G.R. No.

L-2068

October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, Respondent.

TUASON, J.: chanrobles virtual law library

The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding.chanroblesvirtualawlibrary chanrobles virtual law library

According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance.chanroblesvirtualawlibrary chanrobles virtual law library

Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other 1

law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth." chanrobles virtual law library

But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.

Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.

Separate Opinions

FERIA, J., dissenting: chanrobles virtual law library

I am sorry to dissent from the decision.chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.chanroblesvirtualawlibrary chanrobles virtual law library

The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil action of mandamus was instituted.chanroblesvirtualawlibrary chanrobles virtual law library

It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article VIII, of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library

In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or constitutionality of said section 11 in connection with section 1 of Rule 108, because that question was not raised therein, and we merely construed the provisions on preliminary investigation or Rule 108. In said case the writer of this dissenting opinion said:

It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted, with and cross-examine the witnesses against him, to depend entirely upon the whim or caprice of a judge or officer conducting the preliminary investigation.

But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have perforce to pass upon it.chanroblesvirtualawlibrary chanrobles virtual law library

Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify substantive rights." The constitution added the last part of the abovequoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules concerning pleading, practice and procedure.chanroblesvirtualawlibrary chanrobles virtual law library

It does not require an elaborate arguments to show that the right granted by law upon a defendant to be confronted with and cross-examine the witnesses for the prosecuted in preliminary investigation as well as in the trial of the case is a substantive right. It is based on human experience, according to which a person is not prone to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously tested by a cross-examination. It is substantive right because by exercising it, an accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and not committed to 4

prison, and thus avoid an open and public accusation of crime, the trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which a criminal prosecution always entails.chanroblesvirtualawlibrary chanrobles virtual law library

This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power conferred upon this Court by the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library

Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is null and void.chanroblesvirtualawlibrary chanrobles virtual law library

The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be cross-examined by the latter, does not validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it.chanroblesvirtualawlibrary chanrobles virtual law library

Petition is therefore granted.

PERFECTO, J., dissenting: chanrobles virtual law library

In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L1336, we said:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.) chanrobles virtual law library

Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and to cross-examine them.chanroblesvirtualawlibrary chanrobles virtual law library

Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not only from the jeopardy of being finally convicted and punished, but also from the physical, mental and moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process instituted against him. He must be afforded the opportunities to have the charges against him quashed, not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecution he can convince the court that the charges are groundless. There is no justice in compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that should not have a place within the framework of dignified and solemn judicial proceedings.

On the strength of the above quoted opinion the opinion should be granted and so we vote.chanroblesvirtualawlibrary chanrobles virtual law library

Petition dismissed.

RESOLUTION

March 8, 1949

TUASON, J.: chanrobles virtual law library

This cause is now before us on a motion for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library

In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.chanroblesvirtualawlibrary chanrobles virtual law library

It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library

We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.) chanrobles virtual law library

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution.chanroblesvirtualawlibrary chanrobles virtual law library

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" - is identified with and forms part of the method by which, in private 7

law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules.chanroblesvirtualawlibrary chanrobles virtual law library

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:

Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570.

Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.chanroblesvirtualawlibrary chanrobles virtual law library

While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional 8

right to be informed of the charges against him both at such investigation and at the trial is unchanged. In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact that this formality is frequently waived.chanroblesvirtualawlibrary chanrobles virtual law library

The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones.chanroblesvirtualawlibrary chanrobles virtual law library

The motion is denied.

Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.

--> FERIA, J., dissenting: chanrobles virtual law library

I dissent.chanroblesvirtualawlibrary chanrobles virtual law library

The motion for reconsideration must be granted.chanroblesvirtualawlibrary chanrobles virtual law library

According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons: chanrobles virtual law library

First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence embodied in these rules." chanrobles virtual law library

Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition." chanrobles virtual law library

Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage." chanrobles virtual law library

Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary.chanroblesvirtualawlibrary chanrobles virtual law library 10

Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library

(1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, because remedial law is one thing, and procedural law is another. Obviously they are different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfections of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.) chanrobles virtual law library

It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum 11

presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a person to testify as a witness be considered procedural? chanrobles virtual law library

Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just stated, but because our contention that the defendant can not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary investigation is under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving his right to be confronted with and cross-examine the witness against him.chanroblesvirtualawlibrary chanrobles virtual law library

(2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process of law simply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly held that: "The law having explicitly recognized and established that no person charged with the commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there are reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and sentenced without the proper preliminary investigation having been made in his regard, is convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564).chanroblesvirtualawlibrary chanrobles virtual law library

The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application to the present case, for the question involved therein was the power of Congress to alter the rules of evidence and procedure without violating the constitutional precept that prohibits the passing of ex post facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of the Constitution that confers upon this Court the power to promulgate said rules.chanroblesvirtualawlibrary chanrobles virtual law library 12

(3) The last reason or argument premised on the conclusion that "the distinction between remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are two completely different things.chanroblesvirtualawlibrary chanrobles virtual law library

As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain from promulgating such rule of procedure which many increase, diminish or modify substantive right in order to avoid violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner.chanroblesvirtualawlibrary chanrobles virtual law library

Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial.chanroblesvirtualawlibrary chanrobles virtual law library

Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority reversed or modified in accordance with my dissenting opinion.

PERFECTO, J.: chanrobles virtual law library

13

We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted.

Endnotes:

TUASON, J.:

1 Rights of defendant after arrest. - After the arrest of the defendant and his delivery to the court, he shall be informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.chanroblesvirtualawlibrary chanrobles virtual law library

2 The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.

14

G.R. No. L-1164

September 17, 1903

MANUEL ALDEGUER, ET AL., plaintiffs-appellees, vs. HENRY HOSKYN, defendant-appellant.

Jose M. Gray for appellant. Palma, Gerona and Mercado for appellees.

WILLARD, J.:

The only exception in this case was to the judgment, and the only question before us in the bill of exceptions is whether that judgment is supported by the findings of fact stated in the decision.

It appears from the decision that Doa Petrona Inarda bought the land in question in 1855 from Don Pablo Garcia. Doa Petrona lived on the land until her death, in 1876, when Don Miguel Aldeguer, their grandfather, was appointed guardian of Doa Petrona's four children, the present plaintiffs. In 1884 Don Manuel sold the land to one Martinez, who sold it to the defendant, Henry Hoskyn, in 1887. In the deed to Martinez, Don Manuel stated that he acquired the property by purchase from Don Pablo Garcia twenty-four years before. The court finds that this declaration was the only evidence in the case that Don Manuel had any title to the land.

1. The appellant defendant below assigns as error that the court found from parol evidence alone the existence of the contract of sale between Don Pablo and Doa Petrona. It is true the court says that no documentary evidence was received on this point, but it is also stated that the existence of a written contract was proved, as also its record in the registry of property, its attachment to a complaint filed in court by the plaintiffs in 1892, its subsequent destruction with other papers in the case, and the contents thereof.

After such preliminary proof had been made, parol evidence of the contents of the document was properly received (Code of Civil Procedure, sec. 284). Such a ruling does not infringe section 795, par. 6, 15

of said Code, which provides "that nothing in this act contained shall be so construed as to divest or injuriously affect any property right that has already become vested under existing law," even if under article 1221 or other provisions of the Civil Code, after the destruction of the instrument, such parol evidence of its contents could not have been given. The general rule is that there is no vested right of property in rules of evidence.

2. The recital in the document of sale by Don Manuel to Martinez proves nothing against the plaintiffs, either according to the former law (Civil Code, art. 1218) or according to the new Code (secs. 277 et seq.), and the claim of the appellant to the contrary can not be sustained.

3. It is claimed by the appellant that he has acquired title by prescription, but the defense of the statute of limitations, to have been available to the defendant in this case, should have been set up in his answer. This was not done. The court, therefore, made no finding thereon.

4. The appellant has moved for a new trial in this court under section 497, par. 2, of the Code of Civil Procedure, on the ground of newly discovered evidence. This evidence is to the effect that one Bonifacio Garcia was never the owner of the land in question and never sold it to the mother of the plaintiffs.

Waiving all questions as to the sufficiency to the showing of due diligence by the defendant, and as to the failure to procure the affidavits of the proffered witnesses, the motion must be denied on the ground that such evidence is not "of such a character as to probably change the result." The court finds that the mother of the plaintiffs bought the land from Don Pablo Garcia. Evidence that Bonifacio did not own it would be immaterial. Such evidence would merely strengthen the decision of the court. It would not overthrow it.

But the appellant says that the plaintiffs in their complaint alleged that the mother bought the property of Don Bonifacio. What took place during the trial we do not know, but it is certain that evidence was introduced showing that the purchase was made from Don Pablo, because the court has so found. We must presume that this was done without objection on the part of the defendant, for no exceptions relating to the matter appear in the record. If such objections had been made, the court had power to allow the plaintiffs to amend their complaint by striking out the name of Bonifacio and inserting that of Pablo.

16

The motion for a new trial is denied and the judgment of the court below affirmed, with costs of this instance against the appellant, and after the expiration of twenty days, reckoned from the date of this decision, judgment shall be rendered accordingly, and the case is returned to the court below for compliance therewith.

Arellano, C.J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

17

G.R. No. L-30420

September 22, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME RAMOS Y DELUSONG alias "BOYING ALIMANGO" alias "BOY" alias "BOYING" alias "ALIMANGO", defendant-appellant.

M. Isidro for defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

REYES, J.B.L., J.:

Appeal from a decision of the Circuit Criminal Court of Manila in its criminal case No. CCC-VI-41, finding the defendant guilty beyond reasonable doubt of the crime of murder. The dispositive portion of the decision follows:

WHEREFORE, accused is hereby found guilty beyond reasonable doubt as principal of the crime of murder qualified by treachery, and there being no modifying circumstance to consider, sentences him to reclusion perpetua, to indemnify the heirs of the deceased Rogelio Dumasig the sum of P12,000.00 for the death of the latter, P300.00 actual damages representing the funeral expenses and P5,000.00 by way of moral damages, and to pay the costs.

The information which charges Jaime Ramos y Delusong, alias "Boying Alimango" alias "Boy" alias"Boying" alias "Alimango" of the crime of murder, recites:

18

That on or about the 15th day of June, 1968, in the City of Manila, Philippines, the said accused, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon one Rogelio Dumasig by then and there stabbing the latter with a sharp pointed instrument on the abdomen, inflicting upon him a mortal wound which was the direct and immediate cause of his death thereafter.

The prosecution, presented Bibiana Baclit, 68 years old, as lone witness to the stabbing incident. She testified that she was looking for the victim, Rogelio Dumasig (nicknamed Elio) at about 9 in the evening of 15 June 1968 to talk to him about the delivery of stones to her. She found him in a restaurant near the corner of Campa and Moriones streets, Tondo, and called for him. While they were talking in front of the restaurant, one "Boying", whom the witness pointed to in court as the accused, approached from behind Elio and immediately stabbed the latter when he reached Elio's front with what looked like a kitchen knife. There were several persons during the stabbing, one of whom was Lydia Brinzon.

The victim was taken to Mary Johnston Hospital by a neighbor, Milagros Rios. He was later transferred to Jose Reyes Memorial Hospital where he was operated on immediately after arrival. The victim, however expired the following day, 16 June 1968 at 9 in the morning. 1 The Postmortem Certificate of Death signed by Camilo B. Casaclang, medical examiner of the Manila Police Department (MPD for short) who performed the autopsy, shows that the victim died of "profuse exanguinating (sic) hemorrhage shock due to a stab wound located in the anterior abdominal wall just above the umbilicus directed from front to back, slightly upwards laterally to the right; pierced through and through the right liver lobe, including the gall bladder (fatal)." 2 The wound's point of entry is 4 centimeters by 2 centimeters and has a depth of 14 centimeters. 3 The victim was identified by his sister, Flora Dumasig, before he was autopsied by Dr. Casaclang.

Patrolman Mariano Custodia of the MPD who was assigned to investigate the case was presented to identify the reports submitted by him relative to the investigation thereof, 4 including that of Cpl. B. de Leos of precinct 3 who originally handled the case. 5

The victim's sister, Flora Dumasig, was likewise presented mainly to prove that the deceased was in the business of delivering stones during his lifetime; that he was, earning P8.00 or P9.00 daily; and that she spent more than P300.00 for his interment.

19

The defense, on the other hand, claims that the accused was not at the scene of the crime but was making aquaria at Ramos Pet Shop, Cartimar Market, Pasay City, from 8 a.m. to 12 midnight on 15 June 1968. The accused himself disclaimed knowledge of the stabbing incident, stating that he knew of the same only when he was arrested on 10 or 11 August 1968. Dario Imutan was presented to corroborate him, but the court a quo dispensed with his testimony as being merely corroborative.

The defense also presented Lydia Brinzon, who was earlier identified by prosecution witness Bibiana Baclit as one of those present at the scene of the stabbing. She denied having seen Bibiana Baclit at the said place. She said that she was at the corner of Campa and Moriones streets at 9 in the evening of 15 June 1968 because she was waiting for her nephew. She was standing there when she saw the victim come out of the Seorita Ice Cream Parlor eating ice cream. They talked and then Rogelio Dumasig proceeded home. She did not go with him.

About eleven (11) meters from where she was standing, she saw the victim and a man grab each other. This man was about 15 meters away, walking on Campa street when she first noticed him.

After the men grabbed each other, a young girl who was near them shouted, "Ay, sinaksak ang mama!" (Ay, the man was stabbed!) The assailant then pulled out the weapon and walked past her towards the traffic island of Moriones street and the grandstand (glorieta), while Rogelio Dumasig put his hand in his stomach and ran. Witness further stated that she saw a shiny, bladed weapon when the assailant passed by. The man tucked this at his waistline upon reaching the island. She had a good look at his face and she could recognize him if she saw him again. The assailant was not in the courtroom and he was not the accused, Jaime Ramos.

Aside from the young girl who shouted, there were Mike Lopez, Cesar Romero and an unidentified man at the scene of the stabbing, none of whom were presented to testify. Witness Brinzon admitted that she is a friend of the accused, although they are not related. Mike Lopez' testimony was dispensed with by the court a quo when it was manifested that he would corroborate Lydia Brinzon.

There was no dispute as regards the death of Rogelio Dumasig as a result of the stabbing. The sole issue, therefore, was who stabbed him.

The court a quo was of the firm belief that the accused was the one who stabbed Rogelio Dumasig suddenly and without any warning. It found prosecution witness Bibiana's testimony as "natural, logical, 20

straightforward and probable." 6 It was on the basis of her testimony that the court convicted the accused. The court a quo, on the other hand, was unimpressed by defense witness Lydia Brinzon's testimony which it desribed as lacking in that "naturalness and spontaneity which inspires belief". 7 Our own review of the evidence, however, is convincing that the state failed to establish the guilt of the accused beyond reasonable doubt. The lone witness for the prosecution, Bibiana Baclit, is not only contradicted by defense witness Lydia Brinzon, but the former's testimony in court as to the manner in which the murder was committed is seriously informed by the varying descriptions given by her at the fiscal's investigation. According to the transcripts, Baclit gave no less than three versions of how Dumasig was killed. Early in the investigation she asserted that the deceased was stabbed twice in opposite directions (Exhibit "Ia", C.F.I. Record, page 67) from right to left and vice versa. Later this witness claimed before the investigator that the accused first took hold of his victim with the left hand and stabbed him with a knife held in his right hand (Exhibit "H", C.F.I., Record, page 89). Finally in court she declared that the appellant stabbed Dumasig once, after coming from behind thevictim, but made no mention of holding the latter at all. 8 These variations can not but adversely affect Baclit's credibility.

The trial court rejected the testimony of defense witness Brinzon, on the ground that it lacked naturalness and spontaneity and was negative in character. We fail to discern any unnatural features in Brinzon's version that after witnessing the stabbing of Dumasig the killer passed her by and she had a good look at his face, and he was not the accused. Contrary to the trial court's view, We hold that Brinzon's testimony was positive and not negative in character. As pointed out by Francisco (Comment on Rule 133, page 1125), quoting 32 C.J.S., 1079-1081:

A distinction must be made between testimony which is negative in form and that which is negative in character; so testimony may be positive in character even though it amounts to a negative statement or tends to show a negative situation, and if a witness who was in a position to observe testifies not merely that he did not see or hear, but that the event did not occur, this is clearly positive testimony.

Considering that Brinzon's presence at the locus criminis was admitted by prosecution's sole witness Baclit; that the latter is without corroborative support and that there is nothing to contradict appellant's own sworn assertion that he was at Cartimar Market in Pasay City, from morning to midnight on 15 June 1968, while Dumasig was killed in Tondo early in that evening, We are of the opinion that on the meager evidence on record herein accused-appellant is entitled to acquittal.

WHEREFORE, the guilt of the appellant Jaime Ramos y Delusong not having been proved beyond reasonable doubt, he is acquitted and ordered discharged from custody, and his bond cancelled. Costs de oficio. 21

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Makasiar, J., took no part.

22

August 15, 1916

G.R. No. L-10100 GALO ABRENICA, plaintiff-appellee, vs. MANUEL GONDA and MARCELO DE GARCIA, defendants-appellees.

Marcelo Caringal for appellants. Ramon Diokno for appellee.

, J.:

These proceedings were brought by the plaintiff to compel the defendant to return to him the two parcels of land described in the complaint which he alleges were sold by him under right of repurchase to the defendant on February 21, 1916, for the sum of P75 and for the period of seven years. The plaintiff alleged that the defendant refused to deliver said property to him when, upon the expiration of the period mentioned, he endeavored to redeem the same and tendered payment to the defendant of the sum aforesaid.

The first of the defendants, Manuel Gonda (who had already sold said parcels to the other defendant Marcelino de Gracia, for which reason the latter was also made a party defendant) alleged that about 19 years ago he was the sole possessor and owner of said parcels, and in the course of the trial endeavored to prove that they had been sold to him by the plaintiff and his mother.

The issue presented by the pleadings, therefore, is whether said two parcels of land were sold under right of repurchase by the plaintiff to the defendant for the period of seven years, for the sum of P75, or whether they were conveyed to the defendant in absolute sale by the plaintiffs parents.

The justice of the peace of the provincial capital, who tried the case by assignment of the judge of the Court of First Instance of the same province, heard the evidence introduced by the parties and after 23

making a sufficiently clear summary of and duly considering the same, reached the conclusion that the proofs introduced by the plaintiff were entitled to the greater credit and, on the grounds that the plaintiff had not yet lost his right to recover the lands from the defendant Gonda and that the sale made by this defendant to the other defendant De Gracia, supposing it to be genuine, could have no legal effect as Gonda was not the true owner of the land, entered judgment in behalf of the plaintiff and against the two defendants whereby he ordered each and both of them to return and deliver to the plaintiff the parcels of land claimed by him, after payment to Gonda of the sum of P75 that had been deposited with the clerk of the court, and assessed the costs against the defendants in equal shares. The court made no finding in regard to the damages demanded by the plaintiff as there was no evidence to show that any had been caused. The defendants moved for a new trial. Their motion having been overruled, they excepted to the ruling and, by proper bill of exceptions, appealed to the Supreme Court. In this instance the appellants allege in the first place that the trial judge erred in holding that he had jurisdiction to try the case, and in trying the same in spite of the fact that the Act which authorizes justices of the peace to try by assignment cases filed with the Court of First Instance is unconstitutional.

Before the hearing in first instance, counsel for the defendant did in fact challenge the jurisdiction of the justice of the peace of the provincial capital to try the case at bar, on the ground that Act No. 2041 of the Philippine Legislature is unconstitutional. In deciding this question, said justice of the peace held that he did have jurisdiction and immediately proceeded to enter judgment in the manner aforestated.

This Supreme Court has held on various occasions, among them in the decision rendered on December 24, 1914, in the case of Calampiano vs. Tolentino (29 Phil. Rep., 116) that said Act No. 2041 is valid and does not conflict with the provisions of the Act of Congress of July 1, 1902; that a justice of the peace, acting under the designation under the law just referred to, acts not as a justice of the peace or holds a justices court, but acts as a judge of the zone of first instance and holds, in effect, a Court of First Instance; and finally, that for this reason the objection that this case falls within that of Barrameda vs. Moir, 25 Phil. Rep., 44 (which is the one cited by the appellants in their brief to show that the error aforementioned was incurred), is not well taken. This assignment of error cannot, therefore, be sustained.

The second error assigned by the appellants to the judgment of the trial court consists, as they maintain, in that the court founded its judgment on inadmissible and illegal evidence which was rejected by the same court during the course of the trial.

In effect, the plaintiff ought to have proven that on February 21, 1906, he sold, under right of repurchase for the period of seven years, the two parcels of land mentioned in the complaint, or, what 24

amounts to the same thing, that a contract of sale with right of repurchase (or one of pledge or mortgage, as it was improperly called in the complaint and so termed by the plaintiff) was entered into between this latter and the defendant, on the date aforementioned, in respect to said parcels of land.

The plaintiff, testifying at the trial in regard to the existence of the contract, stated that it was a verbal one between himself and said defendant. Assuredly such a contract could not be proven a trial, except by means of some written instrument in accordance with the provisions of subsections 1 and 5, section 335, of the Code of Civil Procedure. The plaintiff, however, having been placed on the stand as a witness by his on attorney, testified at length and answered all the questions asked him with respect to the said contract, the details of the same, the persons who witnessed it, the place where it was made, and various other circumstances connected with its execution. These questions and answers cover six pages of the record, and yet the defendants counsel raised no objection to the examination, aside from challenging one of the questions as leading and another of them as irrelevant. It seems that only when the examination was terminated did counsel for defendants move to strike out all of the testimony given and statements made by plaintiff in regard to the contract, on the ground that the period for the fulfillment of the contract exceeded one year and that it could not be proven except by means of a written instrument. The court sustained this motion, to which an exception was entered by the plaintiff.

Defendants counsel moved that the case be dismissed on the ground that, as the aforementioned testimony was stricken out, there was no proof of the contract. This motion being denied by the court, counsel excepted to the ruling and on cross-examination put several question to the plaintiff relative to the plaintiffs ownership in said parcels of land and the manner in which he acquired it. Among these questions some were asked which bore upon the answers given by the plaintiff on direct examination regarding the existence of the contract by which, according to the plaintiff, the defendant Gonda came to hold said parcels. These questions on cross-examination and their respective answers are as follows:

CARINGAL: (To the plaintiff). Prior to the day on which the defendant Manuel Gonda went to see you or to visit you in the house of Domingo Tamayo, you had not spoken to him with regard to the pledge of some land of yours, had you? -

A. No, sir.

Q. Did you then take advantage of that circumstance of his having gone to visit you? -

25

A. Yes, sir.

Q. You knew then that he was married, did you not? -

A. Yes, sir.

Q. Did you not think of necessary to speak to Manuel Gondas wife about the mortgage? -

A. No, sir, because I considered him as an uncle of mine.

xxx xxx xxx

CARINGAL:

So that you knew, did you, that it was Manuel Gonda who paid the land tax? -

A. Yes, sir.

Q. Who paid the land tax before the lands were pledged? -

A. I could not declare them before they were pledged. I have not yet paid the land tax, because I have not been able to declare those lands.

xxx xxx xxx

Q. Tell us where Manuel Gonda was living on the date when, as you said, the pledge was made. -

A. In the barrio of Moson. 26

Q. Of Taal or Bauan? -

A. Bauan.

Q. What is the distance between the then domicile or residence of Manuel Gonda and the house of Domingo Tamayo in which you were living? -

A. I think it is the same as between Bauan and Taal.

Q. And notwithstanding that distance, Manuel Gonda went purposely to take the money to you? -

A. He took the money to the house of Domingo Tamayo.

Q. Was there no written contract of that mortgage? -

A. No, sir.

That is all.

Continuing to present evidence, the plaintiff put three witnesses on the stand and they were examined.

One of them, Juan Carandang, testified in regard to the plaintiffs ownership and possession of the lands. The court sustained a motion by defendants counsel to strike out one of the statements made by this witness in which he stated that he knew by hearsay that said lands had been pledged (sic).

27

Another of these witnesses, Domingo Tamayo, testified that he was present at the time the plaintiff asked the defendant for the P75 mentioned in the complaint, and when the agreement was made with regard thereto between the two men in connection with the so-called pledge of the lands in question. He also testified that he received that sum from the defendant, at the plaintiffs suggestion.

And, finally, the third witness, Pedro Mendoza, also the plaintiffs, testified that he was present when the money was tendered by the defendant to the plaintiff, and heard the latter tell the witness Domingo Tamayo to receive it. He stated that Tamayo did in fact take the money.

In the course of the examination of these witnesses, the defendants counsel moved that their testimony be stricken out. The court sustained one of these motions, while as to the rest of them be said that counsels motion would be taken under consideration; later, when one of these witnesses, replying to a question by the court, stated that the contract was not executed in writing, the court said that the motion was sustained, but, notwithstanding this ruling, and immediately after it had been made, the defendants counsel put the following question to this witness on cross-examination:

Q. Do you remember positively that it was on a Sunday the first time, and on a Tuesday or a Wednesday the second time, that Manuel Gonda went to your house and delivered the money? -

A. Yes, sir.

The court finally granted the motion of counsel for defendants for strike out the testimony given by this witness. Counsel for plaintiff excepted to this ruling.

Now then, it has been repeatedly laid down as a rule of evidence that a protest or objection against the admission of any evidence must be made at the proper time, and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of the proof, the inadmissiblity of the evidence is, or may be, inferred.

A motion to strike out parol or documentary evidence from the record is useless and ineffective if made without timely protest, objection, or opposition on the part of the party against whom it was presented. 28

Objection to the introduction of evidence should be made before the question is answered. When no such objection is made, a motion to strike out the answer ordinarily comes too late. (De Dios Chua Soco vs. Veloso, 2 Phil. Rep., 658).

In the case of Conlu vs. Araneta and Guanko (15 Phil. Rep., 387) in which one of the points discussed was the inadmissibility of parol evidence to prove contracts involving real property, in accordance with the provisions of section 335 of the Code of Civil Procedure, no objection having been made to such evidence, this court said:

A failure to except to the evidence because it does not conform with the statute, is a waiver of the provisions of the law.

An objection to a question put to a witness must be made at the time question is asked. (Kreigh vs. Sherman, 105 Ill., 49; 46 Am. Dig., Century Ed., 932.)

Objections to evidence and the reason therefor must be stated in apt time. (Kidder vs. McIlhenny, 81 N. C., 123; 46 Am. Dig., Century Ed., 933.)

It is held in general that by failing to object to the proof of an oral contract a party waives the benefit of the statute and cannot afterward claim it. (20 Cyc., 320, where several decisions on the subject are cited.)

Many rulings have been made in regard to this matter by the courts of the United States, and among them we cite a few found in volume 46 of the American Digest, page 933:

Where plaintiff without objection proved by parol evidence that certain land belonged to him, defendant cannot afterwards object that the deed should have been produced. (Clay vs. Boyer, 10 Ill. [5 Gilman], 506.)

29

After a question has been repeatedly asked and answered without objection, it is too late to object to its repetition on the ground that the answer is in itself inadmissible. (McKee vs. Nelson, 4 Cow., 355; 15 Am. Dec., 384.)

An objection to the admission of evidence on the ground of incompetency, taken after the testimony has been given, is too late. (In re Morgan, 104 N. Y., 74; 9 N. E., 861.)

Plaintiff having testified to conversation between defendants son and himself until the direct examination extended through about 12 folios, defendant could not sit by and then objet to the foregoing testimony. (Boehme vs. Michael, 5 N. Y. St. Rep., 492.)

The first witness to testify at the trial was the plaintiff himself. From the first question put to him, it clearly appeared, as may be seen in folios 5, 6, and 7 of the stenographic notes, that the contract of pledge or mortgage of the lands, as the plaintiff himself improperly calls it, or the sale of said lands with right of repurchase, between him and the defendant Gonda, was a verbal one and for the period of seven years, made in the course of a conversation between the plaintiff and said defendant in the house of Domingo Tamayo. The defendants counsel, however, did not endeavor immediately to obtain from the witness a statement as to whether that contract was set forth in any instrument; he did not object to the witness continuing to testify in regard to the contract, nor did he in any way object to the questions they continued to ask the witness concerning the matter, though he did object to one question as leading and to another one as irrelevant, thus indicating that he had no other objection to make to those questions. Only after witness, the plaintiff, had finished answering all the questions put to him on the subject of the contract, did counsel for the defendants move that all of his testimony and statements be stricken out. It is obvious that the court should not have granted that motion; but we must also bear in mind that the court did not grant other similar and subsequent motions made during the examination of the other witnesses; he merely said that he would take them under advisement. The fact that the defendants counsel asked various cross-questions, both of the plaintiff and of the other witness, in connection with the answers given by them in their direct examination, with respect to particulars concerning the contract, implies a waiver on his part to have the evidence stricken out.

It is true that, before cross-examining the plaintiff and one of the witnesses, this same counsel requested the permission of the court, and stipulated that his clients rights should not be prejudiced by the answers to those witnesses in view of the motion presented to strike out their testimony; buy this stipulation of the defendants counsel has no value or importance whatever, because, if the answers of those witnesses were stricken out, the cross-examination could have no object whatsoever, and if the

30

questions were put to the witnesses and answered by them, they could only be taken into account by connecting them with the answers given by those witnesses on direct examination.

As no timely objection or protest was made to the admission of the testimony of the plaintiff with respect to the contract; and as the motion to strike out said evidence came to late; and, furthermore, as the defendants themselves, by the cross-questions put by their counsel for the witnesses in respect to said contract, tacitly waived their right to have it stricken out, that evidence, therefore, cannot be considered either inadmissible or illegal, and court, far from having erred in taking it into consideration and basing his judgment thereon, notwithstanding the fact that it was ordered to be stricken out during the trial, merely corrected the error he committed in ordering it to be so stricken out and complied with the rules of procedure hereinbefore cited.

The lower court was guided by the evidence in making that finding, for it was proved that the plaintiff sold to the defendant Gonda for the period of seven years, with right of repurchase, the two aforementioned parcels of land, on February 21, 1906, for the sum of P75, Philippine currency. The testimony of the plaintiff himself and of the witnesses Juan Carandang, Domingo Tamayo, and Pedro Mendoza, of which mentioned is made in the judgment, proves those facts. As against this testimony, the defendants presented that of one of themselves, Manuel Gonda, who stated that said two parcels of land were sold to him outright by the plaintiff Galo Abrenica and his mother, Mamerta Bonio, more than 19 years ago, for the sum of P75; but this allegation was in no matter proven, for, having stated that an instrument of sale was executed but that it had been lost, he furnished absolutely no proof of the existence of the instrument, nor of any such sale having been made between himself and the plaintiff. This defendant did, indeed, exhibit a copy of the affidavit filed by him on May 26, 1906, in the municipality of Taal, for the purpose of the assessment of a piece of land which he says included the two parcels in question; but the plaintiff has explained why the tax declaration of said parcels was not made by him, but by the defendant Gonda. It is easily understood that the latter might have made this declaration on May 26, 1906, that is, three months after the land had been sold to him by the plaintiff under right of repurchase, inasmuch as said defendant had been the owner of said parcels since the month of February of the same year and, by reason of said sale, was to be their owner for seven years, so long as the plaintiff did not make use of his right to redeem them. On the other hand, the very fact that the defendant Gonda did not declare these parcels of land before May 26, 1906, is proof that he did not purchase them outright from the plaintiff and the latters mother 19 years ago.

As the plaintiff made use of his right to recover the property within the period stipulated by the contract and which did not exceed ten years, and as he deposited with the clerk of the court the sum of P75, the price of the purchase, in due time, the defendant is not entitled to oppose the recovery, and the said parcels of land must be delivered to the plaintiff, even though they be in the possession of the other defendant, Marcelino de Garcia, to whom they were sold by his codefendant Gonda, for the latter could 31

not sell them to De Gracia except under the condition that they could be repurchased by the plaintiff within the said period of seven years. Even still less right could the defendant De Gracia have to retain possession of these lands, if the contract executed between the plaintiff and Manuel Gonda had been one of mortgage (as it was styled all along by the plaintiff and the defendants at the trial and by the lower court himself in the judgment appealed from) for, as the defendant Gonda was not the owner of the lands, he could not lawfully convey them to his codefendant.

There being no proof that any damages was caused to the plaintiff by the defendants refusal to return said parcels of land to him, no finding should be made against the defendants with respect thereto.

We therefore affirm the judgment appealed from, with the costs of this instance against the appellants. So ordered.

Arellano, C. J., Torres, Johnson, and Trent, JJ., concur.

Moreland, M., took no part.

32

G.R. No. L-9181

November 28, 1955

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal, Quezon City Branch, and JUAN CONSUNJI and ALFONSO PANGANIBAN, respondents.

Office of the Solicitor General Ambrosio Padilla, Solicitor Meliton G. Soliman, City Attorney Pedro R. Revilla and Assistant City Attorney Julian E. Lustre for petitioner. Estanislao A. Fernandez, Augusto Ilagan, Claro T. Almeda and Rufino Navarro for respondents.

REYES, J.B.L., J.:

In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji, Alfonso Panganiban, and another whose identity is still unknown, were charged with having conspired together in the murder of one Jose Ramos (Criminal Case No. Q-1637 of the Court of First Instance of Quezon City). Trial of the case started on May 3, 1955, and in several hearings the prosecution had been presenting its evidence. During the progress of the trial on May 18, 1955, while the prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in connection with the making of a certain extra-judicial confession (allegedly made before him) by defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. Thereafter, according to the transcript, the following remarks were made:

FISCAL LUSTRE:

33

May we know from counsel if he is also objecting to the admissibility of the confession of Consunji as against the accused Consunji himself?

COURT:

That would be premature because there is already a ruling of the Court that you cannot prove a confession unless you prove first conspiracy thru a number of indefinite acts, conditions and circumstances as required by law. Annex "B" of the petition, p. 9

The prosecution then moved in writing for a reconsideration of the order of exclusion, but again the motion was denied. Wherefore, this petition for certiorari was brought before this Court by the Solicitor General, for the review and annulment of the lower Court's order completely excluding any evidence on the extrajudicial confessions of the accused Juan Consunji and Alfonso Panganiban without prior proof of conspiracy.

We believe that the lower Court committed a grave abuse of discretion in ordering the complete exclusion of the prosecution's evidence on the alleged confessions of the accused Juan Consunji at the stage of the trial when the ruling was made.

Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the extrajudicial confession of an accused, freely and voluntarily made, as evidence against him.

SEC. 14. Confession. The declaration of an accused expressly acknowledging the truth of his guilt as to the offense charged, may be given in evidence against him.

Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs. Buan, 64 Phil. 296), and should have been admitted as such.

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The rule cited by the Court below in support of its exclusion of the proffered evidence is Sec. 12 of Rule 123, providing that:

The act or declaration of a conspirator relating to the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

Manifestly, the rule refers to statements made by one conspirator during the pendency of the unlawful enterprises ("during its existence") and in furtherance of its object, and not to a confession made, as in this case, long after the conspiracy had been brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U. S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718; People vs. Nakpil, 52 Phil., 985).

Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two accused, nor as evidence against both of them. In fact, the alleged confessions (both in writing and in tape recordings) had not yet even been identified (the presentation of Atty. Xavier was precisely for the purpose of identifying the confessions), much less formally offered in evidence. For all we know, the prosecution might still be able to adduce other proof of conspiracy between Consunji and Panganiban before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123 also applies to the confessions in question, it was premature for the respondent Court to exclude them completely on the ground that there was no prior proof of conspiracy.

It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issued motu proprio. Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the confessions that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence (Marcella vs. Reyes, 12 Phil., 1).

We see no need for the present to discuss the question of the admissibility of the individual extrajudicial confessions of two or more accused for the purpose of establishing conspiracy between them through 35

the identity of the confessions in essential details. After all, the confessions are not before us and have not even been formally offered in evidence for any purpose. Suffice it to say that the lower Court should have allowed such confessions to be given in evidence at least as against the parties who made them, and admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to get into the record all the relevant evidence at its disposal to prove the charges. At any rate, in the final determination and consideration of the case, the trial Court should be able to distinguish the admissible from the inadmissible, and reject what, under the rules of evidence, should be excluded.

Once more, attention should be called to the ruling of this Court in the case of Prats & Co. vs. Phoenix Insurance Co., 52 Phil., 807, 816-817:

In the course of long experience we have observed that justice is most effectively and expeditiously administered in the courts where trial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the Attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which the presides, a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, a step which this Court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this Court then has all the material before it necessary to make a correct judgment.

There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of the accused or the dismissal of the charges, from which the People can no longer appeal.

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Wherefore, the order excluding the confessions of the accused Juan Consunji and Alfonso Panganiban is annulled and set aside and the Court below is directed to proceed with the trial in accordance with law and this opinion. Costs against respondents Juan Consunji and Alfonso Panganiban. So ordered.

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G.R. No. L-28607

February 21, 1929

PRATS & COMPANY, a registered partnership, plaintiff-appellant, vs. PHOENIX INSURANCE COMPANY, HARTFORD, CONNECTICUT, a corporation, defendant-appellee.

Abad Santos, Camus, Delgado and Recto and Ohnick and McFie for appellant. Gibbs and McDonough for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of the City of Manila by Prats & Co., a mercantile partnership, for the purpose of recovering from the Phoenix Insurance Co., of Hartford, Connecticut, the sum of P117,800.60, with interest, by reason of a loss alleged to have been sustained by the plaintiff, on August 21, 1924, from a fire, it being alleged that said loss was covered by policy of insurance No. 600217, for the sum of P200,000, issued by the defendant company to the plaintiff. For answer, the defendant, Pheonix Insurance Co., admitted the insurance of the policy of insurance but, by way of special defense, alleged, among other things, that the fire in question had been set by the plaintiff, or with its connivance, and that the plaintiff had submitted under oath to the defendant a fraudulent claim of loss, in contravention of the express terms of the policy. Upon hearing the cause the trial court absolved the defendant from the complaint with respect to the obligation created by the policy which was the subject of the suit, but ordered the defendant to pay to the plaintiff the sum of P11,731.93, with interest from the filing of the complaint, upon account of moneys received from salvage sales, conducted by the defendant, of remnants of the insured stock. From this judgment the plaintiff appelaed.

So far as liability under the policy of insurance which is the subject of this action is concerned, we are of the opinion that the defendant has sufficiently established two defenses, either of which would be fatal to the right of recovery, namely, first, that the fire was set by the procurance or connivance of the plaintiff for the purpose of defrauding the insurer; and secondly, that the plaintiff, after the fire, submitted to the defendant a fraudulent claim supported by the false proof, in violation of the terms of the policy. Of these defenses the trial judge sustained the second but passed the first without express finding. We consider it important, however, briefly to exhibit the salient facts on both points, not only 38

because of the considerable sum of money involved, but because the facts appearing in evidence supply a typical illustration of the manner in which frauds of this character against the insurance companies may be constructed with some hope of success, when insurance agents are accessible who, under the incentive of writing large amounts of insurance, can be induced to close their eyes to obvious dangers.

On July 10, 1923, Francisco Prats, Elias Hanna and Isidro Bejar registered two mercantile partnerships in the Bureau of Commerce and Industry for the purpose of engaging in mercantile business. The articles of copartnership of these two entities were the same except in the firm names. It was apparently contemplated, in so far as any legitimate function may have been intended, that Prats & Co. should be an importing firm, while Hanna, Bejar & Co. should engage in retail businss. As eveents show, the existence of the parallel entities, controlled by the same individuals, supplied, undeniably, suitable engines for accomplishing an exploit of the kind that was here attempted. Of the three individuals mentioned Elias Hanna and Isidro Bejar were Turkish subjects of unsavory reputation in insurance circle of Manila, while Francisco Prats was a Spanish subject who had had some success as a merchant and, prior to his connection with the two associates above mentioned, apparently enjoyed a fair reputation. Another individual, who figures in the case as an instrument of the three partners, is one Domingo Romero, who at that the time which we are here concerned, was an employee of the Bureau of Internal Revenue, with a salary of P150 per month. Ramon Prats, a son of Francisco Prats, was united in marriage to a daughter of Domingo Romero, with the result that social relations between Francisco Prats and Domingo Romero were close. Francisco Prats appear to have acted as manager for both Prats & Co. and Hanna, Bejar & Co.

On May 27, 1924, Prats, acting for Hanna, Bejar & Co., purchased a one-story building at 95 Plaza Gardenia, Manila; and soon thereafter he begun to assemble in this place the stock of merchandise which was the subject of insurance in this case. The building referred to was purchasd outright for the sum of P1,600. It was old and was scarcely more than a shed but had been used in times past for human habitation. It was located in a part of the city which was inconvenient of success to traders and out of the ordinary channels of business activity. After purchasing the building, Prats knocked out the partitions, removed the floor, and laid along the center. The main part of the structure was thus converted into a single store, or bodega, though certain adjuncts, consisting of kitchen and closets, remained unchanged in the rear of the building. A sign was then set up over the entrance bearing the firm name "Hanna, Bejar & Co." In effecting the purchase of this building Prats availed himself of the service of Domingo Romero, who lived only two doors away at 97 Plaza Gardenia.

By August 21, 1924, there had been assembled and stored by Prats in the place above described a stock of goods which, according to the documents exhibited by him, had a valuation of P211,329.72, on which he had taken out insurance to the extent of P410,000. At midnight of the day mentioned a fire occurred

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at 95 Plaza Gardenia, which destroyed the building and ruined its contents, the amount realized from the salvage of the stock being P11,731.93.

With respect to the insurance upon this stock at the time of the fire, the following facts appear: In the month of June preceeding the fire, nine policies aggregating P160,000 were taken out by Prats in the name of Hanna, Bejar & Co. on merchandise stored at 95 Plaza Gardenia. At the time these policies were taken out the valuation of the goods then in said store could not have been more than P68,753. On June 28, 1924, Prats procured from the agent of the defendant in this case policy of insurance No. 600217 in the amount of P200,000 on merchandise stored in the same place. The nine policies already procured had been taken out, as we have seen, in the name of Hanna, Bejar & Co.; but when Prats applied to the agent of the defendant for the P200,000 policy last above mentioned, the agent told him that if Hanna or Bejar had any interest in the stock to be insured the policy could not be issued for the reason that, in such case, the defendant would not be able to obtain reinsurance for any part of the policy, owing to the bad reputation of Hanna and Bejar. Accordingly, at the request of Prats & Co.; and Prats at the same time assured the agent that Hanna and Bejar were not partners in Prats & Co. With the writing of this policy the amount of insurance on the merchandise at 95 Plaza Gardenia was increased to P360,000, while the value of the stock at that time was not probably much in excess of P158,000. On August 11, 1924, or just ten days before the fire, Prats took out an additional policy for P50,000 in the name of Prats & Co. on the same stock. This made a total insurance of P410,000 on the contents of the store at 95 Plaza Gardenia. At the time, according to Prats himself, the evaluation of the merchandise then in the place was not in excess of P230,000. Furthermore, Prats, about this time, caused the first nine policies which had been taken out in the name of Hanna, Bejar & Co. to be indorsed to Prats & Co., thereby making this firm the sole insured firm with respect to this stock of merchandise.

With respect to the origin of the stock thus assembled, we find that part had been purchased in Europe by Prats; and in connection with its importation from abroad it is noteworthy that on June 18, 1924, Prats & Co. procured a policy of marine insurance to be issued by Meerkamp & Co., Ltd., as agents of the India Insurance Co., Ltd., Upon twenty-two cases of silk, of a supposed value of P43,400. at the time this policy was procured Prats informed the insurer that the goods were soon to arrive from France by the steamer Suwa Maru. For this policy of insurance Prats paid out the sum of P736.25. Nevertheless, it now appears that the twenty-two cases of silk covered by this marine policy were fictitious, as no such purchase of silk had been made by Prats & Co. in France or elsewhere. This fact was offered in evidence by the defendant, as tending to reveal a scheme by which, if a dstructive fire should occur, the plaintiff would be able to mislead the defendant as to the quantity of goods stored in the bodega. This item of proof, though circumstantial in its nature, was undoubtedly competent and should have been admitted by the trial court.

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The proof submitted by the defendant tends to show that obscure manipulations were used by the plaintiff in the storing of merchandise at 95 Plaza Gardenia and in the removal of part of the contents of the bodega before the fire. In this connection it appears that forty-five cases of old stock of Hanna, Bejar & Co., at Legaspi, P. I., were shipped to Manila before the fire, but instead of being taken directly to 95 Plaza Gardenia, they were housed for a time in the back part of the lower floor of the Bazar Filipino in which Prats & Co. and Hanna, Bejar & Co. had their offices. Moreover, a quantity of merchandise purchased from place shortly before the fire, instead of directly to 95 Plaza Gardenia; and it is the theory of the defendant that new merchandise purchased from Talambiras Brothers was substituted for the old stock in boxes from Hanna, Bejar & Co. at Legaspi, leaving the old goods to be deposited in the bodega to swell the debris of the fire. There is evidence also, which was credited by the court, to the effect that on various occasions before the fire goods were removed from the bodega to the store of B. Abolafia, at Manila, where they were received without invoice. Some of these goods were subsequently sent away by Abolafia for sale in the provinces.

If overinsurance and the assemblage of goods at inflated values in the bodega at 95 Plaza Gardenia, together with the surreptitious abstraction of goods therefrom by the insured, have suggested a possible intention on the part of its manager to realize improperly on its insurance policies, this inference is, in our opinion, but beyond reach of reasonable doubt by facts relative to the destruction of the place. In this connection we note that about the time the bodega at 95 Plaza Gardenia had been purchased, Domingo Romero assisted one Ramon Osete to rent No. 69 Calle Gardenia, which was close to the rear of the building at 95 Plaza Gardenia. Osete appears to have been the individual chose for the role of incendiary, and he slept at the place mentioned until the night of the fire. A night or two before the fire this Osete, accompanied by one Antonio Prats, appears to have brought two cans of petroleum to his lodging place at 69 Calle Gardenia. After these cans had been taken to Osete's bathroom by his muchacho, the latter was sent out on an errand; and while he was gone the petroleum disappeared. After the fire had been started in the plaintiff's bodega shortly after midnight on August 21, 1924, Osete conveyed this boy in his automobile to the fire alarm box on Plaza Gardenia. Reaching this place, Osete planted the boy there with instructions to stop anyone who might attempt to turn in the alarm by telling him that he (the boy) had already done so; and in fact, after the fire had gained some headway, one Joaquin Silos, who lived near the bodega, ran to the box to turn on the alarm but was stopped in the act by a person who stated that he had already given the alarm. Nevertheless, when Fire Chief Vanderford reached the scene of the fire a few minutes later, he found that the box had not been disturbed and he himself turned on the alarm. The boy stated that when he was on the way with Osete to the alarm box, as just stated, an explosion took place in the bodega and a dull sound was emitted. Vanderford says that upon his arrival he saw that the smoke issuing from the bodega black, suggesting the combustion of some inflammable material like petroleum. He also noted the odor of petroleum, as did also some of the firemen who reached the scene. It may be added that when the debris of the fire was subsequently searched, merchandise soaked with petroleum was found in the ruins.

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Domingo Romero, who had been living at 97 Plaza Gardenia, had before the fire taken his family temporarily to the home of Prats in Pasay. But after the fire was over the family moved back to 97 Plaza Gardenia, although that place had been considerably damaged by the flames.

Among those who suffered from the fire were the members of the Artigas family, living at 93 Gardenia, on the side opposite Romero's house. Another neighbor who likewise suffered from the fire was one Juan Atayde, occupant of 67 Calle Gardenia, at the side of the house occupied by Osete. Soon after the fire Domingo Romero quietly passed a 100-peso bill into the hand of Maria Luisa Artigas, a daughter belonging to the Artigas family. Romero likewise gave the same amount to Juan Atayde. It is self-evident that the gifts thus made by Romero to Luisa Artigas and Juan Atayde had other motives than pure charity and that the money probably came from some other source than his own modest earnings. After the fire that a special investigation was made by the police department with the result that Deputy Chief Lorenzo came to the conclusion that the fire had originated from an intentional act. Reflection upon the proof before the court engenders in us the same belief and conducts us to the further conclusion that Prats & Co. was not alien to the deed.

The finding of the trial court in the effect that the plaintiff had submitted false proof in the support of his claim is also, in our opinion, well founded. That conclusion appears to have been based upon three items of proof, and with respect to at least two of these, we think that the conclusion of his Honor was correctly drawn. These two facts are, first, that the plaintiff had submitted a claim for jewelry lost in the fire as of a value of P12,800 when th erule value of said jewelry was about P600; and, secondly, that the plaintiff had sought to recover from the insurance company the value of goods which had been surreptitiously withdrawn by it from the bodega prior to the fire. Neither of these two facts are consistent with good faith on the part of the plaintiff, and each constituted a breach of the stipulations of the policy against the use of fraudulent devices and false proof with respect to the loss.

The other point relied upon by his Honor to sustain the conclusion that the plaintiff had attempted to deceive the defendant with respect to the extent of the loss was at least competent in its general bearing on the good faith of the plaintiff, even if, as is probably true, not alone sufficient to constitute a breach of the same stipulations. The point is this: After the fire the plaintiff presented to the adjuster certain cost sheets and cpies of supposed invoices in which the prices and expenses of importation of a quantity of goods were stated at double the true amount. The adjuster soon discovered the artificial nature of these documents, and, with his consent, they were withdrawn by Prats and subsequently destroyed. At the hearing Prats stated that these documents had been fabricated in order that they might be exhibited to intending purchasers of the goods, thereby making it appear to them that the cost of the mercahndise had been much greater than it in fact was a ruse which is supposed to have been entirely innocent or at least not directed against the insurer. But a question naturally arises as to the purpose which these documents might have been made to serve if the fire, as doubtless intended by its 42

designers, had been so destructive as to remove all vestiges of the stock actually involved. Upoon the whole we are forced to state the conclusion, not only that the plaintiff caused the fire to be set, or connived therein, but also that it submitted fraudulent proof as the trial judge found.

Before concluding this opinion we are constrained to make a few observations with reference to the trial of this case and the inordinate amountof time consumed in the proceedings. We are told in the appellant's brief that the trial of this case covered a period of almost two years, in which fifty separate sessions were held, without counting the numeruos hearings upon the taking of the deposition of Francisco Prats, a partner in the plaintiff firm, whose testimony was taken at the instance of the defendant. Taken all together, the time thus consumed was out of all proportion to the difficulties of the case. An examination of the voluminous transcript reveals at least part of the reason for this inordinate consumption of time; since we find that far too much of the space in the transcript is taken up with the record of petty skirmishes in court resulting from objections over the admission of evidence.

In the course of long experience we have observed that justice is most effectivly and expenditiously administered in the courts where trivial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objection to its materiality or technical objection to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of error without returning the case for a new trial, -- a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to make a correct judgment.

In this connection it should be remembered that many of the technical rules of evidence which are often invoked in our courts were originally worked out in England and the United States, where the jury system prevails. These rules were adopted for the purpose of keeping matter from juries which it was supposed might unduly influence them in deciding on the facts. They have little pertinence to a system of procedure, like ours, in which the court is judge both of law and facts, and in which 43

accordingly it is necessary for the court to know what the proof is before it rules upon the propriety of receiving it. Apart from these considerations is the circumstance mentioned above that the time consumed in the trial on such collateral points is generally many times greater than would be consumed if the questionable testimony should be admitted for what it is worth. What has been said above finds special relevancy in this case in view of the action of the trial court in refusing to consider the proof referred to in the opinion showing that the plaintiff, while engaged in assembling its stock, procured maritime insurance upon a fictitious importation of silk. We earnestly commend the maintenance of liberal practice in the admission of proof.

Our examination of the case leads to the conclusion that the result reached by the trial court was correct.

The appealed decision will therefore be affirmed, and it is also ordered, with costs against the appellant.

Avancena, C. J., Villamor and Ostrand, JJ., concur. Romualdez, J., concurs for the affirmance of the appealed judgment. Villa-Real, J., concurs in the result.

Separate Opinions

MALCOLM, J., concurring:

I concur in the result and agree with the clear decision of the trial judge sustaining the defense of false proof, but desire to make of record my nonconfirmity as to a discussion of questions not involved in the disposition of the assignment of errors.

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