Parol evidence and Witnesses (case digests)

EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2

RULE 130 SECTION 9 – PAROL EVIDENCE RULE 1. Inciong, Jr. vs. CA – 257 S 578 GR 96405 June 26, 1996 REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; DOES NOT SPECIFY THAT THE WRITTEN AGREEMENT BE A PUBLIC INSTRUMENT.- Clearly, the rule does not specify that the written agreement be a public document. What is required is that the agreement be in writing as the rule is in fact founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them" [FRANCISCO, THE RULES OF COURT OF THE PHILIPPINES, Vol. VII, Part I, 1990 ed., p. 179] Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence. PAROL EVIDENCE: Inciong‟s testimony alleging fraud FACTS: 1) Inciong, Naybe, and Pantanosas were held liable to PBCom evidenced by a promissory note for P50,000.00. 2) However, Inciong alleged in his answer that he was persuaded to be a co-maker for the loan of P5,000.00 only, which he acceded, and that it was by trickery, fraud and misrepresentation that he was made liable for the amount of P50,000.00 3) The lower court noted that the typewritten figure "P50,000-" clearly appears directly below the admitted signature of the petitioner in the promissory note. 4) Hence, the latter's uncorroborated testimony on his limited liability cannot prevail over the presumed regularity and fairness of the transaction, under Sec. 5 (q) of Rule 131. ISSUE: Is Inciong‟s testimony as parol evidence sufficient to overcome the contents of the promissory note? HELD: NO! Inciong failed to prove that there was fraud as it was only evidenced by his uncorroborated and self-serving testimony. The first paragraph of the parol evidence rule states: "When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement." Clearly, the rule does not specify that the written agreement be a public document. What is required is that agreement be in writing as the rule is in fact founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them." Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence. By alleging fraud in his answer, petitioner was actually in the right direction towards proving that he and his co-makers agreed to a loan of P5,000.00 only considering that, where a parol contemporaneous agreement was the inducing and moving cause of the written contract, it may be shown by parol evidence. However, fraud must be established by clear and convincing

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 evidence, mere preponderance of evidence, not even being adequate. Petitioner's attempt to prove fraud must, therefore, fail as it was evidenced only by his own uncorroborated and, expectedly, self-serving testimony. 2. National Irrigation Administration vs. Gamit – 215 S 436 G.R. No. 85869 November 6, 1992 PAROL EVIDENCE: Testimony of Gamit alleging mistake and fraud FACTS: 1) In a contract of lease, Gamit leased 30,000 sqm of his land to National Irrigation Admin for 10 yrs. 2) However, Gamit alleged that the contract of lease entered into, by and between him and NIA does not express the real agreement or intention of the parties, as there was error or mistake of fact on the part of Gamit, aggravated by his state of financial distress at the time the contract was signed, and NIA acted fraudulently or inequitably, exercising undue influence over him on account of the latter's financial distress, in such a way that their real agreement was not reflected or expressed in the contract of lease signed by the parties. 3) According to Gamit, the real agreement or intention of the parties was only for the lease of the twenty five (25,000) thousand square meters by defendant at the rate of P0.10 centavos per square meter, for a period of ten (10) years from date of execution with the right of defendant to purchase the area upon the termination of the lease, on a price certain or consideration to be negotiated and agreed upon, by and between the parties after the lapse of the ten (10) year period. 4) Gamit further alleged that it was not the real agreement or intention of the parties, at least that of herein plaintiff, to have the rentals paid as forming part of the purchase price later to be negotiated or agreed upon, much less was it their intention at least on the part of herein plaintiff, that the price shall, not exceed P25,000.00 (see stipulation No. 4, Lease of Contract), otherwise, there will be a gross inadequacy of the purchase price, enough to shock the conscience of man and that of the court; that it was not also the intention or agreement of the parties, at least that of herein plaintiff, that in case the lease contract is not renewed after the lapse of the ten (10) year period, for failure of the parties to make bilateral communication, the lessor or his successors or assigns are deemed to have allowed continued use of the land in suit without any additional compensation whatsoever (see stipulation No. 8, contract of lease) and neither was it the true agreement or real intention the parties, at least on the part of herein plaintiff, that upon payment of the rental amount of P25,000.00, herein plaintiff shall be deemed to have conveyed and ceded all his rights and interest on the subject property, in favor of herein defendant. ISSUE: Whether the parol evidence is admissible in this case HELD: YES! As a general rule, parol evidence is not admissible for the purpose of varying the terms of a contract. However, when the issue that a contract does not express the intention of the parties and the proper foundation is laid therefor — as in the present case — the court should hear the 11 evidence for the purpose of ascertaining the true intention of the parties. From the foregoing premises, we hold that the trial court erred in holding that the issue in this case is a question of law and not a question of fact because it merely involves the interpretation of the contract between the parties. The lower court erred in not conducting a trial for the purpose of determining the true intention of the parties. It failed to appreciate the distinction between interpretation and reformation of contracts. While the aim in interpretation of contracts is to ascertain the true intention of the parties, interpretation is not, however, equivalent to reformation of contracts. "Interpretation" is the act of making intelligible what was before not understood, ambiguous, or

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 12

not obvious. It is a method by which the meaning of language is ascertained. The "interpretation" of a contract is the determination of the meaning attached to the words written or 13 spoken which make the
 contract. On the other hand, "reformation" is that remedy in equity by means of which a written instrument is made or construed so as to express or conform to the real 14 intention of the parties. In granting reformation, therefore, equity is not really making a new contract for the parties, but is confirming and perpetuating the real contract between the parties 15 which, under the technical rules of law, could not be enforced but for such reformation. As aptly observes by the Code Commission, the rational of the doctrine is that it would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect or disclose the 16 real meeting of the minds of the parties. Since the complaint in the case at bar raises the issue that the contract of lease does not express the true intention or agreement of the parties due to mistake on the part of the plaintiff (private respondent) and fraud on the part of the defendant (petitioner), the court a quo should have conducted a trial and received the evidence of the parties for the purpose of ascertaining the true intention of the parties when they executed the instrument in question. 3. Gurango vs. IAC – 215 S 332 G.R. No. 75290 November 4, 1992 PAROL EVIDENCE: Testimony of Gurango that the agreement took place after the draw and not before the draw. FACTS: 1) The case centers on the ownership of the winning raffle ticket. 2) Ferreira sold a booklet consists of 100 raffle tickets to Gurangco wherein one of the tickets was picked during the draw. 3) Gurango only bought 60 tickets. 4) However, before the raffle draw, Gurango told his secretary to fill up all 100 tickets with the name of his family members 5) After the raffle draw, Gurango asked Ferreira if any of his tickets won the price. But Ferreira answered in the negative. 6) As petitioner was in a hurry to finish his income tax return, he handed all the claim stubs to the private respondent who selected forty (40) claim stubs from the lot representing the unpaid balance. 7) When Ferreira noticed that the tickets were named to Gurango, he asked the latter to put down their agreement into writing which Gurango did in a piece of yellow paper and in his own handwriting, 8) The parties had a mutual agreement in writing that they bought a booklet of Raffle Tickets of Makati JC worth P500.00. All the stubs in our possessions remains our share and any number happened to win in the raffle corresponding to the stub numbers each one of us is holding will own the prize solely w/o the other party claims co-ownership, even that the name printed in the such raffle stubs is in the name of one party or any other person. 9) Further, it was stated that any holder of the winning stub shall be printed as the sole winner and owner, even though it was in other's name. 10) The agreement took place before the raffle but was alleged that it took place after the draw. ISSUE: Whether the evidence alliunde is admissible HELD: NO! Section 9, Rule 130 of the Revised Rules of Court in the Philippines provides that: Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is to be considered as containing all such terms, and, therefore, there can be, between the party and their successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (a) Where a mistake or imperfection of the writing, or its failure to express the true intent and

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 agreement of the parties, or the validity if the agreement is put in issue by the pleading; (b) When there is an intrinsic ambiguity in the writing. Under the aforementioned provision, when the parties have reduced their agreement in writing, the contents of said agreement are rendered conclusive upon the parties and evidence aliunde is inadmissible to change a valid and enforceable agreement embodied in a document. "The mistake contemplated as an exception to the parol evidence rule is one which is a mistake of fact mutual to the parties," which is not present on this case. Moreover, in view of the parties' conflicting claims regarding the true nature of the agreement executed by them, We find the version of the private respondent more credible for the terms of said agreement are clear and require no room for interpretation since the intention of the parties, as expressly specified in said agreement, do not contradict each other. The fact that the agreement was prepared and written by petitioner himself further indicated that said agreement was entered into by the parties freely and voluntarily which renders petitioners' claim of fraud in the execution of the agreement unbelievable. Being the author of the agreement, petitioner is presumed to have actual knowledge of the true intent of the parties and the surrounding circumstance that attended the preparation of the document in question including the date when said agreement was executed. If it is true that the date if execution was on April 15, 1977, petitioner should have written said date in the agreement and not April 14, 1977 considering that one does not usually forget a date that has a special significance to him as alleged by the petitioner. In the instant case, it is highly improbable that petitioner's consent was given through fraud since the document was prepared and executed by petitioner himself. Therefore, the agreement is valid and binding upon petitioner and respondent. 4. CKH Industrial and Development Corp. vs. CA – 272 S 333 G.R. No. 111890. May 7, 1997 PAROL EVIDENCE: Testimony of CKH alleging that it didn‟t received the purchased price. FACTS: 1) The parties executed a deed of sale. 2) The Deed of Sale does not express the true agreement of the parties, specifically with regard to the mode of payment. 3) CKH alleged that the parties agreed that the full payment of P800,000.00 as purchase price shall be in the form of a Manager's Check. 4) However, Century-well issued a personal check, which CKH refused to accept. 5) Now, CKH wants to annul the sale which was denied by CA. 6) Century-well alleged that the sale was already consummated as there was a consideration paid. ISSUE: Whether the parol evidence rule applicable in this case? HELD: YES! Section 9 of Rule 130 of the Rules of Court states that “when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement.” The so-called “parol evidence rule” forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties‟ written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. When an agreement has been reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged practices which to all purposes would alter the terms of the written agreement. Whatever is not found in the writing is understood to have been waived and abandoned.

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2

The rule is not without exceptions, however, as it is likewise provided that a party to an action may present evidence to modify, explain, or add to the terms of the written agreement if he puts in issue in his pleadings: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. We reiterate the pertinent provisions of the deed: “That for and in consideration of the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS, Philippine Currency, paid by VENDEE to VENDOR, receipt of which is hereby acknowledged by the latter to its entire satisfaction, said VENDOR, by these presents, has SOLD, CEDED, TRANSFERRED, and CONVEYED by way of absolute sale unto said VENDEE, its successors and assigns, the two parcels of land above described and any and all improvements therein;”[22] The foregoing stipulation is clear enough in manifesting the vendor‟s admission of receipt of the purchase price, thereby lending sufficient, though reluctant, credence to the private respondents‟ submission that payment had been made by off-setting P700,000.00 of the purchase price with the obligation of Cheng Kim Heng to his sons Choi and Kei. By signing the Deed of Absolute Sale, petitioner Rubi Saw has given her imprimatur to the provisions of the deed, and she cannot now challenge its veracity.

RULE 130 SECTION 20 – WITNESSES 1. People vs. Taneo – 218 S 494 G.R. No. 117683. January 16, 1998 WITNESS: The victim herself who was then a minor at the time the crime was committed FACTS: 1) The case involves the crime of rape. 2) On automatic review, the accused argued that the court gave full credence to the testimony of the victim (his daughter) than appreciating the medical certificate that shows no external signs of physical injuries and spermatozoa on the victim. ISSUE: Which has more probative value: the testimony of the victim or the medical examination negating the commission of rape? HELD: The testimony of the victim must be accepted. With the trial court‟s formidable observation and the victim‟s unrebutted testimony, appellant‟s reliance with the medical certificate, as well as the testimony of the doctor, assumes no significance. In any event, appellant’s argument proceeds from a misconception that a medical certificate is an indispensible element in the prosecution for rape and runs roughshod over the well-settled rule that the absence of medical findings by a medico-legal officer does no disprove the occurrence of rape. The fact that the medical certificate show no external signs of physical injuries and spermatozoa on the victim does not negate the commission of rape for the slightness penetration of the labia consummates the offense. The medical examination of the victim, as well as the medical certificate, is merely corroborative in character. What is important is that the testimony of private complainant about the incident is clear, unequivocal and credible. When a woman testifies that she has

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 been raped, she says all that is needed to signify that the crime has been committed. On this score, the trial court declared: “The Court subjected the testimony of the offended girl with painstaking scrutiny, which was given in a straight-forward manner, and found it unimpaired by material discrepancies and contradictions and consistent with ordinary human experience. Her testimony undoubtedly bears the imprint of truth and, therefore, must be accepted.” Furthermore, private complainant‟s firm resolve, quickness and spontaneity in devising a way to flee immediately after the day she was violated from the appellant‟s clutches and in tearfully confiding her harrowing ordeal to her aunt speak well of the natural reaction of a virtuous and an aggrieved woman. Likewise, when she was given a choice whether to exclude the public during her trial, private complainant appeared resolute in testifying before an open court. Her conduct simply shows the fervent drive to place before the bar of justice her ruthless assailant. Our jurisprudential annals, in this connection, reveal that no woman, especially of tender age, as in this case, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subjected to a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. Verily, like the trial court we find no valid reason to doubt private complainant‟s testimony which bears the earmarks of truth. Besides, this Court accords due deference to the trial court‟s views on who should be given credence, since the latter is in a better position to assess the credibility of witnesses considering its opportunity to observe their demeanor, as well as their deportment and manner of testifying during trial. To be sure, this rule is subject to some well defined exceptions none of which, however, is attendant in this case. Bare denial cannot overcome the categorical testimony of the victim. It is well-settled that greater weight is given to the positive identification of the accused by the prosecution witnesses than to the accused’s denial and explanation concerning the commission of the crime. The trial court, in this light, appropriately said: “xxx

xxx

xxx

“The denial of the accused is obviously a feebly contrived attempt to exculpate himself from any liability. “Mencina categorically candidly, and without hesitation, positively identified his father as the perpetrator of the crime. “The assertion of the accused that Mencian falsely charged him of the crime because he disallowed his daughter to work as househelper, is, to say the least, absurd. “It is unthinkable and unbelievable for Mencina to expose herself to embarrassment by telling very intimate matters during a public trial and to destroy the future of the whole family, just to spite and get even with her father for a trivial reason. Besides, only a daughter who may have lost her senses would dare charge falsely her own father of committing a heinous crime of rape. Perhaps against a stranger. “A woman does not go around flaunting her having been raped. There is no evidence presented to show that Mencina is so desperate and base that she would sacrifice her honor and that of her father just to satisfy a personal urge for a petty vengeance. xxx

xxx

xxx

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 “The denial of the accused cannot prevail over the positive straight forward and candid testimony of the offended daughter. The categorical declarations of Mencina on the details of the crime are more credible than the denial interposed by the accused.” Similarly, appellant‟s alibi that he was at the store one kilometer away from their house when the incident transpired cannot be taken seriously. The short distance and brief travel time between the store and appellant‟s house did not foreclose the commission of the felony. It is a cardinal rule that for alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and it was physically impossible for him to have been at the scene of the crime. So too, alibi cannot prevail over positive identification of the accused by the prosecution witness. In this regard, we quote with approval the conclusions reached by the trial court in rejecting appellant‟s alibi. Thus: “The alibi of the accused has to be rejected. Accused was positively identified by his victim. It has been repeatedly held, to the point of being trite, that alibi cannot prevail over the positive identification of the accused. Besides, the alibi appears dubious having been corroborated only by his wife, who testified that her husband, accused herein, accompanied her to the store to get the sack of corn grits but who contradicted herself when on cross-examination, she admitted that her husband did not accompany her but just followed her later to the store; thus, corroborating instead the testimony of her daughter that accused followed her mother to the store after raping her.” The residual contention that “the trial court substantially „deduced an unfavorable presumption‟ against the accused-appellant for his supposed failure to present Ms. Mangubat as a defense witness” thereby shifting “the burden of proof on the defense” is unworthy of serious consideration. Apparently, appellant based his observation from the following passage in the trial court‟s decision: “No reason is given by the accused that Letecia Mangubat, the owner of the store, is not available as witness to prove his alibi. Said supposed uninterested witness had not been presented to testify for the accused. As unfavorable presumption may be deduced from the accused‟s failure to present her.” Said paragraph is neither objectionable nor contrary to “the rules on criminal procedure and evidence.” The non-production of a corroborative witness, without any explanation given why he was not so produced, weakens the testimony of the witness who named that corroborating witness in his testimony. Thus, appellant‟s notion that the burden of proof has been shifted on the defense is misplaced. What the trial court did is to merely express a valid observation why appellant‟s alibi, a weak defense, became manifestly inferior vis-à-vis the evidence for the prosecution. At any rate, the basis of conviction is not the non-production of Mrs. Mangubat but private complainant‟s credible and categorical testimony. 2. People vs. Balanon – 233 S 679 G.R. Nos. 85248-49 July 6, 1994 WiTNESS: Acasio, who was a convicted hijacker and falsifier of documents FACTS: 1) The case involves the crime of murder. 2) Appellant faults the trial court for giving credence to the testimony of Acasio who was not only probably drunk, but was a convicted hijacker and falsifier of public documents as well; hence, apt to fabricate his testimony. ISSUE: Is Acasio competent to testify?

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 HELD: YES! The crux of the decision leaned on the credibility of witnesses — As compared to the testimonies of the prosecution witnesses, particularly Luningning Sinsuan, Elsa de la Cruz and Rogene Acasio who testified in straightforward, spontaneous and frank manner and has answered consistently even on cross-examination, the vacillating and evasive answers of the accused Sgt. Jerry Balanon during the course of his testimony does not inspire belief and reliability. In the present recourse, accused-appellant basically raises factual issues. He stresses his presence at the SOUTHCOM headquarters in the morning of 3 November 1980, contrary to the testimony of prosecution witness Rogene Acasio, also an inmate, that he was drinking liquor with Balanon and the victims. Appellant's alibi cannot stand in the face of his clear and positive identification by Acasio who, appellant even admitted, had no ill will to implicate him (Balanon) in the crime. Moreover, there is no compelling reason to depart from the assessment of the credibility of the witnesses made by the trial judge who, unlike the reviewing court, had the occasion and opportunity to observe their demeanor and detect any badge of fabrication. But even granting arguendo appellant's claim to be true, this does not contradict the testimonies of other prosecution witnesses that he shot the victims to death. Appellant faults the trial court for giving credence to the testimony of Acasio who was not only probably drunk, but was a convicted hijacker and falsifier of public documents as well; hence, apt to fabricate his testimony. But, probability is not evidence, and even if Acasio took alcohol, it does not follow that he was drunk. Moreover, a drunk person is competent to testify on what he sees or experiences, however limited or hazy his perception may be. In the same way, a hijacker or a falsifier is not necessarily a liar. Under the Rules of Court, conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification of witnesses. Appellant's assertion that the victims being prisoners could not have left the Penal Colony without the permission of the warden, is completely irrelevant for they were admittedly shot and killed outside the prison walls. While appellant denies having ordered a certain handicraft product from Acasio, by reason of which Acasio claims to have known him, appellant nonetheless admits that most of the living-out 8 prisoners knew him there because he used to pass by that place. The distinction sought to be made by appellant is too trivial to affect the testimony of Acasio. After all, he (Balanon) does not deny that Acasio knows him. Appellant contends that he is not the assailant described by prosecution witness Sinsuan since he does not have any wound or stitches as confirmed by the prosecutor who "was not able to see 10 any scar" behind his ears. It may be worth noting that — . . . Sometimes in the course of time a scar may apparently disappear — that is to say, not be noticeable to the casual observer — but it is always there, to be found by him who looks carefully. By compressing the surface where the scar is suspected, so as to expel the blood supply and then releasing it suddenly, the blood rushing back will generally show an old scar very plainly, where before it could not be noticed. Thus also, where a person has been branded as well as where a scar has become invisible, by slapping the part several times or by rubbing it, the scar or brand may be made visible . . . Scars decrease in size after time in an adult, but increase in size in a child . . . As observed by the Solicitor General: . . . it was only in June 1985 that appellant showed his long-haired head for a cursory look, to the prosecuting fiscal, or almost five (5) years after the commission of the crime. The Sworn Statement of Mrs. Luningning Sinsuan was taken on November 18, 1980. Appellant was already under investigation at the time. Why did he not claim at once that he had no scar, and instead alleged it for the first time after almost five (5) years? Why did he not let a doctor examine his head and certify as to the presence or absence of a scar? The answer is obvious, his scar would

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 have been very obvious at that time, even to an untrained eye. In her Sworn Statement, Luningning simply described the assailant as "tall about 5'7" above, medium or little slim, fair complexion, slit eyes, plain long hair (minus haircut along the wound 13 with stitches," and nothing was categorically said about the location of the wound. Since Luningning was describing appellant's hair when she took exception to a then visible haircut bordering a wound, said wound could have been on appellant's pate or head which, when the prosecutor took a look behind appellant's ears, could have been hidden by his long hair. But even granting arguendo that Luningning made incorrect statements about the wound, this pales in comparison with her and De la Cruz' positive identification of appellant on the stand. Appellant also discredits prosecution witness Elsa de la Cruz by highlighting her alleged inconsistent statements, i.e., she allegedly averred that she got a close view of the accused when she was still boarding the bus, but on cue from the prosecutor, she said she was already on board the bus. Ms. de la Cruz could be referring to two instances when accused came close to Ms. Sinsuan, i.e., when the latter was already inside the bus and when she was still boarding the bus, and the follow-up question of the prosecutor referred to the instance when the witnesses were still boarding. But even if we consider as inconsistent this portion of Ms. de la Cruz' testimony, this is too trivial to affect their straightforward account of the shooting of the victims by appellant. While it may be unnatural for a person who has just committed a grave felony to walk back and forth and approach bystanders amiably instead of fleeing, criminal acts are aberrations and criminals are not expected to act naturally, especially in this case where the crime was committed in front of several witnesses. Appellant tries to revitalize the testimony of defense witness Rolando Daño who claimed not to have seen any teacher nor heard shots at the scene of the crime, which account the trial court disregarded because he admitted that he did not know all the teachers of Labuan Barangay High School and that he went to the scene only after the shooting was over. But appellant takes exception to the damaging parts of Daño's testimony, especially the statement that he saw the accused Sgt. Jerry Balanon coming out from the Orellano store in Labuan at three o'clock in the 15 afternoon and stood there akimbo, explaining that Daño could not have been precise in stating the time because — Sgt. Daño was not wearing a watch on that particular day. Hence, when he testified under oath that he did not hear the shots . . . the only plausible explanation was that he was not in the vicinity of the crime scene at the time the killings were committed. He only became aware of the crime after everyone else in the locality knew of the same . . . Undoubtedly then, his estimate of the time that he saw Balanon come out of the Orellano store was wrong. Yet the falsity of the testimony itself was never established. He did in fact see Balanon at the scene after the crime was committed. This, however, should not be used as a basis to totally discredit Balanon's testimony. Balanon himself was not wearing a watch on that day. Consequently, his estimate of the time he reached Labuan could likewise be wrong. Since the testimony of defense witness Daño did not do any good to appellant's cause, the latter now belabors to justify every unfavorable statement made by said witness. But even if we totally disregard the statements of Daño, appellant himself, as pointed out by the Solicitor General, admitted at one point that he left the SOUTHCOM at about one o'clock in the afternoon, contrary to his statement that he never left the SOUTHCOM until four-thirty in the afternoon. Interestingly, since appellant admitted that he and his witness Daño could not be expected to be precise in their estimates of the time, it naturally follows that appellant could not also state with precision that at about three o'clock that afternoon he was not at the scene of the crime.

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 3. People vs. Baid – 336 S 656 G.R. No. 129667. July 31, 2000 WITNESSES: The victim who is suffering from Schizophrenia, and the psychiatrist as an expert witness FACTS: 1) Baid was held guilty for the crime of rape. 2) He contended that the complainant is a schizophrenic. As such, the court should not give credence to her testimony as the victim is merely hallucinating. 3) The psychiatrist testified that the victim was aware of what happened but without discernment. ISSUE: Whether the victim was qualified to be a witness HELD: YES! Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive and was capable of making known her perceptions to others. Her testimony indicates that she could understand questions particularly relating to the incident and could give responsive answers to them. When complainant was questioned on cross and redirect examination, she explained how she was able to identify accused-appellant. Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent. Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory, it is established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of memory. It has long been settled that a person should not be disqualified on the basis of mental handicap alone. With regard to the alleged inconsistencies between complainant's sworn statement and her testimony as to the number of times she and accused-appellant had sexual intercourse and where they did the same, an examination of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining medico-legal officer, shows that accused-appellant had sexual intercourse with her in different positions at various places in the same room. When complainant testified, she stated that, aside from the fact that accusedappellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it. The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime, corroborative evidence would only be a mere surplusage. In this case, the trial court gave credence to the testimonies of the prosecution witnesses on the basis of which it adjudged accused-appellant guilty. In the absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand. Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is never an element thereof. What consummates the felony is the contact of the

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 penis of the perpetrator, however slight, to the vagina of his victim without her consent. Neither is it required that lacerations be found in the victim's hymen. We have held that a medical examination is not a requisite for a rape charge to prosper as long as the victim categorically and consistently declares that she has been defiled. In this case, aside from complainant's positive testimony, the medical examination of the complainant showed an abrasion on her labia minora, indicating that she had recent sexual intercourse. That the deep healed lacerations found on the complainant's genitalia may have been caused seven days prior to December 22, 1996 is immaterial and irrelevant considering that she is a non-virgin. Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual act. As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a stick of cigarette. However, it should be stressed that complainant was in no position to give her consent. Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he cannot do this now as he did not raise any objection to Dr. Salangad's qualifications in the trial court. On the contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, §36, objections not timely raised are deemed waived. The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did not by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said: . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr. Salangad so as to justify setting aside its findings. 4. People vs Lolito Honor – 584 S 547 G.R. No. 175945 [Formerly G.R. Nos. 153211-12] WITNESS: Panlubasan, a farm worker (eyewitness) FACTS: 1) In this case, the court held Honor and Garjas guilty for the crime of murder. 2) The court gave credence to the testimony of Panlubasan, the eyewitness, who positively pointed the accused as the one who stabbed the victims. 3) Honor argued that the testimony of eyewitness Panlubasan was based mainly on generalities as there are inconsistencies in the testimony of Panlubasan. 4) Thus, Panlubasan stated in his direct testimony that Honor and Garjas stabbed Argallon but on cross-examination, he pointed only to Honor as the one who stabbed Argallon. 5) They also argued that the lower court overlooked the fact that Panlubasan‟s reaction during the startling and frightening incident was inconsistent with the usual reaction of persons in similar

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 situations that Panlubasan did not run away during the stabbing incident but instead opted to stay with the victims. 6) The OSG points out that Panlubasan‟s testimony was corroborated by other evidence, notably the testimony of Dr. Castro on the nature and location of the wounds sustained by the victims. ISSUE: Whether the court should give credence to the testimony of Panlubasan? HELD: YES! Findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed the witnesses‟ deportment on the stand while testifying, which opportunity is denied to the appellate courts. When the credibility of the witnesses is at issue, appellate courts will not disturb the findings of the trial court, the latter being in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial unless certain facts of substance and value had been overlooked, misunderstood or misappreciated which, if considered, might affect the results of the case. Minor variances in the details of a witness‟ account, more frequently than not, are badges of truth rather than indicia of falsehood and they often bolster the probative value of the testimony. Indeed, even the most candid witnesses oftentimes make mistakes and would fall into confused statements, and at times, far from eroding the effectiveness of the evidence, such lapses could instead constitute signs of veracity. If it appears that the same witness has not willfully perverted the truth, as may be gleaned from the tenor of his testimony and the conclusion of the trial judge regarding his demeanor and behavior on the witness stand, his testimony on material points may be accepted. In this case, Panlubasan‟s testimony positively points to the accused as the ones who stabbed the victims. At the time of the incident, the witness may have been under the influence of liquor; nonetheless, nothing in his testimony and conduct during the trial appears to suggest total erosion of his mental faculties that would negate his identification of the accused. 5. People vs Solomon Dioneda – 587 S 312 G.R. NO. 180923 : April 30, 2009 WITNESS: the victim, who was then 6 years old at the time the crime was committed. FACTS: 1) The accused, who was then a minor, was held guilty for the crime of rape. 2) AAA, the victim who was then 6 years old testified on how she was raped. 3) Appellant assails AAA's credibility, citing her inconsistent answers regarding the circumstances before the commission of the alleged rape, particularly her testimony on direct examination that she stopped at the second floor of the Dajaos' house where he allegedly told her to wait ("sandali lang") but that on cross-examination she stated that she met appellant at the ground floor. ISSUE: Whether the testimony of AAA should be given full credence and weight. HELD: YES! The place where AAA met appellant when she was about to leave the Dajao residence, whether on the ground or second floor is a trivial matter. AAA, a child of tender age, could not be expected to give a perfect recollection of the exact floor of the house where she met appellant. Forthright witnesses are not immune from committing minor inaccuracies in their narration of events. Trivial inconsistencies and inconsequential discrepancies on minor details in the

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 testimonies of witness do not impair their credibility. They could, in fact, be badges of truth for they manifest spontaneity and erase any suspicion of a rehearsed testimony. As long as the inconsistencies are immaterial or irrelevant to the elements of the crime and do not touch on material facts crucial to the guilt or innocence of the accused as in the present case, these are not valid grounds to reverse a conviction.

RULE 130 SECTION 22 – DISQUALIFICATION BY REASON OF MARRIAGE 1. Ordoño vs. Daquigan – 62 S 270 G.R. No. L-39012. January 31, 1975 SYNOPSIS: Petitioner, on trial for having raped his daughter, objected to the presentation of his wife as a prosecution witness invoking the marital disqualification rule found in Rule 130 of the Rules of Court. When the trial court overruled the objection, he filed the instant petition. Finding no error in the ruling of the lower court, the Supreme Court held that in the law of evidence, the rape committed by the husband against his daughter is a crime committed by him against his wife within the meaning of the exception found in the marital disqualification rule. DOCTRINES: 1. EVIDENCE; MARITAL DISQUALIFICATION RULE; EXCEPTION; WIFE MAY TESTIFY AGAINST HUSBAND IN CASE OF RAPE COMMITTED BY HUSBAND AGAINST THEIR DAUGHTER. — Under the marital disqualification rule found in Rule 130 of the Rules of Court providing that the husband or wife cannot be a witness for or against the other,." . . except in a criminal case for a crime committed by one against the other." the wife is competent to testify against her husband in a case of rape committed by the husband against their daughter, In the law of evidence, the rape of a daughter is a crime committed by the husband his wife within the meaning of the exception. 2. ID.; ID.; ID.; INTERPRETATION OF "IN A CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER." — The phrase "in a tribunal case for a crime committed by one against the other," an exception to the marital disqualification rule, should be interpreted to refer to an offense which directly attacks, or directly and vitally impairs the conjugal relations. 3. ID.; ID‟.; ID.; WIFE MAY TESTIFY AGAINST HUSBAND IN CASE OF RAPE OF STEPDAUGHTER. — In Wilkinson v. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife‟s natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself." The court adopted the interpretation the "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual partially and directly injured or affected by the crime for which the husband is being prosecuted."cralaw virtua1aw library 4. ID.; ID.; ID.; WIFE COMPETENT TO TESTIFY AGAINST HUSBAND IN INCEST COMMITTED BY HUSBAND AGAINST STEPDAUGHTER. — In State v. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision the husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter. 5. ID.; ID.; ID.; WIFE CAN TESTIFY AGAINST HUSBAND IN INCEST COMMITTED BY HUSBAND AGAINST DAUGHTER. — In State v. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a case where he was prosecuted for incest

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 committed against their eleven-year old daughter because incest is a "crime committed against the wife." FACTS: 1) In this case, the wife testified against her husband for raping his stepdaughter. 2) The wife revealed that the accused had also their other daughter. 3) The defense counsel objected to her competency invoking the marital disqualification rule found in Rule 130 of the Rules of Court. 4) Counsel claimed that the accused had not consented his wife, expressly or impliedly, to testify against him. ISSUE: Whether the rape committed by the husband against his daughter is a crime committed by him against his wife within the meaning of the exception found in the marital disqualification rule. (In detail: Should the phrase "in a criminal case for a crime committed by one against the other" be restricted to crimes committed by one spouse against the other, such as physical injuries, bigamy, adultery or concubinage, or should it be given a latitudinarian interpretation as referring to any offense causing marital discord? - YES!) HELD: NO! The wife could testify against her husband for having raped their daughter. There is a dictum that "where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is nonexistent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home" In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the husband who was charged with having killed his son and who testified that it was the wife who killed their son. We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill v. State, wherein the court said: "The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other" Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in the law of evidence the rape perpetrated by the father against his daughter is a crime committed by him against his wife (the victim‟s mother). ** That conclusion is in harmony with the practices and traditions of the Filipino family where, normally, the daughter is close to the mother who, having breast-fed and reared her offspring, is always ready to render her counsel and assistance in time of need. Indeed, when the daughter is in distress or suffers moral or physical pain, she usually utters the word Inay (Mother) before she invokes the name of the Lord. Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora in the early morning of October 11, 1970, tried to repeat the beastly act in the evening of that date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted.

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2

That the rape of the daughter by the father, an undeniably abominable and revolting crime with incestuous implications, positively undermines the connubial relationship, is a proposition too obvious to require much elucidation. In Wilkinson v. People, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife‟s natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself." The court adopted the interpretation that "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual particularly and directly injured or affected by the crime for which the husband is being prosecuted. In State v. Chambers, it was held under the statutory provision that husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter. In State v. Shultz, it was held that the wife may testify against the husband in a case where he was prosecuted for incest committed against their eleven-year old daughter because incest is a "crime committed against the wife." 2. People vs. Castañeda Jr. – 88 S 562 G.R. No. L-46306. February 27, 1979 SYNOPSIS: At the trial of the complaint for falsification of public document filed by the wife against her husband, the prosecution called the former to the witness stand to testify but the defense moved to disqualify her invoking Section 20, Rule 130 of the Revised Rules of Court. Despite the opposition of the prosecution contending that the case falls under the exception to the rule, the trial total judge granted the motion for disqualification. The Supreme Court set aside the order stating that the case is an exceptionato the marital disqualification rule because the forging of the wife‟s signature by the husband to make it appear that she consented to the sale of the conjugal property is a crime committed by the husband against the wife.

DOCTRINES: 1. EVIDENCE; MARITAL DISQUALIFICATION RULE; EXCEPTION. — A criminal case for Falsification of Public Document filed against the husband—who allegedly forged the signature of his wife in a deed of sale, thereby making it appear that the latter gave her marital consent to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not — may be considered as a criminal case for a crime committed by a husband against his wife, and, therefore, an exception to the rule on marital disqualification. 2. ID.; ID.; BREACH OF MARITAL CONFIDENCE. — In a criminal case of Falsification of Public Documents filed by the wife against the husband who allegedly forged the wife‟s signature to make it appear that she gave her consent to the deed of sale, it is the husband‟s breach of his wife‟s confidence which give rise to the offense charged, for if the sale had been made with the consent of the wife, no crime could have been charged against the husband. This is the same breach of trust which prompted the wife to make the necessary complaint with the office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal case in the Court of First Instance. To rule, therefore, that such criminal case is not one for a crime committed by one spouse against the other in to advance a conclusion which completely disregards the factual

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 antecedents of the case. 3. ID.; ID.; ID.; EXCEPTION TO RULE 130 OF THE REVISED RULES OF COURT. — Where the victim of the crime and the person who stands to be directly prejudices by the falsification is not a third person but the wife herself the exception to the marital disqualification rule applies for it is undeniable that the criminal act complained of had the effect of directly and vitally impairing the conjugal relation. This is apparent not only in the act of the wife in personally lodging her complaint with the Office of the Provincial Fiscal, but also in her insistent efforts in connection with the instant petition, which seeks to set aside the order disqualifying her from testifying her husband. Taken collectively, the actuations of the witness-wife underscore the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed. Thus, where the identify of interests disappears that identity is nonexistent. In such a situation, the security and confidences of private life which situation, the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. Thus, there is no reason to apply the marital disqualification rule. 4. ID.; ID.; ID.; ID.; PUBLIC POLICY DEMANDS THAT THE WIFE SHOULD NOT BE DISQUALIFIED TO TESTIFY AGAINST THE HUSBAND FOR BREACH OF MARITAL PRIVILEGE. — Overriding considerations of public policy demand that the wife should not be disqualified from testifying against her husband in a case of falsification of public document constituted by the husband against his wife for to espouse the contrary view would spawn the dangerous precedent of a husband committing us many falsifications against his wife as he could conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice in secret — all with unabashed and complete immunity. FACTS: 1) In this case, the wife filed a complaint against his husband for forging her signature in a deed of sale selling their house and lot belonging to their conjugal partnership. 2) When the prosecution called the complainant-wife to the witness stand, the defense moved to disqualify her as a witness invoking the marital disqualification rule since the husband did not gave his consent. ISSUE: From the foregoing factual and procedural antecedents emerges the sole issues determinative of the instant petition, to wit: Whether or not the criminal case for Falsification of Public Document filed against herein private respondent Benjamin F. Manaloto — who allegedly forged the signature of his wife, Victoria M. Manaloto, in a deed of sale, thereby making it appear that the latter gave her marital consent to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not — may be considered as a criminal case for a crime committed by a husband against his wife, and, therefore, an exception to the rule on marital disqualification. HELD: We sustain petitioner‟s stand that the case is an exception to the marital disqualification rule, as a criminal case for a crime committed by the accused-husband against the witness wife. 1. The act complained of as constituting the crime of Falsification of Public Document is the forgery by the accused of his wife‟s signature in a deed of sale, thereby making it appear therein that said wife consented to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not. It must be noted that had the sale of the said house and lot, and the signing of the wife‟s name by her husband in the deed of sale, been made with the consent of the wife, no crime could have been charged against said husband. Clearly, therefore, it is the husband‟s breach of his wife‟s confidence which gave rise to the offense charged. And it is this same breach of trust which prompted the wife to make the necessary complaint with the Office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal case with the Court

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 of First Instance of Pampanga. To rule, therefore, that such criminal case is not one for a crime committed by one spouse against the other is to advance a conclusion which completely disregards the factual antecedents of the instant case. 2. This is not the first time that the issue of whether a specific offense may be classified as a crime committed by one spouse against the other is presented to this Court for resolution. Thus, in the case of Ordoño v. Daquigan, 8 this Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in resolving the issue, stating that:chanrob1es virtual 1aw library We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill v. State, wherein the court said. "The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that WHEN AN OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN THE EXCEPTION, to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other." Applying the foregoing criterion in said case of Ordoño v. Daquigan, this Court held that the rape committed by the husband of the witness-wife against their daughter was a crime committed by the husband against his wife. Although the victim of the crime committed by the accused in that case was not his wife but their daughter, this Court, nevertheless, applied the exception for the reason that said criminal act "positively undermine(d) the connubial relationship." With more reason must the exception apply to the instant case where the victim of the crime and the person who stands to be directly prejudiced by the falsification is not a third person but the wife herself. And it is undeniable that the criminal act complained of had the effect of directly and vitally impairing the conjugal relation. This is apparent not only in the act of the wife in personally lodging her complaint with the Office of the Provincial Fiscal but also in her insistent efforts in connection with the instant petition, which seeks to set aside the order disqualifying her from testifying against her husband. Taken collectively, the actuations of the witness-wife underscore the fact that the martial and domestic relations between her and the accused-husband have become so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed. In such a case, as We have occasion to point out in previous decisions, "identity of interests disappears and the consequent danger of perjury based on that identity is nonexistent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home." Thus, there is no reason to apply the martial disqualification rule. 3. Finally, overriding considerations of public policy demand that the wife should not be disqualified from testifying against her husband in the instant case. For, as aptly observed by the Solicitor General," (t)o espouse the contrary view would spawn the dangerous precedent of a husband committing as many falsifications against his wife as he could conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice her in secret — all with unabashed and complete impunity."

RULE 130 SECTION 23 – DEAD MAN STATUTE RULE 1. Razon vs. IAC – 207 S 234 G.R. No. 74306 March 16, 1992 G.R. No. 74315 March 16, 1992 FACTS: 1) The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E. Razon, Inc. and registered under the name of Juan T. Chuidian in the books of the

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 corporation. 2) In his oral testimony, Razon testified about the oral agreement between him and the deceased Juan T. Chuidian that the ownership of the shares of stock was actually vested in him (Razon) unless the deceased opted to pay the same. 3) The CA ruled that the dead man‟s statute rule is applicable in the case. 4) Razon assailed otherwise. ISSUE: Is the dead man‟s statute rule inapplicable in this case? HELD: YES! The testimony of the petitioner is not within the prohibition of the rule. The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to "guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party." The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator or its representative of an estate upon a claim against the estate of the deceased person. In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same which never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian. It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. Furthermore, the records show that the private respondent never objected to the testimony of the petitioner as regards the true nature of his transaction with the late elder Chuidian. The petitioner's testimony was subject to cross-examination by the private respondent's counsel. Hence, granting that the petitioner's testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of Court, the private respondent is deemed to have waived the rule. We ruled in the case of Cruz v. Court of Appeals: It is also settled that the court cannot disregard evidence which would ordinarily be incompetent under the rules but has been rendered admissible by the failure of a party to object thereto. Thus: . . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of improper questions that may be put to him while on the stand is a matter resting in the discretion of the litigant. He may assert his right by timely objection or he may waive it, expressly or by silence. In any case the option rests with him. Once admitted, the testimony is in the case for what it is worth and the judge has no power to disregard it for the sole reason that it could have been excluded, if it had been objected to, nor to strike it out on its own motion (Emphasis supplied).

RULE 130 SECTION 24 – DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 1. US vs. Antipolo – 37 P 726 G.R. No. L-13109 March 6, 1918 WITNESS: Wife against his husband FACTS: 1) The case involves the crime of murder. 2) Before dying, the victim told his wife the cause of his death. 3) As such, the wife took the witness stand to testify the dying declaration of his husband. 4) The defense objected on the ground that he testimony of the wife is covered by privileged communication between the husband and the wife as the provision covers during marriage and afterwards. 5) Accordingly, the court excluded the testimony of the wife. ISSUE: Whether the testimony of the wife concerning the dying declaration of her husband is admissible? HELD: YES! These propositions were rejected by the trial judge, and the objection of the fiscal as to the testimony of the woman Ezpeleta was sustained. To this objection counsel took exception and made an offer to prove by the excluded witness the facts which he expected to establish by her testimony. Concerning these facts it is sufficient at this time to say that some of them would be both material and relevant, to such a degree that if proven to the satisfaction of the court, they might have lead to the acquittal of the accused, as they purported to relate to the dying declarations of the deceased, concerning the cause of his death, the general purport being that his injuries were due to fall and not to the acts imputed to the accused. Section 58 of General Orders No. 58 (1900) reads as follows: Except with the consent of both, or except in cases of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties. The reasons for this rule are thus stated in Underhill's work on Criminal Evidence (second edition) on page 346: At common law, neither a husband nor a wife was a competent witness for or against the other in any judicial proceedings, civil or criminal, to which the other was a party. . . . If either were recognized as a competent witness against the other who was accused of crime, . . . a very serious injury would be done to the harmony and happiness of husband and wife and the confidence which should exist between them. In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says, in stating the reasons for the rule at common law: The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony even though the other party be no longer living. This case does not fall with the text of the statute or the reason upon which it is based. The purpose of section 58 is to protect accused persons against statements made in the confidence engendered by the marital relation, and to relieve the husband or wife to whom such confidential communications might have been made from the obligation of revealing them to the prejudice of the other spouse. Obviously, when a person at the point of death as a result of injuries he has suffered makes a statement regarding the manner in which he received those injuries, the communication so made is in no sense confidential.

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2

On the contrary, such a communication is made for the express purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into the cause of his death. The same theory as that upon which section 58 of General Orders No. 58 is based, underlies section 383, paragraph 3 of Act No. 190, which reads as follows: A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, or to a criminal action or proceeding for a crime committed by one against the other. The only doubt which can arise from a reading of this provision relates to the meaning of the words "during the marriage or afterwards," and this doubt can arise only by a consideration of this phrase separately from the rest of the paragraph. Construed as a whole it is evident that it relates only to cases in which the testimony of a spouse is offered for or against the other in a proceeding to which the other is a party. The use of the word "afterwards" in the phrase "during the marriage or afterwards" was intended to cover cases in which a marriage has been dissolved otherwise than by death of one of the spouses - as, for instance, by decree of annulment or divorce. The declarations of a deceased person while in anticipation of certain impending death, concerning the circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the declarant. Such dying declarations are admissible in favor of the defendant as well as against him. It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations. In the case of the State vs. Ryan (30 La. Ann., 1176), cited by appellant in his brief, the court said: The next bill is as to the competency of the widow of the deceased to prove his dying declarations. We see no possible reason for excluding her . . . after the husband's death she is no longer his wife, and the rules of evidence, as between husbands and wives, are no longer applicable. In the case of Arnett vs. Commonwealth, the testimony of the widow of the deceased as to his dying declarations made to her was objected to upon the express ground that under the terms of the Kentucky Code, "the wife was incompetent to testify even after the cessation of the marriage relation, to any communication made by her by her husband during the marriage." This contention was rejected, the court saying: On grounds of public policy the wife cannot testify against her husband as to what came to her from him confidentially or by reason of the marriage relation, but this rule does not apply to a dying communication made by the husband to the wife on the trial of the one who killed him. The declaration of the deceased made in extremes in such cases is a thing to be proven, and this proof may be made by any competent witness who heard the statement. The wife may testify for the state in cases of this character as to any other fact known to her. . . . It can not be contended that the dying declaration testified to by the witness was a confidential communication made to her; on the contrary, it was evidently made in the furtherance of justice for the express purpose that it should be testified to in the prosecution of the defendant. 2. Lim vs. CA – 214 S 273 G.R. No. 91114 September 25, 1992 WITNESS: A psychiatrist, whose patient is the petitioner DOCTRINES:

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIANPATIENT PRIVILEGE; RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the general interest of the community. 2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made to the physician‟s testimony. 3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be successfully claimed, the following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3. such person acquired the information while he was attending to the patient in his professional capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient." 4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit: "1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." 5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." 6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED COMMUNICATIONS MUST PROVE REQUISITES THEREOF. — One who claims this privilege must prove the presence of these aforementioned requisites. 7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; INFORMATION GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. — There is authority to the effect that information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege: "Some courts have held that the casual presence of a third person destroys the confidential nature of the communication between doctor and patient and thus destroys the privilege, and that under such circumstances the doctor may testify. Other courts have reached a contrary result." 8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while it may be true that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had objected to any question asked of the witness on the ground that it elicited an answer that would violate the privilege, despite the trial court‟s advise that said counsel may interpose his objection to the testimony "once it becomes apparent that the testimony, sought to

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 be elicited is covered by the privileged communication rule." The particular portions of the stenographic notes of the testimony of Dr. Acampado quoted in the petitioner‟s Petition and Memorandum, and in the private respondent‟s Memorandum, do not at all show that any objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof. FACTS: 1) The case focuses on the rule on confidentiality of the physician-patient relationship. 2) During the trial for a case of annulment on the ground of mental illness (schizophrenia), a psychiatrist was summoned by the patient in her professional capacity for curative remedy or treatment to testify as an expert witness. 3) Said doctor was the current doctor of the petitioner. 4) However, the doctor neither revealed the illness she examined and treated the petitioner for nor disclosed the results of her examination and the medicines she had prescribed. ISSUE: Is the testimony given by the psychiatrist is a privileged communication? HELD: NO! The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which reads: "SECTION 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: x

x

x

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient." This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of Court with two (2) modifications, namely: (a) the inclusion of the phrase "advice or treatment given by him," and (b) substitution of the word reputation for the word character. Said Section 21 in turn is a reproduction of paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court with a modification consisting in the change of the phrase "which would tend to blacken" in the latter to "would blacken." 9 Verily, these changes affected the meaning of the provision. Under the 1940 Rules of Court, it was sufficient if the information would tend to blacken the character of the patient. In the 1964 Rules of Court, a stricter requirement was imposed; it was imperative that the information would blacken such character. With the advent of the Revised Rules on Evidence on 1 July 1989, the rule was relaxed once more by the substitution of the word character with the word reputation. There is a distinction between these two concepts." „Character‟ is what a man is, and „reputation‟ is what he is supposed to be in what people say he is.‟Character‟ depends on attributes possessed, and „reputation‟ on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present." This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the general interest of the community. Since the object of the privilege is to protect the patient, it may be waived if no timely objection is

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 made to the physician‟s testimony. In order that the privilege may be successfully claimed, the following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3. such person acquired the information while he was attending to the patient in his professional capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient." These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit: "1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." One who claims this privilege must prove the presence of these aforementioned requisites. Our careful evaluation of the submitted pleadings leads Us to no other course of action but to agree with the respondent Court‟s observation that the petitioner failed to discharge that burden. In the first place, Dr. Acampado was presented and qualified as an expert witness. As correctly held by the Court of Appeals, she did not disclose anything obtained in the course of her examination, interview and treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical problem did not refer to and had no bearing on whatever information or findings the doctor obtained while attending to the patient. There is, as well, no showing that Dr. Acampado‟s answers to the questions propounded to her relating to the hypothetical problem were influenced by the information obtained from the petitioner. Otherwise stated, her expert opinion excluded whatever information or knowledge she had about the petitioner which was acquired by reason of the physician-patient relationship existing between them. As an expert witness, her testimony before the trial court cannot then be excluded. The rule on this point is summarized as follows: "The predominating view, with some scant authority otherwise, is that the statutory physician-

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient. But in order to avoid the bar of the physicianpatient privilege where it is asserted in such a case, the physician must base his opinion solely upon the facts hypothesized in the question, excluding from consideration his personal knowledge of the patient acquired through the physician and patient relationship. If he cannot or does not exclude from consideration his personal professional knowledge of the patient‟s condition he should not be permitted to testify as to his expert opinion." 19 Secondly, it is quite clear from Dr. Acampado‟s testimony that the petitioner was never interviewed alone. Said interviews were always conducted in the presence of a third party, There is authority to the effect that information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege: "Some courts have held that the casual presence of a third person destroys the confidential nature of the communication between doctor and patient and thus destroys the privilege, and that under such circumstances the doctor may testify. Other courts have reached a contrary result." Thirdly, except for the petitioner‟s sweeping claim — that" (T)he information given by Dr. Acampado brings disgrace and invite (sic) reproach to petitioner by falsely making it appear in the eyes of the trial court and the public that the latter was suffering from a mental disturbance called schizophrenia — which caused, and continues to cause, irreparable injury to the name and reputation of petitioner and her family," 22 — which is based on a wrong premise, nothing specific or concrete was offered to show that indeed, the information obtained from Dr. Acampado would blacken the former‟s "character" (or "reputation"). Dr. Acampado never disclosed any information obtained from the petitioner regarding the latter‟s ailment and the treatment recommended therefor. Finally, while it may be true that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had objected to any question asked of the witness on the ground that it elicited an answer that would violate the privilege, despite the trial court‟s advise that said counsel may interpose his objection to the testimony "once it becomes apparent that the testimony, sought to be elicited is covered by the privileged communication rule." The particular portions of the stenographic notes of the testimony of Dr. Acampado quoted in the petitioner‟s Petition 23 and Memorandum, 24 and in the private respondent‟s Memorandum, 25 do not at all show that any objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof. 3. Krohn vs. CA – 233 S 146 G.R. No. 108854 June 14, 1994 WITNESS: The husband testifying the contents of the psychiatric evaluation report against his wife FACTS: 1) A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. 2) The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. 3) As such, the husband took the witness stand and tried to testify on the contents of the

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 Confidential Psychiatric Evaluation Report. 4) This was objected to on the ground that it violated the rule on privileged communication between physician and patient. 5) Subsequently, the wife filed a Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would thwart the physician-patient privileged communication rule in order to enjoin her husband from disclosing the contents of the report. ISSUE: Whether the husband is prohibited to testify as to the contents of the report under the privileged communication rule? HELD: NO! The treatise presented by petitioner on the privileged nature of the communication between physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. Consequently, this prevents the physician from making public information that will 18 result in humiliation, embarrassment, or disgrace to the patient. For, the patient should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their 19 subsequent disclosure. The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall 20 within the constitutionally protected zone of privacy, including a patient's interest in keeping his 21 mental health records confidential. Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist. Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient. In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted. The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations contained in the Statement for the Records are but refutations of private respondent's declarations which may be denied or disproved during the trial.

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EVIDENCE | Atty. Demetrio C. Custodio, Jr. | Week 2 4. Fortich vs. CA – 268 S 152 G.R. No. 120769 February 12, 1997 FACTS: 1) The case is about the inter-office memorandum addressed to the Regional Sales Manager of San Miguel Corporation from the District Sales Supervisor. 2) The memo allegedly contained libelous words that Fortich is an avid mahjong player and a cockfighting enthusiast. 3) The defendant contended that said memo is in the ambit of privileged communication rule. ISSUE: Is the inter-office memorandum covered by the privileged communication rule? HELD: YES! While the law presumes every defamatory imputation to be malicious, there are exceptions to this rule. The record indicates that this case falls under the settled exceptions to the rule: the private respondent's inter-office memorandum falls within the ambit of privileged communication rule. A privileged communication is one made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty. Discussing the scope of this rule, former Chief Justice Fernando, in Mercado v. CFI of Rizal, explained that: x x x. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; x x x. In the instant case, it is well-worth stressing that the private respondent was, as the District Sales Supervisor of the corporation's Dipolog office, the immediate supervisor of petitioner. In this capacity, respondent was charged with the duty to carry out and enforce company rules and policies, including the duty to undertake initial investigation of possible irregularities in customer accounts in order to suggest further action, which could be taken by the company. In fact, the communications initially submitted by the private respondent to his superiors prompted the investigation which eventually led to petitioner's preventive suspension and to the decision by the company's proper officers to terminate the latter's employment. In making his earlier recommendation, the private respondent relied on the affidavits submitted by at least three of the company's clients (all attesting to irregularities) and his initial though yet-unsubstantiated findings that respondent was an "avid mahjong player and a cockfight enthusiast." That the affidavits were subsequently found to have been gathered by the private respondent himself did not diminish their quality. Investigation necessarily includes the gathering and solicitation of information. The rule on privileged communications allows the latitude of expression embodied in the private respondent's second memorandum.

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