Evidence

4) By his conduct

Rule 37:

Cases:

Dying Declaration

PP vs. Montanes

The ante mortem statement made by a person after the mortal

wound has been inflicted undet the belief threat that the death
is certain, stating the fact concerning the cause of and the
circumstances surrounding the attack.

WHEN APPLICABLE? Where the death of the declarant is the subject of

the inquiry

Facts:
Edmundo Ollanes testified that he was fishing with his brother, Perlito
Ollanes.
After fishing, he heard gunshot coming from the direction of the house of
Perlito. He saw his brother lying on the ground, left side of his face
tilteted towards his shoulder, he saw applellant who was armed with a
long firearm. Perlito told him that hea was on the verge of death, and
when he asked who shot him, Perlito said it was the appellant. 3 times.

REQUISITIES:
1) Death is imminent and declarant is conscious of such fact
2) Decl refers to cause and surrounding circumstances of such
death
3) Declaration refers to the facts which the victim is competent to
testify
4) The dec. offered in a case wherein the declarants death is
subject of the inquiry
5) The statement must be complete in itself
REASONS FOR ITS ADMISSION:
1) NECESSITY the declarants death renders impossible his taking
the witness stand
2) Trustworthiness: at the point of death, every motive for
falsehood is silenced.
DETERMINATION OF CONSCIOUNESS OF IMPENDING DEATH
1) Utterances
2) Circumstances : the declarant did not expect to survive the
injury form which he actually died
3) Actual character and seriousness of his wounds

This was corroborated by Joven Hintogaya. He saw Perlito and Appelant,

the appellant caryinga long handgun. He even left a piece of paper with
writing in the Cebuano dialect.
The appellant contends now that both the TC and AC erred in giving
credence and probative weight to the testimonies of Edmundo and
Joven. He contends that one Daniel Sumaylo pleaded guilty to the felony.
Issue
WON the testimonies of the witnesses that the victim identified him is
admissible as evid?
Held:
YES. Dying Declarations; A dying declaration is highly reliable, having
been made in extremity when the declarant is at the point of death and
when any hope of survival is gone, when every motive to
falsehood is silenced, and when the mind is induced by the most
powerful considerations to speak the truth.Perlitos statement
that it was the appellant who shot him was a dying declaration. The
statement is highly reliable, having been made in extremity when the
declarant is at the point of death and when any hope of survival is gone,

when every motive to falsehood is silenced, and when the mind is

induced by the most powerful considerations to speak the truth. Even if
the declarant did not make a statement that he was at the brink of
death, the degree and seriousness of the words and the fact that death
superseded shortly afterwards may be considered as substantial
evidence that the declaration was made by the victim with full
realization that he was in a dying condition.

Upon an examination of the evidence relating to this particular question,

we find that Alvarado did testify that he expended the sum of P140, but
the evidence does not show that this amount was expended in effecting
a cure of his injuries.

Issue:
WON the declaration of Alvarado a hearsay?

11. US v. Mallari
Facts:

Held:

These defendants were charged with the crime of lesiones menos

graves and found guilty by the judge of the Court of First Instance of the
Province of Cagayan. Jose Mallari was sentenced to be imprisoned for a
period of three months of arresto mayor and Vicente Cueson was
sentenced to be imprisoned for a period of one month of arresto
mayor, and each to pay one-half the costs. From that sentence both of
the defendants appealed.chanroblesvirtualawlibrary chanrobles virtual
law library

No.

During the pendency of the appeal the defendant Vicente Cueson

withdrew his appeal (see Record), and the sentence of the lower court as
to him became final.chanroblesvirtualawlibrary chanrobles virtual law
library
Jose Mallari, did voluntarily, illegally, and criminally with a stick or club
beat and wound one Ignacio Alvarado, causing several slight wounds
upon his body. The evidence tends to show that Ignacio Alvarado was
incapacitated from pursuing his regular avocations for a few days.
Alvarado testified that he was incapacitated for a period of ten days.
Mr. C.F. Brantigan, a sanitary inspector of the municipality of Aparri,
testified that Alvarado was probably incapacitated from pursuing his
ordinary avocations for a period of from seven to nine days. There is
no positive proof that Alvarado was incapacitated from pursuing his
ordinary avocations for a longer period than seven to nine days. There is
nothing in the record which shows that his injuries were at all serious.
We are inclined to give the defendant the benefit of the doubt and find
from the evidence that Alvarado was not incapacitated from pursuing his
ordinary avocations for a period longer than seven days, and therefore
that the defendant should be punished n accordance with the provisions
of article 587 of the Penal Code.

DYING DECLARATIONS; GROUNDS OF ADMISSIBILITY.The

credibility of statements made by a severely wounded person to a
justice of the peace in the preliminary investigation rests not only on the
serious situation resulting from the wound he has received but also on
his physical and mental condition, which, given the depressed state
of his mind, has induced the profound conviction that his life is actually
slipping away, and that he is in positive and imminent danger of dying
sooner or later as a consequence of his serious wound; nor is the force
of such declaration affected by the circumstance that he did not
die until many hours or days afterwards, for he finally did die
from the wound, whose gravity did not diminish from the time
he made his declaration until the hour of his death.
4.ID.; ID.; ID.Notwithstanding the fact that hearsay evidence is not
admissible at a trial, the statements made by an individual who is
seriously wounded, at a moment when he was dying, being
convinced that there was no hope of recovery, constitute per se
at least a grave, conclusive and decisive indication of the
culpability of the persons designated by the dying man,
inasmuch as it must be assumed that he, being in so precarious
a condition, spoke truthfully, and that he was not induced by a
desire to tell a lie and to injure an innocent person.

12. PP v.Gutierrez
Facts:

Lucio Gutierres went to the drug store of Angelita de Castro. He was

drunk. He asked her toe settle thigns already. She had consistently
rejected this. She told him to go away, but Lucio remained in the room
where Fausto Casanova was sitting beside a round table.
It was here that Casanova was stabbed that was to cause his death.
Angelita saw Lucio holding the knife which was still embedded in
Casanovas abdomen. Lucio ran out of the building. Casanove was taken
to the hospital but refused to make a statement until Lucio was
apprehended and brought before him. Only then din he point to Lucio as
his assailant. He expired several hours later. \
Lucion admitted having stabbed Casanova but pleaded self-defense.
However, the self-defense was not proven.

Issue:
WON the testimony of Angelita of Casanovas death is a hearsay
evidence, hence, inadmissible?

Held:
The supposed ante-mortem statement by Casanova was improperly
admitted by the TC as a dying declaration. The requisites of a dying
declaration, to be admissible as an exception to the hearsay rule, are:
(a) that it must concern the cause and surrounding
circumstances of the declarants death; (b) that at the time it
was made the declarant was under a consciousness of an
impending death; (c) that he was otherwise competent as a
witness; and (d) that the declaration is offered in evidence in a
criminal case for homicide, murder or parricide in which the
declarant is the victim.
It is obvious from this statement that it was not made by Casanova
under a consciousness of impending death. All he said was that his

wound was "very painful." The mere fact that he was under dextrose
then and passed away a few hours later did not indicate that he felt he
was about to die.
At any rate, Casanovas identification of Lucio as his assailant was not
really necessary because Lucio himself admitted in open court,
and in an earlier sworn statement made some twenty days after the
incident, that it was he who stabbed and killed Casanova. The sworn
statement was admissible against him, having been freely made
by him apparently with the assistance of counsel.

The killing was done on impulse, at the spur of the moment and
not deliberately planned. We find there was no evident
premeditation, if only because it is incredible that Lucio would have been
so reckless as to kill Casanova in broad daylight, and in the latters own
dwelling place at that. Lucio would have expected the presence of
members of the household, not to mention other possible witnesses,
considering that the scene of the stabbing was adjacent to a drug store
and a soda fountain. Customers were not unlikely at that time of day.

13. Pp. v.s Calago

Facts:
Calago was accuse of stabbing Arnuldfo Lonzaga to death witht euse of a
sharp bladed weapon.
3 witnesses:
Sotero Tewan: he saw Calago and Lonzaga. He saw appellant holdin a
knife while the victim was crying for help. The appellant stabbed him.
Tewan rushed to the victim and asked if he recognized the person who
stabbed him. The victim named the appellant.

Pedro Durango: heard the victim cries for help. He overheard Tewan
asking who stabbed the victim. He also asked the victim who stabbed
himappellant.
Issue:
WON the TC erred in finding Accused appellant guilty of the crime
murder.
Held:
A dying declaration pertains to the declarants statements on the cause
and surrounding circumstances of his death made under the
consciousness of an impending death.. It is admissible because, as a
general rule, when the person is at the point of death, every
motive to falsehood is silenced, and the mind is induced by the
most powerful consideration to speak the truth, and therefore,
his statements, under such circumstances, deserve great
weight.
The requisites for the admissibility of a dying declaration are: (1) the
death is imminent and the declarant is conscious of that fact; (2)
the declaration refers to the cause and surrounding
circumstances of such death; (3) the declaration relates to facts
which the victim is competent to testify; (4) the declarant
thereafter dies; and (5) the declaration is offered in a criminal
case wherein the declarants death is the subject of inquiry.
Apart from the statements of the declarant, his consciousness of
impending death can be proved by surrounding circumstances, such as
the nature of injury or by his conduct.It appears that no direct
statement was made by the victim to prove that he was
conscious of his impending death. Nonetheless, apart from the
statements of the declarant, his consciousness of impending death
can be proved by surrounding circumstances, such as the nature of
injury or by his conduct. We can glean from the circumstances that the
victim was aware of his impending death when he named the
appellant as his assailant. The victim was in critical condition. He
sustained severe injuries in the vital organs, such as the heart
and the lungs. He bled profusely and due to massive hemorrhage
secondary to the stab wounds, he died within minutes after he
named the appellant.

14. pp. vs. Boler

Facts:
Jacinto and Jesus Orquin, theif father arsenio Orquin and their uncle
Lolito dela Cruz were working at their copra kiln. The hear dogs barking.
So Jacinto went to check what was wrong. He saw accuse-appellant Oba
Boller, Nonoy Boller and Bayani Boller. Obat holding an M-14 Garand,
Bayani: shotgun, and Nonoy: Garand. All of them pointed at the copra
kiln. Jacinto ran away. The appellants opned fire, hitting Arsenio, Jesus
and Lolito.
Jacinot ran and proceeded toward Barangay HInayan, while running, he
met Roberto Tolin, and told the appellans shot his bro, fater and uncle
and asked him to go ot the copra kiln and to save them.
Lolito Dela Cruz: went to Brgy Captain Berbis and reported. Berbis with
Kgwd Sumagdon proceeded to the house of Arterio, bringin a pen and
paper on which to write down any statement that Lolito would make.
Signed by Sumagodn, Tolin and Orquin. Lolito was unable to move his rt
hand accdg to them.

WON THE STATEMENT MADE BY LOLITO AS A DYING DECLARAION

WHEN IT FAILED TO COMPLY WITH THE FORMAL REQUIREMENTS
OF LAW

Dying Declarations; Requisites.In order that a dying declaration may

be admissible in evidence, four requisites must concur: 1. That the
declaration must concern the cause and surrounding
circumstances of the declarants death; 2. That at the time the
declaration was made, the declarant was under a consciousness
of an impending death; 3. That the declarant is competent as a
witness; and 4. That the declaration is offered in a criminal case
for homicide, murder, or parricide, in which the declarant is a
victim.
The Rules do not require that the witness repeat the exact words
of the victim, it being sufficient that he testify on the substance

of what was said by the declarant.Accused-appellants argue that

the dying declaration is inadmissible in evidence, saying that the
barangay tanod reduced the dying declaration of the victim into writing
using his own words and not that of the declarant himself worse, he
didnt read the same to Lolito de la Cruz after preparing it, nor did he ask
the latter to sign or authenticate the statement. Nevertheless, the
Rules do not require that the witness repeat the exact words of the
victim, it being sufficient that he testify on the substance of what was
said by the declarant.
If the dying declaration is oral, the witness who heard it may
testify thereto without the necessity of reproducing the word of
the declarant, if he is able to give the substance thereof, while an
unsigned dying declaration may be used as a memorandum by the
witness who took it down.The rule is that a dying declaration may be
oral or written. If oral, the witness who heard it may testify thereto
without the necessity of reproducing the word of the decedent, if he is
able to give the substance thereof. An unsigned dying declaration may
be used as a memorandum by the witness who took it down.
15. Pp. vs. Salison

Prosecution presented 7 witnesses

A written declaration of the victim after the incident

A written agreement b/n the parent of appellant and the victim

Maria Magdalena saw appellant Salison approach victim,

Rolando Valmoria. He plaed his arm around Valmorias soulders
and brought him behind a neighbors house and there boxed
Valmoria,

During fistfight, 3 other accused suddenly appeared and joined

the fight.

Emilia Fernanedez: appraodch them and the 3 disappeaed. 3

went back and started to maul Valoria again

Valmoria started to complain of dizziness and pan in his head

which was bleeding

His parents accompanied him to the house of witness Patricia

Alcoseba, the purok leader, and asked to writed down his

declaration regarding the incident explaining that if he should
die and ho witness would testify, his written declaration be
utilized as evid.
Won the written declaration of the victim be admissible?

Yes.
Dying Declaration; Assuming that declaration is not admissible as
a dying declaration, it is still admissible as part of the res
gestae.Appellant likewise argues that the declaration made by the
victim before the purok leader can not be considered as a dying
declaration because it was not made by the deceased under the
consciousness of an impending death. As earlier narrated, at the
time the deceased made the declaration he was in great pain. He
expressed a belief on his imminent death and the hope that his
declaration could be used as evidence regarding the circumstances
thereof. A person would not say so if he believes he would recover and
be able to testify against his assailants. At all events, assuming that
declaration is not admissible as a dying declaration, it is still admissible
as part of the res gestae, since it was made shortly after the startling
incident and, under the circumstances, the victim had no opportunity to
contrive.

SECTION 38. DECLARATION AGAINST INTEREST

The declaration made by a person deceased or unable to testify

against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to
declarants own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be
true, may be received in evidence against himself or his
successors in interest and against third persons.

REQUISITES:
1.

The declarant is dead and unable to testify

2.

That it relates to facts against the interest of the declarant

3.

He was aware that the same was contrary to his aforesaid

interest

4.

That he declarant had no motive to falsify and he believed such

actual declarant to be true

* The declarant must be dead or unable to testify

REASONS:
1.

NECESSITY such declarations are the only mode of proof

available

2.

Trustworthiness person do not make statements that are

disadvantageous to themselves without substantial reason to
believe that the statements are ture.

INTEREST COVERED:
1.
2.
3.

Proprietary interest
Penal interest
Pecuniary interest

It is essential that at the time of the statement, the declarants interest

affected thereby should be ACTUAL/ REAL/ APPARENT not merely
contingent, future or unconditional
16. pp vs. Bernal
Theodore Bernal, together with two other persons whose identities and
whereabouts are still unknown, were charged with the crime of
kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of
Davao City, Branch 10, under an information 1 dated July 13, 1992, which
reads as follows:
Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they
invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently

because he was going to fetch his child. Thereafter, two men arrived,
approached Openda, Jr., and asked the latter if he was "Payat." When he
said yes, one of them suddenly pulled out a handgun while the other
handcuffed him and told him "not to run because they were policemen"
and because he had an "atraso" or a score to settle with them. They
then hastily took him away. Racasa immediately went to the house of
Openda, Jr. and informed the latter's mother of the abduction.
The theory of the prosecution, as culled from the testimony of a certain
Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair
with Bernal's wife Naty and this was the motive behind the former's
kidnapping. Until now, Openda, Jr. is still missing.
On the other hand, the defense asserts that Openda Jr. was a drugpusher arrested by the police on August 5, 1991, and hence, was never
kidnapped.
On December 10, 1993, the court a quo rendered judgment 5 finding
Bernal "guilty beyond reasonable doubt of the crime of kidnapping.
Bernal assails the lower court for giving weight and credence to the
prosecution witnesses' allegedly illusory testimonies and for
convicting him when his guilt was not proved beyond reasonable doubt.
WON THE LOWER COURT ERRED IN FINDING THE TESTIMONIES
OF THE WITNESSES ADMISSIBLE.

The prosecution has profferred sufficient evidence to show that, indeed,

Bernal, together with his two companions, abducted Openda, Jr. on
August 5, 1991. A certain Adonis Sagarino, a childhood friend and
neighbor of the victim, testified that he saw Bernal at the billiard hall at
about 11:00 a.m. with his two companions and overheard him
dispatching one of them to "Tarsing's Store" to check if a certain
person was still there. This person later turned out to be Openda, Jr. He
added that after the latter's presence was confirmed, the three men left
the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed
by the billiard hall with Bernal's companions.
Roberto Racasa, a resident of Bucana, He narrated that he and the
victim were drinking at "Tarsing's Store" on that fateful day when Bernal
passed by and had a drink with them. After a few minutes, Bernal
decided to leave, after which, two men came to the store and asked for
"Payat." When Openda, Jr. confirmed that he was indeed "Payat," hew
was handcuffed and taken away by the unidentified men.
Salito Enriquez, a tailor and a friend of Openda, Jr., testified that
sometime in January 1991, Openda, Jr. confided to him that he and
Bernal's wife Naty were having an affair. One time, Naty even gave
Openda, Jr. money which they used to pay for a motel room. He advised
Naty "not to do it again because she (was) a married
woman. 9 Undoubtedly, his wife's infidelity was ample reason for Bernal
to contemplate revenge.
Motive is generally irrelevant, unless it is utilized in establishing the
identity of the perpetrator. Coupled with enough circumstantial evidence
of facts from which it may be reasonably inferred that the accused was
the malefactor, motive may be sufficient to support a conviction.
Openda, Jr.'s revelation to Enriquez regarding his illicit
relationship with Bernal's wife is admissible in evidence,
pursuant to Section 38, Rule 130 of the Revised Rules on
Evidence, viz.:

Sec. 38. Declaration against interest. The declaration made by

a person deceased, or unable to testify, against the interest of
the declarant, if the fact asserted in the declaration was at the
time it was made so far contrary to declarant's own interest, that
a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in
evidence against himself or his successors-in-interest
and against third persons.
With the deletion of the phrase "pecuniary or moral interest" from the
present provision, it is safe to assume that "declaration against interest"
has been expanded to include all kinds of interest, that is,
pecuniary, proprietary, moral or even penal. 11
A statement may be admissible when it complies with the following
requisites, to wit: "(1) that the declarant is dead or unable to testify; (2)
that it relates to a fact against the interest of the declarant; (3) that at
the time he made said declaration the declarant was aware that the
same was contrary to his aforesaid interest; and (4) that the declarant
had no motive to falsify and believed such declaration to be true." 12
Openda, Jr., having been missing since his abduction, cannot be called
upon to testify. His confession to Enriquez, definitely a declaration
against his own interest, since his affair with Naty Bernal was a crime, is
admissible in evidence 13 because no sane person will be presumed to
tell a falsehood to his own detriment. 14
17. Fuentes vs. CA

Petitioner called Malaspina and placed his right arm on the

shoulder of the latter saying, "Before, I saw you with a long hair
but now you have a short hair."

Suddenly petitioner stabbed Malaspina in the abdomen with a

hunting knife. Malaspina fell to the ground and his companions
rushed to his side. Petitioner fled. Before the victim succumbed

to the gaping wound on his abdomen he muttered that Alejandro

Fuentes, Jr., stabbed him.

testimony of the attending physician that the victim was stabbed on the
left lumbar region.

Petitioner claims on the other hand that it was his cousin Zoilo
Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the
victim was killed he was conversing with him; that he was
compelled to run away when he heard that somebody with a
bolo and spear would "kill all those from San Isidro" because
"Jonie," the killer, was from that place; that since he was also
from San Isidro he sought refuge in his brother's house where he
met "Jonie;" that "Jonie" admitted spontaneously that he stabbed
Malaspina because after a boxing match before the latter untied
his gloves and punched him; that as there were many persons
milling around the house "Jonie" jumped out and escaped
through the window; that he was arrested at eight o'clock in the
morning of 24 June 1989 while he was in a store in the barangay

That it was another person who committed the offense is too

incredible. No less than petitioner's own witness, Nerio Biscocho who
claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the
petitioner, and "Jonie" Fuentes are one and the same person.

The Regional Trial Court found petitioner guilty of murder

qualified by treachery

The Court of Appeals affirmed the judgment of the trial court;

hence, this petition for review.

WON THE DECLARATION THAT ZOILO KILLED THE VICTIM IS

ADMISSIBLE?
NO.
Petitioner contends that the appellate court erred when it held that
petitioner was positively and categorically identified as the killer of
Malaspina, in affirming the judgment of conviction and in holding
petitioner liable for damages to the heirs of the victim.
Petitioner points to an alleged inconsistency between the testimonies of
prosecution witnesses Alberto Toling and Honorio Osok to the effect that
they saw petitioner stab Malaspina on the right lumbar region, and the

One of the recognized exceptions to the hearsay rule is that

pertaining to declarations made against interest. Sec. 38 of Rule
130 of the Rules of Court provides that "(t)he declaration made
by a person deceased, or unable to testify, against the interest
of the declarant, if the fact asserted in the declaration was at
the time it was made so far contrary to declarant's own interest,
that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in
evidence against himself or his successors in interest and
against third persons." The admissibility in evidence of such
declaration is grounded on necessity and trustworthiness.
There are three (3) essential requisites for the admissibility of a
declaration against interest: (a) the declarant must not be available to
testify; (b) the declaration must concern a fact cognizable by the
declarant; and (c) the circumstances must render it improbable that a
motive to falsify existed.
In the instant case, we find that the declaration particularly
against penal interest attributed to Zoilo Fuentes Jr. is not
admissible in evidence as an exception to the hearsay rule. We
are not unaware of People v. Toledo, 12 a 1928 case, where Justice
Malcolm writing for the Court endeavored to reexamine the declaration
of third parties made contrary to their penal interest. In that case, the
protagonists Holgado and Morales engaged in a bolo duel. Morales was
killed almost instantly. Holgado who was seriously wounded gave a
sworn statement (Exh. 1) before the municipal president declaring that
when he and Morales fought there was nobody else present. One (1)

month later Holgado died from his wounds. While the Court was agreed
that Toledo, who reportedly intervened in the fight and dealt the mortal
blow, should be exonerated on reasonable doubt, the members did not
reach an accord on the admissibility of Exh. 1. One group would totally
disregard Exh. 1 since there was ample testimonial evidence to support
an acquittal. The second group considered Exh. 1 as part of the res
gestae as it was made on the same morning when the fight occurred. A
third group, to which Justice Malcolm belonged, opined that the court
below erred in not admitting Exh. 1 as the statement of a fact against
penal interest.
For all its attempt to demonstrate the arbitrariness behind the rejection
in certain cases of declarations against penal interest, the Toledo case
cannot be applied in the instant case which is remarkably different.
Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a
cousin of accused-appellant, verbally admitted to the latter, and later to
their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim
because of a grudge, after which he disappeared. One striking feature
that militates against the acceptance of such a statement is its patent
untrustworthiness. Zoilo who is related to accused-appellant had every
motive to prevaricate. The same can be said of accused-appellant and
his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to
find that the admission of such a statement may likewise be, according
to Wigmore, "shocking to the sense of justice." 13 Let us assume that the
trial court did admit the statement of Zoilo and on that basis acquitted
accused-appellant. Let us assume further that Zoilo was subsequently
captured and upon being confronted with his admission of guilt readily
repudiated the same. There is nothing, absolutely nothing, that can bind
Zoilo legally to that statement.
But more importantly, the far weightier reason why the admission
against penal interest cannot be accepted in the instant case is
that the declarant is not "unable to testify." There is no showing
that Zoilo is either dead, mentally incapacitated or physically
incompetent which Sec. 38 obviously contemplates. His mere
absence from the jurisdiction does not make him ipso facto unavailable
under this rule. 14 For it is incumbent upon the defense to produce each

and every piece of evidence that can break the prosecution and assure
the acquittal of the accused. Other than the gratuitous statements of
accused-appellant and his uncle to the effect that Zoilo admitted having
killed Malaspina, the records show that the defense did not exert any
serious effort to produce Zoilo as a witness. Lest we be misunderstood,
the Court is always for the admission of evidence that would let an
innocent declaration of guilt by the real culprit. But this can be open to
abuse, as when the extrajudicial statement is not even authenticated
thus increasing the probability of its fabrication; it is made to persons
who have every reason to lie and falsify; and it is not altogether clear
that the declarant himself is unable to testify. Thus, for this case at least,
exclusion is the prudent recourse as explained in Toledo The purpose of all evidence is to get at the truth. The reason for
the hearsay rule is that the extrajudicial and unsworn statement
of another is not the best method of serving this purpose. In
other words, the great possibility of the fabrication of falsehoods,
and the inability to prove their untruth, requires that the doors
be closed to such evidence
18. VIACRUSIS VS. CA

to establish their tilte to a land of about 4 hectares: by PR ANastacio Orais and Celestic=na Malazarte

Section 39. Acto or declaration about pedigree

Section 40. Family reputation or tradition regarding pedigree. The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of tis members, may be received in
evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles r othr

family books or charts, engraving or fings, family portraits and the like,
may be received as evidence of pedigree.

39
Act or declaration AGAINST pedigree
Witness NEED NOT be a family member
Testimony is about what a declarant, who is dead
or unable to testify, he said concerning the
pedigree of the declarants family

PEDIGREE

Such evidence may consist of his baptismal certificate, a judicial

admission, a family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the testimonies
of witnesses, and other kinds of proof admissible under Rule 130 of the
40
Rules of Court.
Family reputation or tradition regarding pedigree
Witness is a member of the family
Testimony is about a family reputation or tradition
The trial court conceded that "the defendants parents, as well as the
covering matters of pedigree
plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza, that
Teopista was the daughter of the defendant." It should have
probed this matter further in light of Rule 130, Section 39, of the Rules of
Court, providing as follows:

Includes relationship, family

19: Mendoza vs. CA

PR claimed she was the illegit daughter of Casmirio Mendoza,

but the latter denied her claim. He denied it to his dying day.
Teopista Toring TUnancao, alleged she was born to Birigida
Toring and Casmirio who was married that time
Alleged that the deceased recognized her as an illegit and
treated her as such
Casimirio denied
Evidence: allowed her husband to drive a truck; lolito to build a
house on his lot, opened a joint savings acoutn with her. Lolito
corroborated, saying he considered casimirio his grandfather.
Gaudencio Mendoza and Isaac Mendoza

Won TEOPISTA CAN ESTABLISH HER FILITIATION BY ANY OTHER

MEANS ALLOWED BY EH ROC AND SPECIAL LAWS?

But although Teopista has failed to show that she was in open and
continuous possession of the status of an illegitimate child of Casimiro,
we find that she has nevertheless established that status by another
method.

Sec. 39. Act or declaration about pedigree. The act or

declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or
declaration. The word pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately
connected with pedigree.
The statement of the trial court regarding Teopistas parentage is not
entirely accurate. To set the record straight, we will stress that it was
only Isaac Mendoza who testified on this question of pedigree, and he
did not cite Casimiros father. His testimony was that he was informed by
his father Hipolito, who was Casimiros brother, and Brigida Mendoza,
Casimiros own mother, that Teopista was Casimiros illegitimate
daughter. 15
Such acts or declarations may be received in evidence as an exception
to the hearsay rule because it is the best the nature of the case admits
and because greater evils are apprehended from the rejection of such

proof than from its admission. 16" Nevertheless, precisely because of its
nature as hearsay evidence, there are certain safeguards against its
abuse. Commenting on this provision, Francisco enumerates the
following requisites that have to be complied with before the act or
declaration regarding pedigree may be admitted in evidence:chanrobles
virtual lawlibrary
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in
issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose
pedigree is in question must be shown by evidence other than such
declaration.
All the above requisites are present in the case at bar. The persons who
made the declarations about the pedigree of Teopista, namely, the
mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were
both dead at the time of Isaacs testimony. The declarations referred to
the filiation of Teopista and the paternity of Casimiro, which were the
very issues involved in the complaint for compulsory recognition. The
declarations were made before the complaint was filed by Teopista or
before the controversy arose between her and Casimiro. Finally, the
relationship between the declarants and Casimiro has been established
by evidence other than such declaration, consisting of the extrajudicial
partition of the estate of Florencio Mendoza, in which Casimiro was
mentioned as one of his heirs. 18
The said declarations have not been refuted. Casimiro could have done
this by deposition if he was too old and weak to testify at the trial of the
case.

If we consider the other circumstances narrated under oath by the

private respondent and her witnesses, such as the financial doles made
by Casimiro to Brigida Toring, the hiring of Teopistas husband to drive
the passenger truck of Casimiro, who later sold the vehicle and gave the
proceeds of the sale to Teopista and her husband, the permission he
gave Lolito Tuacao to build a house on his land after he found that the
latter was living on a rented lot, and, no less remarkably, the joint
savings account Casimiro opened with Teopista, we can reasonably
conclude that Teopista was the illegitimate daughter of Casimiro
Mendoza.
We hold that by virtue of the above-discussed declarations, and in view
of the other circumstances of this case, Teopista Toring Tuacao has
proved that she is the illegitimate daughter of Casimiro Mendoza and is
entitled to be recognized as such. In so holding, we give effect to the
policy of the Civil code and the Family Code to liberalize the rule on the
investigation of the paternity of illegitimate children, without prejudice
to the right of the alleged parent to resist the claimed status with his
own defenses, including evidence now obtainable through the facilities
of modern medicine and technology.cralawnad

20. Jisom vs. CA

FACTS:
Private respondent, Monina Jison, instituted a complaint against
petitioner, Francisco Jison, for recognition as illegitimate child of the
latter. The case was filed 20 years after her mothers death and when
she was already 39 years of age.
Petitioner was married to Lilia Lopez Jison since 1940 and sometime in
1945, he impregnated Esperanza Amolar, Moninas mother. Monina
alleged that since childhood, she had enjoyed the continuous, implied
recognition as the illegitimate child of petitioner by his acts and that of
his family. It was likewise alleged that petitioner supported her and
spent for her education such that she became a CPA and eventually a

Central Bank Examiner. Monina was able to present total of 11

witnesses.
For the success of an action to establish illegitimate filiation under the
second paragraph of Art. 172 of the Family Code, a high standard of
proof is requiredspecifically, to prove open and continuous
possession of the status of an illegitimate child, there must be
evidence of the manifestation of the permanent intention of the
supposed father to consider the child as his, by continuous and
clear manifestations of parental affection and care, which
cannot be attributed to pure charity.For the success of an action
to establish illegitimate filiation under the second paragraph, which
MONINA relies upon given that she has none of the evidence mentioned
in the first paragraph, a high standard of proof is required.
Specifically, to prove open and continuous possession of the status of an
illegitimate child, there must be evidence of the manifestation of the
permanent intention of the supposed father to consider the child as his,
by continuous and clear manifestations of parental affection and care,
which cannot be attributed to pure charity. Such acts must be of such a
nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in
society and in life, not accidentally, but continuously. By continuous
is meant uninterrupted and consistent, but does not require any
particular length of time.
Evidence of Pedigree
The enumeration contained in the second portion of Rule 130, Section
40, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as family possessions, or those articles which

represent, in effect, a familys joint statement of its belief as to the

pedigree of a person.We hold that the scope of the enumeration
contained in the second portion of this provision, in light of the rule of
ejusdem generis, is limited to objects which are commonly known as
family possessions, or those articles which represent, in effect, a
familys joint statement of its belief as to the pedigree of a person.
These have been described as objects openly exhibited and well known
to the family, or those which, if preserved in a family, may be regarded
as giving a family tradition. Other examples of these objects which are
regarded as reflective of a familys reputation or tradition regarding
pedigree are inscriptions on tombstones, monuments or coffin plates.
Common Reputation, Explained; It is the general repute, the
common reputation in the family, and not the common
reputation in community, that is a material element of evidence
going to establish pedigree.Plainly then, Exhibits S to V, as private
documents not constituting family possessions as discussed above,
may not be admitted on the basis of Rule 130, Section 40. Neither may
these exhibits be admitted on the basis of Rule 130, Section 41
regarding common reputation, it having been observed that: [T]he
weight of authority appears to be in favor of the theory that it is the
general repute, the common reputation in the family, and not the
common reputation in community, that is a material element of
evidence going to establish pedigree. x x x [Thus] matters of pedigree
may be proved by reputation in the family, and not by reputation in the
neighborhood or vicinity, except where the pedigree in question is
marriage which may be proved by common reputation in the community.