice it to say that, like fraud, forgery is never presumed and must likewise be proved by clear and convincing evidence by the party alleging the same. Aside from not being borne out by a comparison of Biondo’s signatures on the Joint Venture Agreement and the Deed of Assignment, said forgery is, moreover debunked by Biondo’s duly authenticated certification dated 17 November 1998, confirming the transfer of his interest in the business in favor of Eden

2. MANZANO B. GARCIA Facts: On May 26, 1992, “GARCIA” allegedly executed in favor of CONSTANCIO MANZANO a  pacto de retro sale of a parcel of land located in the center of Cagayan de Oro City. Under the said contract “GARCIA” purportedly reserved the right to repurchase the subject property for the same price within (3) months from the date of the instrument. CONSTANCIO passed away and his properties were adjudicated to his heirs with VICENTE MANZANO as the a dministrator of the intestate estate of CONSTANZIO. “GARCIA” was not able to redeem the subject property within (3) months. As such, VICENTE instituted a petition for consolidation of ownership over the property. GARCIA filed an opposition and answer, alleging that the document evidencing the  pacto de retro sale was a forgery. He claimed that he and his wife were in the United States of America (USA) from June 1, 1988 to November 14, 1992, and therefore could not have possibly executed the said pacto de retro sale on May 26, 1992. GARCIA filed a complaint for annulment of  pacto de retro sale and recovery of the owner’s title with preliminary injunction against VICENTE During trial, GARCIA testified that the signatures appearing in the  pacto de retro sale were not his and his wife’s. He presented his passport and driver’s license, both of which bear an entirely different signature than what appeared in the pacto de retro sale document

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 Atty. Demosthenes Mediante, Jr. (Atty. Mediante), the person who notarized the deed of conveyance in question, testified that the Marcelino Garcia who appeared in his office and who executed the pacto de retro sale is not the same Marcelino Garcia who was in court during the trial of the case Perla Babano, one of the witnesses to the execution of the pacto de retro sale, likewise testified that the person who introduced himself as Marcelino G. Garcia and signed the document on May 26, 1992 is not the same Marcelino Garcia who was in court during the trial of the case. TC: Garcia failed to prove that his signature was forged. Moreover, Garcia should have presented an expert witness to determine whether the same person made the signatures. Also, the trial court doubted the testimonies of Atty Mediante (notary public) & Babano (witness to the sale) CA: Reversed the TC’s decision VICENTE likewise argues that the Court of Appeals erred in failing to appreciate that the notarized deed of pacto de retro sale was entitled to the presumption of regularity and should be given great weight. Issues & Held: 1. Whether the presumption of regularity of the notarized deed of pacto de retro sale was overcome?  YES. . It is settled that while a notarized document enjoys this presumption, “the fact that a deed is notarized is not a guarantee of the validity of its contents. The “presumption of regularity of notarized documents is not absolute and may be rebutted by clear and convincing evidence to the contrary.” Irregularities in the notarization of the document may be established by oral evidence of persons present in said proceeding. Thus, in Eulogio v. Apeles, where the party insisting on the presumption of regularity of a notarized deed of sale admitted that the same was notarized without his presence, this Court held that “such fact alone overcomes the presumption of regularity, since a notary public is enjoined not to notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before the said notary public to attest to the contents and truth of what are stated therein.” In the case at bar, even more convincing evidence of the irregularity was presented as it was the notary public himself who testified that the person who appeared before him was not respondent Garcia. Since the very official who attested to the crucial facts in the notarization – i.e., that the persons who personally appeared before him are the same persons who executed the deed of conveyance – admitted in open court the falsity of said manifestation, the reliability of the  Acknowledgment that clothes the document with a presumption of regularity is completely shattered. We, therefore, agree with the Court of Appeals that the presumption of regularity of

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the notarized deed of  pacto de retro  sale was sufficiently overcome by the testimony of Atty. Mediante. 2. Whether there was a need to present an expert witness? (Optional) NO.  As to the argument that handwriting experts should have been employed, handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them, but resort to these experts is not mandatory or indispensable to the examination or the comparison of handwritings. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones. Moreover, Section 22 of Rule 132 of the Rules of Court likewise explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting “with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.”

RULE 132 SECTION 34 - OFFER OF EVIDENCE 1.

HEIRS OF CARMEN V. MULTIWOOD

DOCTRINE: Rule is that the court shall not consider any evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered. Documentary evidence which was not formally offered cannot be used to modify, explain or add to the terms of an agreement. FACTS: The late Carmen Cruz-Zamora (Zamora) filed a Complaint against respondent Multiwood " International, Inc. (Multiwood) alleging that sometime in 1987, Zamora signed a Marketing  Agreement to act as an agent of Multiwood. ! As agent, Zamora claimed she obtained certain contracts on behalf of Multiwood and in renumeration for her services, she was to be paid ten percent (10%) commission for the said projects.

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Zamora claimed Multiwood defaulted in payment of said commissions for contracts with 3 big hotels (Edsa Shang, Makati Shang and Diamond Hotel) which compelled for her to file an action for the collection of her commission after repeated demands. Multiwood asserted that Zamora was not entitled to receive commissions on the projects on the 3 hotels because those were “construction contracts” while their marketing contract spoke only of sale of Multiwood products. By way of counterclaim, Multiwood claimed, among others, that Zamora had unliquidated advances !

"

"

RTC: rendered decision in favor of Zamora The trial court interpreted the Marketing Agreement as to include construction contracts and allowed Zamora to claim the ten percent (10%) commission granted in the said agreement. In arriving at the decision, the trial court took into consideration the alleged intention of the contracting parties purportedly evidenced by Multiwood’s contemporaneous and subsequent acts of making "partial payments" of the commission on the disputed projects as evidenced by various vouchers (Exhibits K-2 to K-7) which, however, were not offered in evidence by either party and marked for exhibit only during the testimony of defense witness, Adrian Guerrero. CA: rendered its decision reversing and setting aside the decision of the RTC " "

Zamora then elevated the case to this Court through the instant petition for review 2 years after, Zamora’s counsel filed a Motion to Substitute Deceased Petitioner informing the Court that Zamora had passed away on September 30, 2002 and asking that her heirs be substituted as petitioners pursuant to Section 16, Rule 3 of the Rules of Court which the court granted.

ISSUE: WON the contemporaneous and subsequent acts of making "partial payments" of the commission should be admitted as evidence? HELD: NO. We agree with the CA that the trial court committed an error in interpreting the Marketing Agreement to include construction contracts based solely on Exhibits "K-2" to "K-7" which were allegedly contemporaneous acts of Multiwood of paying in part Zamora’s commissions on construction contracts. As borne by the records, these exhibits were only marked as such during the testimony of the defense witness, Adrian Guerrero, but not offered in evidence by either party. Section 34, Rule 132 of the Rules of Court states: SEC. 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The trial court’s reliance on Exhibits "K-2" to "K-7" is thus, misplaced. It has no evidentiary value in this case because it was not offered in evidence before the trial court. The rule is that the court shall not consider any evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.

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The trial court should not have read terms into the Marketing Agreement that were not expressly in the agreement itself. The agreement is clear, plain and simple that it leaves no room for interpretation. It explicitly provides that for the services of Zamora, as agent under the agreement, Multiwood agreed to pay her in the amount equivalent to ten percent (10%) of the face value of the invoice price, covering the letter of credit or such other instrument representing the actual purchase price for the products sold or shipped by Multiwood. In other words, Zamora’s commission under the Marketing Agreement was to be paid only for products sold or supplied by Multiwood and not for services rendered by the latter. As admitted by Zamora herself during cross-examination, the Edsa Shangrila, Makati Shangrila and Diamond Hotel projects were "interior construction" projects and not simply contracts for sale or supply of Multiwood products. 2.

HEIRS OF PASAG V. SPOUSES PAROCHA

DOCTRINE: Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. There is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected. FACTS: The instant case arose from a Complaint for Declaration of Nullity of Documents and Titles, Recovery of Possession and Ownership, Reconveyance, Partition and Damages filed by petitioners at the Urdaneta City RTC of Pangasinan against respondents. Petitioners alleged a share over three (3) properties owned by respondents, which formed part of the estate of petitioners’ deceased grandparents, Benito and Florentina Pasag. They averred that Benito and Florentina Pasag died intestate, thus, leaving behind all their properties to their eight (8) children––Pedro, Isidro, Basilio, Severino, Bonifacio, Maria, Juanita, and Fortunata. However, Severino, the predecessor of respondents, claimed in an affidavit of self-adjudication that he is the sole, legal, and compulsory heir of Benito and Florentina Pasag. Consequently, he was able to appropriate to himself the properties covered by Original Certificates of Title (OCT) Nos. 2983 and 1887. Thereafter, Severino executed a deed of absolute sale over the said properties in favor of his daughter, respondent Florentina Parocha. Moreover, petitioners alleged that Severino used the same affidavit of self-adjudication to secure a free patent over an agricultural land that had long been under the possession of Benito and Florentina Pasag. Respondents averred in their Answer that the properties left behind by the spouses Benito and Florentina Pasag had already been partitioned among their eight (8) surviving children. They claimed that the parcels of land covered by OCT Nos. 2983 and 1887 are Bonifacio’s share of which he later on renounced in a Quitclaim Deed in favor of his brother, Severino. As regards the parcel of land covered by OCT No. P-20607, respondents asserted that the said land had been in Severino’s possession and occupation since 1940, thus, giving him the right to apply for and be granted a free patent over it. Having complied with the requirements of law, Severino’s title had now become indefeasible.

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The trial of the case commenced on March 19, 1996. On March 9, 1999, petitioners rested their case and were granted ten (10) days within which to submit their formal offer of documentary exhibits. However, petitioners failed to submit the said pleading within the required period. On April 19, 1999, petitioners asked the trial court to give them until May 11, 1999 to submit their offer of evidence; and it subsequently granted their motion. However, on May 11, 1999, they again failed to submit their offer of evidence and moved for another extension of five (5) days. Petitioners still failed to submit their formal offer of evidence within the extended period. Consequently, the trial court deemed the petitioners’ right to make their formal offer of evidence as waived. On July 27, 1999, petitioners moved for the admission of their offer of evidence. On September 1, 1999, however, the trial court issued an Order4 denying petitioners’ formal offer of evidence for their "consistent failure" to submit it. Respondents filed a Motion to Dismiss on Demurrer to Evidence. The trial court granted respondents’ demurrer to evidence and ordered the dismissal of the Complaint. Petitioners’ Motion for Reconsideration was denied for lack of merit. CA Affirms ISSUE: W/N dismissal based on waiver of petitioners’ offer of documentary evidence was proper. HELD: Yes. The Rules of Court provides that "the court shall consider no evidence which has not been formally offered." A formal offer is necessary because judges are mandated to rest their findings of facts and their  judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. Strict adherence to the said rule is not a trivial matter. The ruled that the formal offer of one’s evidence is deemed waived after failing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice."  Applying the aforementioned principle in this case, we find that the trial court had reasonable ground to consider that petitioners had waived their right to make a formal offer of documentary or object evidence. Despite several extensions of time to make their formal offer, petitioners failed to comply with their commitment and allowed almost five months to lapse before finally submitting it. Petitioners’ failure to comply with the rule on admissibility of evidence is anathema to the efficient, effective, and expeditious dispensation of justice. The offer of evidence is a litigated motion and cannot be done ex parte. Counsels for parties should not however rely on the benevolence of the trial court as they are expected to have thoroughly and exhaustively prepared for all possible pieces of evidence to be presented and the purposes for which they will be utilized. As a matter of fact, the draft of the offer of evidence can already be prepared after the pretrial order is issued, for, then, the counsel is already fully aware of the documentary or object evidence

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which can be put to use during trial. Under the pre-trial guidelines, the trial court is ordered to integrate in the pre-trial order the following directive: No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidencein-chief other than those that had been identified below and pre-marked during the pre-trial. Any other evidence not indicated or listed below shall be considered waived by the parties. However, the Court, in its discretion, may allow introduction of additional evidence in the following cases: (a) those to be used on cross-examination or re-cross-examination for impeachment purposes; (b) those presented on re-direct examination to explain or supplement the answers of a witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial proceedings despite due diligence on the part of the party offering the same. Both parties should obtain, gather, collate, and list all their respective pieces of evidence–– whether testimonial, documentary, or object––even prior to the preliminary conference before the clerk of court or at the latest before the scheduled pre-trial conference. Otherwise, pieces of evidence not identified or marked during the pre-trial proceedings are deemed waived and rendered inutile. The parties should strictly adhere to the principle of "laying one’s cards on the table." In the light of these issuances and in order to obviate interminable delay in case processing, the parties and lawyers should closely conform to the requirement that the offer of evidence must be done orally on the day scheduled for the presentation of the last witness. Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pretrial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected.

3.

CATUIRA V. CA Doctrines: 1. Objection to evidence orally offered is a mere privilege which can be waived. 2. Petitioner waived the procedural error by failing to object at the appropriate time. Evidence: The testimony of the complainant FACTS: 1. An estafa case was filed against Catuira for issuing 2 checks to Ocampo, which were subsequently dishonored due to insufficient fund. 2. In the prosecution’s presentation of evidence, the prosecution failed to offer in evidence the testimony of the complaining witness (Ocampo) upon calling her to testify.

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3. The offer was made only after Ocampo’s testimony and after Catuira moved that it be stricken out. 4. As such, after the prosecution had presented its evidence, Catuira filed a Motion to Dismiss (by way of Demurrer to Evidence) contending that the testimony of Ocampo was inadmissible in evidence since it was not properly introduced when she was called to testify as mandated in Sec. 35, Rule 132. And as such, should have been stricken off the record pursuant to Sec. 34, Rule 132. 5. The trial court denied the motion for lack of merit. MR denied. ISSUE: Is the testimony of a witness inadmissible in evidence if not formally offered at the time the witness is called to testify, as required in Sec. 35, in relation to Sec. 34, Rule 132? HELD: NO! Catuira waived this procedural error by failing to object at the appropriate time. The reason for requiring that evidence be formally introduced is to enable the court to rule intelligently upon the objection to the questions which have been asked. As a general rule, the proponent must show its relevancy, materiality and competency. Where the proponent offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. But such right is a mere privilege which can be waived. Necessarily, the objection must be made at the earliest opportunity, lest silence when there is opportunity to speak may operate as a waiver of objections. While it is true that the prosecution failed to offer the questioned testimony when Ocampo was called to the witness stand, Catuira waived this procedural error by failing to object at the appropriate time, i .e., when the ground for objection became reasonably apparent the moment Ocampo was called to testify without any prior offer having been made by the proponent. The Court explained citing CA’s observation that Catuira should have objected to the testimony of the complaining witness when it was not first offered upon calling her and should not have waited in ambush after she had already finished testifying. By so doing she did not save the time of the Court in hearing Ocampo’s testimony that after all according to her was inadmissible. And for her failure to make known her objection at the proper time, the procedural error or defect was waived. Rationale behind Sec. 34, Rule 132: The new rule would require the testimony of a witness to offer it at the time the witness is called to testify. This is the best time to offer the testimony so that the court's time will not be wasted. Since it can right away rule on whether the testimony is not necessary because it is irrelevant or immaterial.

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Even assuming that Catuira’s objection was timely, it was at best pointless and superfluous. For there is no debating the fact that the testimony of complaining witness is relevant and material in the criminal prosecution of petitioner for estafa. Consequently, even if the offer was belatedly made by the prosecution, there is no reason for the testimony to be expunged from the record. On the contrary, the unoffered oral evidence must be admitted if only to satisfy the court's sense of  justice and fairness and to stress that substantial justice may not be denied merely on the ground of technicality.

4.

VDA. DE ONATE V. CA

5.

SY V. CA

DOCTRINE: The photocopied documents having been admitted in evidence, with the adverse  party failing to timely object thereto, are deemed sufficient proof of the facts contained therein FACTS: Petitioner Filipina Sy and private respondent Fernando Sy contracted marriage on November 15, 1973 at the Church of our Lady of Lourdes in Quezon City. Both were then 22 years old. Their union was blessed with two children. On September 15, 1983, Fernando left their conjugal dwelling. Since then, the spouses lived separately and their two children were in the custody of their mother. On February 11, 1987, Filipina filed a petition for legal separation before the RTC of San Fernando, Pampanga and was later amended to a petition for separation of property. Judgment was rendered dissolving their conjugal partnership of gains and approving a regime of separation of properties based on the Memorandum of Agreement executed by the spouses. In May 1988, Filipina filed a criminal action for attempted parricide against her husband. RTC Manila convicted Fernando only of the lesser crime of slight physical injuries and sentenced him to 20 days imprisonment. Petitioner filed a petition for the declaration of absolute nullity of her marriage to Fernando on the ground of psychological incapacity on August 4, 1992. RTC and Court of Appeals denied the petition and motion for reconsideration. Hence, this appeal by certiorari, petitioner for the first time, raises the issue of the marriage being void for lack of a valid marriage license at the time of its celebration. The date of issue of marriage license and marriage certificate is contained in their marriage contract which was attached in her petition for absolute declaration of absolute nullity of marriage before the trial court. The date of the actual celebration of their marriage and the date of issuance of their marriage certificate and marriage license are different and incongruous. ISSUE: WON the marriage between petitioner and private respondent is void from the beginning for lack of marriage license at the time of the ceremony? YES HELD:  A marriage license is a formal requirement; its absence renders the marriage void ab initio. The pieces of evidence presented by petitioner at the beginning of the case, plainly and indubitably show that on the day of the marriage ceremony, there was no marriage license. The

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marriage contract also shows that the marriage license number 6237519 was issued in Carmona, Cavite yet neither petitioner nor respondent ever resided in Carmona. From the documents she presented, the marriage license was issued almost one year after the ceremony took place. Article 80 of the Civil Code is clearly applicable in this case, there being no claim of exceptional character enumerated in articles 72-79 of the Civil Code. The marriage between petitioner and private respondent is void from the beginning. IN RELATION TO TOPIC ON OFFER OF EVIDENCE: Petitioner states that though she did not categorically state in her petition for annulment of marriage before the trial court that the incongruity in the dates of the marriage license and the celebration of the marriage itself would lead to the conclusion that her marriage to Fernando was void from the beginning, she points out that these critical dates were contained in the documents she submitted before the court. The date of issue of the marriage license and marriage certificate, September 17, 1974, is contained in their marriage contract which was attached as Annex "A" in her petition for declaration of absolute nullity of marriage before the trial court, and thereafter marked as Exhibit "A" in the course of the trial. The date of celebration of their marriage at Our Lady of Lourdes, Sta. Teresita Parish, on November 15, 1973, is admitted both by petitioner and private respondent, as stated in paragraph three of petitioner's petition for the declaration of absolute nullity of marriage before the trial court, and private respondent's answer admitting it. This fact was also affirmed by petitioner, in open court, on January 22, 1993, during her direct examination. November 15, 1973, also appears as the date of marriage of the parents in both their son's and daughter's birth certificates, which are also attached as Annexes "B" and "C" in the petition for declaration of absolute nullity of marriage before the trial court, and thereafter marked as Exhibits "B" and "C" in the course of the trial. These pieces of evidence on record plainly and indubitably show that on the day of the marriage ceremony, there was no marriage license. We note that their marriage certificate and marriage license are only photocopies. So are the birth certificates of their son Frederick and daughter Farrah Sheryll.  Nevertheless, these documents were marked as Exhibits during the course of the trial below, which shows that these have been examined and admitted by the trial court, with no objections having been made as to their authenticity and due execution. Likewise, no objection was interposed to petitioner's testimony in open court when she affirmed that the date of the actual celebration of their marriage was on November 15, 1973. We are of the view, therefore, that having been admitted in evidence, with the adverse party failing to timely object thereto, these documents are deemed sufficient proof of the facts contained therein.

6. MACASIRAY V. PEOPLE DOCTRINE: Objection to evidence must be made after the evidence is formally offered. "

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"

Documentary evidence: offer is made after all the witnesses of the party making the offer have testified, specifying the purpose for which the evidence is being offered.

FACTS: " Melecio Macasiray, Virgilio Gonzales, and Benedicto Gonzales are the accused in the murder of Johnny Villanueva, husband of Rosalina Villanueva. During trial, the prosecution introduced in evidence an extrajudicial confession executed " by Benedicto Gonzales in which he admitted participation in the crime and implicated Macasiray and Virgilio Gonzales, his co-accused. Also presented was the transcript of stenographic notes taken during the ! preliminary investigation before the fiscal's office in which Benedicto affirmed the contents of his extrajudicial confession. When the extrajudicial confession and the transcript were offered at the conclusion of " the presentation of evidence for the prosecution, the defense objected to its admissibility on the ground that it was given without the assistance of counsel. The RTC sustained the objections and declared the documents inadmissible. ! " When it was the turn of the defense to present evidence, Gonzales was asked about his extrajudicial confession. ! On cross-examination, he was questioned not only about his extrajudicial confession but also about his answers during the preliminary investigation as recorded in the transcript. ! As he denied the contents of both documents, the prosecution presented them as rebuttal evidence, to impeach the credibility of Gonzales. # The accused objected and the RTC again denied admission. " On appeal to the CA, Rosalina Villanueva sought the nullification of the RTC’s orders and succeeded. ! CA declared the documents admissible and ordered the RTC to admit them. ! To prevent the introduction of documentary evidence, the practice is for the defense to move for its exclusion at any time before commencement of trial. Such failure of the defense may therefore be taken as a waiver of their objection. ISSUE: WON the defense waived objection to the admissibility of the documents, either by failing to object to their introduction during the trial or by using them in evidence. – NO HELD: Objection to evidence must be made after the evidence is formally offered. In documentary evidence, offer is made after all the witnesses of the party making the offer have testified, specifying the purpose for which the evidence is being offered. It is only at this time, and not at any other, that objection to the documentary evidence may be made. " In this case, the defense objected to the admissibility of the documents when they were formally offered. ! Contrary to the ruling of the CA, they did not waive objection to admissibility of the said documents by their failure to object when these were marked, identified,

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"

"

and then introduced during the trial. – That was not the proper time to make the objection. ! The identification of the document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the party presenting it. Objection to the identification and marking of the document is not equivalent to objection to the document when it is formally offered in evidence. In People vs. Caguioa, objection to the admissibility of a confession on the ground that no warning of his constitutional rights was given to the accused was raised as soon as the prosecution began introducing the confession, and the trial judge sustained the objection and right away excluded the confession. Justice Barredo said, while agreeing that objection to documentary evidence should be made at the time of formal offer, to faithfully carry out the constitutional mandate, objections based on the Miranda right to counsel at the stage of police interrogation should be raised as early as possible. Such ruling does not detract from the fact that objections should be made at the stage of formal offer. Objections to the admissibility of documents may be raised during trial and the court may rule on them then, but, if this is not done, the party should make the objections when the documentary evidence is formally offered at the conclusion of the presentation of evidence for the other party.

It is not correct to say that the confession was introduced in evidence by Benedicto Gonzales himself when it was his turn to present evidence for the defense. " Despite the fact that the court sustained the objection to the admissibility of the confession and the statements given at the preliminary investigation, the defense nonetheless asked him questions regarding his confession in reference to his denial of liability. It was not for the purpose of using as evidence the confession and the statements in the preliminary investigation but precisely for the purpose of denying their contents. " There is no basis for the ruling that because the defense adopted the confession by introducing it in evidence, it waived any objection to admission. SC: REVERSED and SET ASIDE the CA decision and REINSTATED that of the RTC.

7. ALVIN TUASON V. CA Note: Section 34 Rule 132 was not mentioned in the case. Doctrine: Evidence to be believed, must proceed not only from the mouth of a credible witness but the same must be credible in itself. Facts: "

Tuason together with John, Peter, and Richard were charged with Robbery and Carnapping. Only Tuason was apprehended.

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"

Complainant is Torres, a public school teacher. She left her maid (Jovina) alone in her house.

"

One morning, somebody knocked at the gate of the Torres residence pretending to buy ice. As the maid handed the ice to the buyer, one of the robbers jumped over the ! fence, poked a gun at her, covered her mouth, and opened the gate of their house. The ice buyer and his companions barged in. Numbering four (4), they pushed her inside Torres' house and demanded the ! keys to the car and the safety vault. She told them she did not know where the keys were hidden. They tied up her hands and dragged her to the second floor of the house. Tuason was allegedly left downstairs as their lookout. The 3 men ransacked Torres' room. One of the accused stumbled upon a box containing keys. They used the keys to open drawers and in the process found the car key. Tuason was then summoned upstairs and given the car key. He tried it on the car and succeeded in starting its engine. Accused were able to loot the vault and other valuable items in the house. They then tied maid’s hands and feet to the bed's headboard and escaped using Torres' car. Torres reported the robbery to the police authorities. Jovina and their neighbor described the physical features of the four (4) robbers before the NBI cartographer. One of those drawn by the artist was a person with a large mole between his eyebrows. ! Thereafter, Tuason was arrested by the NBI agents. The next day, at the NBI headquarters, he was pointed to by Jovina and the other prosecution witnesses as one of the perpetrators of the crimes at bench. Tuason anchored his defense on alibi and insufficient identification by the prosecution. ! TC: Convicted Tuason of the crimes charged. ! CA: affirmed RTC’s decision in toto.

"

"

"

"

Issue: W/n the testimony of Jovina can serve as a basis for the conviction of Tuason beyond reasonable doubt. Held: "

"

No. The trial court cannot convict Tuason on the basis of a deduction that is irrational because it is not derived from an established fact. The records do not show any fact from which the trial court can logically deduce the conclusion that Tuason covered up his scar with a black coloring to make it appear as a mole. Such an illogical reasoning cannot constitute evidence of guilt beyond reasonable doubt. At the NBI headquarters, Jovina described Tuason as 5'3" tall and with a big mole between his eyebrows. While Quintal also described Tuason as 5'3" and with a black mole between his eyebrows. ! On the basis of their description, the NBI cartographer made a drawing of Tuason showing a dominant mole between his eyes. As it turned out, Tuason

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has no mole but only a scar between his eyes. Moreover, he is 5'8.5" and not 5'3" tall. There is a big difference between a mole and a scar. ! If indeed Jovina and Quintal had a good look at Tuason during the robbery, they could not have erroneously described Tuason. Worthy to note, Tuason was not wearing any mask in the occasion. Jovina's attempt to explain her erroneous description does not at all convince. SC: Tuason is acquitted. 8.

CANDIDO & RUMBAUA V. CA

DOCTRINE: see the bolded paragraph in he ld for the doctrine FACTS: Petitioners Natividad Candido and Victoria Rumbaua are co-owners of a first-class " irrigated riceland and Respondent Sofronio Dabu served as their agricultural tenant. " Petitioners lodged a complaint against responden for termination of tenancy relationship and recovery of unpaid rentals from crop-year 1983 " Petitioners averred in their complaint below that a team from the Ministry of Agrarian Reform had fixed a provisional rental of 26 and 29 sacks of palay for the rainy and dry seasons, respectively, which respondent failed to pay beginning the crop-year 1983 dry season up to the filing of the complaint. Dabu denied the material allegations of the complaint. He denied any provisional ! rental allegedly fixed by the Ministry of Agrarian Reform and at the same time maintained that only a proposal for 13 cavans for the rainy season crop and 25% of the net harvest during the dry season was put forward. ! He claimed that he paid his rentals by depositing 13 cavans of palay for the 1984 rainy season crop, 13 cavans for 1985 and 8 cavans representing 25% of the dry season harvest. " On motion of respondent upon issues being joined, the case was referred to the Department of Agrarian Reform (DAR) for a preliminary determination. DAR certified that the case was proper for trial but only on the issue of non-payment of rentals and not on the ejectment of respondent Dabu. " Lower Court: Dismissed the case after finding that no evidence was adduced by petitioners to prove the provisional rental alleged to have been fixed by the Ministry of  Agrarian Reform " CA: Affirmed ! We have carefully examined the testimonial and documentary evidence on record and found nothing therein about the so-called provisional rates supposedly fixed by the DAR and allegedly breached by Dabu. Indeed neither appellant herself Candido nor appellants' other witness Benjamin Santos ever mentioned in the course of their respective testimonies the alleged provisional rates fixed by the DAR. For sure, going by appellants' evidence it would appear that no such rates were in fact fixed by the DAR.

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Petitioners would impress upon us that the verified complaint and the affidavit presented by petitioners to the DAR are proofs of the provisional rentals fixed by it and that it was error for the trial court not to have taken cognizance of these documents. ISSUE: WON the verified complaint and the affidavit are proofs of the provisional rentals? NO. documents were not formally offered as evidence. HELD: It is settled that courts will only consider as evidence that which has been formally offered. The affidavit of petitioner Natividad Candido mentioning the provisional rate of rentals was never formally offered; neither the alleged certification by the Ministry of Agrarian Reform, Not having been formally offered, the affidavit and certification cannot be considered as evidence. Thus the trial court as well as the appellate court correctly disregarded them. If they neglected to offer those documents in evidence, however vital they may be, petitioners only have themselves to blame, not respondent who was not even given a chance to object as the documents were never offered in evidence. A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to object to it or cross-examine the witness called upon to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence offered by the parties at the trial. To allow a party to attach any document to his pleading and then expect the court to consider it as evidence may draw unwarranted consequences. The opposing party will be deprived of his chance to examine the document and object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below. The pertinent provisions of the Revised Rules of Court on the inclusion on appeal of documentary evidence or exhibits in the records cannot be stretched as to include such pleadings or documents not offered at the hearing of the case. Petitioners would insist that we take judicial notice of the affidavit of petitioner Natividad C. Candido despite absence of any formal offer during the proceedings in the trial court. This is futile since this is not among the matters which the law mandatorily requires to be taken judicial notice of; neither can we consider it of public knowledge, or capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. The testimony of petitioner Natividad Candido cannot even be relied upon, to say the least. Quite interestingly, she could not even recall when private respondent first failed to pay his rent, if indeed there was any failure on his part to comply with his obligation. She only said that it was sometime in 1982 or 1983, and did not even know precisely how many cavans of palay were being harvested per crop-year. Petitioners definitely failed to establish their cause of action. They never proved that respondent Dabu failed to pay his rentals starting 1982. Neither were they able to competently confirm the provisional rate of rentals allegedly fixed by the team of the Ministry of Agrarian Reform.

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9.

PEOPLE V. BARELLANO

Facts: EPIFANIO CABALES together with his friends, GARONG, ALICO, and DAYOLA were drinking tuba  at the side of the auditorium in the midde of Barangay Tigbao, Leyte. CABALES was approached from behind by PACIFICO BARELLO and shot at the right side of the head by a  paltik revolver. He fell on the ground face up. As CABALES lay injured, BARELLO fired a second shot which hit the right side of CABALES’ upper lip. Thereafter, BARELLO walked away and fired a third shot in the air. BARELLO was indicted for Murder Dra. Radegunda Uy conducted an autopsy on the body of the victim Epifanio Cabales and prepared an autopsy report. According to Dra. Uy, the first gunshot wound which penetrated the skull cavity of the head is fatal. The second gunshot wound which is located in the mouth inside the oral cavity penetrating the cranial fossa and with an exit wound in the middle back portion of the head is also fatal. The cause of death is hypovolemic shock, which means is severe blood loss and severe hemorrhage, secondary to [the] gunshot wound on the head BARELLO denied being at the scene of the crime. He also denied having met Epifanio Cabales, Felicidad Cabales, Fernando Amoto, Felix Timkang, Simplicio Garong or Benjamin Alico on that fateful day.He testified that at around 2:00 o’clock in the afternoon of August 14, 1993, he was at the house of his parents-in-law. He then went to Barangay Tigbao, Matalom, Leyte, because it was market day and they went there to bet on the cockfights at around 5:30 p.m. and went home to Sitio Victory, Barangay Tigbao, Matalom, Leyte, where they bought some drinks and had a drinking spree while the others played pool on a billiard table which was at the side of the house of accused-appellant’s father-in-law.They started drinking at about 6:00 p.m. and ended at around 1:00 a.m. the next day. He got so drunk that he fell asleep on a bench near the place where he and his companions were drinking and woke up later at past 6:00 a.m. During the examination of witnesses, FELIX TIMKANG & BENJAMIN ALICO positively identified BARELLO as the one who shot CABALES two times and fired a third shot in the air. In insisting on his innocence, BARELLO claims that: 1.] the testimony of prosecution witness Felix Timkang which is the only one material from among the testimonial evidence presented, is not corroborated by any witness; 2.] the autopsy report which is a machine copy of the original should not be admitted in evidence despite the admission of said document by accusedappellant’s counsel during trial; 3.] Jose Dayola was not presented as a witness, neither did he execute an affidavit regarding the shooting incident; and 4.] the trial court dwelt on the weakness of accused-appellant’s defense rather than on the weakness of the prosecution evidence.

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BARELLO insists that the failure of the prosecution to present JOSE DAYOLA as witness raises the presumption that if produced, DAYOLA’s testimony would not be favorable to the prosecution

Issues & Held: 1. Whether the failure of the prosecution to present DAYOLA as a witness is material to the case? NO.  Accused-appellant can not likewise seek refuge behind the claim that the failure of the prosecution to present Jose Dayola as a witness raises the presumption that if produced his testimony would not be favorable to the prosecution, As pointed out by the Court in the recent case of People v. Jose Silvestre y Cruz : “Appellant cannot fault the prosecution for failure to present Bernadette Matias. The prosecution has [the] discretion to decide on who to call as witness during trial and its failure to do so did not give rise to the presumption that “evidence willfully suppressed would be adverse if produced” since the evidence was at the disposal of both parties. If the defense believed that the testimony of Bernadette Matias was important to its case, it should have insisted on presenting her as witness, or as appellee points out, made a tender of excluded evidence of the witness in question under Section 40, Rule 132 of the Rules of Court. The same may be said of Joanna Santiago, another supposed witness to the shooting, who was also not presented.” Furthermore, it must be pointed out that Dayola’s testimony would merely be corroborative of that of the two eyewitnesses. Suffice it to state in this regard that the adverse evidentiary presumption invoked by accused-appellant does not apply when testimony of the witness not produced would only be corroborative. In other words, no prejudicial inference can arise against a party who fails to call a witness where the only object of presenting him would be to produce corroborative or cumulative evidence.

2. Whether the court erred in admitting the autopsy report as evidence? NO. The argument that the xerox copy of the autopsy report should not be admitted in evidence inspite of his counsel’s admission of its authenticity will not extricate accused-appellant from his predicament. Even assuming ex gratia argumenti that the document is indeed inadmissible in evidence and is not given any evidentiary weight, still it would not alter the judgment of conviction because accused-appellant was found guilty primarily on the basis of the testimonies of the eyewitnesses who positively identified him as the perpetrator of the crime. The fact of death was sufficiently established through the credible and straightforward testimonies of these eyewitnesses who saw the victim die as a result of the gunshot wounds inflicted by accusedappellant.

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 At any rate, it is a trifle too late at this time for accused-appellant to raise the question of the autopsy report’s supposed lack of evidentiary value because he never objected to its admissibility when it was offered in evidence and was, in fact, admitted to be genuine by his counsel during trial. The rule is that evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment.

3. Whether the lower court erred in not giving due course to the alibi of BARELLO? (Optional) NO. In criminal jurisprudence it is settled than that alibi is the weakest of all defenses and should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime. In other words, alibi can not prevail over the positive identification of the accused by the prosecution witnessesas in this case.  Assuming arguendo  that prosecution witness Felix Timkang’s testimony is indeed uncorroborated, the alleged singularity of his testimonial declarations does not make them any less credible. The Court has consistently stated, time and again, that the testimony of a single witness, if positive and credible, will suffice to sustain a judgment of conviction even in a charge for murder. As aptly stated in People v. Romeo Hillado 2. Whether the lower court erred in not appreciating evident premeditation as stated in the information? (Optional) NO. However, it is unnecessary to consider the presence of evident premeditation although this has likewise been alleged in the information, for the trial court itself did not consider this circumstance. In any event, for evident premeditation to be appreciated, there must be proof, as clear as the evidence of the crime itself, of the following elements thereof, to wit: 1.] the time when the accused decided to commit the crime; 2.] an overt act manifestly indicating that he has clung to his determination; and 3.] sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act. The records are bereft of evidence of any of the above requisites of evident premeditation. There is absolutely no proof of the time accused-appellant decided to commit the crime. Neither is there any showing how the accused-appellant Pacifico Barellano planned the killing of the victim, Epifanio Cabales. Nor is there any showing how much time elapsed before executing his plan. Absent all these, evident premeditation can not be appreciated.

10.

PEOPLE V. SANCHEZ

DOCTRINE: Evidence; Witnesses; Formal Offer of Evidence; The failure of a party to interpose a timely objection to the presentation of the prosecution's testimonial evidence results in the waiver of any objection to the admissibility thereof. - Appellants contend that the testimonies of the

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prosecution witnesses were not formally offered as required by the Rules, and therefore should nto have been considered by the trial court. Indeed, a perusal of the transcript of the stenographic notes will show that no formal offer of testimonial evidence was made prior to or after the testimonies of the prosecution witnesses. However, the transcripts also reveal that in spite of the lack of formal offer of the testimonial evidence, and even subjected the p rosecution witnesses to a rigorous cross-examination. xxx Thus, the failure of the defense to interpose a timely objection to the presentation of the prosecution's testimonial evidence results in the waiver of any objection to the admissibility thereof. Appellants' belated invocation of the strict interpretation of the Rules of Evidence to suit their purposes is clearly misplaced. FACTS: " The 5 appellants (Cesario Sanchez, Remegio Jose, Rodrigo Abayan, Federico Robiños, and Gaudencio Contawe) are all farmers and residents of Pangasinan. They are townmats of the victim, Hilario Miranda, who was the incumbent barangay captain at the time of the stabbing incident. " Prosecution's evidence: ! Hilario, with others, went to his fishpond to celebrate the birthday of his daughter, Grace. ! At around 5:00pm, Hilario Miranda and his companions headed home ! When the group reached the provincial road, appellant Sanchez blocked the middle of the road while the other appellants were some twenty (20) to twenty-five (25) meters behind him who were holding their bolos. !  Appellant Sanchez confronted Hilario Miranda about his accusation that Sanchez was stealing ipil-ipil wood and fish. ! an argument ensued. ! Prosecution witness Marquez testified in cross examination that :Sanchez was known by the barangay captain as someone who was stealing firewoods and fish during the nighttime and that when Sanchez met the barangay captain, he head in Ilocano “Apay ngay, Capitan ta pabpabasolennak nga agtaktakaw it ipil-ipil yo ken lames? (Why is it, Captain, that you are blaming me of stealing ipil-ipil firewood and fish?)” wherefore, there was an argument that ensued. The barangay captain answered. "Agpaypayso met nga agtaktakaw ka ti ipil-ipil ken agluliw ka ti lames." ("It is also true that you are stealing ipilipil woods and you are catching fish") ! Alegre, Miranda's son-in-law, tried to pacify Miranda by saying "that is enough, Manong." ! As the argument heated, the group of Sanchez encircled the group of the victim in such a way that nobody could move. ! Jose passed by the back of Hilario Miranda (the victim) and nodded at Sanchez who upon seeing the signal, pulled a knife from the sleeve in his left arm and stabbed the victim in the stomach. ! Freddie pulled out the weapon from his father's stomach which was later turned over to a member of the Integrated National Police of Bautista, Pangasinan. while the victim was being brought to the hospital he died along the way. " A crime of murder was thereafter filed. " During trial, the prosecution presented six (6) witnesses " The Prosecution filed its Formal Offer of Evidence which was du ly admitted by the court.

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TC Decision: finding all appellants, except Callo who remain at-large, guilty of Murder On appeal, the appellants raised as one of its issue that the TC erred in considering the testimonies of the prosecution witnesses as they were not offered in the manner required by the rules.  Appellants contend that the testimonies of the prosecution witnesses were not formally offered as required by the Rules, and therefore should not have been considered by the trial court. Indeed, a perusal of the transcript of the stenographic notes will show that no formal offer of testimonial evidence was made prior to or after the testimonies of the prosecution witnesses. However, the transcripts also reveal that in spite of the lack of formal offer of the testimonial evidence, and even subjected the prosecution witnesses to a rigorous cross-examination. ISSUE:  WON the testimonies testimonies are admissible even if not offered in the manner required by the Rules of Court. HELD: YES. Thus, the failure of the defense to interpose a timely objection to the presentation of the prosecution's testimonial evidence results in the waiver of any objection to the admissibility thereof. Appellants' belated invocation of the strict interpretation of the Rules of Evidence to suit their purposes is clearly misplaced. in People v. Cadocio, 228 SCRA 602, 609 (1993) and People v. Java, 227 SCRA 668, 679-680 (1993), we had occasion to rule that: Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence to be considered, it should be formally offered and the purpose specified. This is necessary because a judge has to rest his findings of fact and his judgment only upon the evidence formally offered by the parties at the trial (People v. Pecardal, G.R. No. 71381 [1986]). Under the new procedure as spelled out in Section 35 of the said rule which became effective on July 1, 1989, the offer of the testimony of a witness must be made at the time the witness is called to testify. The previous practice was to offer the testimonial evidence at the end of the trial after all the witnesses had testified. With the invocation, the court is put on notice whether the witness to be presented is a material witness and should be heard, or a witness who would be testifying on irrelevant matter or on facts already testified to by other witnesses and should therefore, be stopped from testifying further. In the case at bar, we note that Pastor Valdez was not one of the witnesses originally intended to be presented by the prosecution. He was merely called to the witness stand at the latter part of the p resentation of the prosecution's evidence. There was no mention why his testimony was being presented. However, notwithstanding that his testimony was not formally offered, its presentation was not objected to either. Section 36 of the aforementioned Rule requires that an objection in the course of the oral examination of a

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