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THIRD DIVISION otherwise if the purpose of placing the statement in the record is merely to establish
[G.R. No. 74065. February 27, 1989.] the fact that the statement was made or the tenor of such statement.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI Y
4.ID.; ID.; ID.; ALIBI, INHERENTLY A WEAK DEFENSE, REQUIRED TEST TO OVERCOME
CATUBAY, defendant-appellant. EVIDENCE OF THE PROSECUTION. It has been ruled time and again that courts look
The Solicitor General for plaintiff-appellee. upon the evidence of alibi with suspicion and always receive it with caution not only
Citizen Legal Assistance Office for defendant-appellant. because it is inherently weak and unreliable but also because of its easy fabrication. To
overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear
SYLLABUS and satisfactory evidence" This test requires not only proof that the accused was
somewhere else other than the scene of the crime but clear and convincing proof of
physical impossibility for the accused to have been at the place of the commission of the
crime.
1.REMEDIAL LAW; CIRCUMSTANTIAL EVIDENCE; QUANTUM OF PROOF NECESSARY TO
SATISFY CONVICTION. Where the conviction of an accused is based merely on 5.ID.; ID.; CONVICTION OF ACCUSED MAY BE SUSTAINED INDEPENDENTLY OF THE EXTRA-
circumstantial evidence, as in this case, it is essential for the validity of such conviction JUDICIAL CONFESSION. As the culpability of the accused has been established beyond
that: 1) there be more than one circumstance; 2) the facts from which the inferences are reasonable doubt by the evidence of the prosecution, there is no need to dwell on the
derived are proven; and 3) the combination of all the circumstances is such as to admissibility of appellant's extrajudicial confession. His conviction can be sustained
produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules independently of said confession.
of Court People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA
36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no
general rule has been formulated as to the quantity of circumstantial evidence which will 6.CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT
suffice for any case, yet all that is required is that the circumstances proved must be PREMEDITATION, NOT APPRECIATED. In the absence of proof as to how the victim was
consistent with each other, consistent with the hypothesis that the accused is guilty and killed, the aggravating circumstances of treachery and evident premeditation cannot be
at the same time inconsistent with any other hypothesis except that of guilt. properly appreciated. The killing must be considered as homicide only and not murder
since the circumstance qualifying the killing must be proven as indubitably as the killing
itself.
2.ID.; EVIDENCE; CREDIBILITY OF WITNESS; ASSESSMENT OF TRIAL COURT GENERALLY
GIVEN GREAT WEIGHT AND RESPECT. As a rule, the trial court's assessment of the
credibility of the prosecution witnesses is entitled to great weight and respect since it 7.ID.; CRIME COMMITTED IS HOMICIDE NOT MURDER ABSENT ANY AGGRAVATING
has the advantage of observing the demeanor of a witness while on the witness stand CIRCUMSTANCE; PENALTY IMPOSABLE. As the evidence on record does not disclose the
and therefore can discern if such witness is telling the truth or not. existence of treachery and evident premeditation in the stabbing of the victim, the crime
committed is only HOMICIDE and not murder. Since there are neither mitigating nor
aggravating circumstances, the penalty for homicide which is reclusion temporal should
3.ID.; ID.; ID.; CONFESSION OF A PERSON TO THE COMMISSION OF A CRIME, NOT be imposed in its medium period. Applying the Indeterminate Sentence Law, the range
VIOLATIVE OF THE HEARSAY RULE; EXCEPTION. This Tribunal had previously declared of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as
that a confession constitutes evidence of high order since it is supported by the strong minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
presumption that no person of normal mind would deliberately and knowingly confess to maximum.
a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-
77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93
SCRA 59.] Proof that a person confessed to the commission of a crime can be presented 8.CIVIL LAW; DAMAGES; AWARD THEREOF REDUCED ACCORDINGLY. Absent any proof
in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of actual damages, the heirs of Augusto Esguerra are entitled only to the indemnity of
of Court] which only prohibits a witness from testifying as to those facts which he merely P30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be
learned from other persons but not as to those facts which he "knows of his own reduced accordingly.
knowledge; that is, which are derived from his own perception." Hence, while the
testimony of a witness regarding the statement made by another person, if intended to DECISION
establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is
2
CORTES, J p: THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE
Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y EVIDENCE ADDUCED BY THE DEFENSE.
Navarro in an information which reads as follows:
II
xxx xxx xxx
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT
That on or about the 11th day of December, 1981, in Quezon City, Metro BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE
Manila, Philippines, the above-named accused, with intent to kill, without IN EVIDENCE.
any justifiable cause, qualified with treachery and with evident
premeditation (sic), did then and there, wilfully, unlawfully and III
feloniously attack, assault and employ personal violence upon the
person of one AUGUSTO ESGUERRA y NAVARRO, by then and there THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING
stabbing him several times with a knife, hitting him on the different parts CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION [Rollo, p.
of his body, thereby inflicting upon him serious and mortal wounds which 38.]
were the direct and immediate cause of his death, to the damage and
prejudice of the heirs of the offended party in such amount as maybe The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto
awarded under the provision of the Civil Code. Guzman, Pat. Arturo Angeles, Cpl. Rogelio Castillo, Pat. Jesus Patriarca and Dr. Gregorio
C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the
CONTRARY TO LAW. [Rollo, p. 15.] defense. The prosecution's version of the facts are as follows:

After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. xxx xxx xxx
Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict
of guilt for the crime charged, the decretal portion of which reads: At about 5:00 o'clock in the afternoon of December 11, 1981, at San
Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant
xxx xxx xxx Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the
morning of the following day, December 12, 1981, appellant to]d Ernesto
WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY Guzman that he killed his drinking partner Augusto Esguerra and
guilty beyond reasonable doubt of the crime of murder, as charged in dumped his body in a toilet pit. Guzman advised appellant to surrender
the information, and hereby sentences him to suffer the penalty of to the police. After work, Guzman went to the police and reported what
RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August
Augusto Esguerra the sum of P50,000.00 without subsidiary 9, 1983).
imprisonment in case of insolvency, with all the accessory penalties
provided for by law, and to pay the costs. At around 2:00 o'clock in the afternoon of the same day, December 12,
1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested
SO ORDERED. [Rollo, p. 31.] appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told
Corporal Castillo that he killed the victim and where he buried the body.
On appeal to this Court, Gaddi assigns as errors of the trial court the following: Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman
and Barangay residents to where the body was in a toilet pit in the
I backyard of Ernesto Guzman. The policeman, with the help of the
Barangay residents, dug out the body. The body of the victim was
identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's
brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted
3
the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and Where the conviction of an accused is based merely on circumstantial evidence, as in
took down the confession of appellant (Exhibit F). Later, the cadaver was this case, it is essential for the validity of such conviction that: 1) there be more than one
subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, circumstance; 2) the facts from which the inferences are derived are proven; and 3) the
January 3, 1984). combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court People v. Modesto,
A man's T-shirt with collar, colored yellow, red and blue, and red shorts, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-
were recovered from the pit where the body of the victim was dug out. 38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to
The T-shirt and shorts were identified by Ernesto Guzman as those worn the quantity of circumstantial evidence which will suffice for any case, yet all that is
by appellant while he was drinking with the victim on December 11, required is that the circumstances proved must be consistent with each other, consistent
1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, with the hypothesis that the accused is guilty and at the same time inconsistent with any
bottle of wine and glass were likewise recovered from the same pit. (p. 6, other hypothesis except that of guilty [People v. Constante, G.R No. L-14639, December
tsn, July 14, 1983). Brief for the Appellee, pp. 35; Rollo, p. 52.] LLphil 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132 September 26, 1964, 12
SCRA 9.]
On the other hand, the defense's version of the facts are as follows:
In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently
satisfies the quantum of proof necessary to uphold a judgment of conviction. The
following circumstances proven by the prosecution indubitably point to the accused as
the perpetrator of the crime committed against Augusto Esguerra.
Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that
on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking
with Augusto Esguerra (Bong Kuleleng) near the house of Ernesto 1.The fact that said victim was last seen on the day he was killed in the company of the
Guzman. At about 5:00 p.m., he was requested by Ernesto Guzman to accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9, 1983,
buy gin. He left Ernesto Guzman and Augusto Esguerra (who were p. 1.]
allegedly drinking) in order to buy a bottle of gin in a nearby store, about
200 meters away. At the store, he met an acquaintance and they talked 2.The fact that on the day after the drinking spree, December 12, 1981, the accused
for a while before returning. Upon his arrival at the place (where they himself admitted to Ernesto Guzman that he stabbed his drinking companion and that
had a drinking spree) he noticed stain of blood in the place where they the latter was "nadisgrasya niya" so he dumped the body of the victim in a hole being
had been drinking and Augusto Esguerra, alias Bong Kuleleng was not dug out for a toilet, located at the yard of Ernesto Guzman [TSN. August 9, 1983, p. 7.]
there anymore. He inquired from Ernesto Guzman the whereabouts of
Augusto Esguerra and was told that the latter "went home already." He 3.The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo
then asked Guzman about the blood and was told that it was the blood of the Northern Police District by the barangay people who apprehended him, he
stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto admitted the truth of the charge of the barangay residents that he killed someone and
Guzman informed him about the killing of Augusto Esguerra Guzman that he dumped the body of the victim in a place being dug out as an improvised toilet
narrated to him that Bong Kuleleng (Augusto Esguerra) held his rooster [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the
by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased barangay people started digging for the body of the victim, the appellant was even
by him. He did not report the killing to the authorities. Guzman likewise instructing them as to the exact location where the body was buried [TSN, August 24,
requested him to admit the killing but he refused. While in the house, 1983, p. 6.]
Guzman filed the case ahead. He was later arrested and investigated
while looking for the corpse. When brought to the police station, he was 4.The fact that the place where he led the police officers and the barangay residents, i.e.
forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried
1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.] the victim as the body of the victim was found there after the digging [TSN, January 3,
1984, p. 5.]
The Court finds the instant appeal unmeritorious.
4
5.The fact that the T-shirt and shorts which the accused was wearing during the drinking 130, Rules of Court). What Felicito told Ogalesco may in a sense be also
spree were later recovered from the place where the victim was buried [TSN, September regarded as part of the res gestae.
2, 1982, p.3.]
The Rule is that "any person, otherwise competent as a witness, who
Appellant however disputes the trial court's reliance on the testimonies of the heard the confession, is competent to testify as to the substance of what
prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment he heard if he heard and understood all of it. An oral confession need not
of the credibility of the prosecution witnesses is entitled to great weight and respect be repeated verbatim, but in such a case it must be given in its
[People v. Valentino, G.R. Nos. L-49859-60, February 20, 1986, 141 SCRA 397; Peoplev. substance." (23 C.J.S. 196.)
Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the
advantage of observing the demeanor of a witness while on the witness stand and "Proof of the contents of an oral extrajudicial confession may be made
therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. by the testimony of a person who testifies that he was present, heard,
56283, June 30, 1987, 151 SCRA 495.] understood, and remembers the substance of the conversation or
statement made by the accused" [citing Underhill's Criminal Evidence,
Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of 4th Ed., Niblack, Sec. 278, p. 551] [at pp. 436-437; Emphasis supplied.]
the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal
had previously declared that a confession constitutes evidence of high order since it is The trial court found no reason to doubt Guzman's credibility as a witness considering his
supported by the strong presumption that no person of normal mind would deliberately stature in the community as a member of a religious movement participating in such
and knowingly confess to a crime unless prompted by truth and his conscience [People v. activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In
Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, fact, on the day the killing took place, he left his house where appellant and his
August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a companion, Esguerra, were still drinking and went to the house of Junior Isla to attend a
crime can be presented in evidence without violating the hearsay rule [Section 30, Rule "maanita" and participate in the weekly activity of bringing down the crucifix and the
130 of the Revised Rules of Court] which only prohibits a witness from testifying as to image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all
those facts which he merely learned from other persons but not as to those facts which that he was actuated by improper motives in testifying against appellant so as to
he "knows of his own knowledge; that is, which are derived from his own perception." warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September
Hence, while the testimony of a witness regarding the statement made by another 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the
person, if intended to establish the truth of the fact asserted in the statement, is clearly appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the
hearsay evidence, it is otherwise if the purpose of placing the statement in the record is former to sleep in the porch of his house as the former had no immediate relatives in
merely to establish the fact that the statement was made or the tenor of such statement Quezon City [TSN, August 9, 1983, p. 14.]
[People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.] Here, when
Guzman testified that the appellant, who probably was bothered by his conscience, As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended
admitted the killing to him, there was no violation of the hearsay rule as Guzman was the appellant, credence should be given to their narration of how the appellant was
testifying to a fact which he knows of his own personal knowledge; that is, he was apprehender and how he led the police and the barangay residents to the place where
testifying to the fact that the appellant told him that he stabbed Augusto Esguerra and he dumped the body of his victim since those police officers are presumed to have
not to the truth of the appellant's statement. performed their duties in a regular manner in the absence of evidence to the contrary
[People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v.
That the testimony of Guzman on appellant's oral confession is competent evidence Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No.
finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 431] which L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30,
upheld the trial court's reliance on an extrajudicial confession given, not to a police 1987, 149 SCRA 464.].
officer during custodial interrogation, but to an ordinary farmer as the basis for
conviction. The Court's pronouncements in the aforesaid case find relevance in the
instant case: LibLex
Appellant's defense to the prosecution's charge rests on an uncorroborated and purely
"The declaration of an accused expressly acknowledging his guilt of the oral evidence of alibi. It has been ruled time and again that courts look upon the
offense charged, may be given in evidence against him" (Sec. 29 Rule
5
evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always alevosia[People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515,
receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 519-520; Emphasis supplied.]
Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of
its easy fabrication [People v. Rafallo, 86 Phil 22 (1950).] To overcome the evidence of Neither can the aggravating circumstance of evident premeditation be considered,
the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" absent a clear showing of
[U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S.v. Olais, 36
Phil. 828 (1917).] This test requires not only proof that the accused was somewhere else 1.the time when the offender determined to commit the crime;
other than the scene of the crime but clear and convincing proof of physical impossibility
for the accused to have been at the place of the commission of the crime [People v.
Pacis, G.R. Nos. L-32957-58, July 25, 1984. 130 SCRA 540;People v. Coronado, G.R. No. 2.an act manifestly indicating that the culprit clung to his determination;
68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, and
1987, 151 SCRA 113.]
3.a sufficient laspe of time between the determination an d the
The testimony of the accused himself believes any claim of physical impossibility for him execution to allow him to reflect upon the consequences of his act
to be at the scene of the crime since according to him, the store where he allegedly [People v. Diva, GR. No. L-22946, October 11, 1968, 25 SCRA
bought another bottle of gin was only 200 meters away. He was able to return to 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA
Guzman's house only after half an hour since he still had a chat with an acquaintance at 427.].
the store. Even granting the truth of appellant's story that he was ordered by Guzman to
buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after As the evidence on record does not disclose the existence of treachery and evident
thirty minutes, it was not impossible for him to have committed the crime since Guzman premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and
and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to not murder. Since there are neither mitigating nor aggravating circumstances, the
attend the maanita at the house of Junior Isla. Thus, his statements on the witness penalty for homicide which is reclusion temporal should be imposed in its medium
stand, far from demonstrating physical impossibility of being at the scene of the crime, period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is
cast serious doubt on the veracity of his alibi. from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum.
As the culpability of the accused has been established beyond reasonable doubt by the
evidence of the prosecution, there is no need to dwell on the admissibility of appellant's Absent any proof of actual damages, the heirs of Augusto Esguerra are entitled only to
extrajudicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be the indemnity of P30,000.00. Hence, the amount of P50,000.00 awarded by the trial
sustained independently of said confession. cdrep court should be reduced accordingly.

However, in the absence of proof as to how the victim was killed, the aggravating WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby
circumstances of treachery and evident premeditation cannot be properly appreciated. found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the
The killing must be considered as homicide only and not murder since the circumstance indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum,
qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to
G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in indemnify the heirs of Augusto Esguerra in the amount of P30,000.00.
a previous case that
SO ORDERED.
As heretofore stated, not a single eyewitness to the stabbing incident
had been presented by the prosecution. Thus, the record is totally bereft SECOND DIVISION
of any evidence as to the means or method resorted to by appellant in [G.R. No. 150464. June 27, 2006.]
attacking the victim. It is needless to add that treachery cannot be
SECURITY BANK AND TRUST COMPANY, petitioner, vs.
deduced from mere presumption, much less from sheer speculation. The
same degree of proof to dispel reasonable doubt is required before any ERIC GAN, respondent.
conclusion may be reached respecting the attendance of DECISION
6
CORONA, J p: that the ledger cards it presented were merely hearsay evidence. On petitioner's
appeal, the CA affirmed the trial court's decision.
This petition for review on certiorari 1 seeks the reversal of the decision 2 of the Court of
Appeals (CA) dated October 18, 2001 in CA-G.R. CV No. 45701, the dispositive portion of Hence, this petition anchored on the following grounds:
which read:
I. The honorable Court of Appeals erred in not ruling that petitioner has
WHEREFORE, finding no reversible error therefrom, the Decision now on sufficiently proved its cause of action against respondent; and that the
appeal is hereby AFFIRMED in toto. ledger cards and the testimony of Mr. Patricio Mercado constituted the
best evidence of the transactions made by the respondent relative to his
SO ORDERED. 3 account.

The factual antecedents follow. II. The honorable Court of Appeals erred in not applying the principle of
estoppel against respondent who has benefited from the special
Petitioner Security Bank and Trust Company is a banking institution duly organized and arrangement accorded to him by petitioner which resulted in an
existing under the laws of the Philippines. In 1981, respondent Eric Gan opened a current overdraft/negative balance.
account with petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it
had an agreement with respondent wherein the latter would deposit an initial amount in III. The honorable Court of Appeals erred in affirming the decision of the
his current account and he could draw checks on said account provided there were trial court. 9
sufficient funds to cover them. Furthermore, under a special arrangement with
petitioner's branch manager then, Mr. Qui, 4 respondent was allowed to transfer funds We deny the petition for lack of merit.
from his account to another person's account also within the same branch. 5 Respondent
availed of such arrangement several times by depositing checks in his account and even It is well established that under Rule 45 of the Rules of Court, only questions of law, not
before they cleared, he withdrew the proceeds thereof and transferred them to the other of fact, may be raised before the Supreme Court. It must be stressed that this Court is
account. These transactions were covered by what were known as "debit memos" since not a trier of facts and it is not its function to re-examine and weigh anew the respective
respondent had no sufficient funds to cover the amounts he transferred. 6 evidence of the parties. Factual findings of the trial court, especially those affirmed by
the CA, are conclusive on this Court when supported by the evidence on record. 10
Later on, respondent purportedly incurred an overdraft or negative balance in his
account. As of December 14, 1982, the overdraft balance came up to P153,757.78. Here, both the trial court and the CA found that petitioner failed to substantiate its claim
According to petitioner, respondent refused to heed petitioner's repeated demands for that respondent knowingly incurred an overdraft against his account. We see no reason
payment. For the period December 14, 1982 to September 15, 1990, the total obligation to disturb this finding.
of respondent reached P297,060.01, inclusive of interest. 7
To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who
Thus, in 1991, petitioner filed a complaint for sum of money against respondent to handled the account of respondent and recorded his transactions in a ledger. Based on
recover the P297,060.01 with 12% interest per annum from September 16, 1990 until this ledger, respondent allegedly had a negative balance of P153,757.78. This resulted
fully paid, attorney's fees, litigation expenses and costs of suit. The case was docketed from transfers of funds from respondent's current account to another person's account.
as Civil Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13. 8 These transfers were made under the authority of Qui. 11 Respondent categorically
denied that he ever authorized these "funds transfers." 12
Respondent denied liability to petitioner for the said amount. He contended that the
alleged overdraft resulted from transactions done without his knowledge and The entries in the ledger, as testified to by Mercado, were not competent evidence to
consent. HADTEC prove that respondent consented to the transfers of funds. These entries merely showed
that the transfers were indeed made and that Qui approved them. Petitioner's claim that
In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that respondent availed of a special arrangement to transfer funds from his account to
petitioner was not able to prove that respondent owed it the amount claimed considering another person's account was a bare allegation that was never substantiated.
7
Admittedly, Mercado had no personal knowledge of this arrangement. 13 In fact, when Moreover, Mercado had no personal knowledge of the facts constituting the entries,
asked about the details of the alleged consent given by respondent to the transfers, he particularly those entries which resulted in the negative balance. He had no knowledge
stated that he could not remember because respondent talked to Qui and not to of the truth or falsity of these entries. We agree entirely with the following discussion of
him. 14 Petitioner could have presented Qui whom they alleged allowed the special the trial court which was affirmed by the CA:
arrangement with respondent. But it did not.
The plaintiff submits that the ledger cards constituted the best evidence
Neither can we accept petitioner's argument that the entries made by Mercado in the of the transactions made by the defendant with the bank relative to his
ledger were competent evidence to prove how and when the negative balance was account, pursuant to Section 43 of Rule 130 of the Revised Rules on
incurred. Petitioner invokes Section 43 of Rule 130: Evidence. There is no question that the entries in the ledgers were made
by one whose duty it was to record transactions in the ordinary or
Entries in the course of business. Entries made at, or near the time of regular course of the business. But for the entries to be prima
the transactions to which they refer, by a person deceased, or unable to facie evidence of the facts recorded, the Rule interpose[s] a very
testify, who was in a position to know the facts therein stated, may be important condition, one which we think is truly indispensable to the
received as prima facie evidence, if such person made the entries in his probative worth of the entries as an exception to the hearsay rule, and
professional capacity or in the performance of duty and in the ordinary that is that the entrant must be "in a position to know the facts therein
or regular course of business or duty. EaHIDC stated." Undeniably, Mr. Mercado was in a position to know the facts of
the check deposits and withdrawals. But the transfers of funds through
Under this exception to the hearsay rule, the admission in evidence of entries in the debit memos in question?
corporate books required the satisfaction of the following conditions:
Let us be clear, at the outset, what the transactions covered by the debit
1. the person who made the entry must be dead, or unable to testify; memos are. They are, at bottom, credit accommodations said to have
been granted by thebank's branch manager Mr. [Q]ui to the defendant,
and they are, therefore loans, to prove which competent testimonial or
2. the entries were made at or near the time of the transactions to which documentary evidence must be presented. In the fac[e] of the denial by
they refer; the defendant of the existence of any such agreement, and the absence
of any document reflecting it, the testimony of a party to the
3. the entrant was in a position to know the facts stated in the entries; transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be
necessary. The plaintiff failed to explain why it did not or could not
4. the entries were made in his professional capacity or in the present any party or witness to the transactions, but even if it had a
performance of a duty, whether legal, contractual, moral or reason why it could not, it is clear that the existence of the agreements
religious; and cannot be established through the testimony of Mr. Mercado, for he was
[not in] a position to [know] those facts. As a subordinate, he could not
5. the entries were made in the ordinary or regular course of business or have done more than record what was reported to him by his superior
duty. 15 the branch manager, and unless he was allowed to be privy to the
latter's dealings with the defendant, the information that he received
The ledger entries did not meet the first and third requisites. and entered in the ledgers was incapable of being confirmed by him.

Mercado, petitioner's bookkeeper who prepared the entries, was presented to testify on There is good reason why evidence of this nature is incorrigibly hearsay.
the transactions pertaining to the account of respondent. It was in the course of his Entries in business records which spring from the duty of other
testimony that the ledger entries were presented. There was, therefore, neither employees to communicate facts occurring in the ordinary course of
justification nor necessity for the presentation of the entries as the person who made business are prima facie admissible, the duty to communicate being
them was available to testify in court. 16 itself a badge of trustworthiness of the entries, but not when they
purport to record what were independent agreements arrived at by
some bank officials and a client. In this case, the entries become mere
8
casual or voluntary reports of the official concerned. To permit the WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of
ledgers, prepared by the bank at its own instance, to substitute the Appeals dated October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto.
contract as proof of the agreements with third parties, is to set a
dangerous precedent. Business entries are allowed as an exception to Costs against petitioner.
the hearsay rule only under certain conditions specified in Section 43,
which must be scrupulously observed to prevent them from being used SO ORDERED.
as a source of undue advantage for the party preparing
them. 17 (citations omitted)
||| (Security Bank & Trust Co. v. Gan, G.R. No. 150464, [June 27, 2006], 526 PHIL 214-
222)
FIRST DIVISION
Thus, petitioner did not prove that respondent had incurred a negative balance in his
[G.R. No. 164457. April 11, 2012.]
account. Consequently, there was nothing to show that respondent was indebted to it in ANNA LERIMA PATULA, petitioner, vs. PEOPLE OF THE
the amount claimed. TaCSAD PHILIPPINES, respondent.
DECISION
Petitioner's next argument is that respondent was estopped from denying the claim of
petitioner since he benefited from the special arrangement accorded to him resulting in BERSAMIN, J p:
the negative balance. This must likewise fail. The so-called special arrangement was
never established. In addition, there was no evidence that respondent benefited from it. In the trial of every criminal case, a judge must rigidly test the State's evidence of guilt
As held by the CA: in order to ensure that such evidence adheres to the basic rules of admissibility before
pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is
The trial court satisfactorily explained the reason for not applying the demanded of the judge; otherwise, the guarantee of due process of law is nullified. The
principle of estoppel against defendant-appellee. As held by the trial accused need not adduce anything to rebut evidence that is discredited for failing the
court: test. Acquittal should then follow.

"There is no scope here for the application of estoppel against the Antecedents
defendant-appellee, since it was not established that he had ever
received copies of the ledgers, and therefore given the Petitioner was charged with estafa under an information filed in the Regional Trial Court
opportunity to review the correctness of the entries. As we see it, (RTC) in Dumaguete City that averred:
the case of the [plaintiff suffers from its failure to document its]
transactions with its clients, and it is hardly right to close our
eyes to that infirmity at the expense of the defendant-appellee." That on or about and during the period from March 16 to 20, 1997 and
for sometime prior thereto, in the City of Dumaguete, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, being
The temporary overdraft allegedly accorded by plaintiff-appellant to then a saleswoman of Footlucker's Chain of Stores, Inc., Dumaguete City,
defendant-appellee has not benefited the defendant-appellee in any having collected and received the total sum of P131,286.97 from several
manner. The 3 debit memos amounting to P150,000.00 appearing on customers of said company under the express obligation to account for
defendant-appellee's ledger consisted of fund transfers from and not to the proceeds of the sales and deliver the collection to the said company,
defendant-appellee's account. The transfers resulted [in] the benefit of but far from complying with her obligation and after a reasonable period
other accounts, not that of defendant-appellee. 18 of time despite repeated demands therefore, and with intent to defraud
the said company, did, then and there willfully, unlawfully and
In view of the foregoing, the CA did not err in affirming the decision of the trial court. feloniously fail to deliver the said collection to the said company but
instead, did, then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert the proceeds of the sale to her
9
own use and benefit, to the damage and prejudice of the said company Differences in Records as per Audit Duly Verified March 16-20, 1997" marked as Exhibit
in the aforesaid amount of P131,286.97. A; and that based on the report, petitioner had misappropriated the total amount of
P13l,286.92. 3
Contrary to Art. 315, par 1 (b) of the Revised Penal Code.1
During Guivencan's stint as a witness, the Prosecution marked the ledgers of petitioner's
Petitioner pled not guilty to the offense charged in the information. At pre-trial, no various customers allegedly with discrepancies as Exhibits B to YY and their derivatives,
stipulation of facts was had, and petitioner did not avail herself of plea bargaining. inclusive. Each of the ledgers had a first column that contained the dates of the entries,
Thereafter, trial on the merits ensued. aITECA a second that identified the invoices by the number, a third that stated the debit, a
fourth that noted the credit (or the amounts paid), and a fifth that summed the balances
The Prosecution's first witness was Lamberto Go, who testified that he was the branch (debit minus credit). Only 49 of the ledgers were formally offered and admitted by the
manager of Footlucker's Chain of Stores, Inc. (Footlucker's) in Dumaguete City since RTC because the 50th ledger could no longer be found. EHTIDA
October 8, 1994; that petitioner was an employee of Footlucker's, starting as a saleslady
in 1996 until she became a sales representative; that as a sales representative she was In the course of Guivencan's direct-examination, petitioner's counsel interposed a
authorized to take orders from wholesale customers coming from different towns (like continuing objection on the ground that the figures entered in Exhibits B to YY and their
Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and derivatives, inclusive, were hearsay because the persons who had made the entries were
Siquijor), and to collect payments from them; that she could issue and sign official not themselves presented in court. 4 With that, petitioner's counsel did not anymore
receipts of Footlucker's for the payments, which she would then remit; that she would cross-examine Guivencan, apparently regarding her testimony to be irrelevant because
then submit the receipts for the payments for tallying and reconciliation; that at first her she thereby tended to prove falsification, an offense not alleged in the information.
volume of sales was quite high, but later on dropped, leading him to confront her; that
she responded that business was slow; that he summoned the accounting clerk to verify; The Prosecution then formally offered its documentary exhibits, including Exhibits B to
that the accounting clerk discovered erasures on some collection receipts; that he YY and their derivatives (like the originals and duplicates of the receipts supposedly
decided to subject her to an audit by company auditor Karen Guivencan; that he learned executed and issued by petitioner), inclusive, the confirmation sheets used by Guivencan
from a customer of petitioner's that the customer's outstanding balance had already in auditing the accounts served by petitioner, and Guivencan's so-called Summary (Final
been fully paid although that balance appeared unpaid in Footlucker's records; and that Report) of Discrepancies. 5
one night later on, petitioner and her parents went to his house to deny having
misappropriated any money of Footlucker's and to plead for him not to push through After the Prosecution rested its case, the Defense decided not to file a demurrer to
with a case against her, promising to settle her account on a monthly basis; and that she evidence although it had manifested the intention to do so, and instead rested its case.
did not settle after that, but stopped reporting to work. 2 The Prosecution and Defense submitted their respective memoranda, and submitted the
case for decision. 6
On March 7, 2002, Go's cross examination, re-direct examination and re-cross
examination were completed. On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted "not to
present evidence for her defense" the Prosecution's evidence remained "unrefuted and
The only other witness for the Prosecution was Karen Guivencan, whom Footlucker's uncontroverted," 7 rendered its decision finding petitioner guilty of estafa, to wit:
employed as its store auditor since November 16, 1995 until her resignation on March
31, 2001. She declared that Go had requested her to audit petitioner after some Wherefore, in the light of the foregoing facts and circumstances, the
customers had told him that they had already paid their accounts but the office ledger Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the
had still reflected outstanding balances for them; that she first conducted her audit by crime of Estafa under Art. 315 par (1b) of the Revised Penal Code and
going to the customers in places from Mabinay to Zamboanguita in Negros Oriental, and accordingly, she is hereby sentenced to suffer an INDETERMINATE
then in Siquijor; that she discovered in the course of her audit that the amounts PENALTY of imprisonment of 8 years and 1 day ofprision mayor as
appearing on the original copies of receipts in the possession of around 50 customers minimum to 18 years and 4 months of reclusion temporal as maximum
varied from the amounts written on the duplicate copies of the receipts petitioner with all the accessory penalties provided by law and to indemnify private
submitted to the office; that upon completing her audit, she submitted to Go a written complainant the amount of P131,286.92 with interest at 12% per annum
report denominated as "List of Customers Covered by Saleswoman LERIMA PATULA w/ until fully paid and to pay the costs.
10
Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, 4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE
the cash bail put up by the accused shall be effective only until the TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID
promulgation of this judgment. HcTIDC TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED
EXHIBITS "B" TO "YY"-"YY-2" INCLUSIVE VIOLATED THE ACCUSED'S
SO ORDERED. 8 CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
Petitioner filed a motion for reconsideration, but the RTC denied the motion on May 7, IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED
2004. 9 IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.

Issues 5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT


THE EVIDENCE OF THE PROSECUTION "REMAINS UNREFUTED AND
UNCONTROVERTED" DESPITE ACCUSED'S OBJECTION THAT SAID
Insisting that the RTC's judgment "grossly violated [her] Constitutional and statutory EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.
right to be informed of the nature and cause of the accusation against her because,
while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal
Code, the evidence presented against her and upon which her conviction was based, was 6. WHETHER OR NOT THE DEFENSE'S NOT CROSS-EXAMINING KAREN
falsification, an offense not alleged or included in the Information under which she was GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND
arraigned and pleaded not guilty," and that said judgment likewise "blatantly ignored IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN
and manifestly disregarded the rules on admission of evidence in that the documentary INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS
evidence admitted by the trial court were all private documents, the due execution and BEING "UNREFUTED AND UNCONTROVERTED", AND WHETHER OR NOT
authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the THE DEFENSE'S OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE
Revised Rules on Evidence," petitioner has directly appealed to the Court via petition for DEFENSE CROSS-EXAMINED SAID WITNESS. CHIScD
review on certiorari, positing the following issues, to wit:
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT
1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER, "A", WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN
CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND
PENAL CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF SELF-SERVING. 10
FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION.
The foregoing issues are now restated as follows:
2. WHETHER THE ACCUSED'S CONSTITUTIONAL AND STATUTORY RIGHT
TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION 1. Whether or not the failure of the information for estafa to allege the
AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY falsification of the duplicate receipts issued by petitioner to her
EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST customers violated petitioner's right to be informed of the nature
HER IS ESTAFATHROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B) and cause of the accusation;
OF THE REVISED PENAL CODE.
2. Whether or not the RTC gravely erred in admitting evidence of the
3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN falsification of the duplicate receipts despite the information not
EVIDENCE, EXHIBITS "B" TO "YY"-"YY-2", ALL PRIVATE DOCUMENTS, THE alleging the falsification;
DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN
ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON 3. Whether or not the ledgers and receipts (Exhibits B to YY, and their
EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE derivatives, inclusive) were admissible as evidence of petitioner's
FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR guilt for estafaas charged despite their not being duly
ALLEGED IN THE INFORMATION. authenticated; and
11
4. Whether or not Guivencan's testimony on the ledgers and receipts Section 8. Designation of the offense. Whenever possible, a complaint
(Exhibits B to YY, and their derivatives, inclusive) to prove or information should state the designation given to the offense by the
petitioner's misappropriation or conversion was inadmissible for statute, besides the statement of the acts or omissions constituting the
being hearsay. same, and if there is no such designation, reference should be made to
the section or subsection of the statute punishing it. (7)
Ruling
Section 9. Cause of accusation. The acts or omissions complained of
The petition is meritorious. as constituting the offense must be stated in ordinary and concise
language without repetition, not necessarily in the terms of the statute
I defining the offense, but in such form as is sufficient to enable a person
of common understanding to know what offense is intended to be
charged, and enable the court to pronounce proper judgment. (8)
Failure of information to allege falsification
did not violate petitioner's right to be informed
of the nature and cause of the accusation The importance of the proper manner of alleging the nature and cause of the accusation
in the information should never be taken for granted by the State. An accused cannot be
convicted of an offense that is not clearly charged in the complaint or information. To
Petitioner contends that the RTC grossly violated her Constitutional right to be informed convict him of an offense other than that charged in the complaint or information would
of the nature and cause of the accusation when: (a) it held that the information did not be violative of the Constitutional right to be informed of the nature and cause of the
have to allege her falsification of the duplicate receipts, and (b) when it convicted her accusation. 11 Indeed, the accused cannot be convicted of a crime, even if duly proven,
of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code by relying on the unless the crime is alleged or necessarily included in the information filed against him.
evidence on falsification.
The crime of estafa charged against petitioner was defined and penalized by
The contention of petitioner cannot be sustained. Article 315, paragraph 1 (b), Revised Penal Code, viz.:

The Bill of Rights guarantees some rights to every person accused of a crime, among Article 315. Swindling (estafa). Any person who shall defraud another
them the right to be informed of the nature and cause of the accusation, viz.: by any of the means mentioned hereinbelow shall be punished by:

Section 14. (1) No person shall be held to answer for a criminal 1st. The penalty of prision correccional in its maximum period to prision
offense without due process of law. mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such amount exceeds
(2) In all criminal prosecutions, the accused shall be presumed the latter sum, the penalty provided in this paragraph shall be imposed
innocent until the contrary is proved, and shall enjoy the right to be in its maximum period, adding one year for each additional 10,000
heard by himself and counsel, to be informed of the nature and pesos; but the total penalty which may be imposed shall not exceed
cause of the accusation against him, to have a speedy, impartial, twenty years. In such cases, and in connection with the accessory
and public trial, to meet the witnesses face to face, and to have penalties which may be imposed under the provisions of this Code, the
compulsory process to secure the attendance of witnesses and the penalty shall be termed prision mayor or reclusion temporal, as the case
production of evidence in his behalf. However, after arraignment, trial may be.
may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable. 2nd. The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not
Rule 110 of the Revised Rules of Court, the rule then in effect when the information was exceed 12,000 pesos;
filed in the RTC, contained the following provisions on the proper manner of alleging the
nature and cause of the accusation in the information, to wit: TCIHSa
12
3rd. The penalty of arresto mayor in its maximum period to prision According to the theory and proof of the Prosecution, petitioner misappropriated or
correccional in its minimum period if such amount is over 200 pesos but converted the sums paid by her customers, and later falsified the duplicates of the
does not exceed 6,000 pesos; and receipts before turning such duplicates to her employer to show that the customers had
paid less than the amounts actually reflected on the original receipts. Obviously, she
4th. By arresto mayor in its maximum period, if such amount does not committed the falsification in order to conceal her misappropriation or conversion.
exceed 200 pesos, provided that in the four cases mentioned, the fraud Considering that the falsification was not an offense separate and distinct from
be committed by any of the following means: ESCcaT the estafa charged against her, the Prosecution could legitimately prove her acts of
falsification as its means of establishing her misappropriation or conversion as an
xxx xxx xxx essential ingredient of the crime duly alleged in the information. In that manner, her
right to be informed of the nature and cause of the accusation against her was not
infringed or denied to her.
1. With unfaithfulness or abuse of confidence, namely:
We consider it inevitable to conclude that the information herein completely pleaded
xxx xxx xxx the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal
Code within the context of the substantive law and the rules. Verily, there was no
(b) By misappropriating or converting, to the prejudice of necessity for the information to allege the acts of falsification by petitioner because
another, money, goods, or any other personal property received falsification was not an element of the estafa charged.
by the offender in trust or on commission, or for administration,
or under any other obligation involving the duty to make Not surprisingly, the RTC correctly dealt in its decision with petitioner's concern thuswise:
delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying
having received such money, goods, or other property. In her Memorandum, it is the contention of [the] accused that [the]
prosecution's evidence utterly fails to prove the crime charged.
According to the defense, the essence of Karen Guivencan's testimony is
xxx xxx xxx that the accused falsified the receipts issued to the customers served by
her by changing or altering the amounts in the duplicates of the receipts
The elements of the offense charged were as follows: and therefore, her testimony is immaterial and irrelevant as the charge
is misappropriation under Art. 315, paragraph (1b) of the Revised Penal
(a) That the offender received money, goods or other personal property Code and there is no allegation whatsoever of any falsification or
in trust, or on commission, or for administration, or under any alteration of amounts in the [i]nformation under which the accused was
other obligation involving the duty to make delivery of, or to arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the
return, the same; testimony of Karen Guivencan should therefore not be considered at all
as it tended to prove an offense not charged or included in the
(b) That the offender misappropriated or converted such money, goods [i]nformation and would violate [the] accused's constitutional and
or other personal property, or denied his part in its receipt; statutory right to be informed of the nature and cause of the accusation
against her. The Court is not in accord with such posture of the accused.
(c) That the misappropriation or conversion or denial was to the
prejudice of another; and It would seem that the accused is of the idea that because the
crime charged in the [i]nformation is merely [e]stafa and not
(d) That the offended party made a demand on the offender for the [e]stafa [t]hru [f]alsification of documents, the prosecution
delivery or return of such money, goods or other personal could not prove falsification. Such argumentation is not correct.
property. 12 ISHaTA Since the information charges accused only of misappropriation
pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the
Court holds that there is no necessity of alleging the falsification
13
in the Information as it is not an element of the crime To establish the elements of estafa earlier mentioned, the Prosecution presented the
charged. DTcASE testimonies of Go and Guivencan, and various documents consisting of: (a) the receipts
allegedly issued by petitioner to each of her customers upon their payment, (b) the
Distinction should be made as to when the crimes of Estafa and ledgers listing the accounts pertaining to each customer with the corresponding
Falsification will constitute as one complex crime and when they notations of the receipt numbers for each of the payments, and (c) the confirmation
are considered as two separate offenses. The complex crime of sheets accomplished by Guivencan herself. 18 The ledgers and receipts were marked and
Estafa Through Falsification of Documents is committed when formally offered as Exhibits B to YY, and their derivatives, inclusive.
one has to falsify certain documents to be able to obtain money
or goods from another person. In other words, the falsification is On his part, Go essentially described for the trial court the various duties of petitioner as
a necessary means of committing estafa. However, if the Footlucker's sales representative. On her part, Guivencan conceded having no personal
falsification is committed to conceal the misappropriation, two knowledge of the amounts actually received by petitioner from the customers or
separate offenses of estafa and falsification are committed. In remitted by petitioner to Footlucker's. This means that persons other than Guivencan
the instant case, when accused collected payments from the prepared Exhibits B to YY and their derivatives, inclusive, and that Guivencan based her
customers, said collection which was in her possession was at testimony on the entries found in the receipts supposedly issued by petitioner and in the
her disposal. The falsified or erroneous entries which she made ledgers held by Footlucker's corresponding to each customer, as well as on the unsworn
on the duplicate copies of the receipts were contrived to conceal statements of some of the customers. Accordingly, her being the only witness who
some amount of her collection which she did not remit to the testified on the entries effectively deprived the RTC of the reasonable opportunity to
company . . . . 13 validate and test the veracity and reliability of the entries as evidence of petitioner's
misappropriation or conversion through cross-examination by petitioner. The denial of
II that opportunity rendered the entire proof of misappropriation or conversion hearsay,
and thus unreliable and untrustworthy for purposes of determining the guilt or innocence
Testimonial and documentary evidence, being hearsay, of the accused. AICHaS
did not prove petitioner's guilt beyond reasonable doubt
To elucidate why the Prosecution's hearsay evidence was unreliable and untrustworthy,
Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish and thus devoid of probative value, reference is made to Section 36 of Rule 130,Rules of
the guilt of the accused beyond reasonable doubt. In discharging this burden, the Court, a rule that states that a witness can testify only to those facts that she knows of
Prosecution's duty is to prove each and every element of the crime charged in the her personal knowledge; that is, which are derived from her own perception, except as
information to warrant a finding of guilt for that crime or for any other crime necessarily otherwise provided in the Rules of Court. The personal knowledge of a witness is a
included therein. 14 The Prosecution must further prove the participation of the accused substantive prerequisite for accepting testimonial evidence that establishes the truth of
in the commission of the offense. 15 In doing all these, the Prosecution must rely on the a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be
strength of its own evidence, and not anchor its success upon the weakness of the called upon for that purpose because her testimony derives its value not from the credit
evidence of the accused. The burden of proof placed on the Prosecution arises from the accorded to her as a witness presently testifying but from the veracity and competency
presumption of innocence in favor of the accused that no less than the Constitution has of the extrajudicial source of her information.
guaranteed. 16 Conversely, as to his innocence, the accused has no burden of
proof, 17 that he must then be acquitted and set free should the Prosecution not In case a witness is permitted to testify based on what she has heard another person say
overcome the presumption of innocence in his favor. In other words, the weakness of the about the facts in dispute, the person from whom the witness derived the information on
defense put up by the accused is inconsequential in the proceedings for as long as the the facts in dispute is not in court and under oath to be examined and cross-examined.
Prosecution has not discharged its burden of proof in establishing the commission of the The weight of such testimony then depends not upon the veracity of the witness but
crime charged and in identifying the accused as the malefactor responsible for it. upon the veracity of the other person giving the information to the witness without oath.
The information cannot be tested because the declarant is not standing in court as a
Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of witness and cannot, therefore, be cross-examined.
petitioner for the estafa charged in the information?
It is apparent, too, that a person who relates a hearsay is not obliged to enter into any
particular, to answer any question, to solve any difficulties, to reconcile any
14
contradictions, to explain any obscurities, to remove any ambiguities; and that she The second solution is to require that all witnesses be subject to the cross-
entrenches herself in the simple assertion that she was told so, and leaves the burden examination by the adverse party. Section 6, Rule 132 of the Rules of Court ensures
entirely upon the dead or absent author. 19 Thus, the rule against hearsay testimony this solution thusly:
rests mainly on the ground that there was no opportunity to cross-examine the
declarant. 20 The testimony may have been given under oath and before a court of Section 6. Cross-examination; its purpose and extent. Upon the
justice, but if it is offered against a party who is afforded no opportunity to cross- termination of the direct examination, the witness may be cross-
examine the witness, it is hearsay just the same. 21 examined by the adverse party as to any matters stated in the direct
examination, or connected therewith, with sufficient fullness and
Moreover, the theory of the hearsay rule is that when a human utterance is offered as freedom to test his accuracy and truthfulness and freedom from interest
evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of or bias, or the reverse, and to elicit all important facts bearing upon the
inference, and, therefore, the assertion can be received as evidence only when made on issue. (8a)
the witness stand, subject to the test of cross-examination. However, if an extrajudicial
utterance is offered, not as an assertion to prove the matter asserted but without Although the second solution traces its existence to a Constitutional precept relevant
reference to the truth of the matter asserted, the hearsay rule does not apply. For to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution, which
example, in a slander case, if a prosecution witness testifies that he heard the accused guarantees that: "In all criminal prosecutions, the accused shall . . . enjoy the right . .
say that the complainant was a thief, this testimony is admissible not to prove that the . to meet the witnesses face to face . . .," the rule requiring the cross-examination by
complainant was really a thief, but merely to show that the accused uttered those the adverse party equally applies to non-criminal proceedings.
words. 22 This kind of utterance is hearsay in character but is not legal hearsay. 23 The
distinction is, therefore, between (a) the fact that the statement was made, to which the We thus stress that the rule excluding hearsay as evidence is based upon serious
hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to concerns about the trustworthiness and reliability of hearsay evidence due to its not
which the hearsay rule applies. 24 being given under oath or solemn affirmation and due to its not being subjected to cross-
examination by the opposing counsel to test the perception, memory, veracity and
Section 36, Rule 130 of the Rules of Court is understandably not the only rule that articulateness of the out-of-court declarant or actor upon whose reliability the worth of
explains why testimony that is hearsay should be excluded from consideration. Excluding the out-of-court statement depends. 27
hearsay also aims to preserve the right of the opposing party to cross-examine
the original declarant claiming to have a direct knowledge of the transaction or Based on the foregoing considerations, Guivencan's testimony as well as Exhibits B to
occurrence. 25 If hearsay is allowed, the right stands to be denied because the declarant YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioner's
is not in court. 26 It is then to be stressed that the right to cross-examine the adverse misappropriation or conversion.
party's witness, being the only means of testing the credibility of witnesses and their
testimonies, is essential to the administration of justice.
III
To address the problem of controlling inadmissible hearsay as evidence to establish the
truth in a dispute while also safeguarding a party's right to cross-examine her Lack of their proper authentication rendered
adversary's witness, the Rules of Court offers two solutions. The first solution is to Exhibits B to YY and their derivatives
require that all the witnesses in a judicial trial or hearing be examined only in courtunder inadmissible as judicial evidence
oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this
solution, viz.: EAcHCI Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to
YY, and their derivatives, inclusive, despite their being private documents that were not
Section 1. Examination to be done in open court. The examination of duly authenticated as required by Section 20, Rule 132 of the Rules of Court.
witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, Section 19, Rule 132 of the Rules of Court distinguishes between a public document and
or the question calls for a different mode of answer, the answers of the a private document for the purpose of their presentation in evidence, viz.:
witness shall be given orally. (1a)
15
Section 19. Classes of documents. For the purpose of their Section 20. Proof of private documents. Before any private
presentation in evidence, documents are either public or document offered as authentic is received in evidence, its due
private. execution and authenticity must be proved either:

Public documents are: (a) By anyone who saw the document executed or written; or

(a) The written official acts, or records of the official acts of the (b) By evidence of the genuineness of the signature or
sovereign authority, official bodies and tribunals, and public officers, handwriting of the maker.
whether of the Philippines, or of a foreign country;
Any other private document need only be identified as that which it is
(b) Documents acknowledged before a notary public except last wills claimed to be.
and testaments; and CSIcHA
The Prosecution attempted to have Go authenticate the signature of petitioner in various
(c) Public records, kept in the Philippines, of private documents required receipts, to wit:
by law to be entered therein.
ATTY. ABIERA:
All other writings are private.
Q. Now, these receipts which you mentioned which do not tally with the
The nature of documents as either public or private determines how the documents may original receipts, do you have copies of these receipts?
be presented as evidence in court. A public document, by virtue of its official or
sovereign character, or because it has been acknowledged before a notary public A. Yes, I have a copy of these receipts, but it's not now in my possession.
(except a notarial will) or a competent public official with the formalities required by law,
or because it is a public record of a private writing authorized by law, is self- Q. But when asked to present those receipts before this Honorable Court,
authenticating and requires no further authentication in order to be presented as can you assure this
evidence in court. In contrast, a private document is any other writing, deed, or
instrument executed by a private person without the intervention of a notary or other
person legally authorized by which some disposition or agreement is proved or set forth. (Next Page)
Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by ATTY. ABIERA (continuing): cAaTED
law or the Rules of Court before its acceptance as evidence in court. The requirement of
authentication of a private document is excused only in four instances, Honorable Court that you will be able to present those receipts?
specifically: (a) when the document is an ancient one within the context of Section
21, 28 Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an A. Yes.
actionable document have not been specifically denied under oath by the adverse
party; 29 (c) when the genuineness and authenticity of the document have been Q. You are also familiar with the signature of the accused in this
admitted; 30 or (d) when the document is not being offered as genuine. 31 case, Anna Lerima Patula?

There is no question that Exhibits B to YY and their derivatives were private documents A. Yes.
because private individuals executed or generated them for private or business purposes
or uses. Considering that none of the exhibits came under any of the four exceptions,
they could not be presented and admitted as evidence against petitioner without the Q. Why are you familiar with the signature of the accused in this
Prosecution dutifully seeing to their authentication in the manner provided in Section 20 case?
of Rule 132 of the Rules of Court, viz.:
16
A. I used to see her signatures in the payroll and in the receipts Mark the receipt as Exhibit "A".
also.
ATTY. ABIERA:
Q. Okay, I have here a machine copy of a receipt which we would
present this, or offer the same as soon as the original receipts And the signature be bracketed and be marked as Exhibit "A-1".
can be presented, but for purposes only of your testimony,
I'm going to point to you a certain signature over this (Next Page)
receipt number FLDT96 20441, a receipt from Cirila
Askin, kindly go over the signature and tell the Honorable
Court whether you are familiar with the signature? COURT:

A. Yes, that is her signature. Bracket the signature & mark it as Exh. "A-1". What is the number of that
receipt?
INTERPRETER:
ATTY. ABIERA:
Witness is pointing to a signature above the printed word "collector".
Receipt No. 20441 dated August 4, 1996 the statement that: received
from Cirila Askin. 32 aHCSTD
(Next Page)
xxx xxx xxx
ATTY. ABIERA:
As the excerpts indicate, Go's attempt at authentication of the signature of petitioner on
Q. Is this the only receipt wherein the name, the signature the receipt with serial number FLDT96 No. 20441 (a document that was marked as
rather, of the accused in this case appears? Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1)
immediately fizzled out after the Prosecution admitted that the document was a
A. That is not the only one, there are many receipts. mere machine copy, not the original. Thereafter, as if to soften its failed attempt, the
Prosecution expressly promised to produce at a later date the originals of the receipt
ATTY. ABIERA: with serial number FLDT96 No. 20441 and other receipts. But that promise was not even
true, because almost in the same breath the Prosecution offered to authenticate the
In order to save time, Your Honor, we will just be presenting the signature of petitioner on the receipts through a different witness (though then still
original receipts Your Honor, because it's quite voluminous, so unnamed). As matters turned out in the end, the effort to have Go authenticate both
we will just forego with the testimony of the witness but we will the machine copy of the receipt with serial number FLDT96 No. 20441 and the signature
just present the same using the testimony of another of petitioner on that receipt was wasteful because the machine copy was inexplicably
witness, for purposes of identifying the signature of the forgotten and was no longer even included in the Prosecution's Offer of Documentary
accused. We will request that this signature which has been Evidence.
identified to by the witness in this case be marked, Your Honor,
with the reservation to present the original copy and present the It is true that the original of the receipt bearing serial number FLDT96 No. 20441 was
same to offer as our exhibits but for the meantime, this is only for subsequently presented as Exhibit B through Guivencan. However, the Prosecution did
the purposes of recording, Your Honor, which we request the not establish that the signature appearing on Exhibit B was the same signature that Go
same, the receipt which has just been identified awhile ago be had earlier sought to identify to be the signature of petitioner (Exhibit A-1) on the
marked as our Exhibit "A" Your Honor. machine copy (Exhibit A). This is borne out by the fact that the Prosecution abandoned
Exhibit A as the marking nomenclature for the machine copy of the receipt bearing serial
COURT: number FLDT96 No. 20441 for all intents and purposes of this case, and used the same
17
nomenclature to refer instead to an entirely different document entitled "List of ATTY. ZERNA:
Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit duly
verified March 16-20, 1997." The signature of the collector be marked as

In her case, Guivencan's identification of petitioner's signature on two receipts based Q. By the way, there is a signature above the name of the
alone on the fact that the signatures contained the legible family name of Patulawas collector, are your familiar with that signature? (shown to
ineffectual, and exposed yet another deep flaw infecting the documentary evidence witness)
against petitioner. Apparently, Guivencan could not honestly identify petitioner's
signature on the receipts either because she lacked familiarity with such signature, or A. Yes.
because she had not seen petitioner affix her signature on the receipts, as the following
excerpts from her testimony bear out:
Q. Whose signature is that?
ATTY. ZERNA to witness:
A. Miss Patula.
Q. There are two (2) receipts attached here in the confirmation sheet,
will you go over these Miss witness? Q. How do you know?

A. This was the last payment which is fully paid by the customer. The A. It can be recognized because of the word Patula.
other receipt is the one showing her payment prior to the last
payment. Q. Are you familiar with her signature?

COURT: A. Yes.

Q. Where did you get those two (2) receipts? ATTY. ZERNA:

A. From the customer. We pray that the signature be bracketed and marked as Exhibit "B-3-a"

Q. And who issued those receipts? COURT:

A. The saleswoman, Miss Patula. Mark it.

ATTY. ZERNA: ATTY. ZERNA:

We pray, Your Honor, that this receipt identified be marked as Exhibit "B- The other receipt number 20045 be marked as Exhibit "B-4" and the
3", receipt number 20441. signature as Exhibit "B-4-a".

(Next Page) COURT:

COURT: Mark it. 33

Mark it. xxx xxx xxx


18
ATTY. ZERNA: A. I made the basis on our ledger in the office. I just copied that
and showed it to the customers for confirmation.
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to
one Divina Cadilig. Will you please identify this receipt if this is ATTY. ZERNA to witness:
the receipt of your office?
Q. What about the receipts?
A. Yes. AaCTcI
COURT:
Q. There is a signature over the portion for the collector. Whose
signature is this? Make a follow-up question and what was the result when you copied that
amount in the ledger and you had it confirmed by the customers,
A. Ms. Patula. what was the result when you had it confirmed by the customers?

Q. How do you know that this is her signature? WITNESS:

A. Because we can read the Patula. 34 A. She has no more balance but in our office she has still a balance of
P10,971.75.
We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amounts petitioner had ATTY. ZERNA to witness:
allegedly received from the customers and the amounts she had actually remitted to
Footlucker's. Guivencan exclusively relied on the entries of the unauthenticated ledgers Q. Do you have a- what's the basis of saying that the balance of this
to support her audit report on petitioner's supposed misappropriation or conversion, customer is still P10,971.75
revealing her lack of independent knowledge of the veracity of the entries, as the
following excerpts of her testimony show: (Next Page)

ATTY. ZERNA to witness: ATTY. ZERNA (continuing):

Q. What is your basis of saying that your office records showed [i]n your office?
that this Cecilia Askin has an account of P10,791.75?
COURT:
ATTY. DIEZ:
That was already answered paero, the office has a ledger.
The question answers itself, Your Honor, what is the basis, office record.
Q. Now, did you bring the ledger with you?
COURT:
A. No, Ma'am. 35
Let the witness answer.
(Continuation of the Direct Examination of
WITNESS: Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness:


19
Q. Okay, You said there are discrepancies between the original and the Q. So where was that (sic) original receipt which you said showed that
duplicate, will you please enlighten the Honorable Court on that particular customer still has a balance of Ten Thousand
that discrepancy which you said? something?

A. Like in this case of Cirila Askin, she has already fully paid. Her A. The receipt is no longer here.
ledger shows a zero balance she has fully paid while in the
original Q. You mean the entry of that receipt was already entered in the
ledger?
(Next page)
A. Yes. 36
WITNESS (continuing):
In the face of the palpable flaws infecting the Prosecution's evidence, it should come as
[r]eceipt she has a balance of Ten Thousand Seven hundred no surprise that petitioner's counsel interposed timely objections. Yet, the RTC
Ninety-one Pesos and Seventy-five Centavos (10,791.75). mysteriously overruled the objections and allowed the Prosecution to present the
unauthenticated ledgers, as follows:
COURT:
(Continuation of the Direct Examination of
Q. What about the duplicate receipt, how much is indicated there? Witness Karen Guivencan on September 11, 2002)

A. The customer has no duplicate copy because it was already forwarded ATTY. ZERNA:
to the Manila Office.
CONTINUATION OF DIRECT-EXAMINATION
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance? Q. Ms. Witness, last time around you were showing us several ledgers.
Where is it now?
A. This is the copy of the customer while in the office, in the original
receipt she has still a balance. A. It is here.

xxx xxx xxx Q. Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much
is her account in your office?
ATTY. ZERNA:
ATTY. DIEZ:
The confirmation sheet
Your Honor please before the witness will proceed to answer the
COURT: question, let me interpose our objection on the ground
that this ledger has not been duly identified to by the
The confirmation sheet was the one you referred to as the receipt in person who made the same. This witness will be testifying
your earlier testimony? Is that what you referred to as the on hearsay matters because the supposed ledger was not
receipts, the original receipts? HIaTDS identified to by the person who made the same.

A. This is what I copied from the ledger. COURT:


20
Those ledgers were already presented in the last hearing. I think they ATTY. DIEZ:
were already duly identified by this witness. As a matter of fact, it
was she who brought them to court Your Honor please, to avoid delay, may I interpose a continuing
objection to the questions profounded (sic) on those
(Next Page) ledgers on the ground that, as I have said, it is hearsay.

COURT (cont.): COURT:

because these were the ledgers on file in their office. Okey (sic). Let the continuing objection be noted.

ATTY. DIEZ: Q. (To Witness) The clerk who allegedly was the one who prepared
the entries on those ledgers, is she still connected with
That is correct, Your Honor, but the person who made the entries is Footluckers?
not this witness, Your Honor. How do we know that the
entries there is (sic) correct on the receipts submitted to A. She is no longer connected now, Your Honor.
their office.
COURT:
COURT:
Alright proceed.
Precisely, she brought along the receipts also to support that. Let the
witness answer. (Next Page)

WITNESS: ATTY. ZERNA:

A. It's the office clerk in-charge. Your Honor, these are entries in the normal course of business.
So, exempt from the hearsay rule.
COURT:
COURT:
The one who prepared the ledger is the office clerk.
Okey (sic), proceed. 37
ATTY. ZERNA:
The mystery shrouding the RTC's soft treatment of the Prosecution's flawed presentation
She is an auditor, Your Honor. She has been qualified and she is the was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted,
auditor of Footluckers. TIEHSA as well as with Section 22 of Rule 132 of the Rules of Court, which contains instructions
on how to prove the genuineness of a handwriting in a judicial proceeding, as follows:
COURT:
Section 22. How genuineness of handwriting proved. The handwriting
I think, I remember in the last setting also, she testified where those of a person may be proved by any witness who believes it to be the
entries were taken. So, you answer the query of counsel. handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness
xxx xxx xxx has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may
21
also be given by a comparison, made by the witness or the court, On the second issue, petitioner avers that King failed to properly
with writings admitted or treated as genuine by the party against authenticate respondent's documentary evidence. Under Section 20,
whom the evidence is offered, or proved to be genuine to the Rule 132, Rules of Court,before a private document is admitted
satisfaction of the judge. (Emphases supplied) in evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was
If it is already clear that Go and Guivencan had not themselves seen the execution or acknowledged, any person who was present and saw it
signing of the documents, the Prosecution surely did not authenticate Exhibits B to YY executed, or who after its execution, saw it and recognized the
and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, signatures, or the person to whom the parties to the
and their derivatives, inclusive, were inescapably bereft of probative value as evidence. instruments had previously confessed execution thereof. In this
That was the only fair and just result, as the Court held in Malayan Insurance Co., Inc. v. case, respondent admits that King was none of the
Philippine Nails and Wires Corporation: 38 aforementioned persons. She merely made the summary of the
weight of steel billets based on the unauthenticated bill of
On the first issue, petitioner Malayan Insurance Co., Inc., contends lading and the SGS report. Thus, the summary of steel billets
that Jeanne King's testimony was hearsay because she had no actually received had no proven real basis, and King's testimony
personal knowledge of the execution of the documents on this point could not be taken at face value.
supporting respondent's cause of action, such as the sales
contract, invoice, packing list, bill of lading, SGS Report, and the Marine . . . Under the rules on evidence, documents are either public or private.
Cargo Policy. Petitioner avers that even though King was personally Private documents are those that do not fall under any of the
assigned to handle and monitor the importation of Philippine Nails and enumerations in Section 19, Rule 132 of the Rules of Court. Section 20 of
Wires Corporation, herein respondent, this cannot be equated with the same law, in turn, provides that before any private document is
personal knowledge of the facts which gave rise to respondent's cause received in evidence, its due execution and authenticity must be proved
of action. Further, petitioner asserts, even though she personally either by anyone who saw the document executed or written, or by
prepared the summary of weight of steel billets received by respondent, evidence of the genuineness of the signature or handwriting of the
she did not have personal knowledge of the weight of steel billets maker. Here, respondent's documentary exhibits are private
actually shipped and delivered. IEHDAT documents. They are not among those enumerated in Section
19, thus, their due execution and authenticity need to be proved
At the outset, we must stress that respondent's cause of action is before they can be admitted in evidence. With the exception
founded on breach of insurance contract covering cargo consisting of concerning the summary of the weight of the steel billets
imported steel billets. To hold petitioner liable, respondent has to prove, imported, respondent presented no supporting evidence
first, its importation of 10,053.400 metric tons of steel billets valued at concerning their authenticity. Consequently, they cannot be
P67,156,300.00, and second, the actual steel billets delivered to and utilized to prove less of the insured cargo and/or the short
received by the importer, namely the respondent. Witness Jeanne King, delivery of the imported steel billets. In sum, we find no
who was assigned to handle respondent's importations, including their sufficient competent evidence to prove petitioner's
insurance coverage, has personal knowledge of the volume of steel liability. HaTSDA
billets being imported, and therefore competent to testify thereon. Her
testimony is not hearsay, as this doctrine is defined in Section 36, Rule That the Prosecution's evidence was left uncontested because petitioner decided not to
130 of the Rules of Court. However, she is not qualified to testify on subject Guivencan to cross-examination, and did not tender her contrary evidence was
the shortage in the delivery of the imported steel billets. She inconsequential. Although the trial court had overruled the seasonable objections to
did not have personal knowledge of the actual steel billets Guivencan's testimony by petitioner's counsel due to the hearsay character, it could not
received. Even though she prepared the summary of the be denied that hearsay evidence, whether objected to or not, had no probative
received steel billets, she based the summary only on the value. 39 Verily, the flaws of the Prosecution's evidence were fundamental and
receipts prepared by other persons. Her testimony on steel substantive, not merely technical and procedural, and were defects that the adverse
billets received was hearsay. It has no probative value even if party's waiver of her cross-examination or failure to rebut could not set right or cure. Nor
not objected to at the trial.
22
did the trial court's overruling of petitioner's objections imbue the flawed evidence with IV
any virtue and value.
No reliable evidence on damage
Curiously, the RTC excepted the entries in the ledgers from the application of the
hearsay rule by also tersely stating that the ledgers "were prepared in the regular course Conformably with finding the evidence of guilt unreliable, the Court declares that the
of business." 40 Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to disposition by the RTC ordering petitioner to indemnify Footlucker's in the amount of
wit: P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be
factually founded. Yet, she cannot now be absolved of civil liability on that basis. Her
Section 43. Entries in the course of business. Entries made at, or near acquittal has to be declared as without prejudice to the filing of a civil action against her
the time of the transactions to which they refer, by a person deceased, for the recovery of any amount that she may still owe to Footlucker's.
or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made WHEREFORE, the Court SETS ASIDE AND REVERSES the decision convicting ANNA
the entries in his professional capacity or in the performance of duty and LERIMA PATULA of estafa as charged, and ACQUITS her for failure of the Prosecution
in the ordinary or regular course of business or duty. to prove her guilt beyond reasonable doubt, without prejudice to a civil action brought
against her for the recovery of any amount still owing in favor of Footlucker's Chain of
This was another grave error of the RTC. The terse yet sweeping manner of justifying the Stores, Inc.
application of Section 43 was unacceptable due to the need to show the concurrence of
the several requisites before entries in the course of business could be excepted from No pronouncement on costs of suit. TaCDcE
the hearsay rule. The requisites are as follows:
SO ORDERED.
(a) The person who made the entry must be dead or unable to testify;
EN BANC
(b) The entries were made at or near the time of the transactions to
which they refer;
[G.R. No. 28655. August 6, 1928.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
(c) The entrant was in a position to know the facts stated in the entries; EUGENIO TOLEDO and SISENANDO
HOLGADO, defendants. EUGENIO TOLEDO, appellant.
(d) The entries were made in his professional capacity or in the C. V. Sanchez, for appellant.
performance of a duty, whether legal, contractual, moral, or Attorney-General Jaranilla, for appellee.
religious;
SYLLABUS
(e) The entries were made in the ordinary or regular course of business
or duty. 41
1. CRIMINAL LAW AND PROCEDURE; EVIDENCE; HEARSAY RULE, ITS
The Court has to acquit petitioner for failure of the State to establish her guilt beyond EXCEPTIONS; ADMISSIONS AGAINST PENAL INTEREST IN .SWORN DECLARATION OF
reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge PERSON NOW DECEASED TENDING TO EXONERATE ACCUSED. H and M engaged in a
must rigidly test the State's evidence of guilt in order to ensure that such evidence
adhered to the basic rules of admissibility before pronouncing an accused guilty of the bolo duel. M was killed almost instantly. H was also seriously wounded but was able to proceed
crime charged upon such evidence. The failure of the judge to do so herein nullified the to a neighboring house and from where to the municipal building. Before the municipal president,
guarantee of due of process of law in favor of the accused, who had no obligation to H made a sworn statement in which he declared that when he and M fought there was nobody
prove her innocence. Her acquittal should follow.
present About one month later, H died from the wounds received in the fight. T, a worker of H,
was charged with the homicide of M and was convicted in the lower court. It is held that error was
23
committed in not admitting the verified declaration of H as the statement of a fact against penal talking through the party and not the party talking about the facts. The modern tendency is toward
interest. (Opinion of Messrs. Justices Street, Malcolm, and Ostrand.) the extension of the rule admitting spontaneous declarations to meet the needs of justice when
other evidence of the same fact cannot be procured. (Opinion of Messrs. Justices Romualdez
2. ID.; ID.; ID.; ID. Hearsay evidence is excluded. One exception concerns the and Villa-Real.)
admission of dying declarations. Another exception permits the reception, under certain
circumstances, of declarations of third parties made contrary to their own pecuniary or proprietary 8. ID.; ID.; ID.; ID.; SUFFICIENCY OF PROOF. Held by all of the members of the court
interest. But by a large preponderance of authority in the United States, the declarations of a participating that T should be given the benefit of the reasonable doubt which prevails in their
person other than accused confessing or tending to show that he committed the crime are not minds and acquitted.
competent for accused on account of the hearsay doctrine.
DECISION
3. ID.; ID.; ID.; ID. The general rule rejecting evidence of confessions of third parties
made out of court intended to exonerate the accused, examined in the light of its history and MALCOLM, J p:
policy, and found to be unjustified. It should not be received in the Philippine jurisdiction where
the principles of the common law have never been followed blindly. A study of the authorities This is an appeal taken by Eugenio Toledo from a judgment of the Court of First Instance
discloses that even if given application they are not controlling, for here the fact is that the of Mindoro, finding him guilty of the crime of homicide, and sentencing him therefor to
declarant is deceased and his statements were made under oath, while they read in such a way imprisonment for fourteen years, eight months, and one day, reclusion temporal, with the
as to ring with the truth. corresponding accessory penalties, indemnity, and costs.

4. ID.; ID.; ID.; ID. Any rule which hampers an honest man in exonerating himself is a Sisenando Holgado and Filomeno Morales had had disputes about the occupation of
bad rule, even if it also hampers a villain in falsely passing for an innocent. (3 Wigmore on certain land situated in the municipality of Pinamalayan, Province of Mindoro. On the morning of
Evidence, 2d ed., sec. 1477.) June 15, 1927, the two men happened to meet. The argument was renewed, and they agreed to
fight. They did engage in a bolo duel with a fatal result for Filomeno Morales, who was killed
5. ID.; ID.; ID.; ID. Wherever the state seeks to fasten criminality upon the party on almost instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a
trial, the accused had a right to meet and rebut any testimony which may be offered against him neighboring house. From there Sisenando Holgado was taken to the municipal building where he
in any legitimate way. Any legitimate fact or circumstance which would meet or tend to meet the made a sworn statement before the municipal president, in which he declared that only he and
state's case and break the force of criminative facts introduced against the accused is always Filomeno Morales fought. About one month later, Sisenando Holgado died from the wounds
admissible. (Pace vs. State [1911], Court of Criminal Appeals of Texas, 135 Southwestern, 379.) received in the fight.

6. ID.; ID.; ID.; ID. Where a sworn statement against penal interest is admitted, the The prosecution and the defense alike agree on the facts above outlined. The disputable
question then is as to the effect to be given such a confession, which is solely one of weight and point is whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to
credibility. Filomeno Morales. For the prosecution, there was presented the witness Justina Villanueva, the
querida of Filomeno Morales, who testified to the presence and participation of EugenioToledo.
7. ID.; ID.; ID.; ID.; "RES GESTAE." Exhibit 1 should have been admitted in evidence Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand,
as a part of the res gestae for it was made by H on the same morning that the fight occurred and the theory for the defense was that Toledo was in another place when the fight between Morales
without the interval of sufficient time for reflection. The declaration fulfilled the test of the facts and Holgado occurred and that his only participation was on meeting Holgado, who was his
24
landlord or master, in helping him to a nearby house. To this effect is the testimony of the penknife and then I slashed at him; after this we separated, and I went to Dalmacio
accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon Manlisic's house. When we fought, there was nobody present.
the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of
Pinamalayan. "Question by president: When you went to the house of Dalmacio Manlisic,
did you not meet anybody before reaching said house?
Counsel de oficio in this court makes the following assignment of errors:
"Answer: I met one of my workers named Eugenio Toledo, who
"I. The lower court erred in not admitting in evidence Exhibit 1. accompanied me to the house of Dalmacio Manlisic.

"II. The lower court erred in not finding that accused appellant "Question by president: How do you know that the hemp you planted on
Eugenio Toledo did not take part in the fight between accused Sisenando Holgado your land above-mentioned was frequently uprooted by Filomeno Morales?
and deceased Filomeno Morales, resulting in the death of the latter.
"Answer: Because he said so to my worker named Eulogio Supleo.
"III. The lower court erred in not giving accused-appellant
Eugenio Toledo the benefit of a reasonable doubt." Exhibit 1 above-mentioned in "Question by president: Do you have anything more to say about the
assignment of error No. 1, made originally in Tagalog, in translation reads as incident?
follows:
"Answer: No more.
"AFFIDAVIT
"In testimony of all that I stated above, I signed this document in the
"I, Sisenando Holgado, married, of legal age, and resident of this presence of two witnesses and then swore to it in the presence of the municipal
municipality of Pinamalayan, Province of Mindoro, P. I., after being sworn in president here at Pinamalayan, Mindoro, this June fifteenth, nineteen hundred
accordance with law, state the following: twenty-seven.

"My additional homestead situated in Calingag was cleaned by me and is


at present planted with palay (rice), on which I also plant hemp, but the hemp
planted by my workers is frequently uprooted by Filomeno Morales who claims that His
said land is his, whereas when I was cleaning said land nobody objected to it, but
now that it is already cleaned, Filomeno Morales says that one-half of the land "SISENANDO HOLGADO
occupied by me is his; for this reason I decided to see Filomeno Morales about this
matter and when I talked to him this morning (Wednesday) at about nine o'clock, at Mark
the hemp plantation of Victorio Saudan situated in Calingag, he told me that if I
should plant there anything he would cut my neck, and to this I answered that if he
was going to cut my neck we would fight and thereupon he stabbed me with a
"In the presence of:
25
(Sgd.) "ILLEGIBLE The second view is that for which Messrs. Justices Romualdez and Villa-Real are
responsible, and is that Exhibit 1 should have been admitted in evidence as a part of the ges
"HILARION NIEVA gestae, and that giving it effect, in relation with the other evidence, the accused has not been
proved guilty. What has heretofore been said with reference to the state of the record need not
"Signed and sworn to before me, this June fifteenth, 1927. here be repeated. It only remains to be stated that Exhibit 1 was made by Sisenando Holgado on
the same morning that the fight occurred and without the interval of sufficient time for reflection.
The declaration of Sisenando Holgado fulfilled the test of the facts talking through the party and
not the party talking about the facts. There was such a correlation between the statement and the
(Sgd.) "ILLEGIBLE fact of which it forms part as strongly tends to negative the suggestion of fabrication or a
suspicion of afterthought. The nature and circumstances of the statement do not disclose intrinsic
"Municipal President" evidence of premeditation as revealed in a long, coherent, closely connected story. The modern
tendency is toward the extension of the rule admitting spontaneous declarations to meet the
The discussion of the case in court has revealed three different points of view among the
needs of justice when other evidence of the same fact cannot be procured. (22 C. J., pp. 461 et
members participating, all leading to the same result of acquittal. Under such circumstances, it is,
seq.; U. S. vs. David [1903], 3 Phil., 128.)
of course, difficult for the writer of the opinion to do entire justice to those theories which do not
conform to his own. However, an effort will be made to present the various opinions, leaving it for III
any individual member to enlarge upon the same, if he so desires.
The third opinion in court is that held by Messrs. Justices Street, Malcolm, and Ostrand,
I who would resolve the first assignment of error by holding that the court erred in not admitting
Exhibit 1 as the statement of a fact against penal interest. Had Exhibit 1 been received, it is
The Chief Justice and Mr. Justice Villamor would disregard entirely the first assignment of
believed that its influence would have been felt by the trial court. Without Exhibit 1, the appellate
error and would, therefore, refrain from all discussion relative to the admissibility of Exhibit 1.
court is bound by the appreciation of the evidence made in the trial court, and could, with little
Confining themselves exclusively to an analysis of the evidence other than Exhibit 1, they find
propriety, set aside the findings made by a learned trial judge. The case calls for an examination
that Eugenio Toledo has not been proved guilty beyond a reasonable doubt. The contradictions in
of the right of the courts to receive in evidence documents of the character of Exhibit 1.
the testimony for the prosecution pointed out by the trial judge do not impress these members of
the court so seriously. In reality, there being but one witness for the prosecution who, on account Hearsay evidence, with a few well recognized exceptions, it has been said on high
of her relations with Filomeno Morales, and the land troubles, might be expected to exaggerate, authority, is excluded by courts in the United States that adhere to the principles of the common
and there being on the contrary exculpatory evidence for the defense, even without Exhibit 1, the law. One universally recognized exception concerns the admission of dying declarations. Another
Government has not made out its case. Consequently, on the testimonial facts, these members exception permits the reception, under certain circumstances, of declarations of third parties
vote for acquittal. made contrary to their own pecuniary or proprietary interest. But the general rule is stated to be
that the declarations of a person other than accused confessing or tending to show that he
committed the crime are not competent for accused on account of the hearsay doctrine.

II
Professor Wigmore, one of the greatest living authorities on the law of evidence, has
attempted to demonstrate the false premises on which the arbitrary limitation to the hearsay rule
26
rests. He shows that the limitation is inconsistent with the language originally employed in stating A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi
the principle and is unjustified on grounds of policy. Professor Wigmore in turn has been states, "to reach those manslayers who perpetrate their crimes when there are no other
answered by no less a body than the Supreme Court of Mississippi in the case of Brown vs. eyewitnesses." But the person accused of a crime, under the same principle of necessity, is not
State of Mississippi ([1910], 37 L. R. A., New Series, 345). The editor of the Mississippi case in L. permitted to free himself by offering in evidence the admission of another under oath that this
R. A., however, comes to the support of Professor Wigmore saying the unanimity of the decisions other committed the crime. Again admissions are receivable against either a pecuniary or a
"is as complete as the shock which they give the general sense of justice." The question has proprietary interest, but not against a penal interest. We fail to see why it can be believed that a
likewise in recent years gained attention by the Supreme Court of the United States in the case man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth
of Donnelly vs. United States ([1913], 228 U. S., 243). There it was held that the court below in the other instance. Again the exhibit would have been admitted against its maker at his trial, if
properly excluded hearsay evidence relating to the confession of a third party, then deceased, of he had not died. But the document is held inadmissible to exonerate another. Yet the truth of the
guilt of the crime with which defendant was charged. Mr. Justice Pitney, delivering the opinion of exhibit is not different ill the first case than in the second.
the court, said: "In this country there is a great and practically unanimous weight of authority in
the state courts against admitting evidence of confessions of third parties, made out of court, and A study of the authorities discloses that even if given application they are not here
tending to exonerate the accused." Mr. Justice Van Devanter concurred in the result while Mr. controlling. Most of them do not concern the confessions of declarants shown to be deceased.
Justice Holmes, with whom concurred Mr. Justice Lurton and Mr. Justice Hughes, dissented. Mr. Practically all of them give as the principal reason for denying the admission of a confession of a
Justice Holmes said: third person that he committed the crime with which the accused is charged, that it was not made
under oath. Here the declarant is deceased and his statements were made under oath. They also
". . . The rules of evidence in the main are based on experience, logic, and read in such a way as to ring with the truth. When Sisenando Holgado declared "When we
common sense, less hampered by history than some parts of the substantive law. fought, there was nobody present," it was at the end of Just such a rambling statement as a
There is no decision by this court against the admissibility of such a confession; the wounded man would be expected to make. When Sisenando Holgado declared "I met one of my
English cases since the separation of the two countries do not bind us; the workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic," he
exception to the hearsay rule in the case of declarations against interest is well did so in response to a question by the municipal president. Exhibit 1 should have been received
known; no other statement is so much against interest as a confession of murder; it not is conclusive evidence of innocence, but as evidence to be taken into consideration in
is far more calculated to convince than dying declarations, which would be let in to connection with the other proven facts.
hang a man (Mattox vs. United States, 146 U. S., 140; 36 Law. ed., 917; 13 Sup.
Ct. Rep., 50); and when we surround the accused with so many safeguards, some We cannot bring this decision to a conclusion without quoting the well considered
of which seem to me excessive; I think we ought to give him the benefit of a fact language of Professor Wigmore on the subject, the pertinent part of a decision coming from a
that, if proved, commonly would have such weight. The history of the law and the court which has gained respect particularly in criminal cases, and an editorial note. Professor
arguments against the English doctrine are so well and fully stated by Mr. Wigmore Wigmore has said:
that there is no need to set them forth at greater length. (2 Wigmore, Evidence,
pars. 1476, 1477.)" "PAR. 1476. History of the Exception; Statement of Fact against Penal
Interest, excluded; Confessions of Crime be a Third Person. It is to day
In the Philippine jurisdiction, we have never felt bound to follow blindly the principles of commonly said, and has been expressly laid down by many judges, that the
the common law. A reexamination of some of those principles discloses anomalies. interest prejudiced by the facts stated must be either a pecuniary of a pro prietary
interest, and not a penal interest. What ground in authority there is for this limitation
may be found by examining the history of the exception at large.
27
"The exception appears to have taken its rise chiefly in two separate "PAR. 1477. Same: Policy of this Limitation. It is plain enough that this
rivulets of rulings, starting independently as a matter of practice, but afterwards limitation, besides being a fairly modern novelty, is inconsistent with the broad
united as parts of a general principle. . . . language originally employed in stating the reason and principle of the present
exception (ante, pars. 1457, 1476) as well as with the settled principle upon which
"These lines of precedent proceeded independently tin about the beginning confessions are received (ante, par. 1475).
of the 1800s, when a unity of principle for some of them came gradually to be
perceived and argued for. This unity lay in the circumstance that all such "But, furthermore, it cannot be justified on grounds of policy. The only
statements, in that they concerned matters prejudicial to the declarant's self- plausible reason of policy that has ever been advanced for such a limitation is the
interest, were fairly trustworthy and might therefore (if he were deceased) be possibility of procuring fabricated testimony to such an admission if oral. This is the
treated as forming an exception to the hearsay rule. ancient rusty weapon that has always been drawn to oppose any reform in the
rules of evidence, viz., the argument of danger of abuse. This would be a good
"This broad principle made its way slowly. There was some uncertainty argument against admitting any witnesses at all, for it is notorious that some
about its scope; but it was an uncertainty in the direction of breadth; for it was witnesses will lie and that it is difficult to avoid being deceived by their lies. The
sometimes put in the broad form that any statement by a person 'having no interest truth is that any rule which hampers an honest man in exonerating himself is a bad
to deceive' would be admissible. This broad form never came to prevail (post, par. rule, even if it also hampers a villain in falsely passing for an innocent.
1576). But acceptance was gained, after two decades, for the principle that all
declarations of facts against interest (by deceased persons) were to be received. "The only practical consequences of this unreasoning limitation are
What is to be noted, then, is that from 1800 to about 1830 this was fully understood shocking to the sense of justice; for, in its commonest application, it requires, in a
as the broad scope of the principle. It was thus stated without other qualifications; criminal trial, the rejection of a confession, however well authenticated, of a person
and frequent passages show the development of the principle to this point. deceased or insane or fled from the jurisdiction (and therefore quite unavailable)
who has avowed himself to be the true culprit. The absurdity and wrong of rejecting
"But in 1844, in a case in the House of Lords, not strongly argued and not indiscriminately all such evidence is patent.
considered by the judges in the light of the precedents, a backward step was taken
and an arbitrary limit put upon the rule. It was held to exclude the statement of a "The rulings already in our books cannot be thought to involve a settled
fact subjecting the declarant to a criminal liability, and to be confined to statements and universal acceptance of this limitation. In the first place, in almost all of the
of facts against either pecuniary or proprietary interest. Thenceforward this rule rulings the declarant was not shown to be deceased or otherwise unavailable as a
was accepted in England; although it was plainly a novelty at the time of its witness, and therefore the declaration would have been inadmissible in any view of
inception; for in several rulings up to that time such statements had been received. the present exception (ante, par. 1456). Secondly, in some of the rulings (for
example, in North Carolina) the independent doctrine (ante, pars. 139-141) was
applicable that, in order to prove the accused's non-commission of the offense by
showing commission by another person, not merely one casual piece of evidence
"The same attitude has been taken by most American courts, excluding suffices but a 'prima facie' case resting on several concurring pieces of evidence
confessions of a crime, or other statements of facts against penal interest, made by must be made out. Finally, most of the early rulings had in view, not the present
third persons; although there is not wanting authority in favor of admitting such exception to the hearsay rule, but the doctrine of admissions (ante, pars. 1076,
statements.
28
1079) that the admissions of one who is not a co-conspirator cannot affect others We would like finally to turn attention to what was said by the editor of L. R. A. in his note
jointly charged. in volume 37 hereinbefore referred to, viz.:

"It is therefore not too late to retrace our steps, and to discard this "The purpose of all evidence is to get at the truth. The reason for the
barbarous doctrine, which would refuse to let an innocent accused vindicate hearsay rule is that the extrajudicial and unsworn statement of another is not the
himself even by producing to the tribunal a perfectly authenticated written best method of serving this purpose. In other words, the great possibility of the
confession, made on the very gallows, by the true culprit now beyond the reach of fabrication of falsehoods, and the inability to prove their untruth, requires that the
justice. Those who watched (in 1899) with self-righteous indignation the course of doors be closed to such evidence. So long therefore as a declarant is available as
proceedings in Captain Dreyfus' trial should remember that, if that trial had a witness, his extrajudicial statement should not be heard. Where, however, the
occurred in our own courts, the spectacle would have been no less shameful if we, declarant is dead or has disappeared, his previous statements out of court, if not
following our own supposed precedents, had refused to admit what the French inadmissible on other grounds, are the best evidence. But they are not rendered
court never for a moment hesitated to admit,the authenticated confession of the inadmissible by the mere fact that the declarant is unavailable, something else
escaped Major Esterhazy, avowing himself the guilty author of the treason there is necessary. One fact which will satisfy this necessity is that the declaration is or
charged." (3 Wigmore on Evidence, 2d ed., secs. 1476, 1477.) was against the declarant's interest, and this is because no sane person will be
presumed to tell a falsehood to his own detriment.
In the case of Pace vs. State ( [1911], Court of Criminal Appeals of Texas, 135
Southwestern, 379), the appellant offered to prove in the trial court by the witness Byron Kyle that xxx xxx xxx
on Saturday morning following the killing of the deceased on the previous Sunday he had a
conversation with Dick Cain, one of the parties to the homicide, in which Dick Cain admitted that "Again, if, as seems indisputable, the desire to close the door to falsehood
he killed the deceased. The court ruled: which cannot be detected dictates the exclusion of such testimony, the question as
to the effect to be given to such a confession is solely one of weight and
". . . Wherever the state seeks to fasten criminality upon the party on trial, credibility. . . ."
the accused had a right to meet and rebut any testimony which may be offered
against him in any legitimate way. If Cain had been upon trial, his confession to the Any man outside of a court and unhampered by the pressure of technical procedure,
witness Kyle would have been admissible beyond any shadow of doubt, and would unreasoned rules of evidence, and cumulative authority, would say that if a man deliberately
have been strong evidence to go before the jury. The state would have been acknowledged himself to be the perpetrator of a crime and exonerated the person charged with
seeking to introduce this and with great earnestness, and correctly so. If appellant the crime, and there was other evidence indicative of the truthfulness of the statement, the
could prove that another party or others committed the homicide, it might prove his accused man should not be permitted to go to prison or to the electric chair to expiate a crime he
innocence, and would be strong evidence to go before the jury in his favor. Any never committed. Shall Judges trained and experienced in the law display less discerning
legitimate fact or circumstance which would meet or tend to meet the state's case common sense than the layman and allow precedent to overcome truth?
and break the force of criminative facts introduced against the accused is always
admissible. Appellant's contention was that he did not kill the deceased, but that JUDGMENT
Cain did. The state's theory was that appellant shot the deceased, and Cain did not
shoot him. Under the rules of evidence this testimony was clearly inadmissible." For three somewhat divergent reasons, we are all of the opinion that the defendant-
appellant Eugenio Toledo should be given the benefit of the reasonable doubt which prevails in
29
our minds. Accordingly, the judgment appealed from will be reversed and the defendant and children of Dr. Lazatin with one Helen Muoz, intervened. Subsequently, one
Lily Lazatin also intervened, claiming to be another admitted illegitimate (not natural)
appellant acquitted, and as it appears that he is now confined in Bilibid Prison, an order will child.
immediately issue directing his release, with costs de oficio.
Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a
FIRST DIVISION holographic will executed on May 29, 1970, providing, among others, for a legacy of
[G.R. No. L-43955-56. July 30, 1979.] cash, jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of
RENATO LAZATIN alias RENATO STA. support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon
Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara.
CLARA, petitioner, vs. HONORABLE JUDGE JOSE C. CAMPOS, JR.,
NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and
IRMA L. VELOSO, respondents. Trust Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon
Ernesto T. Zshornack, Jr. for petitioner. could open. Five days after Margarita's death, respondent Nora L. de Leon, accompanied
Jose W. Diokno Law Office private respondents the Leons. by her husband, respondent Bernardo de Leon, opened the safety deposit box and
removed its contents: (a) shares of stock; (b) her adoption papers and those of her
Arturo E. Balbastro for privates respondent Veloso.
sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her mother.
DECISION Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith,
believing that it was held jointly by her and her deceased mother. Her sole reason for
TEEHANKEE, J p: opening the box was to get her stock certificates and other small items deposited
therein. When she was to close the deposit box, the bank personnel informed her that
The Court dismisses the petition which seeks to overrule respondent judge's orders she needed an authority from the court to do so, in view of her mother's death and so,
declaring that petitioner has failed to establish by competent evidence his alleged status she removed everything from the box. llcd
as an adopted child of the deceased Lazatin spouses and prays for judgment of this
Court "declaring as established the fact of (his) adoption as a son of the deceased On June 3, 1974, private respondents filed a petition to probate the will of the late
spouses entitling him to succeed in their estates as such." Respondent judge correctly Margarita de Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court. Days
ruled that he could not allow petitioner (who had filed a motion to intervene in the after having learned that respondent Nora L. de Leon had opened this safety deposit
proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle box, petitioner's son, Ramon Sta. Clara, filed a motion in the probate court, claiming that
her estate as her adopted son, after having earlier filed a motion to intervene in the the deceased had executed a will subsequent to that submitted for probate and
intestate proceedings of her pre-deceased husband as his admitted illegitimate [not demanding its production. He likewise prayed for the opening of the safety deposit box.
natural] son), over the opposition of private respondents, to introduce evidence that he Respondent Nora L. de Leon admitted that she opened the box but there was no will or
had "enjoyed .. the status of an adopted child of the said spouses" without his first any document resembling a will therein.
producing competent and documentary proof that there had been judicial proceedings
for his legal adoption by the said spouses which resulted in the final judgment of a Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the
competent court decreeing his adoption. LibLex safety deposit box was opened on November 6, 1974, at which time it was found to be
empty, because prior thereto respondent Nora L. de Leon had already removed its
On January 13, 1974, Dr. Mariano M. Lazatin died intestate in Pasay City, survived by his contents.
wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon,
married to respondent Bernardo de Leon, and respondent Irma Lazatin, married to On November 22, 1974, or seven months after the death of Margarita de Asis, petitioner
Francisco Veloso. intervened for the first time in the proceedings to settle the estate of the late Dr.
Mariano M. Lazatin (Sp. Proc. No. 2326-P), as an admitted illegitimate (not natural) child.
One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate
proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in
Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) the estate proceedings of Margarita de Asis to examine private respondents on the
30
contents of the safety deposit box. Whereupon, on January 31, 1975, the probate court Respondent court first reserved its ruling on private respondents' objections to the
ordered respondent Nora L. de Leon to deliver the properties taken from the safety admission of petitioner's evidence, but on November 14, 1975, when petitioner could not
deposit box to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No. present evidence on the issue of his alleged legal adoption, respondent court
2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala of discontinued the hearing and gave the parties time to file memoranda on the question of
respondent Judge Jose C. Campos, Jr. the admissibility of the evidence sought to be introduced by petitioner.

On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora On March 4, 1976, respondent court barred the introduction of petitioner's evidence
L. de Leon and Bernardo de Leon to produce all those papers and items removed from because:
the safety deposit box and to deliver the same to the custody of the court within one
week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of "All the evidence submitted by Renato and Ramon Sta. Clara through
Court, not the items themselves, but two keys to a new safety deposit box which could their counsel do not prove or have no tendency to prove the existence of
only be opened upon order of the court. any judicial proceeding where the adoption of the parties above named
were taken up by any court. Neither do the evidence tend to establish
On August 20, 1975, petitioner Renato Lazatin alias Renato Sta. Clara filed a motion to the presence of any record of a proceeding in court where the adoption
intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on of the above named persons was held. The evidence, however, tends to
the basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr. prove a status of a recognized natural child which however, is not the
Mariano M. Lazatin, that petitioner was an "illegitimate son" of Dr. Lazatinand was later legal basis for which Renato and Ramon seek to intervene in this
adopted by him. This affidavit was later modified on August 19, 1975 to state that proceedings. In view thereof, and taking into consideration the evidence
petitioner was adopted by both Mariano M. Lazatin and his wife Margarita de Asis. heretofore presented by the petitioners, any further introduction of
similar evidence, documentary or oral, would not prove or tend to prove
On September 29, 1975, Judge Campos found respondent Nora L. de Leon guilty of the fact of their adoption but rather of a recognized natural child."
contempt of court for not complying with the orders of January 31, 1975 and May 29,
1975, requiring her to produce and deliver to the court all the papers and items removed Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established
from the safety deposit box. Her former counsel was also found guilty of contempt, the fact of adoption in view of respondent Nora L. de Leon's refusal to comply with the
sentenced to pay a fine of P100.00 and suspended from appearing in the two cases (Sp. orders of respondent court to deposit the items she had removed from the safety deposit
Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule
testimony that she, Nora L. de Leon, acted upon his advice. llcd 29, Section 3 of the Rules of Court, since according to him, the order of the court for the
production of the items in the safety deposit box can be considered as an order for
Respondent court heard petitioner's motion to intervene as an adopted son in the estate production and inspection of documents under Rule 27. LexLib
of Margarita de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no
decree of adoption in his favor. Instead, petitioner attempted to prove, over private
respondents' objections, that he had recognized the deceased spouses as his parents: he
had been supported by them until their death; formerly he was known as Private respondents opposed the motion, and on March 26, 1976, respondent court
"Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the denied petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with
deceased spouses refused to give consent to his marriage to his present wife; that at respondent court the items she had removed from the safety deposit box. An inventory
first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but was conducted by respondent court, with notice to the parties, and the items
a few months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned surrendered consisted only of pieces of jewelry and stock certificates.
by the deceased spouses, where they continuously resided up to the present.
Photographs were also intended to be presented by petitioner, e.g., photograph of Irma On June 3, 1976, respondent court, ruling on petitioner's motion for definite resolution on
Veloso where she addressed herself as sister of petitioner; photograph of deceased his previous motion to declare as established the fact of adoption, issued the following
Margarita de Asis and petitioner when he was a boy; document showing that petitioner's order:
real name is "Renato Lazatin." 1
31
"As far as the case of Renato Sta. Clara is concerned and his Petition to legal basis for a presumption of adoption in favor of petitioner. This is because there
establish his status as an adopted child, the Court has ruled that he has was no proof that petitioner was really adopted in Manila or that an adoption petition
failed to establish such status. The Court denies any motion for was filed in the Court of First Instance of Manila by the deceased spouses, where, after
reconsideration unless based on some documentary proof." hearing, a judgment of approval was rendered by said court. Moreover, if there was
really such adoption, petitioner could have conveniently secured a copy of the
Hence, the petition at bar. newspaper publication of the adoption as required under Section 4, Rule 99 of the Rules
of Court (formerly Section 4 Rule 100) or a certification of the publishing house to that
We find the ruling of the respondent court to be in conformity with law and effect. Petitioner's failure on this point is another strong indication of the non-existence
jurisprudence. of the adoption paper. We also observed that the identity of the one who gave the
written consent to the adoption (Section 3, Rule 99. Rules of Court), whether the parents
or orphanage, does not appear in the trend of petitioner's evidence. The collation of
1. Adoption is a juridical act, a proceeding in rem, 2 which creates between two persons proof on this point is not so difficult and such proof must be presented if only to prove
a relationship similar to that which results from legitimate paternity and filiation. 3 Only the real existence of the adoption. And of course, if the adoption records were indeed
an adoption made through the court, or in pursuance with the procedure laid down under destroyed or burned during the war, the clear right and duty of petitioner was to duly
Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, reconstitute the records as provided by law.
but is wholly and entirely artificial. 5 To establish the relation, the statutory requirements
must be strictly carried out, otherwise, the adoption is an absolute nullity. 6 The fact of
adoption is never presumed but must be affirmatively proved by the person claiming its 3. The absence of proof of such order of adoption by the court, as provided by the
existence. The destruction by fire of a public building in which the adoption papers would statute, cannot be substituted by parol evidence that a child has lived with a person, not
have been filed if existent does not give rise to a presumption of adoption nor is the his parent, and has been treated as a child to establish such adoption. 9 Even evidence
destruction of the records of an adoption proceeding to be presumed. On the contrary, of declaration of the deceased, made in his lifetime, that he intended to adopt a child as
the absence of a record of adoption has been said to evolve a presumption of its non- his heir, and that he had adopted him, and of the fact that the child resided with the
existence. 7 Where, under the provisions of the statute, an adoption is effected by a deceased, as a member of his family, from infancy until he attained his majority, is not
court order, the records of such court constitute the evidence by which such adoption sufficient to establish the fact of adoption. 10 Nor does the fact that the deceased
may be established. 8 spouses fed, clothed, educated, recognized and referred to one like petitioner as an
adopted child, necessarily establish adoption of the child. 11 Withal, the attempts of
petitioner to prove his adoption by acts and declarations of the deceased do not
2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial discharge the mandatory presentation of the judicial decree of adoption. The thrust of
adoption. We can not pluck from his chain of evidence any link to the real existence of a petitioner's evidence is rather to establish his status as an admitted illegitimate child,
court decree of adoption in his favor. Petitioner's proofs do not show or tend to show that not an adopted child which status of an admitted illegitimate child was the very basis
at one time or another a specific court of competent jurisdiction rendered in an adoption of his petition for intervention in the estate proceedings of the late Dr. Lazatin, as above
proceeding initiated by the late spouses an order approving his adoption as a child of the stated. (Supra, at page 3 hereof)
latter. No judicial records of such adoption or copies thereof are presented or attempted
to be presented. Petitioner merely proceeds from a nebulous assumption that he was
judicially adopted between the years 1928 and 1932. By what particular court was the We do not discount though that declarations in regard to pedigree, although hearsay, are
adoption decreed or by whom was the petition heard, petitioner does not even manifest, admitted on the principle that they are natural expressions of persons who must know
much less show. There are no witnesses cited to that adoption proceeding or to the the truth. 12 Pedigree testimony is admitted because it is the best that the nature of the
adoption decree. Apparently on the assumption that the adoption was commenced in case admits and because greater evil might arise from the rejection of such proof than
Manila, petitioner's counsel secured a certification from the Court of First Instance of from its admission. 13 But, in proving an adoption, there is a better proof available and it
Manila which, however, negatively reported "(T)hat among the salvaged records now should be produced. The whereabouts of the child's family and circulation of the
available in this Office, there has not been found, after a diligent search, any record jurisdiction in which they resided and investigation in those courts where adoption are
regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed usually granted would surely produce an adoption order, if indeed there was an
sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and order. 14 Besides, since the point in favor of receiving hearsay evidence upon matters of
Margarita de Asis de Lazatin." The certification of the Local Civil Registrar of Manila family history or pedigree is its reliability, it has been set forth as a condition upon which
"(T)hat our pre-war records relative to decisions of the Court of First Instance were either such evidence is received that it emanate from a source within the family. Pursuant to
destroyed or burned during the Liberation of the City of Manila," does not furnish any this view, before a declaration of a deceased person can be admitted to prove pedigree,
32
or ancestry, the relationship of the declarant, by either of blood or affinity to the family 2341-P as an adopted child because of lack of proof thereof. For one to intervene in
in question, or a branch thereof, must ordinarily be established by competent an estate proceeding, it is a requisite that he has an interest in the estate, either as one
evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person who would be benefited as an heir or one who has a claim against the estate like a
deceased, or outside of the Philippines, or unable to testify, in respect to the pedigree of creditor. 20 A child by adoption cannot inherit from the parent by adoption unless the act
another person related to him by birth or marriage, may be received in evidence where it of adoption has been done in strict accord with the statue. Until this is done, no rights
occurred before the controversy, and the relationship between the two persons is shown are acquired by the child and neither the supposed adopting parent or adopted child
by evidence other than such act or declaration . . .." could be bound thereby. 21 The burden of proof in establishing adoption is upon the
person claiming such relationship. He must prove compliance with the statutes relating
4. Secondary evidence is nonetheless admissible where the records of adoption to adoption in the jurisdiction where the adoption occurred. 22 A fortiori, if no hereditary
proceedings were actually lost or destroyed. But, prior to the introduction of such interest in the estate can be gained by a claimant who failed to submit proof thereof,
secondary evidence, the proponent must establish the former existence of the whether the will is probated or not, intervention should be denied as it would merely
instrument. The correct order of proof is as follows: Existence; execution; loss; contents; result in unnecessary complication. 23To succeed, a child must be legitimate,
although this order may be changed if necessary in the discretion of the court. 16 The legitimated, adopted, acknowledged illegitimate natural child or natural child by legal
sufficiency of the proof offered as a predicate for the admission of an alleged lost deed fiction or recognized spurious child. 24
lies within the judicial discretion of the trial court under all the circumstances of the
particular case. 17 "As earlier pointed out, petitioner failed to establish the former In the face of the verified pleadings of record (constituting judicial admissions) which
existence of the adoption paper and its subsequent loss or destruction. Secondary proof show that petitioner sought to intervene on November 22, 1974 in the estate
may only be introduced if it has first been established that such adoption paper really proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P)
existed and was lost. This is indispensable. 18 Petitioner's supposed adoption was only as an admitted illegitimate (not natural) child, 25 while his intervention on August 20,
testified to by him and is allegedly to be testified to by a brother of the deceased 1975 in the estate of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No.
Mariano M. Lazatin or others who have witnessed that the deceased spouses treated 2341-P) was as her adopted child on the basis of the affidavit of a brother of the
petitioner as their child. If adoption was really made, the records thereof should have deceased Dr. Lazatin, Benjamin Lazatin, executed on August 19, 1975 (which affidavit
existed and the same presented at the hearing or subsequent thereto or a reasonable modified a first affidavit executed on May 31, 1975, which failed to state by "oversight"
explanation of loss or destruction thereof, if that be the case, adduced. 19 Assuming the that Dr. Lazatin and his wife had "jointly adopted" petitioner, but stated that affiant knew
mere fact that the deceased spouses treated petitioner as their child does not justify the petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a
conclusion that petitioner had been in fact judicially adopted by the spouses nor does it son before the Court of First Instance of Manila sometime between the years 1928 and
constitute admissible proof of adoption. 1931") and prescinding from the question of whether a natural or spurious child may be
legally adopted by the putative father, we hold that no grave abuse of discretion nor
We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied error of law as committed by respondent judge in issuing the questioned orders of March
to consider as established the fact of his adoption due to the refusal of respondent Nora 4, 1976, March 26, 1976 and June 3, 1976 denying petitioner's petition "to declare as
L. de Leon to produce the document of adoption, because first, the fact or real existence established in this proceeding the fact of adoption" and denying "any motion for
of petitioner's adoption had not been established; second, there is no proof that such reconsideration unless based on some documentary proof." The Court finds no basis to
document of adoption is in the possession of respondent Nora L. de Leon; third, the motu grant the affirmative relief sought in this proceeding by petitioner for a rendition of
proprio order of the court for Nora de Leon to produce the items retrieved from the judgment "declaring as established the fact of your petitioner's adoption as a son of the
safety deposit box cannot be treated as a mode of discovery of production and deceased spouses entitling him to succeed in their estates as such in accordance with
inspection of documents under Rule 27; andfourth, the items deposited in the safety the applicable law on succession as to his inheritance." LLjur
deposit box have already been surrendered by respondent Nora L. de Leon on April 26;
1976 and no document of adoption in favor of petitioner was listed as found in the safety Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining
deposit box. cdll order; which as amended on July 21, 1976, restrained respondent judge "from
proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the
submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled
'Intestate Estate of the Late Mariano M. Lazatin' and Special Proceedings No. 2341-P,
5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot entitled 'Testate Estate of the late Margarita de Asis Vda. de Lazatin,' and from
properly intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. proceeding with the probate of the alleged holographic will of the deceased Doa
33
Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 event of an adverse ruling against him is to make a formal offer of proof and of his
and on any other dates." With the Court's determination of the issues as herein set forth, excluded evidence, oral and documentary, and seek a reversal on an appeal in due
there is no longer any need for restraining the proceedings below and the said course. prcd
restraining order shall be immediately lifted.
ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's
On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow petition below " to declare as established in this proceeding the fact of [his] adoption"
respondent judge "to take the deposition of petitioner's witnesses to perpetuate their are hereby affirmed. The temporary restraining order issued on June 16, 1976 and
testimonies pursuant to Rule 134, Section 7 of the Rules of Court, subject to the Court's amended on July 21, 1976 is ordered lifted, effective immediately. Without costs.
ruling in due course on the admissibility of such testimonies." The Court thereby
permitted in effect the advance testimonies of petitioner's witnesses, principally among SO ORDERED.
them Rafael Lazatin and Esteban L. Lazatin, both brothers of the deceased Dr. Mariano
L. Lazatin and as stated in petitioner's motion of January 11, 1977:
EN BANC
"Substantially, the testimony of the above named witnesses will be on
[G.R. No. L-24989. July 21, 1967.]
the fact that they had been informed by the deceased spouses, Mariano PEDRO GRAVADOR, petitioner-appellee, vs. EUTIQUIO MAMIGO,
and Margarita Lazatinthat your petitioner was their [Mariano's and THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL
Margarita's] judicially adopted son and to elicit further from them the DISTRICT, THE DIVISION SUPERINTENDENT OF SCHOOLS OF
fact that your petitioner enjoys the reputation of being their judicially NEGROS ORIENTAL, THE DIRECTOR OF PUBLIC SCHOOLS and THE
adopted son in the Lazatin family."
SECRETARY OF EDUCATION, (all sued in their official and personal
The Court's resolution allowing the advance testimonies of petitioner's witnesses was but capacities), respondents-appellants.
in application of the Court's longstanding admonition to trial courts as reaffirmed Solicitor General Arturo A. Alafriz, Assistant Solicitor General
in Lamagan vs. De la Cruz 26 , "to be liberal in accepting proferred evidence since even I.C . Borromeo and Solicitor F. J . Bautista for respondents-
if they were to refuse to accept the evidence, the affected party will nevertheless be appellants.
allowed to spread the excluded evidence on the record, for review on appeal." The Court Newton E. Serion for petitioner-appellee.
therein once again stressed the established rule that "it is beyond question that rulings
of the trial court on procedural questions and on admissibility of evidence during the
course of the trial are interlocutory in nature and may not be the subject of separate SYLLABUS
appeal or review on certiorari, but are to be assigned as errors and reviewed in the
appeal properly taken from the decision rendered by the trial court on the merits of the 1. ADMINISTRATIVE LAW; FINDINGS OF FACT OF ADMINISTRATIVE OFFICIALS; EFFECT.
case," 27 and that a party's recourse when his proferred evidence is rejected by the trial That the findings of fact of administrative officials are binding on the courts if supported
court is to make a formal offer stating on the record what a party or witness would have by substantial evidence, is a settled rule of administrative law.
testified to were his testimony not excluded, as well as to attach to the record any
rejected exhibits. cdphil 2. ID.; EVIDENCE; DATE OF BIRTH; CIRCUMSTANCES EVIDENCING THE SAME. Although
a person can have no personal knowledge of the date of his birth, he may testify as to
At the continuation of the proceedings below for declaration of heirship and for probate his age as he had learned it from his parents and relatives, and his testimony in such
of the alleged holographic will of the deceased Margarita de Asis Vda. deLazatin, case is an assertion of family tradition. Indeed, even in his application for backpay, filed
petitioner who has failed to establish his status as an alleged adopted child of Margarita through the Office of the Superintendent of Schools, on October 7, 1948, the petitioner
de Asis (unless, as reserved to him by the court below, he can show some documentary stated that the date of his birth is December 11, 1901. He repeated the same assertion
proof) and whose intervention in the estate of the deceased Dr. Mariano Lazatin is as an in 1956 and again in 1960 when he asked the Government Service Insurance System
admitted illegitimate child, will have to decide whether he will pursue his first theory of and the Civil Service Commission to correct the date of his birth to December 11, 1901.
having the status of such admitted illegitimate child of said deceased. Whatever be his Again the import of the declaration of the petitioner's brother, contained in a verified
theory and his course of action and whether or not he may be duly allowed to intervene pleading in a cadastral case way back in 1924, to the effect that the petitioner was then
in the proceedings below as such alleged admitted illegitimate child, his recourse in the 23 years old, cannot be ignored. Made ante litem motam by a deceased relative, this
34
statement is at once a declaration regarding pedigree within the intendment and these two affiants declared that they knew that the petitioner "was born on December
meaning of section 33 of Rule 130 of the Rules of Court. Thus, December 11, 1901 is 11, 1901, in the Municipality of Amlan, formerly known as New Ayuquitan, Province of
established as the date of birth of the petitioner not only by evidence of family tradition Negros Oriental, Philippines" because "we were the neighbors of the late spouses,
but also by the declaration ante litem motam of a deceased relative. NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents] and that we
were present when said PEDRO GRAVADOR was born; furthermore, we were also invited
3. ID.; QUO WARRANTO; PERIOD WITHIN WHICH ACTION MAY BE BROUGHT. Suits for during the baptismal party a few weeks after the birth of said PEDRO GRAVADOR."
quo warranto to recover a public office must be brought within one year.
On October 19, 1964 the petitioner wrote to the Division Superintendent of Schools,
4. ID.; RULE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES; APPLICATION OF RULE reiterating his claim that he had not reached the age of 65 and enclosing some papers in
WHERE RIGHT ASSERTED MAY BE NULLIFIED IF OBSERVANCE THEREOF IS INSISTED support thereof.
UPON. The rule on exhaustion of administrative remedies does not apply where
insistence on its observance would result in the nullification of the claim being asserted. On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the
Court of First Instance of Negros Oriental. He asked the court to adjudge him entitled to
DECISION the office of principal of the Sta. Catalina Elementary School and to order payment to
him of not only his back salaries but also damages in the total amount of P52,400.
Named as respondents were Eutiquio Mamigo, the District Supervisor, the
CASTRO, J p: Superintendent of Schools, the Director of Public Schools and the Secretary of Education.

The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in The respondents filed their answer, entered into a stipulation of facts with the petitioner,
Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then and thereafter the case was submitted for decision. The trial court concluded that the
Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo petitioner was born on December 11, 1901 and accordingly granted his petition.
E. Dayao, of his separation from the service on the ground that he had reached the Immediate execution was ordered, as a result of which the petitioner was reinstated.
compulsory retirement age of 65. The advice reads:
The respondents appealed directly to this Court.
"According to your pre-war records as a teacher in the public schools,
including your Employee's Record Card, which has just been found in
connection with the verification of the services of all school officials On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that
including elementary school principals in this division, you were born on the issues posed thereby had become moot with his retirement from the service on
November 26, 1897. As of this date, therefore, you are now 66 years, 8 December 11, 1966 and the payment to him of the corresponding retirement benefits.
months, and 22 days old. We deem it necessary, however, to review the trial court's decision on the merits,
considering that the computation of retirement annuities is based, among other things,
on the number of years of service of a retiree, 1 and that payment of benefits already
"In view of the above, you are hereby advised of your separation from made to the petitioner on the basis of December 11, 1901 as the date of his birth would
the service effective immediately unless you can show valid proof in the not exempt him from the obligation to make a refund should this Court ultimately rule
form of a baptismal or birth certificate that you are below sixty-five of that he was actually born on November 26, 1897, as the respondents claim.
age today."
The controversy on the petitioner's date of birth arose as a result of the conflicting
A few days later, the respondent Eutiquio Mamigo was designated teacher-in-charge records of the Division of Schools of Negros Oriental. On the one hand the pre-war
of the said elementary school. records show his date of birth to be November 26, 1897. These records consist of two
Insular Teacher's Cards 2 and one Employee's Record Card. 3 It is on the basis of these
On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his records that the Superintendent of Schools determined the petitioner's age to be 66
forced retirement on the ground that the date of his birth is not November 26, 1897 but years, 8 months and 22 days on August 15, 1964.
December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962,
of Lazaro Bandoquillo and Pedro A. Sienes, both of Amlan, Negros Oriental, in which
35
On the other hand, the post-war records, consisting of an Elementary Teacher's Report Service Insurance System and the Civil Service Commission to correct the date of his
Card, 4 an Employee's Record Card 5 and an Employee's Record of Qualifications6 state birth to December 11, 1901.
that the petitioner was born on December 11, 1901. These are the records on which the
petitioner bases his claim. In the second place, the import of the declaration of the petitioner's brother, contained in
a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner
The problem is aggravated by two uncontroverted facts, namely, that the records of the was then 23 years old, can not be ignored. Made ante litem motam by a deceased
church where the petitioner was baptized were destroyed by fire, and that the municipal relative, this statement is at once a declaration regarding pedigree within the
civil register contains no record of the petitioner's birth. intendment and meaning of section 33 of Rule 130 of the Rules of Court.

According to the trial court, the post-war records were intended to replace the pre-war
records and therefore the correct date of birth of the petitioner is December 11, 1901.
The court also took into account the verified answer in a cadastral proceeding in the Thus, December 11, 1901 is established as the date of birth of the petitioner only by
Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the petitioner's evidence of family tradition but also by the declaration ante litem motam of a deceased
brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to relative.
be one of the co-owners of a piece of land, was at the time 23 years old.
Finally, the parties are agreed that the petitioner has a brother, Constantino, who was
The respondents now contend that the trial court erred in placing full reliance on the born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The
post-war records to establish the date of birth (December 11, 1901) of the petitioner. petitioner then could not have been born earlier than Constantino, say in 1897 as the
They argue that these records were made only because it was thought that the pre-war pre-war records indicate, because Constantino is admittedly older than he. 10
records had been lost or destroyed, but as some pre-war records had since been located,
the date contained in the pre-war records should be regarded as controlling; and that the Still it is argued that the petitioner's action was prematurely brought because he had not
finding of the Superintendent of Schools that the petitioner was born on November 26, availed of all administrative remedies. This argument is without merit. Suits for quo
1897 is an administrative finding that should not be disturbed by the court. warranto to recover a public office must be brought within one year. 11 Before filing this
case the petitioner waited for eight months for the school officials to act on his protest.
That the findings of fact of administrative officials are binding on the courts if supported To require him to tarry a little more would obviously be unfair to him since on April 13,
by substantial evidence, is a settled rule of administrative law. But whether there is 1965, when this case was filed, he had only four months left within which to bring the
substantial evidence supporting the finding of the Superintendent of Schools is precisely case to court. There was neither manner nor form of assurance that the decision of the
the issue in this case. The school official based his determination of the petitioner's age Director of Public Schools would be forthcoming. The rule on exhaustion of
on the pre-war records in the preparation of which the petitioner does not appear to administrative remedies does not apply where insistence on its observance would result
have taken a part. 7 On the other hand, the petitioner relies on post-war records which in the nullification of the claim being asserted. 12
he personally accomplished to prove the date of his birth. 8
Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.
It is our considered view that the lower court correctly relied upon the post-war records,
for three cogent reasons.
EN BANC
In the first place, as Moran states, although a person can have no personal knowledge of
[A.C. No. 533 . April 29, 1968.]
the date of his birth, he may testify as to his age as he had learned it from his parents IN RE: FLORENCIO MALLARE
and relatives and his testimony in such case is an assertion of a family Rosendo J. Tansisin for the respondent.
tradition. 9 Indeed, even in his application for back pay which he filed with the Hon. Commissioner of Immigration Martiniano P. Vivo for the
Department of Finance, through the Office of the Superintendent of Schools, on October complainant.
7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He
repeated the same assertion in 1956 and again in 1960 when he asked the Government
SYLLABUS
36
1. CIVIL LAW; MARRIAGE; PRESUMPTION OF MARRIAGE. Persons living together as vendees who were supposed to be Chinese citizens, and Special Proceeding No. 3925,
husband and wife are presumed to be married to each other (Rule 131, par. bb). Every an action for the correction of records of birth, are not modes of acquiring Philippine
intendment of law and fact leans towards the validity of marriage and the legitimacy of citizenship; neither is the citizenship of the respondent converted to Filipino because
children (Art. 220, Civil Code), certain government agencies recognized him as such. He remains, by jus sanguinis, a
Chinese until he is naturalized.
2. CITIZENSHIP; EVIDENCE; PROBATIVE VALUE OF LANDING CERTIFICATE, INADEQUATE.
A landing certificate issued under section 7 of Act 702 by the Collector of Customs is 8. ID.; APPEARANCE OF FISCAL IN A SPECIAL PROCEEDING TO CORRECT CITIZENSHIP IN A
based on an administrative ex parte determination of the evidence presented and the RECORD OF BIRTH; EFFECT. The appearance of the fiscal in a special proceeding for
facts as stated by the applicant. As such, it carries little evidentiary weight as to the the correction of respondents' records of birth does not bind the State to the order of the
citizenship of the applicant's spouse. correction thereof because the proceeding was not instituted as in rem and, under no
law had the State given its consent to be a party thereto.
3. ID.; AFFIDAVIT EXECUTED BY ONE CLAIMING ELECTION OF PHILIPPINE CITIZENSHIP,
SELF-SERVING. The affidavit executed by respondent's father stating that he elected DECISION
to be a Filipino when he reached the age of majority is not a substitute for a duly
recorded election of Philippine citizenship, assuming that the affiant was qualified to so REYES, J.B.L., J p:
elect. It is self-serving as it was executed for the purpose of making a change in a
miscellaneous lease application where he had previously stated that he is a citizen of
China; neither can it be regarded as a re-affirmation of an alleged election of citizenship The respondent, Florencio Mallare, was admitted to the practice of law on 5 March
since no such previous election was proved to have existed. 1962. In his verified petition to take the bar examinations in 1961, he alleged that he is a
citizen of the Philippines and that "his father is Esteban Mallare and his mother is Te Na,
both Filipino citizens". (Personal Record, No. 17450, Bar Division)
4. ID.; EXERCISE OF SUFFRAGE DOES NOT ALTER CITIZENSHIP. Registration as a voter
may indicate the person's desire to exercise a right appertaining exclusively to Filipino
citizens but this does not alter his real citizenship which in this jurisdiction is On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P. Vivo
determinable by blood (jus sanguinis). denounced the respondent to this Court as a Chinaman masquerading as a Filipino
citizen and requested that the matter be investigated thoroughly and if the respondent
fails to show that he has legally become a Filipino, steps be taken for striking his name
5. ID.; WHERE FATHER IS NOT A CITIZEN, ALL HIS CHILDREN REMAIN ALIENS, INCLUDING from the roll of persons authorized to practice law. Acting upon the request, this Court,
THE LATTER'S MOTHER. Where the evidence is clearly preponderant, if not on 9 August 1962, referred the matter to its Legal Officer-Investigator for investigation
overwhelming, that the respondent's father was and remained a Chinese, the and report. An investigation was thus held wherein the relator or complainant and the
respondent's mother, admittedly a Chinese retained her original citizenship and their respondent appeared and adduced their respective evidence.
offsprings, respondent included, are likewise Chinese nationals through and through.
The position of the respondent-lawyer is that he is a Filipino citizen based on the
6. ID.; CIVIL CASE FOR RESCISSION OF SALE AND RECOVERY OF LAND ON GROUND THAT supposed citizenship of his father, Esteban Mallare, alleged to be a Filipino citizen by
VENDEE IS A CHINESE, NOT RES JUDICATA ON ISSUE OF CITIZENSHIP. InCivil Case No. choice, because he was the illegitimate son of a Chinese father and a Filipina mother,
329-G against respondent and the latter's brothers and sisters to recover a piece of land Ana Mallare; and that the respondent's mother, Te Na, a Chinese, followed the citizenship
from them on the ground that they were Chinese the Court declared them to be natural of her husband upon their marriage.
born Filipinos and that the sale to them was valid. Such declaration did not constitute res
judicata. The pronouncement was not within the court's competence because the
declaration of citizenship was not the relief sought. Besides, at the time, the The respondent's second theory is that, having been declared a Filipino citizen in a final
pronouncement was beyond judicial power, there being no law authorizing the institution judgment in 1960 by the Court of First Instance of Quezon province, in its Civil Case No.
of a judicial proceeding to declare the citizenship of an individual. 329-G (entitled, Vitaliano Itable vs. Artemio, Florencio, Paciencia, Esperanza and
Raymundo Mallare) and his birth record, wherein he was originally registered as a
Chinese, has likewise been ordered corrected to Filipino, by final judgment in Special
7. ID.; ACTIONS TO BE DECLARED FILIPINO CITIZEN OTHER THAN BY NATURALIZATION; Proceeding No. 3925 of the same court, 1 his Filipino citizenship is conclusive,res
EFFECT. Civil Case No. 329-G, an action to declare invalid a deed of sale of land to judicata and binding to the government and to the world.
37
Complainant Vivo disputed, on the facts, the respondent's first theory, and, on the presented and the facts as stated by the applicant and, therefore, carries little
second theory, claimed that the aforestated Civil Case No. 329-G (Itable vs. Mallare) was evidentiary weight as to the citizenship of the applicant's husband. In the instant case,
a simulated action calculated to obtain a judicial declaration of Philippine citizenship the truth of Te Na's declarations when she applied for the landing certificate could have
and, after having obtained the said declaration, the respondent, together with his been inquired into had she been presented as a witness in these proceedings, but this
brothers and sisters, utilized the declaration to change their birth and alien registration was not done.
the better to hide their true nationality, which is Chinese.
The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a duly
The respondent denies the charge of simulating an action, and by way of defense, points recorded election of Philippine citizenship, assuming that the affiant was qualified to so
out that Civil Case No. 329-G and Special Proceeding No. 3925 are not subject to elect. When Esteban executed it, he was already thirty-six (36) years old and he
collateral attack and, since his birth record and alien registration (and that of his executed it for the purpose, stated in the last paragraph, of making a change in a
brothers and sisters) have been corrected and cancelled, respectively, the question of miscellaneous lease application wherein he had previously stated that he is a citizen of
their citizenship is now moot and academic. China. Nor can it be regarded as a re- affirmation of an alleged election of citizenship,
since no such previous election was proven to have existed.
On respondent's first claim to citizenship by blood, the earliest datum that can be stated
about the respondent's supposed ancestry is that in 1902, 2 ex-municipal president
Rafael Catarroja, then eight years old, met for the first time Ana Mallare, the supposed
paternal grandmother of the respondent, in Macalelon, Quezon. He had not seen her Esteban Mallare's registration as a voter indicates his desire to exercise a right
deliver or give birth to the baby boy, Esteban Mallare, father of the respondent, but met appertaining exclusively to Filipino citizens but this does not alter his real citizenship,
the supposed Filipina mother and Esteban Mallare years later when the boy was already which, in this jurisdiction, is determinable by his blood (jus sanguinis).
(8) years old. (Annex "8", pp. 10-12, t.s.n., Sept. 24, 1959, Civil Case No. 329-G, CFI of
Quezon Province). There is no evidence that Ana Mallarewas an "inhabitant of the Against these pretensions of Philippine citizenship, all the five (5) known children of the
Philippine Islands continuing to reside therein who was a Spanish subject on the eleventh spouses Esteban Mallare and Te Na, Artemio, Esperanza, Florencio, Paciencia and
day of April, eighteen hundred and ninety-nine", as required by the Philippine Bill of July Raymundo, were registered at birth as children of a Chinese father and a Chinese
1, 1902 and she cannot, therefore, be considered a Filipina. That witness Catarroja, the mother and with the added detail that their parents were born in China.
respondent, and the latter's brothers and sisters, stated that Ana Mallare was a Filipina,
as well as their testimonies in the civil case that she had not married her Chinese
husband and that she is the true mother of Esteban Mallare, are more of opinion or The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October 1939, is
conjecture than fact, utterly insufficient to overcome the presumption that persons living particularly significant in this regard, because it bears the father's own signature. If
together as husband and wife are married to each other (Rule 131, par bb). "Every Esteban Mallare was indeed a Filipino by choice, as stated by him in his aforementioned
intendment of law and fact", says Article 220 of our Civil Code "leans toward the validity affidavit (Annex 4), then he should have so stated in this birth certificate of his daughter;
of marriage and the legitimacy of children." instead, he admits, against his own interest, that he is a Chinese. Esteban Mallare's own
death certificate (Exh. "C"), over the signature of his son, Artemio Mallare, shows against
Artemio's own interest, that Esteban was a Chinese, born in Fookiang, China; that he
The respondent relies on three documents as indicative of the alleged Philippine died on 5 June 1945, at the age of 42 and was buried at the Chinese cemetery, having
citizenship of his father, Esteban Mallare. On 7 July 1926, Te Na, respondent's Chinese resided in the Philippines for 28 years (Exh. "C"), i.e., only since 1917.
mother, was described in a landing certificate of residence issued to her, as "wife of P.I.
citizen" and as "wife of Dy Esteban, P.I, citizen". (Annex "16", being Exh. "3" inCivil Case
No, 329-G). On 20 February 1939, Esteban Dy Mallare executed an affidavit stating The affidavit of Artemio denying that the signature in the aforesaid death certificate is
therein that when he reached the age of majority he had "definitely elected to be a his, is inadmissible and, therefore, should be rejected, as it was offered inevidence for
Filipino citizen following the citizenship of my mother." (Annex "4", being Exh. "1" in Civil the first time after trial was closed, as an annex to the respondent's memorandum with
Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter inMacalelon, the investigator. The affiant was not examined thereon, and the affidavit is self-serving
Quezon. (Annex "7", being Exh. "2" in Civil Case No, 329-G). besides.

A landing certificate of residence issued under Section 7, Act 702 by the Collector of The entire family, consisting of the father, mother and their four (4) children (Raymundo
Customs is based upon an administrative ex parte determination of the evidence was not yet born) were registered as aliens in 1942 in the then Division of Alien
38
Statistics, pursuant to the proclamation of the Commander-in-Chief of the Imperial Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring
Japanese Forces in the Philippines and Executive Order No. 25 of the then Executive Philippine citizenship; neither is the Chinese citizenship of the respondent converted to
Commission (See letter of Jan. 18, 1963 from the Bureau of Immigration to the Legal Filipino because certain government agencies recognized him as such. He remains,
Officer Investigator; see also pp. 171 and 180-181, Vol. 1, No. 4, Official Gazette, by jus sanguinis, a Chinese until he is naturalized.
published during Japanese occupation.)In addition, the respondent himself was again
registered as an alien in 1950, his application thereto bearing his thumbprints and It is noted that the declaration that the respondent and his brothers and sisters are
stating therein that he is a Chinese; that he belongs to the yellow race and that he had Filipino citizens is stated in the dispositive portion of the decision in Civil Case No. 329-G,
used these other names: "Tan Jua Gae", "Enciong" and "Jua Gao" (Exh. "N"). He had been which was an action in personam. The pronouncement was not within the court's
a teacher in the Candon Chinese School (t.s.n., p. 17, Oct. 3, 1962). His explanation that competence, because the declaration of the citizenship of these defendants was not the
it was his mother who registered him as an alien is flimsy; and, as stated hereinbefore, relief that was sought. At the time, the pronouncement was beyond judicial power, there
he did not present his mother as a witness. being no law authorizing the institution of a judicial proceeding to declare the citizenship
of an individual (Danilo Channie Tan v. Republic, L-14159, April 18, 1960; Palaran v.
The evidence is thus clearly preponderant, if not overwhelming that the respondent's Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan v.
father, Esteban Mallare or "Mallari", also known as "Esteban Dy", "Esteban DyMallare" Republic, L-16108, October 31, 1961; Santiago vs. Commissioner, L-14653, Jan. 31,
and "Esteban Tan", was and remained a Chinese until he died; consequently, the 1963; Commissioner vs. Domingo, L-21274, July 31, 1963; Lao Yap Diok, et al., v.
respondent's mother, admittedly a Chinese, retained her original citizenship and their Republic, L-19107-09, Sept. 30, 1964).
offspring, respondent, Florencio Mallare, together with his brothers and sisters, are
likewise Chinese nationals, through and through. In the basic case Channie Tan vs. Republic, ante, this Court ruled as follows:

We now turn to respondent's second defense of res judicata. There are certain marks of "Under our laws, there can be no action or proceeding for the judicial
simulation that attended Civil Case No. 329-G, and indicating that it was brought to declaration of the citizenship of an individual. Courts of justice exist for
circumvent a previous unfavorable opinion of the Secretary of Justice denying the settlement of justiciable controversies, which imply a given right,
cancellation of Mallare's alien registration (Op. No. (90, Ser. of 1955, dated March 31, legally demandable and enforceable, an act or omission violative of said
1955). The said civil case was instituted by the vendor (Vitaliano Itable) of a certain right, and a remedy granted or sanctioned by law, for said breach of
parcel of land to rescind the sale and recover the land sold from the vendees, who are right. As an incident only of the adjudication of the rights of the parties
the herein respondent and his brothers and sisters, on the ground that the said vendees to a controversy, the court may pass upon, and make a pronouncement
are Chinese. The vendor-plaintiff practically abandoned the case; the vendees- relative to, their status. Otherwise, such a pronouncement is beyond
defendants submitted evidence purporting to show their Filipino citizenship, and plaintiff judicial power. Thus, for instance, no action or proceeding may be
neither cross-examined nor presented rebuttal proof. After trial, the court, declaring the instituted for a declaration to the effect that plaintiff or petitioner is
vendees as natural-born Filipino citizens, decided for the validity of the sale of the parcel married, or single, or a legitimate child, although a finding thereon may
of land. be made as a necessary premise to justify a given relief available only to
one enjoying said status. At times, the law permits the acquisition of a
On the basis of the foregoing declaration by the Court of First Instance of Quezon given status, such as naturalization, by judicial decree. But, there is no
Province, the respondent and his brothers and sisters filed Special Proceeding No. similar legislation authorizing the institution of a judicial proceeding to
3925, in the same court, but in a different branch, for the "correction" of their birth declare that a given person is part of our citizenry." (Tan vs. Republic, G.
records. The local fiscal, representing the Solicitor General, appeared but did not oppose R. No. L-14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29,
the petition; wherefore, after hearing, the court granted the petition. Based on the same 1961).
judicial declaration, the then Commissioner of Immigration De la Rosa (not the
complainant) cancelled on June 8, 1960, the alien registration of the herein respondent The said judicial declaration 3 was merely an incident to the adjudication of the rights of
and that of his brothers and sisters, and issued to them identification certificates the parties to the controversy over land ownership. Their citizenship was not the thing
recognizing them as Filipino citizens. Then Solicitor General Alafriz took the same adjudicated in the judgment and the declaration that they are Filipinos was but a
position. necessary premise for the court to arrive at a conclusion that the sale of the realty was
valid as between the parties. Not being the thing directly adjudicated, their declared
citizenship is not res judicata, and cannot become conclusive.
39
The appearance of the fiscal, representing the Solicitor General, in Special Proceeding 1. LABOR AND SOCIAL LEGISLATIONS; LABOR LAW; NATIONAL LABOR RELATIONS
No. 3925 does not bind the state to the order of "correction" of the birth records because COMMISSION; FINDINGS OF FACT GENERALLY ENTITLED TO GREAT RESPECT; EXCEPTION.
the proceeding was not instituted as in rem and, under no law had the state given its Generally, the rule is that findings of fact of the NLRC are entitled to great respect. But
consent to be party thereto. For this reason, the fiscal's appearance was an unauthorized the judgment below can be reversed when public respondents have overlooked certain
one. significant facts, which are sufficient to alter the questioned decision.

It is noteworthy that in neither case relied upon by the respondent does it appear that 2. ID.; ID.; NATIONAL SEAMEN BOARD; ENTRIES IN VESSEL'S LOG BOOK ARE PRIMA
his claim for citizenship was given adequate publication so as to apprise all concerned FACIE EVIDENCE OF FACTS STATED THEREIN. In declaring that copy of the Official
and give them opportunity to contest it or supply the corresponding public office any Entry in the Ship's Log Book was not legally binding for being hearsay, public
derogatory data that might exist against the alleged citizenship. Hence, neither decision respondents overlooked the fact that under our laws the ship's captain is obligated to
constitutes res judicata on the issue of respondent's alleged Filipino nationality. keep a "log book" where, among others, he records the decisions he has adopted. Even
according to the law of the vessel's registry, that book is also "required by law" as
And certainly, the Supreme Court, acting pursuant to its inherent and constitutional disclosed by the entry itself. There is no controversy as to the genuineness of the said
authority, may not be precluded from inquiring into the citizenship of persons admitted entry. The vessel's log book is an official record and entries made by a person in the
to the practice of law, independent of any court's findings in the cases or proceedings performance of a duty required by law are prima facie evidence of the facts stated
brought or instituted therein. therein.

IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby declared 3. ID.; ID.; COMMISSION NOT PRECLUDED FROM TAKING INTO ACCOUNT EVIDENCE
excluded from the practice of law; his admission to the Philippine bar is revoked and he SUBMITTED ONLY ON APPEAL; TECHNICAL RULES OF EVIDENCE NOT STRICTLY
is hereby ordered to return immediately to this Court the lawyer's diploma previously FOLLOWED IN LABOR CASES. It is true that the Affidavits of Candelaria and Espiritu,
issued to him. dated April 4 & 11, 1983, were submitted only when the case was on appeal to the NLRC.
Still, that should not have precluded the NLRC from taking them into account. There was
Let a copy of this decision be furnished, when it becomes final, to me Secretary of plausible reason for the delay in the submittal of their Affidavits in that the affiants were
Justice, for such action as may be deemed warranted, and let another copy be sent to out of the country plying back and forth between the ports of the Far East and South and
the Local Civil Registrar of Macalelon, Quezon, for purposes of record in the West Africa during the period from March 12, 1982 to March 16, 1983. It was only after
corresponding civil registry of births. the expiration of their contract of employment that they returned to the Philippines and
executed their sworn statements before the Labor Arbiter. As the Labor Code specifically
provides, rules of evidence prevailing in Courts of law shall not be controlling and every
SO ORDERED. and all reasonable means to ascertain the facts in each case shall be used without
regard to technicalities.
FIRST DIVISION
[G.R. No. 65442. April 15, 1985.] 4. ID.; ID.; PROBATIVE VALUE OF ENTRIES IN LOG BOOK NOT OVERCOME BY PRIVATE
HAVERTON SHIPPING LTD. and OFSI SERVICES, RESPONDENT'S SUBMITTAL'S SERIOUS MISCONDUCT, JUST CAUSE FOR TERMINATION.
INC., petitioners, vs. THE NATIONAL LABOR RELATIONS The inevitable conclusion is that public respondents had misappreciated the significance
of the entry in the vessel's official log book regarding the incident. The probative value of
COMMISSION, THE HON. CRESENCIO M. SIDDAYAO, in his capacity the facts stated therein has not been overcome by BENITEZ's submittals. We are
as Officer-in-Charge of the NATIONAL SEAMEN BOARD and constrained to hold, therefore, that BENITEZ's actuations were tantamount to serious
ALFREDO BENITEZ, respondents. misconduct in connection with his work and is a just cause for termination of
Taada, Sanchez, Taada & Taada for petitioners. employment.
Legal Service (LACE) for respondents.
DECISION
SYLLABUS
MELENCIO-HERRERA, J p:
40
This Petition for Certiorari seeks to annul and set aside the Decision of the National Labor business to question me he being my immediate subordinate, but I
Relations Commission (First Division), dated August 17, 1983, affirming on appeal the answered him that he better go to sleep because he was drunk. Espiritu
Decision of the National Seamen's Board (NSB) in NSB Case No. 3716-82 entitled did not like my comment that he was drunk, he even called me some
"Alfredo Benitez, complainant, vs. Haverton Shipping Ltd. and OFSI Services, Inc., nasty words, then he went to the pantry, got a knife and attacked me.
respondents." The decretal portion of the NLRC Decision reads: Cdpr Candelaria tried to pacify him and separate us, in the process he was
able to hit me at the right eyelid and on my right hand, these (2) injuries
"WHEREFORE, all the foregoing premises considered, a decision is leaving scars on my hand and right eyelid. When Espiritu saw I was
hereby rendered ordering the respondents, jointly and severally to pay bleeding he ran away and locked himself in his cabin. After the incident
to complainant the sum of US DOLLARS FOUR THOUSAND SIX HUNDRED the 1st officer and 2nd officer came and asked me about the incident
SEVEN (US $4,607.00) or its equivalent in the Philippine Currency, as and I told them everything what had happened. The following morning I
salary for the unexpired portion of the employment contract. told the Captain of the ship of the incident. I told the Captain that
Espiritu and Candelaria were drunk, it was Espiritu who provoked me to a
"Counter-claim dismissed." 1 fight, it was Espiritu who got a knife and attacked me, I told him I did not
have any knife with me during the incident and I was not able to inflict
any injury on Espiritu as he was the one with a knife, and he and
On November 4, 1983, we issued a Temporary Restraining Order enjoining respondents Candelaria were grappling with the knife as Candelaria was trying to get
from enforcing said Decision. the knife from him. If ever Espiritu was injured, the same must have
been caused by the knife he was holding when Candelaria tried to get it
For resolution is the question of whether or not private respondent BENITEZ was from him." 2
terminated for just cause even before the expiration of his employment contract.
On the other hand, petitioners presented before the NSB a copy of the Official Entry in
The records show that on March 12, 1982, Alfredo BENITEZ was hired by OFSI Services, the Ship's Log Book, dated May 25, 1982, to wit:
the local manning agent of Haverton Shipping, as a boatswain on the M.V. Gold Alisa,
owned and operated by the latter, for a period of one year with a monthly salary of US "Place of Occurrence: Durban
$485.00. On May 24, 1982, while the vessel was berthed at the port of Durban, South
Africa, a fight occurred between BENITEZ and his shipmates, Arnel Candelaria and
Maximo Espiritu, as a result of which the latter suffered injury on the fingers of his left "Date of Occurrence: 24th and 25th May 1982
hand. An investigation of the incident was conducted by the Master who made a written
report of his findings and decision in the ship's "log book". BENITEZ was found to have "24th May 1982
breached the disciplinary code of merchant service on several counts among which was
"assault with a knife on a member of the ship's crews," which behavior "seriously 1800 Bosun Alfredo Benitez did not report for duty when his
detract(ed) from the safe and efficient working of the ship." He was then repatriated to watch commenced at 1800.
the Philippines after serving only two and a half months of his contract.
"25th May 1982
BENITEZ's version of the incident, as set forth in his Affidavit submitted to the NSB,
follows: 0200 It was reported to the Duty Officer, Mr. T. A. Andrews, that 'the

"On May 24, 1982, or thereabout, the ship M.V. Gold Alisa was in port at bosun had returned and that there were problems'. Mr. Andrews
Durban, South Africa, I asked permission from my officer for shore leave
and was granted. Espiritu and Candelaria went also on shore leave but proceeded to the crew messroom where he heard the bosun
they arrived ahead of me. At that time I arrived late for my duty and
upon arrival I changed on my working clothes to assume my work. I saw
Espiritu in the mess hall with Candelaria and I noticed they were drunk. shouting loudly, and in an obviously highly excitable state, at
Espiritu asked me why I did not work on my duty, though he has no
41
A/B's Maximo Espiritu and Arnel Candelaria. The second officer iii) Intimidation, and interference with the work of a
member of the ship's crew.
noticed blood on the bosun's shirt. The bosun was quietened and
iv) Behaviour which seriously detracts from the safe and
led to his cabin. The second officer applied first aid to two cuts efficient working of the ship.

on the fingers of Maximo Espiritu's left hand. (Later required two v) Behaviour which seriously detracts from the social well-
being of any other person on board. (Maximo Espiritu. The bosun
stitches each.) It was stated by Espiritu that the bosun had attacked had threatened 'to kill him'. Afterwards, Espiritu was too
frightened to sleep in his own cabin and had spent the night in
the cabin of a shipmate.)
him with a knife and that he had grabbed the knife, causing the cuts
"The master then asked Alfredo Benitez if he had anything to say.
on his fingers. Candelaria had then pulled the bosun away from
"Benitez replied that he admitted all the charges and that he was guilty
Espiritu. The master found the injuries consistent with this of wielding a knife towards Espiritu and that the attack had been
thwarted by Candelaria pulling him away. In mitigation he stated that he
allegation. had on the previous day received a letter from home which had
contained bad news; and this had placed him in a depressed state of
1100 The master received evidence from second officer T. A. Andrews. mind. Benitez stated that he regreted the incident.

1215 Hearing in the master's cabin. Present: The master, the chief "The master said that, while he was aware that the initial argument was
not solely caused by the bosun, his assault on Espiritu had nevertheless
officer, Bosun Alfredo Benitez and A/B's Maximo Espiritu and been no way to settle the dispute. The master found the bosun guilty of
all the charges and bearing in mind possible problems between Benitez
Arnel Candelaria. and the crew, especially during the long sea voyage to Singapore, the
master had no alternative but to dismiss Benitez immediately from his
service with the ship.
"Statements were received from the two A/B's, who were then asked to
leave.

"After a thorough and careful investigation of all the events, the master
found that the Disciplinary Code of the British Merchant Service, and of "Benitez' Account of Wages was drawn up and the sum of United States
the Filipino National Seaman's Board, to which Alfredo Benitez had Dollars 719.60 (Seven Hundred and Nineteen Dollars 60 cents,) the total
agreed when he signed the Crew Agreement and his Company Contract, payable under the account was paid to Benitez in cash. Arrangements
had been breached on the following counts. were made with the company's agents, Polaris Shipping, to receive
Benitez and arrange for his repatriation to Manila. Benitez was then
signed off the Crew Agreement." 3
i) Absent from duty.
On June 7, 1982, BENITEZ filed with the NSB a complaint for illegal dismissal and
ii) Assault with an offensive weapon (knife) on a member unlawful termination of contract. On the basis of the parties' position papers, decision
of the ship/s crew. was rendered adopting BENITEZ's version and ruling that the copy of the Official Entry in
the Ship's Log Book was "purely hearsay and could not legally be binding". 4The NLRC
42
also rejected the Affidavits of able seamen Candelaria and Espiritu for the reason that On the other hand, BENITEZ's claim that "(I)f ever Espiritu was injured, the same must
they were presented only when the case was already on appeal before it. LLjur have been caused by the knife he was holding when Candelaria tried to get it from him,"
stands uncorroborated. cdrep
Generally, the rule is that findings of fact of the NLRC are entitled to great respect. 5 But
the judgment below can be reversed when public respondents have overlooked certain Reliance was placed by the NSB on the Master's rating of BENITEZ upon his discharge
significant facts, which are sufficient to alter the questioned decision. 6 That situation that his ability and conduct was "very good," and that he was a good professional
confronts us now. man. 17 This rating was considered as offsetting the Master's entries in the log book,
The Master, J.B. Cullen of M.V. Gold Alisa, explained this, however, in a transmittal letter
In declaring that copy of the Official Entry in the Ship's Log Book was not legally binding dated June 10, 1982 to OFSI Services, thus: "Benitez in himself was not all that bad a
for being hearsay, public respondents overlooked the fact that under our laws the ship's person. But he had a few drinks ashore, and chose to settle his differences with a knife,
captain is obligated to keep a "log book" where, among others, he records the decisions which action is absolutely unacceptable aboard . . . Because I did not want to make
he has adopted. 7 Even according to the law of the vessel's registry, that book is also Benitez bear the consequences of this incident for the rest of his sea career, I did not
"required by law" as disclosed by the entry itself. 8 There is no controversy as to the make any specific remark in his Seaman's Book however, it goes without saying that
genuineness of the said entry. The vessel's log book is an official record and entries he should not under any circumstances be appointed to a Haverton vessel again." 18
made by a person in the performance of a duty required by law are prima facie evidence
of the facts stated therein. 9 In the light of all the foregoing, the inevitable conclusion is that public respondents had
misappreciated the significance of the entry in the vessel's official log book regarding the
That an investigation was conducted on the incident is admitted by BENITEZ. 10 The incident. The probative value of the facts stated therein has not been overcome by
reason, as stated in the entry, as to why BENITEZ was not given a copy before he BENITEZ's submittals.
disembarked from the vessel was that the vessel had sailed for Singapore on the same
day and it was not possible in the short time available to provide BENITEZ with a copy of We are constrained to hold, therefore, that BENITEZ's actuations were tantamount to
the entry. 11 serious misconduct in connection with his work and is a just cause for termination of
employment. 19 As a consequence, he is not entitled to any salary for the unexpired
The two cut wounds sustained by Espiritu in his fingers, which required two stitches portion of his employment contract. LLpr
each, conforms to his narration that BENITEZ lunged at him and tried to stab him with
the knife and that in protecting himself he held the blade of the knife with his left hand WHEREFORE, the Petition for Certiorari is granted, the questioned Decisions are
and injured himself. 12 As stated in the entry, "(T)he master found the injuries consistent REVERSED, and the complaint dismissed. The Temporary Restraining Order heretofore
with this allegation". 13 Candelaria's Affidavit 14 corroborates Espiritu's narrative of the issued is made permanent. No costs.
incident.
SO ORDERED.
It is true that the Affidavits of Candelaria and Espiritu, dated April 4 & 11, 1983, were
submitted only when the case was on appeal to the NLRC. Still, that should not have SPECIAL FIRST DIVISION
precluded the NLRC from taking them into account. There was plausible reason for the
delay in the submittal of their Affidavits in that the affiants were out of the country
[G.R. No. 127598. February 22, 2000.]
plying back and forth between the ports of the Far East and South and West Africa during MANILA ELECTRIC COMPANY, petitioner, vs. Hon. SECRETARY of
the period from March 12, 1982 to March 16, 1983. It was only after the expiration of LABOR LEONARDO QUISUMBING and MERALCO EMPLOYEES and
their contract of employment that they returned to the Philippines and executed their WORKERS ASSOCIATION (MEWA), respondents.
sworn statements before the Labor Arbiter. 15 As the Labor Code specifically provides, Rolando R. Arbues, Atilano S. Guevarra, Jr. and Marianito D.
rules of evidence prevailing in Courts of law shall not be controlling and every and all
reasonable means to ascertain the facts in each case shall be used without regard to Miranda for petitioner.
technicalities. 16 Siguion Reyna, Montecillo & Ongsiako for petitioner.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P.
Fernandez for Meralco Employees and Workers Association.
43
The Solicitor General for public respondent. easily made available considering that the same is necessary for compliance with
M. B. Tomacruz Law Office and Jesus S. Silo for First Line Asso. of certain governmental requirements.
Meralco Supervisory Employees.
2. LABOR AND SOCIAL LEGISLATION; LABOR STANDARDS; BASIS OF WAGE
DETERMINATION NEED NOT BE DISCUSSED. As mentioned in the January 27, 1999
SYNOPSIS Decision, the Court does "not seek to enumerate in this decision the factors that should
affect wage determination" because collective bargaining disputes particularly those
The Decision of the Court promulgated on January 27, 1999 modified the resolutions affecting the national interest and public service "requires due consideration and proper
made by the Secretary of Labor in favor of Meralco Employees. However, in view of the balancing of the interests of the parties to the dispute and of those who might be
motions for reconsideration filed, the Court herein reconsidered the matter of the affected by the dispute." The Court takes judicial notice that the new amounts granted
amount of wages and the retroactivity of the Collective Bargaining Agreement (CBA) herein are significantly higher than the weighted average salary currently enjoyed by
arbitral awards. other rank-and-file employees within the community. It should be noted that the
relations between labor and capital is impressed with public interest which must yield to
The 5.7 billion which was the Secretary of Labor's basis for granting the P2,200.00 wage the common good. Neither party should act oppressively against the other or impair the
increase is higher than the actual net income of 5.1 billion admitted by petitioner interest or convenience of the public. Besides, matters of salary increases are part of
Meralco. It would be proper then to increase the Court's award of P1,900 to P2,000 for management prerogative.
the two years of the CBA award. On the retroactivity of the CBA arbitral award, based on
the letter of petitioner's Chairman and President of the Board to their stockholders that 3. ID.; ARBITRATION; WHEN ARBITRAL AWARD IN A LABOR DISPUTE WHERE THE
the CBA "for the rank-and-file employees covering the period December 1, 1995 to SECRETARY HAD ASSUMED JURISDICTION SHALL RETROACT. Labor laws are silent as to
November 30, 1997 is still with the Supreme Court," the Court retroacts the subject CBA when an arbitral award in a labor dispute where the Secretary had assumed jurisdiction
awards to two years from said date as it is indicative of petitioner's recognition that the by virtue of Article 263 (g) of the Labor Code shall retroact. In general, a CBA negotiated
CBA award covers the said period. within six months after the expiration of the existing CBA retroacts to the day
immediately following such date and if agreed thereafter, the effectivity depends on the
SYLLABUS agreement of the parties. On the other hand, the law is silent as to the retroactivity of a
CBA arbitral award or that granted not by virtue of the mutual agreement of the parties
1. REMEDIAL LAW; EVIDENCE; RULES OF ADMISSIBILITY; COMMERCIAL LISTS AND THE but by intervention of the government. Despite the silence of the law, the Court rules
LIKE; REPORT RELIED UPON, NOT ADMISSIBLE. The All Asia Capital report upon which herein that CBA arbitral awards granted after six months from the expiration of the last
the Union relies to support its position regarding the wage issue can not be an accurate CBA shall retroact to such time agreed upon by both employer and the employees or
basis and conclusive determinant of the rate of wage increase. Under Section 45 of Rule their union. Absent such an agreement as to retroactivity, the award shall retroact to the
130 of the Rules of Evidence, statement of matters contained in a periodical may be first day after the six-month period following the expiration of the last day of the CBA
admitted only "if that compilation is published for use by persons engaged in that should there be one. In the absence of a CBA, the Secretary's determination of the date
occupation and is generally used and relied upon by them therein." As correctly held in of retroactivity as part of his discretionary powers over arbitral awards shall control. It is
our Decision dated January 27, 1999, the cited report is a mere newspaper account and true that an arbitral award cannot per se be categorized as an agreement voluntarily
not even a commercial list. At most, it is but an analysis or opinion which carries no entered into by the parties because it requires the interference and imposing power of
persuasive weight for purposes of this case as no sufficient figures to support it were the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral
presented. Neither did anybody testify to its accuracy. It cannot be said that award can be considered as an approximation of a collective bargaining agreement
businessmen generally rely on news items such as this in their occupation. Besides, no which would otherwise have been entered into by the parties. The terms or periods set
evidence was presented that the publication was regularly prepared by a person in touch forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would prevent
with the market and that it is generally regarded as trustworthy and reliable. Absent its application by analogy to an arbitral award by the Secretary considering the absence
extrinsic proof of their accuracy, these reports are not admissible. In the same manner, of an applicable law. Under Article 253-A: "(I)f any such agreement is entered into
newspapers containing stock quotations are not admissible in evidence when the source beyond six months, the parties shall agree on the duration of retroactivity thereof." In
of the reports is available. With more reason, mere analyses or projections of such other words, the law contemplates retroactivity whether the agreement be entered into
reports cannot be admitted. In particular, the source of the report in this case can be before or after the said six-month period. The agreement of the parties need not be
44
categorically stated for their acts may be considered in determining the duration of YNARES-SANTIAGO, J p:
retroactivity. IATSHE
In the Decision promulgated on January 27, 1999, the Court disposed of the case as
4. ID.; ID.; GRANT OF LOAN TO A COOPERATIVE; NOT JUSTIFIED. On the allegation follows: LLpr
concerning the grant of loan to a cooperative, there is no merit in the union's claim that
it is no different from housing loans granted by the employer. The award of loans for "WHEREFORE, the petition is granted and the orders of public
housing is justified because it pertains to a basic necessity of life. It is part of a privilege respondent Secretary of Labor dated August 19, 1996 and December 28,
recognized by the employer and allowed by law. In contrast, providing seed money for 1996 are set aside to the extent set forth above. The parties are directed
the establishment of the employee's cooperative is a matter in which the employer has to execute a Collective Bargaining Agreement incorporating the terms
no business interest or legal obligation. Courts should not be utilized as a tool to compel and conditions contained in the unaffected portions of the Secretary of
any person to grant loans to another nor to force parties to undertake an obligation Labor's orders of August 19, 1996 and December 28, 1996, and the
without justification. On the contrary, it is the government that has the obligation to modifications set forth above. The retirement fund issue is remanded to
render financial assistance to cooperatives and the Cooperative Code does not make it the Secretary of Labor for reception of evidence and determination of
an obligation of the employer or any private individual. the legal personality of the MERALCO retirement fund." 1

5. ID.; ID.; CONSULTATION WITH UNION IN CASES OF CONTRACTING OUT SERVICES FOR
SIX MONTHS OR MORE; REJECTED AS THE SAME IS MANAGEMENT PREROGATIVE. The
added requirement of consultation imposed by the Secretary in cases of contracting out The modifications of the public respondent's resolutions include the following:
for six (6) months or more has been rejected by the Court. Suffice it to say that the
employer is allowed to contract out services for six months or more. However, a line
must be drawn between management prerogatives regarding business operations per January 27, 1999 decision Secretary's resolution
se and those which affect the rights of employees, and in treating the latter, the
employer should see to it that its employees are at least properly informed of its decision Wages -P1,900.00 for 1995-96 P2,200
or modes of action in order to attain a harmonious labor-management relationship and
enlighten the workers concerning their rights. Hiring of workers is within the employer's X'mas bonus -modified to one month 2 months
inherent freedom to regulate and is a valid exercise of its management prerogative
subject only to special laws and agreements on the matter and the fair standards of Retirees -remanded to the Secretary granted
justice. The management cannot be denied the faculty of promoting efficiency and
attaining economy by a study of what units are essential for its operation. It has the Loan to coops -denied granted
ultimate determination of whether services should be performed by its personnel or
contracted to outside agencies. While there should be mutual consultation, eventually
deference is to be paid to what management decides. Contracting out of services is an GHSIP, HMP
exercise of business judgment or management prerogative. Absent proof that
management acted in a malicious or arbitrary manner, the Court will not interfere with and Housing loans -granted up to P60,000.00 granted
the exercise of judgment by an employer. As mentioned in the January 27, 1999
Decision, the law already sufficiently regulates this matter. Jurisprudence also provides Signing bonus -denied granted
adequate limitations, such that the employer must be motivated by good faith and the
contracting out should not be resorted to circumvent the law or must not have been the Union leave -40 days (typo error) 30 days
result of malicious or arbitrary actions. These are matters that may be categorically
determined only when an actual suit on the matter arises. High voltage/pole -not apply to those who are members of a team

RESOLUTION not exposed to the risk


45
Collectors -no need for cash bond, no "Commercial lists and the like. Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register,
need to reduce quota and MAPL periodical, or other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that compilation is
CBU -exclude confidential employees include published for use by persons engaged in that occupation and is
generally used and relied upon by them therein."
Union security -maintenance of membership closed shop
Under the afore-quoted rule, statement of matters contained in a periodical may be
admitted only "if that compilation is published for use by persons engaged in that
Contracting out -no need to consult union consult first occupation and is generally used and relied upon by them therein." As correctly held in
our Decision dated January 27, 1999, the cited report is a mere newspaper account and
All benefits -existing terms and conditions all terms not even a commercial list. At most, it is but an analysis or opinion which carries no
persuasive weight for purposes of this case as no sufficient figures to support it were
Retroactivity -Dec. 28, 1996-Dec. 27, 199(9) from Dec 1, 1995 presented. Neither did anybody testify to its accuracy. It cannot be said that
businessmen generally rely on news items such as this in their occupation. Besides, no
Dissatisfied with the Decision, some alleged members of private respondent union evidence was presented that the publication was regularly prepared by a person in touch
(Union for brevity) filed a motion for intervention and a motion for reconsideration of the with the market and that it is generally regarded as trustworthy reliable. Absent extrinsic
said Decision. A separate intervention was likewise made by the supervisor's union proof of their accuracy, these reports are not admissible. 6 In the same manner,
(FLAMES 2 ) of petitioner corporations alleging that it has bona fide legal interest in the newspapers containing stock quotations are not admissible in evidence when the source
outcome of the case. 3 The Court required the "proper parties" to file a comment to the of the reports is available. 7 With more reason, mere analyses or projections of such
three motions for reconsideration but the Solicitor-General asked that he be excused reports cannot be admitted. In particular, the source of the report in this case can be
from filing the comment because the petition filed in the instant case was granted by the easily made available considering that the same is necessary for compliance with certain
Court. 4 Consequently, petitioner filed its own consolidated comment. An "Appeal governmental requirements. cda
Seeking Immediate Reconsideration" was also filed by the alleged newly elected
president of the Union. 5 Other subsequent pleadings were filed by the parties and Nonetheless, by petitioner's own allegations, its actual total net income for 1996 was
intervenors. P5.1 billion. 8 An estimate by the All Asia financial analyst stated that petitioner's net
operating income for the same year was about P5.7 billion, a figure which the Union
The issues raised in the motions for reconsideration had already been passed upon by relies on to support its claim. Assuming without admitting the truth thereof, the figure is
the Court in the January 27, 1999 decision. No new arguments were presented for higher than the P4.171 billion allegedly suggested by petitioner as its projected net
consideration of the Court. Nonetheless, certain matters will be considered herein operating income. The P5.7 billion which was the Secretary's basis for granting the
particularly those involving the amount of wages and the retroactivity of the Collective P2,200.00 is higher than the actual net income of P5.1 billion admitted by petitioner. It
Bargaining Agreement (CBA) arbitral awards. would be proper then to increase this Court's award of P1,900.00 to P2,000.00 for the
two years of the CBA award. For 1992, the agreed CBA wage increase for rank-and-file
Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the was P1,400.00 and was reduced to P1,350.00, for 1993; further reduced to P1,150.00 for
Secretary is allowed it would simply pass the cost covering such increase to the 1994. For supervisory employees, the agreed wage increase for the years 1992-1994 are
consumers through an increase in the rate of electricity. This is a non sequitur. The Court P1,742.50, P1,682.50 and P1,442.50, respectively. Based on the foregoing figures, the
cannot be threatened with such a misleading argument. An increase in the prices of P2,000.00 increase for the two-year period awarded to the rank-and-file is much higher
electric current needs the approval of the appropriate regulatory government agency than the highest increase granted to supervisory employees. 9 As mentioned in the
and does not automatically result from a mere increase in the wages of petitioner's January 27, 1999 Decision, the Court does "not seek to enumerate in this decision the
employees. Besides this argument presupposes that petitioner is capable of meeting a factors that should affect wage determination" because collective bargaining disputes
wage increase. The All Asia Capital report upon which the Union relies to support its particularly those affecting the national interest and public service "requires due
position regarding the wage issue can not be an accurate basis and conclusive consideration and proper balancing of the interests of the parties to the dispute and of
determinant of the rate of wage increase. Section 45 of Rule 130 Rules of Evidence those who might be affected by the dispute." 10 The Court takes judicial notice that the
provides: new amounts granted herein are significantly higher than the weighted average salary
46
currently enjoyed by other rank-and-file employees within the community. It should be In the 1997 case of Mindanao Terminal, 17 the Court applied the St. Luke's doctrine
noted that the relations between labor and capital is impressed with public interest and ruled that:
which must yield to the common good. 11 Neither party should act oppressively against
the other or impair the interest or convenience of the public. 12 Besides, matters of "In St. Luke's Medical Center v. Torres, a deadlock also developed during
salary increases are part of management prerogative. 13 the CBA negotiations between management and the union. The
Secretary of Labor assumed jurisdiction and ordered the retroaction of
On the retroactivity of the CBA arbitral award, it is well to recall that this petition had its the CBA to the date of expiration of the previous CBA. As in this case, it
origin in the renegotiation of the parties' 1992-1997 CBA insofar as the last two-year was alleged that the Secretary of Labor gravely abused its discretion in
period thereof is concerned. When the Secretary of Labor assumed jurisdiction and making his award retroactive. In dismissing this contention this Court
granted the arbitral awards, there was no question that these arbitral awards were to be held:
given retroactive effect. However, the parties dispute the reckoning period when
retroaction shall commence. Petitioner claims that the award should retroact only from "Therefore, in the absence of a specific provision of law
such time that the Secretary of Labor rendered the award, invoking the 1995 decision prohibiting retroactive of the effectivity of arbitral awards issued
in Pier 8 case 14 where the Court citing Union of Filipino Employees v. NLRC, 15 said: by the Secretary of Labor pursuant to Article 263(g) of the Labor
Code, such as herein involved, public respondent is deemed
"The assailed resolution which incorporated the CBA to be signed by the vested with plenary and discretionary powers to determine the
parties was promulgated on June 5, 1989, the expiry date of the past effectivity thereof."
CBA. Based on the provision of Section 253-A, its retroactivity should be
agreed upon by the parties. But since no agreement to that effect was
made, public respondent did not abuse its discretion in giving the said
CBA a prospective effect. The action of the public respondent is within The Court in the January 27, 1999 Decision, stated that the CBA shall be "effective for a
the ambit of its authority vested by existing law." period of 2 years counted from December 28, 1996 up to December 27, 1999."
Parenthetically, this actually covers a three-year period. Labor laws are silent as to when
On the other hand, the Union argues that the award should retroact to such time granted an arbitral award in a labor dispute where the Secretary had assumed jurisdiction by
by the Secretary, citing the 1993 decision of St. Luke's. 16 virtue of Article 263 (9) of the Labor Code shall retroact. In general, a CBA negotiated
within six months after the expiration of the existing CBA retroacts to the day
"Finally, the effectivity of the Order of January 28, 1991, must retroact to immediately following such date and if agreed thereafter, the effectivity depends on the
the date of the expiration of the previous CBA, contrary to the position of agreement of the parties. 18 On the other hand, the law is silent as to the retroactivity of
petitioner. Under the circumstances of the case, Article 253-A cannot be a CBA arbitral award or that granted not by virtue of the mutual agreement of the
properly applied to herein case. As correctly stated by public respondent parties but by intervention of the government. Despite the silence of the law, the Court
in his assailed Order of April 12, 1991 dismissing petitioner's Motion for rules herein that CBA arbitral awards granted after six months from the expiration of the
Reconsideration last CBA shall retroact to such time agreed upon by both employer and the employees or
their union. Absent such an agreement as to retroactivity, the award shall retroact to the
Anent the alleged lack of basis for the retroactivity provisions first day after the six-month period following the expiration of the last day of the CBA
awarded, we would stress that the provision of law invoked by the should there be one. In the absence of a CBA, the Secretary's determination of the date
Hospital, Article 253-A of the Labor Code, speaks of agreements of retroactivity as part of his discretionary powers over arbitral awards shall control.
by and between the parties, and not arbitral awards . . .
It is true that an arbitral award cannot per se be categorized as an agreement voluntarily
"Therefore, in the absence of a specific provision of law prohibiting entered into by the parties because it requires the interference and imposing power of
retroactivity of the effectivity of arbitral awards issued by the Secretary the State thru the Secretary of Labor when he assumes jurisdiction. However, the arbitral
of Labor pursuant to Article 263(g) of the Labor Code, such as herein award can be considered as an approximation of a collective bargaining agreement
involved, public respondent is deemed vested with plenary and which would otherwise have been entered into by the parties. 19 The terms or periods
discretionary powers to determine the effectivity thereof." set forth in Article 253-A pertains explicitly to a CBA. But there is nothing that would
47
prevent its application by analogy to an arbitral award by the Secretary considering the efficiency and attaining economy by a study of what units are essential for its
absence of an applicable law. Under Article 253-A: "(I)f any such agreement is entered operation. It has the ultimate determination of whether services should be performed by
into beyond six months, the parties shall agree on the duration of retroactivity thereof." its personnel or contracted to outside agencies. While there should be mutual
In other words, the law contemplates retroactivity whether the agreement be entered consultation, eventually deference is to be paid to what management
into before or after the said six-month period. The agreement of the parties need not be decides. 25 Contracting out of services is an exercise of business judgment or
categorically stated for their acts may be considered in determining the duration of management prerogative. 26 Absent proof that management acted in a malicious or
retroactivity. In this connection, the Court considers the letter of petitioner's Chairman of arbitrary manner, the Court will not interfere with the exercise of judgment by an
the Board and its President addressed to their stockholders, which states that the CBA employer. 27 As mentioned in the January 27, 1999 Decision, the law already sufficiently
"for the rank-and-file employees covering the period December 1, 1995 to November 30, regulates this matter. 28 Jurisprudence also provides adequate limitations, such that the
1997 is still with the Supreme Court," 20 as indicative of petitioner's recognition that the employer-must be motivated by good faith and the contracting out should not be
CBA award covers the said period. Earlier, petitioner's negotiating panel transmitted to resorted to circumvent the law or must not have been the result of malicious or arbitrary
the Union a copy of its proposed CBA covering the same period inclusive. 21 In addition, actions. 29 These are matters that may be categorically determined only when an actual
petitioner does not dispute the allegation that in the past CBA arbitral awards, the suit on the matter arises.
Secretary granted retroactivity commencing from the period immediately following the
last day of the expired CBA. Thus, by petitioner's own actions, the Court sees no reason WHEREFORE, the motion for reconsideration is PARTIALLY GRANTED and the assailed
to retroact the subject CBA awards to a different date. The period is herein set at two (2) Decision is MODIFIED as follows: (1) the arbitral award shall retroact from December 1,
years from December 1, 1995 to November 30, 1997. 1995 to November 30, 1997; and (2) the award of wage is increased from the original
amount of One Thousand Nine Hundred Pesos (P1,900.00) to Two Thousand Pesos
On the allegation concerning the grant of loan to a cooperative, there is no merit in the (P2,000.00) for the years 1995 and 1996. This Resolution is subject to the monetary
union's claim that it is no different from housing loans granted by the employer. The advances granted by petitioner to its rank-and-file employees during the pendency of
award of loans for housing is justified because it pertains to a basic necessity of life. It is this case assuming such advances had actually been distributed to them. The assailed
part of a privilege recognized by the employer and allowed by law. In contrast, providing Decision is AFFIRMED in all other respects.
seed money for the establishment of the employee's cooperative is a matter in which the
employer has no business interest or legal obligation. Courts should not be utilized as a SO ORDERED. cdtai
tool to compel any person to grant loans to another nor to force parties to undertake an
obligation without justification. On the contrary, it is the government that has the
obligation to render financial assistance to cooperatives and the Cooperative Code does
THIRD DIVISION
not make it an obligation of the employer or any private individual. 22 [G.R. No. 150157. January 25, 2007.]
MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES,
Anent the 40-day union leave, the Court finds that the same is a typographical error. In INC., petitioners, vs. MODESTO CALAUNAN, respondent.
order to avoid any confusion, it is herein declared that the union leave is only thirty (30) DECISION
days as granted by the Secretary of Labor and affirmed in the Decision of this Court.
CHICO-NAZARIO, J p:
The added requirement of consultation imposed by the Secretary in cases of contracting
out for six (6) months or more has been rejected by the Court. Suffice it to say that the Assailed before Us is the decision 1 of the Court of Appeals in CA-G.R. CV No. 55909
employer is allowed to contract out services for six months or more. However, a line which affirmed in toto the decision 2 of the Regional Trial Court (RTC) of Dagupan City,
must be drawn between management prerogatives regarding business operations per Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio Manliclic and Philippine
se and those which affect the rights of employees, and in treating the latter, the Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorney's fees to
employer should see to it that its employees are at least properly informed of its decision respondent Modesto Calaunan.
or modes of action in order to attain a harmonious labor-management relationship and
enlighten the workers concerning their rights. 23 Hiring of workers is within the
employer's inherent freedom to regulate and is a valid exercise of its management The factual antecedents are as follows:
prerogative subject only to special laws and agreements on the matter and the fair
standards of justice. 24 The management cannot be denied the faculty of promoting
48
The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate 6. That the weather was fair and the road was well paved and straight,
number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; although there was a ditch on the right side where the jeep fell into. 3
and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto
Calaunan and driven by Marcelo Mendoza. When the civil case was heard, counsel for respondent prayed that the transcripts of
stenographic notes (TSNs) 4 of the testimonies of respondent Calaunan, Marcelo
At around 6:00 to 7:00 o'clock in the morning of 12 July 1988, respondent Calaunan, Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil
together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his case in as much as these witnesses are not available to testify in the civil case.
owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from
Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad
Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of sometime in November, 1989 and has not returned since then. Rogelio Ramos took the
the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work.
the shoulder on the right and then fall on a ditch with water resulting to further Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to look
extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of for a job. She narrated that she thought her husband went to his hometown in Panique,
collision. Tarlac, when he did not return after one month. She went to her husband's hometown to
look for him but she was informed that he did not go there.
Respondent suffered minor injuries while his driver was unhurt. He was first brought for
treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the
conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies
Memorial Medical Center. of respondent Calaunan, 5 Marcelo Mendoza 6 and Fernando Ramos 7 in said case,
together with other documentary evidence marked therein. Instead of the Branch Clerk
By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the
charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property court and identified the TSNs of the three afore-named witnesses and other pertinent
with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2 documents he had brought. 8 Counsel for respondent wanted to mark other TSNs and
December 1991, respondent filed a complaint for damages against petitioners Manliclic documents from the said criminal case to be adopted in the instant case, but since the
and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D-10086. The same were not brought to the trial court, counsel for petitioners compromised that said
criminal case was tried ahead of the civil case. Among those who testified in the criminal TSNs and documents could be offered by counsel for respondent as rebuttal evidence.
case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. HICSaD
For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The
In the civil case (now before this Court), the parties admitted the following: TSN 9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case
No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground that
1. The parties agreed on the capacity of the parties to sue and be sued he was already dead.
as well as the venue and the identities of the vehicles involved;
Respondent further marked, among other documents, as rebuttal evidence, the
2. The identity of the drivers and the fact that they are duly licensed; TSNs 10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in
Criminal Case No. 684-M-89.
3. The date and place of the vehicular collision;
The disagreement arises from the question: Who is to be held liable for the collision?
4. The extent of the injuries suffered by plaintiff Modesto Calaunan and
the existence of the medical certificate; Respondent insists it was petitioner Manliclic who should be liable while the latter is
resolute in saying it was the former who caused the smash up. TEDaAc
5. That both vehicles were going towards the south; the private jeep
being ahead of the bus; The versions of the parties are summarized by the trial court as follows:
49
The parties differed only on the manner the collision between the two (2) exemplary damages and P15,000.00 as attorney's fees, including
vehicles took place. According to the plaintiff and his driver, the jeep was appearance fees of the lawyer. In addition, the defendants are also to
cruising at the speed of 60 to 70 kilometers per hour on the slow lane of pay costs. 12
the expressway when the Philippine Rabbit Bus overtook the jeep and in
the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear Petitioners appealed the decision via Notice of Appeal to the Court of Appeals. 13
of the jeep on the left side. At the time the Philippine Rabbit Bus hit the
jeep, it was about to overtake the jeep. In other words, the Philippine In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error
Rabbit Bus was still at the back of the jeep when the jeep was hit. in the decision of the trial court, affirmed it in all respects. 14
Fernando Ramos corroborated the testimony of the plaintiff and Marcelo
Mendoza. He said that he was on another jeep following the Philippine
Rabbit Bus and the jeep of plaintiff when the incident took place. He Petitioners are now before us by way of petition for review assailing the decision of the
said, the jeep of the plaintiff overtook them and the said jeep of the Court of Appeals. They assign as errors the following:
plaintiff was followed by the Philippine Rabbit Bus which was running
very fast. The bus also overtook the jeep in which he was riding. After I
that, he heard a loud sound. He saw the jeep of the plaintiff swerved to
the right on a grassy portion of the road. The Philippine Rabbit Bus THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
stopped and they overtook the Philippine Rabbit Bus so that it could not THE TRIAL COURT'S QUESTIONABLE ADMISSION IN EVIDENCE OF THE
moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. TSN's AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL
He testified that the jeep of plaintiff swerved to the right because it was CASE. EaCSTc
bumped by the Philippine Rabbit bus from behind.
II
Both Mauricio Manliclic and his driver, Oscar Buan admitted that the
Philippine Rabbit Bus bumped the jeep in question. However, they THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
explained that when the Philippine Rabbit bus was about to go to the left THE TRIAL COURT'S RELIANCE ON THE VERSION OF THE RESPONDENT
lane to overtake the jeep, the latter jeep swerved to the left because it ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED.
was to overtake another jeep in front of it. Such was their testimony
before the RTC in Malolos in the criminal case and before this Court in III
the instant case. [Thus, which of the two versions of the manner how the
collision took place was correct, would be determinative of who between
the two drivers was negligent in the operation of their respective THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
vehicles.] 11 THE TRIAL COURT'S UNFAIR DISREGARD OF HEREIN PETITIONER PRBL's
DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF ITS EMPLOYEES.
Petitioner PRBLI maintained that it observed and exercised the diligence of a good father
of a family in the selection and supervision of its employee, specifically petitioner
Manliclic. IV

On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING
against petitioners Manliclic and PRBLI. The dispositive portion of its decision reads: THE TRIAL COURT'S QUESTIONABLE AWARD OF DAMAGES AND
ATTORNEY'S FEE.
WHEREFORE, judgment is rendered in favor of the plaintiff and against
the defendants ordering the said defendants to pay plaintiff jointly and With the passing away of respondent Calaunan during the pendency of this appeal with
solidarily the amount of P40,838.00 as actual damages for the towing as this Court, we granted the Motion for the Substitution of Respondent filed by his wife,
well as the repair and the materials used for the repair of the jeep in Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita
question; P100,000.00 as moral damages and another P100,000.00 as Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan. 15
50
In the case at bar, petitioner PRBLI did not object to the TSNs containing the
testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the
In their Reply to respondent's Comment, petitioners informed this Court of a criminal case when the same were offered in evidence in the trial court. In fact, the TSNs
Decision 16 of the Court of Appeals acquitting petitioner Manliclic of the charge 17 of of the testimonies of Calaunan and Mendoza were admitted by both
Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching petitioners. 26 Moreover, petitioner PRBLI even offered in evidence the TSN containing
thereto a photocopy thereof. the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the
TSNs of the testimonies of plaintiff's witnesses in the criminal case should not be
On the first assigned error, petitioners argue that the TSNs containing the testimonies of admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban
respondent Calaunan, 18 Marcelo Mendoza 19 and Fernando Ramos 20 should not be which was given in the criminal case? It appears that petitioner PRBLI wants to have its
admitted in evidence for failure of respondent to comply with the requisites of Section cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of
47, Rule 130 of the Rules of Court. the adverse party in the criminal case should not be admitted and at the same time
insist that the TSN of the testimony of the witness for the accused be admitted in its
favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan,
For Section 47, Rule 130 21 to apply, the following requisites must be satisfied: (a) the Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the
witness is dead or unable to testify; (b) his testimony or deposition was given in a former testimony of Ganiban would be unfair. ASHEca
case or proceeding, judicial or administrative, between the same parties or those
representing the same interests; (c) the former case involved the same subject as that in
the present case, although on different causes of action; (d) the issue testified to by the We do not subscribe to petitioner PRBLI's argument that it will be denied due process
witness in the former trial is the same issue involved in the present case; and (e) the when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in
adverse party had an opportunity to cross-examine the witness in the former case. 22 the criminal case are to be admitted in the civil case. It is too late for petitioner PRBLI to
raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a
ground for objecting to the admissibility of the TSNs. For failure to object at the proper
Admittedly, respondent failed to show the concurrence of all the requisites set forth by time, it waived its right to object that the TSNs did not comply with Section 47.
the Rules for a testimony given in a former case or proceeding to be admissible as an
exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No.
684-M-89, had no opportunity to cross-examine the three witnesses in said case. The In Mangio v. Court of Appeals, 27 this Court, through Associate Justice Reynato S.
criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLI's Puno, 28 admitted in evidence a TSN of the testimony of a witness in another case
employee. The cases dealing with the subsidiary liability of employers uniformly declare despite therein petitioner's assertion that he would be denied due process. In admitting
that, strictly speaking, they are not parties to the criminal cases instituted against their the TSN, the Court ruled that the raising of denial of due process in relation to Section
employees. 23 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the
TSN was belatedly done. In so doing, therein petitioner waived his right to object based
on said ground.
Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the
testimonies of the three witnesses are still admissible on the ground that petitioner
PRBLI failed to object on their admissibility. Petitioners contend that the documents in the criminal case should not have been
admitted in the instant civil case because Section 47 of Rule 130 refers only to
"testimony or deposition." We find such contention to be untenable. Though said section
It is elementary that an objection shall be made at the time when an alleged speaks only of testimony and deposition, it does not mean that documents from a former
inadmissible document is offered in evidence; otherwise, the objection shall be treated case or proceeding cannot be admitted. Said documents can be admitted they being
as waived, since the right to object is merely a privilege which the party may waive. part of the testimonies of witnesses that have been admitted. Accordingly, they shall be
Thus, a failure to except to the evidence because it does not conform to the statute is a given the same weight as that to which the testimony may be entitled. 29
waiver of the provisions of the law. Even assuming ex gratia argumenti that these
documents are inadmissible for being hearsay, but on account of failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts On the second assigned error, petitioners contend that the version of petitioner Manliclic
therein asserted. 24 Hearsay evidence alone may be insufficient to establish a fact in a as to how the accident occurred is more credible than respondent's version. They anchor
suit but, when no objection is made thereto, it is, like any other evidence, to be their contention on the fact that petitioner Manliclic was acquitted by the Court of
considered and given the importance it deserves. 25 Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with
Physical Injuries.
51
To be resolved by the Court is the effect of petitioner Manliclic's acquittal in the civil "9. That defendant Philippine Rabbit Bus Line Corporation failed to
case. exercise the diligence of a good father of (sic) family in the selection and
supervision of its drivers; . . ." 31
From the complaint, it can be gathered that the civil case for damages was one arising
from, or based on, quasi-delict. 30 Petitioner Manliclic was sued for his negligence or Can Manliclic still be held liable for the collision and be found negligent notwithstanding
reckless imprudence in causing the collision, while petitioner PRBLI was sued for its the declaration of the Court of Appeals that there was an absence of negligence on his
failure to exercise the diligence of a good father in the selection and supervision of its part?
employees, particularly petitioner Manliclic. The allegations read:
In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:
"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on
board the above-described motor vehicle travelling at a moderate speed To the following findings of the court a quo, to wit: that accused-
along the North Luzon Expressway heading South towards Manila appellant was negligent "when the bus he was driving bumped the jeep
together with MARCELO MENDOZA, who was then driving the same; from behind"; that "the proximate cause of the accident was his having
driven the bus at a great speed while closely following the jeep"; . . .
"5. That approximately at kilometer 40 of the North Luzon Express Way,
the above-described motor vehicle was suddenly bumped from behind We do not agree.
by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478
then being driven by one Mauricio Manliclic of San Jose, Concepcion, The swerving of Calaunan's jeep when it tried to overtake the vehicle in
Tarlac, who was then travelling recklessly at a very fast speed and had front of it was beyond the control of accused-appellant. ECDaAc
apparently lost control of his vehicle;
xxx xxx xxx
"6. That as a result of the impact of the collision the above-described
motor vehicle was forced off the North Luzon Express Way towards the
rightside where it fell on its driver's side on a ditch, and that as a Absent evidence of negligence, therefore, accused-appellant cannot be
consequence, the above-described motor vehicle which maybe valued at held liable for Reckless Imprudence Resulting in Damage to Property
EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as with Physical Injuries as defined in Article 365 of the Revised Penal
shown by pictures to be presented during the pre-trial and trial of this Code. 32
case;
From the foregoing declaration of the Court of Appeals, it appears that petitioner
"7. That also as a result of said incident, plaintiff sustained bodily injuries Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the
which compounded plaintiff's frail physical condition and required his author of the act complained of which is based on Section 2 (b) of Rule 111 of the Rules
hospitalization from July 12, 1988 up to and until July 22, 1988, copy of of Criminal Procedure which reads:
the medical certificate is hereto attached as Annex "A" and made an
integral part hereof; (b) Extinction of the penal action does not carry with it extinction of the
civil, unless the extinction proceeds from a declaration in a final
"8. That the vehicular collision resulting in the total wreckage of the judgment that the fact from which the civil might arise did not exist.
above-described motor vehicle as well as bodily (sic) sustained by
plaintiff, was solely due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a
fast speed without due regard or observance of existing traffic rules and In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The
regulations; afore-quoted section applies only to a civil action arising from crime or ex delictoand not
to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers
52
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas (1) the conclusion is a finding grounded entirely on speculation, surmise
the civil liability for the same act considered as a quasi-delict only and not as a crime is and conjecture; (2) the inference made is manifestly mistaken; (3) there
not extinguished even by a declaration in the criminal case that the criminal act charged is grave abuse of discretion; (4) the judgment is based on a
has not happened or has not been committed by the accused.33 misapprehension of facts; (5) the findings of fact are conflicting; (6) the
Court of Appeals went beyond the issues of the case and its findings are
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a contrary to the admissions of both appellant and appellees; (7) the
substantivity all its own, and individuality that is entirely apart and independent from a findings of fact of the Court of Appeals are contrary to those of the trial
delict or crime a distinction exists between the civil liability arising from a crime and court; (8) said findings of fact are conclusions without citation of specific
the responsibility for quasi-delicts or culpa extra-contractual. The same negligence evidence on which they are based; (9) the facts set forth in the petition
causing damages may produce civil liability arising from a crime under the Penal Code, as well as in the petitioner's main and reply briefs are not disputed by
or create an action for quasi-delicts or culpa extra-contractual under the Civil Code. 34 It the respondents; and (10) the findings of fact of the Court of Appeals are
is now settled that acquittal of the accused, even if based on a finding that he is not premised on the supposed absence of evidence and contradicted by the
guilty, does not carry with it the extinction of the civil liability based on quasi delict. 35 evidence on record. 39

In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil After going over the evidence on record, we do not find any of the exceptions that would
liability arising from the crime may be proved by preponderance of evidence only. warrant our departure from the general rule. We fully agree in the finding of the trial
However, if an accused is acquitted on the basis that he was not the author of the act or court, as affirmed by the Court of Appeals, that it was petitioner Manliclic who was
omission complained of (or that there is declaration in a final judgment that the fact from negligent in driving the PRBLI bus which was the cause of the collision. In giving
which the civil might arise did not exist), said acquittal closes the door to civil liability credence to the version of the respondent, the trial court has this say:
based on the crime or ex delicto. In this second instance, there being no crime
or delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, . . . Thus, which of the two versions of the manner how the collision took
a civil action, if any, may be instituted on grounds other than the delict complained of. place was correct, would be determinative of who between the two
drivers was negligent in the operation of their respective vehicle. aIcSED
As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be
extinguished by an acquittal, whether it be on ground of reasonable doubt or that In this regard, it should be noted that in the statement of Mauricio
accused was not the author of the act or omission complained of (or that there is Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV
declaration in a final judgment that the fact from which the civil liability might arise did Cabading no mention was made by him about the fact that the driver of
not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely the jeep was overtaking another jeep when the collision took place. The
separate and distinct from the civil liability arising from negligence under the Penal allegation that another jeep was being overtaken by the jeep of
Code. 36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil Calaunan was testified to by him only in Crim. Case No. 684-M-89 before
case 37 based on quasi-delict or culpa aquiliana. the Regional Trial Court in Malolos, Bulacan and before this Court.
Evidently, it was a product of an afterthought on the part of Mauricio
Petitioners ask us to give credence to their version of how the collision occurred and to Manliclic so that he could explain why he should not be held responsible
disregard that of respondent's. Petitioners insist that while the PRBLI bus was in the for the incident. His attempt to veer away from the truth was also
process of overtaking respondent's jeep, the latter, without warning, suddenly swerved apparent when it would be considered that in his statement given to the
to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the
collision. Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine
Rabbit Bus was behind the said jeep. In his testimony before the
As a general rule, questions of fact may not be raised in a petition for review. The factual Regional Trial Court in Malolos, Bulacan as well as in this Court, he
findings of the trial court, especially when affirmed by the appellate court, are binding alleged that the Philippine Rabbit Bus was already on the left side of the
and conclusive on the Supreme Court. 38 Not being a trier of facts, this Court will not jeep when the collision took place. For this inconsistency between his
allow a review thereof unless: statement and testimony, his explanation regarding the manner of how
the collision between the jeep and the bus took place should be taken
with caution. It might be true that in the statement of Oscar Buan given
53
to the Philippine Rabbit Investigator CV Cabading, it was mentioned by investigators (Ganiban and Cabading) is sufficient proof that it exercised the required
the former that the jeep of plaintiff was in the act of overtaking another due diligence in the supervision of its employees. DACIHc
jeep when the collision between the latter jeep and the Philippine Rabbit
Bus took place. But the fact, however, that his statement was given on In the selection of prospective employees, employers are required to examine them as to
July 15, 1988, one day after Mauricio Manliclic gave his statement should their qualifications, experience and service records. In the supervision of employees, the
not escape attention. The one-day difference between the giving of the employer must formulate standard operating procedures, monitor their implementation
two statements would be significant enough to entertain the possibility and impose disciplinary measures for the breach thereof. To fend off vicarious liability,
of Oscar Buan having received legal advise before giving his statement. employers must submit concrete proof, including documentary evidence, that they
Apart from that, as between his statement and the statement of complied with everything that was incumbent on them. 44
Manliclic himself, the statement of the latter should prevail. Besides, in
his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the
statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly
head" when he did not mention in said affidavit that the jeep of
Calaunan was trying to overtake another jeep when the collision In Metro Manila Transit Corporation v. Court of Appeals, 45 it was explained that:
between the jeep in question and the Philippine Rabbit bus took place.
Due diligence in the supervision of employees on the other hand,
xxx xxx xxx includes the formulation of suitable rules and regulations for the
guidance of employees and the issuance of proper instructions intended
for the protection of the public and persons with whom the employer has
If one would believe the testimony of the defendant, Mauricio Manliclic, relations through his or its employees and the imposition of necessary
and his conductor, Oscar Buan, that the Philippine Rabbit Bus was disciplinary measures upon employees in case of breach or as may be
already somewhat parallel to the jeep when the collision took place, the warranted to ensure the performance of acts indispensable to the
point of collision on the jeep should have been somewhat on the left side business of and beneficial to their employer. To this, we add that actual
thereof rather than on its rear. Furthermore, the jeep should have fallen implementation and monitoring of consistent compliance with said rules
on the road itself rather than having been forced off the road. Useless, should be the constant concern of the employer, acting through
likewise to emphasize that the Philippine Rabbit was running very fast as dependable supervisors who should regularly report on their supervisory
testified to by Ramos which was not controverted by the defendants. 40 functions.

Having ruled that it was petitioner Manliclic's negligence that caused the smash up, In order that the defense of due diligence in the selection and
there arises the juris tantum presumption that the employer is negligent, rebuttable only supervision of employees may be deemed sufficient and plausible, it is
by proof of observance of the diligence of a good father of a family. 41 Under Article not enough to emptily invoke the existence of said company guidelines
2180 42 of the New Civil Code, when an injury is caused by the negligence of the and policies on hiring and supervision. As the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the employee gives rise to the presumption of negligence on the part of the
part of the master or employer either in the selection of the servant or employee, or in employer, the latter has the burden of proving that it has been diligent
supervision over him after selection or both. The liability of the employer under Article not only in the selection of employees but also in the actual supervision
2180 is direct and immediate; it is not conditioned upon prior recourse against the of their work. The mere allegation of the existence of hiring procedures
negligent employee and a prior showing of the insolvency of such employee. Therefore, and supervisory policies, without anything more, is decidedly not
it is incumbent upon the private respondents to prove that they exercised the diligence sufficient to overcome such presumption.
of a good father of a family in the selection and supervision of their employee. 43
We emphatically reiterate our holding, as a warning to all employers,
In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the that "the formulation of various company policies on safety without
required diligence in the selection and supervision of its employees, particularly showing that they were being complied with is not sufficient to exempt
petitioner Manliclic. In the matter of selection, it showed the screening process that petitioner from liability arising from negligence of its employees. It is
petitioner Manliclic underwent before he became a regular driver. As to the exercise of incumbent upon petitioner to show that in recruiting and employing the
due diligence in the supervision of its employees, it argues that presence of ready
54
erring driver the recruitment procedures and company policies on amount awarded by the trial court must, likewise, be lowered to P50,000.00. 50 The
efficiency and safety were followed." . . . . award of P15,000.00 for attorney's fees and expenses of litigation is in order and
authorized by law. 51
The trial court found that petitioner PRBLI exercised the diligence of a good father of a
family in the selection but not in the supervision of its employees. It expounded as WHEREFORE, premises considered, the instant petition for review is DENIED. The
follows: decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the
MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00; and
From the evidence of the defendants, it seems that the Philippine Rabbit (2) the award of exemplary damages shall be lowered to P50,000.00. Costs against
Bus Lines has a very good procedure of recruiting its driver as well as in petitioners.
the maintenance of its vehicles. There is no evidence though that it is as
good in the supervision of its personnel. There has been no iota of SO ORDERED.
evidence introduced by it that there are rules promulgated by the bus
company regarding the safe operation of its vehicle and in the way its FIRST DIVISION
driver should manage and operate the vehicles assigned to them. There
is no showing that somebody in the bus company has been employed to
[G.R. No. 150897. April 11, 2005.]
oversee how its driver should behave while operating their vehicles TURADIO C. DOMINGO, petitioner, vs. JOSE C. DOMINGO,
without courting incidents similar to the herein case. In regard to LEONORA DOMINGO-CASTRO and her spouse JUANITO CASTRO,
supervision, it is not difficult to observe that the Philippine Rabbit Bus NUNCIA DOMINGO-BALABIS, ABELLA DOMINGO VALENCERINA and
Lines, Inc. has been negligent as an employer and it should be made the REGISTER OF DEEDS, QUEZON CITY, respondents.
responsible for the acts of its employees, particularly the driver involved
in this case.
DECISION
We agree. The presence of ready investigators after the occurrence of the accident is not
enough to exempt petitioner PRBLI from liability arising from the negligence of petitioner QUISUMBING, J p:
Manliclic. Same does not comply with the guidelines set forth in the cases above-
mentioned. The presence of the investigators after the accident is not enough This is a petition for review under Rule 45 of the Rules of Court of the Decision 1 dated
supervision. Regular supervision of employees, that is, prior to any accident, should have November 26, 2001 in CA-G.R. CV No. 59331, of the Court of Appeals, which affirmed the
been shown and established. This, petitioner failed to do. The lack of supervision can Judgment dated January 6, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch
further be seen by the fact that there is only one set of manual containing the rules and 90, in Civil Case No. Q-89-3820. The trial court dismissed herein petitioner's complaint in
regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner Civil Case No. Q-89-3820 for declaration of the nullity of a deed of absolute sale over a
PRBLI know and be continually informed of the rules and regulations when only one house and lot located at Project 4, Quezon City. 2
manual is being lent to all the drivers?
Petitioner is the oldest of the five children of the late Bruno B. Domingo, formerly the
For failure to adduce proof that it exercised the diligence of a good father of a family in registered owner of the properties subject of this dispute. Private respondents Leonora
the selection and supervision of its employees, petitioner PRBLI is held solidarily Domingo-Castro, Nuncia Domingo-Balabis, Abella Domingo, and Jose Domingo are
responsible for the damages caused by petitioner Manliclic's negligence. ISDHEa petitioner's siblings. A family quarrel arose over the validity of the purported sale of the
house and lot in Project 4 by their father to private respondents.
We now go to the award of damages. The trial court correctly awarded the amount of
P40,838.00 as actual damages representing the amount paid by respondent for the The facts of this case, as synthesized from the findings of the trial court and affirmed by
towing and repair of his jeep. 47 As regards the awards for moral and exemplary the court a quo, are as follows:
damages, same, under the circumstances, must be modified. The P100,000.00 awarded
by the trial court as moral damages must be reduced to P50,000.00. 48 Exemplary Bruno B. Domingo, a widower and retired military man, was the registered owner, as
damages are imposed by way of example or correction for the public good.49 The shown by Transfer Certificate of Title (TCT) No. 128297, issued by the Register of Deeds
55
of Quezon City, of a house and lot with an area of 269.50 square meters, located at 34 H. Domingo's signature on the deed in question was forged. He likewise averred that the
Honrubia St., Project 4, Quezon City. sale was done in violation of the restriction annotated at the back of Bruno's title, to the
effect that prior approval of the People's Homesite and Housing Corporation
In December 1970, Bruno needed money for his medical expenses, so he sold said (PHHC) 5 was needed to effect any sale.
properties. On December 28, 1970, he signed a Deed of Absolute Sale conveying the
abovementioned properties to his children Leonora, Nuncia, Abella, and Jose for a In their answer, private respondents relied heavily on the findings of the NBI that Bruno
consideration of P10,000. The deed was witnessed by Concesa Ibaez and Linda Noroa B. Domingo's signature on the deed was genuine, and hence, the Deed of Absolute Sale
and notarized by Atty. Rosauro V. Noroa. 3 was not a forgery.

Jose then brought the deed to the Register of Deeds of Quezon City, as a result of which On January 6, 1998, the trial court disposed of Civil Case No. Q-89-3820 in this wise:
TCT No. 128297 was cancelled and a new title, TCT No. 247069 was issued in the names
of the vendees. HSacEI IN VIEW OF THE FOREGOING, judgment is rendered DISMISSING the
complaint in this case.
Bruno Domingo died on April 6, 1975. 4
All other claims including counterclaim/s are dismissed for lack of legal
Sometime in 1981 petitioner, who by then was residing on the disputed property, and/or factual basis.
received a notice from the Quezon City Hall declaring him a squatter and directing him
to demolish his shanty on the lot. Petitioner found out that the planned demolition was at SO ORDERED. 6
the instance of his brother, Jose and sister, Leonora.
In dismissing the complaint, the trial court disregarded the conflicting reports of the
Sometime in 1986, petitioner learned of the existence of the assailed Deed of Absolute police crime laboratory and the NBI "for failure of the offering party or parties to show
Sale when an ejectment suit was filed against him. Upon advice of his counsel, he had that the standard or specimen signatures were indeed those of Bruno B.
the then Philippine Constabulary-Integrated National Police (PC-INP, now Philippine Domingo." 7 The trial court likewise found that petitioner failed to substantiate his claim
National Police or PNP) Crime Laboratory in Camp Crame, Quezon City compare the that prior PHHC approval was needed before a valid sale of the properties in dispute
signature of Bruno on the said deed against specimen signatures of his father. As a could be made. ScTIAH
result, the police issued him Questioned Document Report No. 192-86 to the effect that
the questioned signature and the standard signatures were written by two different Dissatisfied, petitioner elevated the case to the Court of Appeals, which docketed his
persons. Another Questioned Document Report, No. 007-89, subsequently issued by the appeal as CA-G.R. CV No. 59331. He contended that the lower court erred in ruling that
police came up with the same conclusion. the vendor's signature on the Deed of Absolute Sale of December 28, 1970 was not a
forgery.
Petitioner filed a complaint for forgery, falsification by notary public, and falsification by
private individuals against his siblings and Atty. Noroa before the public prosecutor of On January 11, 2000, petitioner filed a motion for new trial with the appellate court on
Quezon City. But after it conducted an examination of the questioned documents, the the ground of newly discovered evidence consisting of a letter of Bruno B. Domingo
National Bureau of Investigation (NBI) came up with the conclusion that the questioned dated February 1, 1972 purportedly requesting from PHHC permission to mortgage the
signature and the specimen signatures were written by one and the same person, Bruno house and lot in Project 4, Quezon City. Also on March 22, 2000, petitioner filed a
B. Domingo. The public prosecutor dismissed the criminal complaint on June 22, 1989. supplemental motion for new trial with the Court of Appeals, attaching the letter dated
Petitioner appealed the order of dismissal to the Department of Justice (DOJ) but the February 2, 1972, of PHHC to Bruno B. Domingo, granting the latter's request on July 6,
latter affirmed the prosecutor's action. A similar criminal complaint filed by petitioner 2000. Petitioner moved that the appellate court grant him authority to put up a sari-
before the public prosecutor of Manila was likewise dismissed. sari store on a portion of the disputed lot, allegedly to augment his meager pension.

On October 23, 1989, petitioner instituted Civil Case No. Q-89-3820 before the RTC of In its resolution dated December 29, 2000, the appellate court denied all foregoing
Quezon City for the declaration of the nullity of the Deed of Sale, reconveyance of the motions. 8 In denying the motions for new trial, the appellate court noted that there was
disputed property, and cancellation of TCT No. 247069. Petitioner alleged that Bruno B. no showing whatsoever that "the letter-request could not have been discovered and
56
produced prior to the trial below by the exercise of reasonable diligence and . . . is of (2) A witness familiar with such handwriting and who can give his
such a character as would probably change the result." 9 It likewise pointed out that opinion thereon, 14 such opinion being an exception to the
both the motion for new trial and the supplemental motion for new trial were "not opinion rule; 15
accompanied by affidavits showing the facts constituting the grounds therefor and the
newly discovered evidence." 10 (3) A comparison by the court of the questioned handwriting and
admitted genuine specimen thereof; 16 and
On November 26, 2001, the appellate court decided CA-G.R. CV No. 59331 as follows:
(4) Expert evidence. 17
WHEREFORE, the appeal is DISMISSED and the appealed decision is
AFFIRMED en toto. The law makes no preference, much less distinction among and between the different
means stated above in proving the handwriting of a person. 18 It is likewise clear from
SO ORDERED. 11 the foregoing that courts are not bound to give probative value or evidentiary value to
the opinions of handwriting experts, as resort to handwriting experts is not
Hence, the instant petition for review interposed by petitioner grounded on the following mandatory. 19
reasons for allowance of writ:
In finding that the trial court correctly disregarded the PC-INP Crime Laboratory
The declaration that the Deed of Absolute Sale dated December 28, questioned document report, the appellate court observed:
1970 was executed by Bruno B. Domingo over the properties covered by
TCT No. 128297, is not valid, proper and legal, because said Deed of The PC-INP used as standards of comparison the alleged signatures of
Absolute Sale was not executed by said Bruno B. Domingo, as per Bruno in two documents, namely: letter to the Bureau of Treasury dated
findings of the [PC-INP] in its laboratory examination, and that the said April 1, 1958 and Republic Bank Check No. 414356 dated November 2,
Deed of Absolute Sale was in violation of the prohibition annotated at 1962. These documents precede by more than eight years the
the back of said title, and that the sale was done within the prohibited questioned Deed which was executed on December 30, 1970. This
period of five (5) years. Moreover, said Bruno B. Domingo should [not circumstance makes the PC-INP's finding questionable. 20
have] requested for authority to mortgage the property in question from
the People's Homesite [and] Housing Authority on February 1, 1972, if he
really sold the same in 1970. 12
We find no reason to disagree with the Court of Appeals. The passage of time and a
The crucial issue for our resolution is: Did the court a quo err when it held that the trial person's increase in age may have decisive influence in his handwriting characteristics.
court correctly applied the rules of evidence in disregarding the conflicting PC-INP and Thus, in order to bring about an accurate comparison and analysis, the standards of
NBI questioned document reports? comparison must be as close as possible in point of time to the suspected
signature. 21 As correctly found by the appellate court, the examination conducted by
Before this Court, petitioner insists that both the trial court and the appellate court the PC-INP Crime Laboratory did not conform to the foregoing standard. Recall that in the
should have considered the PC-INP questioned document report as reliable, without case, the signatures analyzed by the police experts were on documents executed several
showing any cogent reason or sufficient arguments why said report should be deemed years apart. A signature affixed in 1958 or in 1962 may involve characteristics different
reliable. from those borne by a signature affixed in 1970. Hence, neither the trial court nor the
appellate court may be faulted for refusing to place any weight whatsoever on the PC-
Under the Rules of Court, the genuineness of a handwriting may be proved by the INP questioned document report.
following:
We likewise sustain the trial court and the Court of Appeals concerning the testimonies
(1) A witness who actually saw the person writing the instrument; 13 of Clerma Domingo, Leonora, and Jose to the effect that they saw Bruno affixing his
signature to the questioned deed. 22 They were unrebutted. Genuineness of a
handwriting may be proven, under Rule 132, Section 22, by anyone who actually saw the
57
person write or affix his signature on a document. Petitioner has shown no reason why are taken ex-parte and are almost always incomplete and inaccurate. Oftentimes,
the ruling made by the trial court on the credibility of the respondent's witnesses below they are executed when the affiant's mental faculties are not in such a state as to afford
should be disturbed by us. Findings by the trial court as to the credibility of witnesses are him a fair opportunity of narrating in full the incident that transpired. They are usually
accorded the greatest respect, and even finality by appellate courts, since the former is not prepared by the affiant himself but by another who suggests words to the affiant, or
in a better position to observe their demeanor as well as their deportment and manner worse, uses his own language in taking the affiant's statements.
of testifying during the trial. 23
The Supreme Court affirmed the decision of the trial court convicting accused-appellant
Finally, the questioned Deed of Absolute Sale in the present case is a notarized of the crime of murder, but modified the penalty of death to reclusion perpetua.
document. Being a public document, it is prima facie evidence of the facts therein
expressed. 24 It has the presumption of regularity in its favor and to contradict all these, SYLLABUS
evidence must be clear, convincing, and more than merely preponderant. 25Petitioner
has failed to show that such contradictory evidence exists in this case. ESCDHA
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT ADVERSELY AFFECTED
BY INCONSISTENCY BETWEEN THE TESTIMONY OF WITNESS IN OPEN COURT AND HER
WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals dated SWORN STATEMENT; CASE AT BAR. Between Herminia's testimony in open court and
November 26, 2001 in CA-G.R. CV No. 59331 is AFFIRMED. Costs against petitioner. her sworn statement, any inconsistency therein does not necessarily discredit the
witness. Affidavits are generally considered inferior to open court declarations because
SO ORDERED. affidavits are taken ex-parte and are almost always incomplete and inaccurate.
Oftentimes, they are executed when the affiant's mental faculties are not in such a state
as to afford him a fair opportunity of narrating in full the incident that transpired. They
are usually not prepared by the affiant himself but by another who suggests words to the
EN BANC affiant, or worse, uses his own language in taking the affiant's statements.
[G.R. No. 139070. May 29, 2002.]
2. ID.; ID.; CHARACTER EVIDENCE; NOT GENERALLY ADMISSIBLE; EXCEPTIONS IN
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL CRIMINAL CASES. Character evidence is governed by Section 51, Rule 130 of the
LEE, accused-appellant. Revised Rules on Evidence, viz: "Section 51. Character evidence not generally
Solicitor General for plaintiff-appellee. admissible; exceptions: (a) In Criminal Cases: (1) The accused may prove his good
Benjamin A. Opena counsel for Herminia L. Marquez. moral character which is pertinent to the moral trait involved in the offense charged. (2)
Pajares Asual & Adaci for accused-appellant. Unless in rebuttal, the prosecution may not prove his bad moral character which is
pertinent to the moral trait involved in the offense charged. (3) The good or bad moral
character of the offended party may be proved if it tends to establish in any reasonable
SYNOPSIS degree the probability or improbability of the offense charged. . . . ."

Accused-appellant was convicted of the crime of murder for the death of Joseph Marquez 3. ID.; ID.; ID.; CHARACTER, DEFINED. Character is defined to be the possession by a
and sentenced to death. On appeal, accused-appellant assailed the credibility of person of certain qualities of mind and morals, distinguishing him from others. It is the
Herminia Marquez, the lone prosecution eyewitness. opinion generally entertained of a person derived from the common report of the people
who are acquainted with him; his reputation.
The Supreme Court held that Herminia's testimony was positive, clear and
straightforward. She did not waver in her narration of the shooting incident, neither did 4. ID.; ID.; ID.; GOOD MORAL CHARACTER, DEFINED. "Good moral character" includes
she waffle in recounting her son's death. She was subjected by defense counsel to all the elements essential to make up such a character; among these are common
rigorous cross and re-cross examinations and yet she stuck to her testimony given in the honesty and veracity, especially in all professional intercourse; a character that
direct examination. Moreover, as between Herminia's testimony in open court and her measures up as good among people of the community in which the person lives, or that
sworn statement, any inconsistency therein does not necessarily discredit the witness. is up to the standard of the average citizen; that status which attaches to a man of good
Affidavits are generally considered inferior to open court declarations because affidavits behavior and upright conduct.
58
5. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN SEX OFFENSES. In rape and acts of defensive action was necessary (Moran,Comments on the Rules of Court, 1952 ed.,
lasciviousness or in any prosecution involving an unchaste act perpetrated by a man Vol. 3, p. 126). This rule does not apply to cases of murder."
against a woman where the willingness of a woman is material, the woman's character
as to her chastity is admissible to show whether or not she consented to the man's act. 9. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, accused-appellant is charged
The exception to this is when the woman's consent is immaterial such as in statutory with murder committed through treachery and evident premeditation. The evidence
rape or rape with violence or intimidation. In the crimes of qualified seduction or shows that there was treachery. Joseph was sitting in his living room watching television
consented abduction, the offended party must be a "virgin," which is "presumed if she is when accused-appellant peeped through the window and, without any warning, shot him
unmarried and of good reputation," or a "virtuous woman of good reputation." The crime twice in the head. There was no opportunity at all for the victim to defend himself or
of simple seduction involves "the seduction of a woman who is single or a widow of good retaliate against his attacker. The suddenness and unexpectedness of the attack ensured
reputation, over twelve but under eighteen years of age . . ." The burden of proof that his death without risk to the assailant. Following the ruling in People v. Soliman, where
the complainant is a woman of good reputation lies in the prosecution, and the accused the killing of the victim was attended by treachery, proof of the victim's bad character is
may introduce evidence that the complainant is a woman of bad reputation. not necessary. The presence of this aggravating circumstance negates the necessity of
proving the victim's bad character to establish the probability or improbability of the
6. ID.; ID.; ID.; GENERALLY ADMISSIBLE IN HOMICIDE CASES. In homicide cases, a offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder.
pertinent character trait of the victim is admissible in two situations: (1) as evidence of
the deceased's aggression; and (2) as evidence of the state of mind of the accused. The 10. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; NOT
pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, APPRECIATED IN CASE AT BAR. As to the aggravating circumstance of evident
gentleness and peaceful nature, as the case may be, is relevant in determining whether premeditation, this cannot be appreciated to increase the penalty in the absence of
the deceased or the accused was the aggressor. When the evidence tends to prove self- direct evidence showing that accused-appellant deliberately planned and prepared the
defense, the known violent character of the deceased is also admissible to show that it killing of the victim.
produced a reasonable belief of imminent danger in the mind of the accused and a
justifiable conviction that a prompt defensive action was necessary. 11. REMEDIAL LAW; CRIMINAL PROCEDURE; COMPLAINT OR INFORMATION; MUST
SPECIFY THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES IN THE COMMISSION OF
7. ID.; ID.; ID.; PROOF OF VICTIM'S BAD MORAL CHARACTER, IRRELEVANT TO DETERMINE THE OFFENSE. Neither can the aggravating circumstance of dwelling found by the trial
THE PROBABILITY OR IMPROBABILITY OF THE KILLING IN CASE AT BAR. In the instant court be applied in the instant case. The Information alleges only treachery and evident
case, proof of the bad moral character of the victim is irrelevant to determine the premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of
probability or improbability of his killing. Accused-appellant has not alleged that the Criminal Procedure, a complaint or Information must specify the qualifying and
victim was the aggressor or that the killing was made in self-defense. There is no aggravating circumstances in the commission of the offense. The Revised Rules of
connection between the deceased's drug addiction and thievery with his violent death in Criminal Procedure took effect on December 1, 2000, and Section 8, Rule 110 is
the hands of accused-appellant. In light of the positive eyewitness testimony, the claim favorable to the accused. It may be applied retroactively to the instant case.
that because of the victim's bad character he could have been killed by any one of those
from whom he had stolen, is pure and simple speculation.
DECISION
8. ID.; ID.; ID.; ID.; NOT NECESSARY IN CASE OF MURDER COMMITTED WITH TREACHERY
AND PREMEDITATION. [P]roof of the victim's bad moral character is not necessary in PUNO, J p:
cases of murder committed with treachery and premeditation. In People v. Soliman, a
murder case, the defense tried to prove the violent, quarrelsome or provocative On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch
character of the deceased. Upon objection of the prosecution, the trial court disallowed 127 in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to
the same. The Supreme Court held: ". . . While good or bad moral character may be death for the murder of Joseph Marquez.
availed of as an aid to determine the probability or improbability of the commission of
an offense (Section 15, Rule 123), such is not necessary in the crime of murder where On May 27, 1998, an Information was filed against accused-appellant charging him with
the killing is committed through treachery or premeditation. The proof of such character the crime of murder committed as follows: DTSaIc
may only be allowed in homicide cases to show "that it has produced a reasonable belief
of imminent danger in the mind of the accused and a justifiable conviction that a prompt
59
"That on or about the 29th day of September 1996, in Kalookan City, Upon request of the Caloocan City police, a post-mortem examination was made on
Metro Manila, and within the jurisdiction of this Honorable Court, the Joseph's body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime
above-named accused, with intent to kill, with treachery and evident Laboratory Service made the following findings:
premeditation did then and there willfully, unlawfully and feloniously
attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a "FINDINGS:
handgun, thereby inflicting upon the latter serious physical injuries,
which ultimately caused the victim's death. Fairly developed, fairly nourished male cadaver in rigor mortis with
postmortem lividity at the dependent portions of the body. Conjunctiva
CONTRARY TO LAW." 1 are pale, Lips and nailbeds are cyanotic. A needle puncture mark was
noted at the dorsum of the right hand.
Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution
presented the following witnesses: (a) Herminia Marquez, the mother of the victim; (b) HEAD:
Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital;
(c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr. Rosaline (1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just
Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory. right of the anterior midline, 161 cm from heel, with an upbraded
collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially
The prosecution established the following facts: At 9:00 in the evening of September 29, and inferiorly directed posteriorwards, downwards and to the left
1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in fracturing the frontal bone, lacerating the brain. A deformed slug
the living room of their house located at No. 173 General Evangelista St., Bagong Barrio, was recovered embedded at the left cerebral hemisphere of the
Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the brain.
ceiling. Outside their house was an alley leading to General Evangelista Street. The alley
was bright and bustling with people and activity. There were women sewing garments on (2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2
one side and on the other was a store catering to customers. In their living room, mother cm left of the posterior midline, 162 cm from heel, with a uniform
and son were watching a basketball game on television. Herminia was seated on an 0.2 cm upbraded collar, directed slightly anteriorwards,
armchair and the television set was to her left. Across her, Joseph sat on a sofa against downwards and lateralwards, fracturing the occipital bone and
the wall and window of their house and the television was to his right. Herminia looked lacerating the brain. A deformed slug was recovered at the left
away from the game and casually glanced at her son. To her complete surprise, she saw auricular region.
a hand holding a gun coming out of the open window behind Joseph. She looked up and
saw accused-appellant Noel Lee peering through the window and holding the gun aimed
at Joseph. Before she could warn him, Joseph turned his body towards the window, and (3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the
simultaneously, appellant fired his gun hitting Joseph's head. Joseph slumped on the anterior midline.
sofa. Herminia stood up but could not move as accused-appellant fired a second shot at
Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When There are subdural and subarachnoidal hemorrhages.
no more shots were fired, Herminia ran to the window and saw accused-appellant, in a
blue sando, flee towards the direction of his house. Herminia turned to her son, dragged Stomach is 1/4 full of partially digested food particles and positive
his body to the door and shouted for help. With the aid of her neighbor and kumpare, for alcoholic odor.
Herminia brought Joseph to the MCU Hospital where he later died.
CONCLUSION:
Police investigators arrived at the hospital and inquired about the shooting incident.
Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went Cause of death is intracranial hemorrhage as a result of gunshot wounds.
to the St. Martin Funeral Homes where Joseph's body was brought. Thereafter, she Head." 3
proceeded to the Caloocan City Police Headquarters where she gave her sworn
statement about the shooting. 2
60
At the time of his death, Joseph was employed as driver by the Santos Enterprises The accused-appellant likewise explained the two criminal cases filed against him in
Freight Services earning P250.00 a day. 4 He left behind two children by his live-in 1984 and 1989. The information for attempted murder was dismissed as a result of the
partner who are now under his mother's care and support. Herminia spent approximately victim's desistance while in the frustrated homicide case, the real assailant appeared
P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were and admitted his crime. 12
supported by receipts 5 and admitted by the defense. 6
In a decision dated June 22, 1999, the trial court found accused-appellant guilty and
Herminia filed a complaint for murder against accused-appellant. The complaint, sentenced him to the penalty of death. The court also ordered appellant to pay the heirs
docketed as I.S. No. 96-3246, was however dismissed for insufficiency of evidence in a of the victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral
Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit.
Caloocan City Prosecutor Rosauro J. Silverio. 7 Herminia appealed the order of dismissal Thus:
to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre
Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor "WHEREFORE, foregoing premises considered and the prosecution
of Caloocan City to file an information for murder against the accused- having established beyond an iota of doubt the guilt of accused NOEL
appellant. 8 Accordingly, the Information was filed and a warrant of arrest issued against LEE of the crime of Murder as defined and penalized under Article 248 of
accused-appellant on June 8, 1998. On October 16, 1998, appellant was arrested by the Revised Penal Code as amended by R.A. 7659, this court, in view of
agents of the National Bureau of Investigation (NBI). the presence of the generic aggravating circumstance of dwelling and
without any mitigating circumstance to offset it, hereby sentences the
Appellant is a well-known figure in their neighborhood and has several criminal cases said accused to suffer the extreme penalty of DEATH; to indemnify the
pending against him in Caloocan City. He was charged with frustrated homicide in 1984 legal heirs of the deceased civil indemnity of P50,000.00; to pay the
and attempted murder in 1989. 9 private complainant actual damages of P90,000.00 plus moral and
exemplary damages of P60,000.00 and P50,000.00, respectively; and to
For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a pay the costs.
neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from
8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317 Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules
M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his on Criminal Procedure, as amended, let the entire records hereof
neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying including the complete transcripts of stenographic notes be forwarded to
themselves, drinking and singing with the videoke. Also in the house were his wife, the Supreme Court for automatic review and judgment, within the
children and household help. At 10:00 P.M., Orlando and Nelson went home and accused- reglementary period set forth in said section.
appellant went to sleep. He woke up at 5:30 in the morning of the following day and
learned that Joseph Marquez, a neighbor, was shot to death. To appellant's surprise, he SO ORDERED. 13
was tagged as Joseph's killer. 10
Hence, this appeal. Before us, accused-appellant assigns the following errors:
Accused-appellant had known the victim since childhood and their houses are only two
blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug I
addict. Six days before his death, on September 23, 1996, accused-appellant caught
Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of
the victim's bad reputation, appellant presented a letter handwritten by his mother, THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-
Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3 SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE
Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia was surrendering her son to VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF
the Mayor for rehabilitation because he was hooked onshabu, a prohibited drug, and was OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS
a thief. Herminia was scared that eventually Joseph might not just steal but kill her and BEYOND BELIEF.
everyone in their household because of his drug habit. 11
II
61
THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED- Now who was your companion, if any, at that time?
APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE
BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE WITNESS:
SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT
HAVE AN AXE TO GRIND. Me and my son, Joseph Marquez, and the wife upstairs putting the baby
to sleep.

Q: What were you and your son, Joseph, doing then?


III
A: Watching TV.
THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT
ON THE ACCUSED-APPELLANT WITHOUT EVEN RAISING A FINGER IN Q: Will you please tell us your position, I am referring to you and your
SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 son in relation to the television set where you are watching the
ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE show.
MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND
DOUBT.
A: We were facing each other while watching television which is on the
left side.
IV
Q: Will you please tell us where exactly was your son, Joseph, seated
THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY while watching television?
HERMINIA MARQUEZ'S VACILLATION WITH RESPECT TO THE "BUTAS NG
BINTANA" AS CONTAINED IN HER SWORN STATEMENT AND THE "BUKAS
NA BINTANA" AS PER HER REPAIRED TESTIMONY A SERIOUS A: At the end most of the sofa.
PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF
THE ACCUSED-APPELLANT. Q: The sofa you are referring to is the one near the window.

V A: Yes, sir. Dikit lang po.

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY Q: Will you give us an idea or describe to us that window which you
OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE mentioned awhile ago?
DOUBT." 14
A: Transparent glass.
The assigned errors principally involve the issue of the credibility of Herminia Marquez,
the lone prosecution eyewitness. Accused-appellant claims that the trial court should not Q: How high is it from the ground?
have accepted Herminia's testimony because it is biased, incredible and inconsistent.
COURT:
Herminia's testimony on direct examination is as follows:
Which one?
"xxx xxx xxx
ATTY. OPENA:
ATTY. OPENA:
The window glass?
62
WITNESS: COURT:

About three feet from the ground. Sustained.

ATTY. OPENA TO WITNESS: ATTY. OPENA TO WITNESS:

Q: You said three feet. What do you mean by that? Is that window Q: When you said end of sofa which portion, the left side or the right
elevated from the ground? side?

A: The same height as this court window which is about three feet from A: The right.
the ground, and from one another about four by four window
[sic], three feet by the ground. Q: Now, while you and your son were watching television, was there
anything unusual that transpired?
Q: Now, you demonstrated by showing a portion, you mean to tell us
that window was mounted on a concrete or hollow block? A: Yes, sir.

A: Hollow block, po. Q: Tell us what was that all about.

Q: How high is that hollow block that you were referring to? A: Mayroon po akong napansin na kamay na nakatutok sa anak ko.
Nakita ko po si Noel Lee na nakatayo sa may bintana.
COURT:
Q: What do you mean by the word "kamay?"
She said three feet.
A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
ATTY. OPENA TO WITNESS:
Q: What did you do with what you saw?
Q: Which is higher, that sofa which is posted near the window or the
hollow block? A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng
baril. Tumingin po siya sa may bintana, ganoon po, sabay putok
A: Hollow block. ng baril.

Q: By how many inches or feet? COURT:

A: About half a foot. You said he turned the head. Who turned the head? Sino ang gumanyan
sa sinabi mo?
Q: You said the sofa was long. Will you please tell us in what portion of
your sofa your son Joseph was seated? A: (Witness demonstrating that the victim peeped through the window).

ATTY. VARGAS: Q: And then?

Already answered, your Honor. She said dulo, end of the sofa. A: At the same time the firing of the gun [sic] and I saw my son slumped.
63
ATTY. OPENA TO THE WITNESS: Q: That Noel Lee that you are referring to, will you please point at him if
he is around?
Q: And after your son was slumped, what did you do?
A: (Witness going down the witness stand and pointing to accused Noel
A: I went to my son and carried him to take him to the hospital. Lee).

Q: How many shots did you hear? Q: How do you know that it was Noel Lee who shot your son?

A: Five shots. A: Kitang kita ko po. Magkatapat po kami.

Q: That was prior to helping your son? Q: Will you please describe to us?

A: Yes, sir. A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi
doon. Nandoon po kaming dalawa ng anak ko nanonood ng
Q: And how many times was your son hit? television. (Witness sobbing in tears). Napakasakit sa akin. Hindi
ko man lang naipagtanggol ang anak ko.
ATTY. VARGAS:
COURT:
Q: Objection, your honor. It was already answered. Because according to
her it was five shots. She was emotionally upset.

COURT: ATTY. OPENA:

It does not follow that the victim was hit. So, the witness may answer. I'll just make it on record that the witness was emotionally upset. May I
ask if she can still testify?
WITNESS:
xxx xxx xxx
Twice, Two shots hit my son, two shots on the sofa and one shot on the
cement. WITNESS:

COURT: Masakit lang po sa loob ko ang pagkawala ng anak ko.

How about the other one? ATTY. OPENA TO WITNESS:

A: Doon po sa semento. Q: You saw that the light was bright. Where were those lights coming
from?
ATTY. OPENA TO WITNESS:
A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog.
Saka sa labas may nananahi po doon sa alley katapat ng bahay
Q: And who fired these shots? namin. At saka po doon sa kabila, tindahan po tapat po namin,
kaya maliwanag ang ilaw.
A: Noel Lee.
64
Q: After trying to help your son, what happened? Herminia's testimony is positive, clear and straightforward. She did not waver in her
narration of the shooting incident, neither did she waffle in recounting her son's death.
A: I was able to hold on to my son up to the door. Upon reaching the She was subjected by defense counsel to rigorous cross and re-cross examinations and
door, I asked the help of my kumpare. yet she stuck to her testimony given in the direct examination. She readily gave specific
details of the crime scene, e.g., the physical arrangement of the sofa and the television
Q: Meanwhile, what did the accused do after shooting five times? set, the height of the sofa, the wall and the window, because the crime happened right
in her own living room. She explained that she was unable to warn Joseph because she
was shocked by the sight of accused-appellant aiming a gun at her son. The tragic
A: He ran to the alley to go home. events unfolded so fast and by the time she took hold of herself, her son had been shot
dead.
Q: Now you said he ran to an alley towards the direction of their house.
Do you know where his house is located? A son's death in his mother's house and in her presence is a painful and agonizing
experience that is not easy for a mother to forget, even with the passing of time.
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City. Herminia's testimony shows that she was living with a conscience that haunted and
blamed her own self for failing to protect her son or, at least, save him from death.
Q: How far is that from your residence?
Nonetheless, accused-appellant points out inconsistencies in the eyewitness' testimony.
A: More or less 150 to 200 meters. In her affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared
that while she and Joseph were watching television, she saw a hand holding a gun
Q: Where did you finally bring your son? pointed at her son. The hand and the gun came out of a hole in the window, i.e.,
"butas ng bintana." On cross-examination, Herminia stated that she saw a hand holding
A: MCU. a gun in the open window, i.e., "bukas na bintana." According to accused-appellant, this
inconsistency is a serious flaw which cannot be repaired by her statement on the witness
stand.
Q: When you say MCU, are you referring to MCU Hospital?
The inconsistency between her affidavit and her testimony was satisfactorily explained
A: Yes, sir. MCU Hospital. by Herminia on cross-examination:

Q: At MCU, life-saving devices were attached to my son. Later, after "xxx xxx xxx
reaching 11:00, he died.
ATTY. VARGAS
COURT:
Q: You said that you saw a hand from a hole in the window with a gun, is
11:00 P.M.? that correct?

A: Yes, ma'am. A: Bukas na bintana. Not from a hole but from an open window.

Q: Same day? Q: Madam witness, do you recall having executed a sworn statement
before the police, right after the shooting of your son?
A: Yes, ma'am.
A: Yes, sir.
xxx xxx xxx." 15
65
Q: I will read to you paragraph 8 of your statement which is already xxx xxx xxx." 16
marked as your Exhibit "A" in which is stated as follows:
"Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa
mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996
habang ang aking anak ay nanonood ng palabas sa TV ng Herminia corrected her affidavit by saying in open court that she saw the hand and the
basketball malapit sa kanyang bintana sa labas at ako naman ay gun coming out of the open window, not from a hole in the window. In her direct
nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti testimony, Herminia presented a photograph of her living room just the way it looked
sa kanya, mayroon akong napansin na kamay na may hawak ng from her side on the night of the shooting. 17 The sofa on which Joseph was seated is
baril at nakaumang sa aking anak sa may butas ng bintana," do against the wall, with the window a few inches above the wall. The window is made of
you recall that? transparent glass with six (6) vertical glass panes pushing outwards. The entire window
is enclosed by iron grills with big spaces in between the grills. The living room is well-lit
A: Opo. and the area outside the house is also lit by a fluorescent lamp.

Q: What you saw from that butas is a hand with a gun, is that correct? Between Herminia's testimony in open court and her sworn statement, any inconsistency
therein does not necessarily discredit the witness. 18 Affidavits are generally considered
A: Opo. inferior to open court declarations because affidavits are taken ex-parte and are almost
always incomplete and inaccurate. 19 Oftentimes, they are executed when the affiant's
Q: Madam witness, your window is just like the window of this mental faculties are not in such a state as to afford him a fair opportunity of narrating in
courtroom? full the incident that transpired. 20 They are usually not prepared by the affiant himself
but by another who suggests words to the affiant, or worse, uses his own language in
A: Yes, sir. taking the affiant's statements. 21

Q: In your testimony, you did not mention what part of the window was Accused-appellant argues that since Herminia declared in her affidavit that she saw a
that hand holding a gun that you saw? Is that correct? hand coming from the window, she did not see the person holding the gun, let alone who
fired it. 22 A complete reading of the pertinent portion of Herminia's affidavit will refute
appellant's arguments, viz:
A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong
bintana namin.
"xxx xxx xxx
Q: So in your sinumpaang salaysay in the statement that you said butas
na bintana is not correct? T Isalaysay mo nga sa akin and buong pangyayari?

A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996,
ko. habang ang aking anak ay nanonood ng palabas sa T.V. ng
basketball malapit sa aming bintanan [sic] sa labas, at ako
naman ay nakaupo sa sopa katapat ko siya subalit medyo
COURT: malayo ng kaunti sa kanya, mayroon akong napansin akong [sic]
kamay na hawak-hawak na baril na nakaumang sa aking anak sa
You show to the witness. There, butas na bintana. butas na bintana na nakaawang, maya-maya ng kaunti ay
nakarinig na ako ng putok at ang unang putok ay tumama sa ulo
WITNESS: ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-
sunod na ang putok na narinig ko, mga limang beses,
Mali po ang letra, Bukas hindi butas. kaya kitang kita ko siya ng lapitan ko ang aking anak at
66
nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo "Section 51. Character evidence not generally admissible; exceptions:
na ito papalabas ng iskinita papunta sa kanila.
(a) In Criminal Cases:
xxx xxx xxx." 23
(1) The accused may prove his good moral character which is
It is thus clear that when Herminia approached her son, she saw that the person firing pertinent to the moral trait involved in the offense charged.
the gun was accused-appellant. Appellant continued firing and then ran away towards
the direction of his house. This account is not inconsistent with the witness' testimony in (2) Unless in rebuttal, the prosecution may not prove his bad
open court. moral character which is pertinent to the moral trait involved in
the offense charged.
Herminia's declarations are based on her actual account of the commission of the crime.
She had no ill motive to accuse appellant of killing her son, or at least, testify falsely (3) The good or bad moral character of the offended party may
against appellant. Accused-appellant himself admitted that he and Herminia have been be proved if it tends to establish in any reasonable degree the
neighbors for years and have known each other for a long time. Appellant is engaged in probability or improbability of the offense charged.
the business of buying and selling scrap plastic and Herminia used to work for him as an
agent. 24 She would not have pointed to appellant if not for the fact that it was him xxx xxx xxx."
whom she saw shoot her son.
Character is defined to be the possession by a person of certain qualities of mind and
Indeed, the Solicitor General points out that it was appellant himself who had strong morals, distinguishing him from others. It is the opinion generally entertained of a person
motive to harm or kill Joseph. 25 Appellant revealed that six days before the shooting, derived from the common report of the people who are acquainted with him; his
he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant reputation. 32 "Good moral character" includes all the elements essential to make up
was drinking with his friends that fateful night of September 29, 1996 does not rule out such a character; among these are common honesty and veracity, especially in all
the possibility that he could have been at the scene of the crime at the time of its professional intercourse; a character that measures up as good among people of the
commission. The victim's house is merely two blocks away from appellant's house and community in which the person lives, or that is up to the standard of the average citizen;
could be reached in several minutes. 26 that status which attaches to a man of good behavior and upright conduct. 33

The lone eyewitness' account of the killing finds support in the medico-legal report. Dr. The rule is that the character or reputation of a party is regarded as legally irrelevant in
Rosalie Cosidon found that the deceased sustained two gunshot wounds one to the determining a controversy, so that evidence relating thereto is not admissible.
right of the forehead, and the other, to the left side of the back of the victim's Ordinarily, if the issues in the case were allowed to be influenced by evidence of the
head. 27 Two slugs were recovered from the victim's head. Judging from the location and character or reputation of the parties, the trial would be apt to have the aspects of a
number of wounds sustained, Dr. Cosidon theorized that the assailant could have been popularity contest rather than a factual inquiry into the merits of the case. After all, the
more than two feet away from the victim. 28 Both gunshot wounds were serious and business of the court is to try the case, and not the man; and a very bad man may have
fatal. 29 a righteous cause. 34 There are exceptions to this rule however and Section 51, Rule
130 gives the exceptions in both criminal and civil cases.
Accused-appellant makes capital of Joseph's bad reputation in their community. He
alleges that the victim's drug habit led him to commit other crimes and he may have In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused
been shot by any of the persons from whom he had stolen. 30 As proof of Joseph's bad may prove his good moral character which is pertinent to the moral trait involved in the
character, appellant presented Herminia's letter to Mayor Malonzo seeking his assistance offense charged. When the accused presents proof of his good moral character, this
for Joseph's rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote strengthens the presumption of innocence, and where good character and reputation are
such letter to Mayor Malonzo but denied anything about her son's thievery. 31 established, an inference arises that the accused did not commit the crime charged. This
view proceeds from the theory that a person of good character and high reputation is not
Character evidence is governed by Section 51, Rule 130 of the Revised Rules on likely to have committed the act charged against him. 35 Sub-paragraph 2 provides that
Evidence, viz: the prosecution may not prove the bad moral character of the accused except only in
67
rebuttal and when such evidence is pertinent to the moral trait involved in the offense character of the deceased is also admissible to show that it produced a reasonable
charged. This is intended to avoid unfair prejudice to the accused who might otherwise belief of imminent danger in the mind of the accused and a justifiable conviction that a
be convicted not because he is guilty but because he is a person of bad prompt defensive action was necessary. 56
character. 36 The offering of character evidence on his behalf is a privilege of the
defendant, and the prosecution cannot comment on the failure of the defendant to In the instant case, proof of the bad moral character of the victim is irrelevant to
produce such evidence. 37 Once the defendant raises the issue of his good character, determine the probability or improbability of his killing. Accused-appellant has not
the prosecution may, in rebuttal, offer evidence of the defendant's bad character. alleged that the victim was the aggressor or that the killing was made in self-defense.
Otherwise, a defendant, secure from refutation, would have a license to unscrupulously There is no connection between the deceased's drug addiction and thievery with his
impose a false character upon the tribunal. 38 violent death in the hands of accused-appellant. In light of the positive eyewitness
testimony, the claim that because of the victim's bad character he could have been
Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of killed by any one of those from whom he had stolen, is pure and simple speculation.
the accused. 39 And this evidence must be "pertinent to the moral trait involved in the
offense charged," meaning, that the character evidence must be relevant and germane Moreover, proof of the victim's bad moral character is not necessary in cases of murder
to the kind of the act charged, 40 e.g., on a charge of rape, character for chastity; on a committed with treachery and premeditation. In People v. Soliman, 57 a murder case,
charge of assault, character for peacefulness or violence; on a charge for embezzlement, the defense tried to prove the violent, quarrelsome or provocative character of the
character for honesty and integrity. 41 Sub-paragraph (3) of Section 51 of the said Rule deceased. Upon objection of the prosecution, the trial court disallowed the same. The
refers to the character of the offended party. 42 Character evidence, whether good or Supreme Court held:
bad, of the offended party may be proved "if it tends to establish in any reasonable
degree the probability or improbability of the offense charged." Such evidence is most ". . . While good or bad moral character may be availed of as an aid to
commonly offered to support a claim of self-defense in an assault or homicide case or a determine the probability or improbability of the commission of an
claim of consent in a rape case. 43 offense (Section 15, Rule 123),58 such is not necessary in the crime of
murder where the killing is committed through treachery or
In the Philippine setting, proof of the moral character of the offended party is applied premeditation. The proof of such character may only be allowed in
with frequency in sex offenses and homicide. 44 In rape and acts of lasciviousness or in homicide cases to show "that it has produced a reasonable belief of
any prosecution involving an unchaste act perpetrated by a man against a woman where imminent danger in the mind of the accused and a justifiable conviction
the willingness of a woman is material, the woman's character as to her chastity is that a prompt defensive action was necessary (Moran, Comments on the
admissible to show whether or not she consented to the man's act. 45 The exception to Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to
this is when the woman's consent is immaterial such as in statutory rape 46 or rape with cases of murder." 59
violence or intimidation. 47 In the crimes of qualified seduction 48 or consented
abduction, 49 the offended party must be a "virgin," which is "presumed if she is In the case at bar, accused-appellant is charged with murder committed through
unmarried and of good reputation," 50 or a "virtuous woman of good reputation." 51 The treachery and evident premeditation. The evidence shows that there was treachery.
crime of simple seduction involves "the seduction of a woman who is single or a widow Joseph was sitting in his living room watching television when accused-appellant peeped
of good reputation, over twelve but under eighteen years of age . . . ." 52 The burden of through the window and, without any warning, shot him twice in the head. There was no
proof that the complainant is a woman of good reputation lies in the prosecution, and the opportunity at all for the victim to defend himself or retaliate against his attacker. The
accused may introduce evidence that the complainant is a woman of bad reputation. 53 suddenness and unexpectedness of the attack ensured his death without risk to the
assailant. Following the ruling in People v. Soliman, where the killing of the victim was
attended by treachery, proof of the victim's bad character is not necessary. The presence
of this aggravating circumstance negates the necessity of proving the victim's bad
In homicide cases, a pertinent character trait of the victim is admissible in two character to establish the probability or improbability of the offense charged and, at the
situations: (1) as evidence of the deceased's aggression; and (2) as evidence of the state same time, qualifies the killing of Joseph Marquez to murder.
of mind of the accused. 54 The pugnacious, quarrelsome or trouble-seeking character of
the deceased or his calmness, gentleness and peaceful nature, as the case may be, is
relevant in determining whether the deceased or the accused was the
aggressor. 55 When the evidence tends to prove self-defense, the known violent
68
As to the aggravating circumstance of evident premeditation, this cannot be appreciated defendant for from 15 to 30 years, and that he had a good reputation for "honesty and
to increase the penalty in the absence of direct evidence showing that accused-appellant truthfulness" and for "being a law-abiding citizen." In cross-examining them, the prosecutor was
deliberately planned and prepared the killing of the victim. 60
permitted to ask whether they had heard that the accused had been arrested 27 years previously for
Neither can the aggravating circumstance of dwelling found by the trial court be applied receiving stolen goods. The trial judge had satisfied himself in the absence of the jury that the
in the instant case. The Information alleges only treachery and evident premeditation, question related to an actual
not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal
Procedure, a complaint or Information must specify the qualifying and aggravating occurrence, and he carefully instructed the jury as to the limited purpose of this evidence.
circumstances in the commission of the offense. 61 The Revised Rules of Criminal
Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the
accused. It may be applied retroactively to the instant case. Held. In the circumstances of this case and in view of the care taken by the trial judge to protect the
rights of the defendant, permitting the prosecutor to ask this question was not reversible error.
Accordingly, without the aggravating circumstance of dwelling, the penalty of death was Pp. 335 U. S. 470-487.
erroneously imposed by the trial court. There being no aggravating circumstance, there
is no basis for the award of exemplary damages. 62
2. The law does not invest the defendant with a presumption of good character; it simply closes the
whole matter of character, disposition and reputation on the prosecution's case in chief. The
IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court,
Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as defendant may introduce evidence tending to prove his good reputation, but, if he does so, it throws
accused-appellant Noel Lee is found guilty of murder for the death of Joseph Marquez. open the entire subject, and the prosecution may then cross-examine defendant's witnesses to test
The death sentence imposed by the trial court is however reduced to reclusion perpetua, their credibility and qualifications, and may also introduce contradictory evidence. Pp. 335 U. S. 475-
there having been no aggravating circumstance in the commission of said crime. Except
479.
for the award of exemplary damages, the award of civil indemnity, other damages and
costs are likewise affirmed.
3. Both the propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous
U.S. Supreme Court and subtle considerations, difficult to detect or appraise from a cold record. Therefore, rarely and only
Michelson v. United States, 335 U.S. 469 (1948) on clear showing of prejudicial abuse of discretion, will appellate courts disturb rulings of trial courts
Michelson v. United States on this subject. P. 335 U. S. 480.
No. 23
Argued October 14-15, 1948 4. In this case, the trial judge was scrupulous to safeguard the practice against any misuse. P. 335 U.
Decided December 20, 1948 S. 481.
335 U.S. 469
CERTIORARI TO THE UNITED STATES COURT OF APPEALS 5. A character witness may be cross-examined as to knowledge of rumors of defendant's prior arrest,
whether or not it culminated in a conviction. Pp. 335 U. S. 482-483.
FOR THE SECOND CIRCUIT
Page 335 U. S. 470
Syllabus
6. It is not only by comparison with the crime on trial, but by comparison with the reputation asserted,
1. In a trial in a federal court for bribery of a federal officer, the defendant admitted the payment, but that a court may judge whether the prior arrest should be made the subject of inquiry. Pp. 335 U. S.
claimed that it was induced by the officer, and the case hinged on whether the jury believed the 483-484.
defendant or the officer. The defendant's character witnesses testified that they had known the
69
7. That the inquiry concerned an arrest 27 years before the trial did not make its admission an abuse Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified
of discretion in the circumstances of this case -- especially since two of the witnesses had testified that their acquaintance with him extended over a period of about thirty years, and the others said they
that they had known defendant for 30 years, defendant, on direct examination, had voluntarily called had known him at least half that long. A typical examination in chief was as follows:
attention to his conviction of a misdemeanor 20 years before, and since no objection was made on
this specific ground. P. 335 U. S. 484. "Q. Do you know the defendant Michelson?"

8. Notwithstanding the difficulty which a jury might have in comprehending instructions as to the "A. Yes."
limited purpose of such evidence, a defendant who elects to introduce witnesses to prove his good
reputation for honesty and truthfulness and for being a law-abiding citizen has no valid complaint "Q. How long do you know Mr. Michelson?"
about the latitude which existing law allows to the prosecution to meet this issue by cross-examination
of his character witnesses. Pp. 335 U. S. 484-485. "A. About 30 years."

165 F.2d 732 affirmed. "Q. Do you know other people who know him?"

Petitioner was convicted in a federal district court of bribing a federal officer. The Court of Appeals "A. Yes."
affirmed. 165 F.2d 732. This Court granted certiorari. 333 U.S. 866. Affirmed, p. 335 U. S. 487.
"Q. Have you have occasion to discuss his reputation for honesty and truthfulness and for being a
MR. JUSTICE JACKSON delivered the opinion of the Court. law-abiding citizen?"

In 1947, petitioner Michelson was convicted of bribing a federal revenue agent. [Footnote 1] The "A. It is very good. "
Government proved a
Page 335 U. S. 472
Page 335 U. S. 471
"Q. You have talked to others?"
large payment by accused to the agent for the purpose of influencing his official action. The
defendant, as a witness on his own behalf, admitted passing the money, but claimed it was done in "A. Yes."
response to the agent's demands, threats, solicitations, and inducements that amounted to
entrapment. It is enough for our purposes to say that determination of the issue turned on whether the "Q. And what is his reputation?"
jury should believe the agent or the accused. [Footnote 2]
"A. Very good."
On direct examination of defendant, his own counsel brought out that, in 1927, he had been convicted
of a misdemeanor having to do with trading in counterfeit watch dials. On cross-examination, it These are representative of answers by three witnesses; two others replied, in substance, that they
appeared that, in 1930, in executing an application for a license to deal in second-hand jewelry, he never had heard anything against Michelson.
answered "No" to the question whether he had theretofore been arrested or summoned for any
offense. On cross-examination, four of the witnesses were asked, in substance, this question:
70
"Did you ever hear that Mr. Michelson, on March 4, 1927, was convicted of a violation of the usefulness and propriety of this cross-examination without consideration of the unique practice
trademark law in New York City in regard to watches?" concerning character testimony, of which such cross-examination is a minor part. [Footnote 6]

This referred to the twenty-year-old conviction about which defendant himself had testified on direct Courts that follow the common law tradition almost unanimously have come to disallow resort by the
examination. Two of them had heard of it and two had not. prosecution to any kind of evidence of a defendant's evil character to establish a probability of his
guilt. [Footnote 7] Not that the law invests the defendant with a presumption of good character, Greer
To four of these witnesses, the prosecution also addressed the question the allowance of which, over v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition, and
defendant's objection, is claimed to be reversible error: reputation on the prosecution's case-in-chief. The State may not show defendant's prior trouble with
the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically
"Did you ever hear that, on October 11th, 1920, the defendant, Solomon Michelson, was arrested for be persuasive that he is by propensity a probable perpetrator of the crime. [Footnote 8] The inquiry is
receiving stolen goods?" not rejected because character is

None of the witnesses appears to have heard of this. Page 335 U. S. 476

The trial court asked counsel for the prosecution, out of presence of the jury, "Is it a fact according to irrelevant; [Footnote 9] on the contrary, it is said to weigh too much with the jury, and to so
the best information in your possession that Michelson was arrested for receiving stolen goods?" overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to
Counsel replied that it was, and, to support his good faith, exhibited a paper record which defendant's defend against a particular charge. The overriding policy of excluding such evidence, despite its
counsel did not challenge. admitted probative value, is the practical experience that its disallowance tends to prevent confusion
of issues, unfair surprise, and undue prejudice. [Footnote 10]
The judge also on three occasions warned the jury, in terms that are not criticized, of the limited
purpose for which this evidence was received. [Footnote 3] But this line of inquiry, firmly denied to the State, is opened to the defendant because character is
relevant in resolving probabilities of guilt. [Footnote 11] He may introduce affirmative testimony that
Page 335 U. S. 473 the general estimate of his character is so favorable that the jury may infer that he would not be likely
to commit the offense charged. This privilege is sometimes valuable to a defendant, for this Court has
Defendant petitioner challenges the right of the prosecution so to cross-examine his character held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt
witnesses. The Court of Appeals held that it was permissible. The opinion, however, points out that of guilt, and that, in the federal courts, a jury in a proper case should be so instructed. Edgington v.
the practice has been severely criticized, and invites us, in one respect, to change the rule. [Footnote United States, 164 U. S. 361.
4] Serious and responsible criticism has
Page 335 U. S. 477
Page 335 U. S. 474
When the defendant elects to initiate a character inquiry, another anomalous rule comes into play. Not
been aimed, however, not alone at the detail now questioned by the Court of Appeals, but at common only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed
law doctrine on the whole subject of proof of reputation or character. [Footnote 5] It would not be to base his testimony on anything but hearsay. [Footnote 12] What commonly is called "character
possible to appraise the evidence" is only such when "character" is employed as a synonym for "reputation." The witness may
not testify about defendant's specific acts or courses of conduct, or his possession of a particular
Page 335 U. S. 475 disposition or of benign mental and moral traits; nor can he testify that his own acquaintance,
71
observation, and knowledge of defendant leads to his own independent opinion that defendant Thus, the law extends helpful but illogical options to a defendant. Experience taught a necessity
possesses a good general or specific character, inconsistent with commission of acts charged. The that they
witness is, however, allowed to summarize what he has heard in the community, although much of it
may have been said by persons less qualified to judge than himself. The evidence which the law Page 335 U. S. 479
permits is not as to the personality of defendant, but only as to the shadow his daily life has cast in his
neighborhood. This has been well described in a different connection as be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair
and unreasonable one. The price a defendant must pay for attempting to prove his good name is to
"the slow growth of months and years, the resultant picture of forgotten incidents, passing events, throw open the entire subject which the law has kept closed for his benefit, and to make himself
habitual and daily conduct, presumably honest because disinterested, and safer to be trusted vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with
because prone to suspect. . . . It is for that reason that such general repute is permitted to be proven. contradictory witnesses [Footnote 15] to show that damaging rumors, whether or not well grounded,
It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of were afloat -- for it is not the man that he is, but the name that he has, which is put in issue. Another
many incidents and the conduct of years. It is the average intelligence drawing its conclusion." hazard is that his own witness is subject to cross-examination as to the contents and extent of the
hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports
Finch J., in Badger v. Badger, 88 N.Y. 546, 552. that are current even if they do not affect his own conclusion. [Footnote 16] It may test the sufficiency
of his knowledge by asking what stories were circulating concerning events, such as one's arrest,
While courts have recognized logical grounds for criticism of this type of "opinion based on hearsay" about which people normally comment and speculate. Thus, while the law gives defendant the option
testimony, to show as a fact that his reputation reflects a life and habit incompatible with commission of the
offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a
Page 335 U. S. 478 mere parade of partisans.

it is said to be justified by "overwhelming considerations of practical convenience" in avoiding Page 335 U. S. 480
innumerable collateral issues which, if it were attempted to prove character by direct testimony, would
complicate and confuse the trial, distract the minds of jurymen, and befog the chief issues in the To thus digress from evidence as to the offense to hear a contest as to the standing of the accused,
litigation. People v. Van Gaasbeck, 189 N.Y. 408, 418, 82 N.E. 718. at its best, opens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst, it
opens a veritable Pandora's box of irresponsible gossip, innuendo, and smear. In the frontier phase of
Another paradox in this branch of the law of evidence is that the delicate and responsible task of our law's development, calling friends to vouch for defendant's good character, and its counterpart --
compacting reputation hearsay into the "brief phrase of a verdict" is one of the few instances in which calling the rivals and enemies of a witness to impeach him by testifying that his reputation for veracity
conclusions are accepted from a witness on a subject in which he is not an expert. However, the was so bad that he was unworthy of belief on his oath -- were favorite and frequent ways of
witness must qualify to give an opinion by showing such acquaintance with the defendant, the converting an individual litigation into a community contest, and a trial into a spectacle. Growth of
community in which he has lived, and the circles in which he has moved, as to speak with authority of urban conditions, where one may never know or hear the name of his next-door neighbor, have
the terms in which generally he is regarded. To require affirmative knowledge of the reputation may tended to limit the use of these techniques, and to deprive them of weight with juries. The popularity
seem inconsistent with the latitude given to the witness to testify when all he can say of the reputation of both procedures has subsided, but courts of last resort have sought to overcome danger that the
is that he has "heard nothing against defendant." This is permitted upon assumption that, if no ill is true issues will be obscured and confused by investing the trial court with discretion to limit the
reported of one, his reputation must be good. [Footnote 13] But this answer is accepted only from a number of such witnesses and to control cross-examination. Both propriety and abuse of hearsay
witness whose knowledge of defendant's habitat and surroundings is intimate enough so that his reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect
failure to hear of any relevant ill repute is an assurance that no ugly rumors were about. [Footnote 14]
72
or appraise from a cold record, and therefore rarely, and only on clear showing of prejudicial abuse of Arrest, without more, may nevertheless impair or cloud one's reputation. False arrest may do that.
discretion, will Courts of Appeals disturb rulings of trial courts on this subject. [Footnote 17] Even to be acquitted may damage one's good name if the community receives the verdict with a wink
and chooses to remember defendant as one who ought to have been convicted. A conviction, on the
Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any other hand, may be accepted as a misfortune or an injustice, and even enhance the standing of one
misuse. who mends his ways and lives it down. Reputation is the net balance of so many debits and credits
that the law does not attach the finality to a conviction when
Page 335 U. S. 481
Page 335 U. S. 483
The trial judge was scrupulous to so guard it in the case be ore us. He took pains to ascertain, out of
presence of the jury, that the target of the question was an actual event which would probably result in the issue is reputation, that is given to it when the issue is the credibility of the convict.
some comment among acquaintances if not injury to defendant's reputation. He satisfied himself that
counsel was not merely taking a random shot at a reputation imprudently exposed, or asking a The inquiry as to an arrest is permissible also because the prosecution has a right to test the
groundless question to waft an unwarranted innuendo into the jury box. [Footnote 18] qualifications of the witness to bespeak the community opinion. If one never heard the speculations
and rumors in which even one's friends indulge upon his arrest, the jury may doubt whether he is
The question permitted by the trial court, however, involves several features that may be worthy of capable of giving any very reliable conclusions as to his reputation.
comment. Its form invited hearsay; it asked about an arrest, not
In this case, the crime inquired about was receiving stolen goods; the trial was for bribery. The Court
Page 335 U. S. 482 of Appeals thought this dissimilarity of offenses too great to sustain the inquiry in logic, though
conceding that it is authorized by preponderance of authority. It asks us to substitute the Illinois rule
a conviction, and for an offense not closely similar to the one on trial, and it concerned an occurrence which allows inquiry about arrest, but only for very closely similar if not identical, charges, in place of
many years past. the rule more generally adhered to in this country and in England. [Footnote 21] We think the facts of
this case show the proposal to be inexpedient.
Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people
about defendant, rather than the witness' own knowledge of him, the form of inquiry, "Have you The good character which the defendant had sought to establish was broader than the crime
heard?" has general approval, and "Do you know?" is not allowed. [Footnote 19] charged, and included the traits of "honesty and truthfulness" and "being a law-abiding citizen."
Possession of these characteristics would seem as incompatible with offering a bribe to a revenue
A character witness may be cross-examined as to an arrest whether or not it culminated in a agent as with receiving stolen goods. The crimes may be unlike, but both alike proceed from the
conviction, according to the overwhelming weight of authority. [Footnote 20] This rule is sometimes same defects of character which the witnesses said this defendant was reputed not to exhibit. It is not
confused with that which prohibits cross-examination to credibility by asking a witness whether he only by comparison with the crime on trial, but
himself has been arrested.
Page 335 U. S. 484
Arrest, without more, does not, in law any more than in reason, impeach the integrity or impair the
credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, by comparison with the reputation asserted, that a court may judge whether the prior arrest should be
may be inquired about to undermine the trustworthiness of a witness. made subject of inquiry. By this test, the inquiry was permissible. It was proper cross-examination
because reports of his arrest for receiving stolen goods, if admitted, would tend to weaken the
assertion that he was known as an honest and law-abiding citizen. The cross-examination may take
73
in as much ground as the testimony it is designed to verify. To hold otherwise would give defendant We end, as we began, with the observation that the law regulating the offering and testing of
the benefit of testimony that he was honest and law-abiding in reputation when such might not be the character testimony may merit many criticisms. England and some states have overhauled the
fact; the refutation was founded on convictions equally persuasive, though not for crimes exactly practice by statute. [Footnote 22] But the task of modernizing the longstanding rules on the subject is
repeated in the present charge.
Page 335 U. S. 486
The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old are
likely to be lived down and dropped from the present thought and talk of the community, and to be one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake.
absent from the knowledge of younger or more recent acquaintances. The court, in its discretion, may [Footnote 23]
well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them. But
two of these witnesses dated their acquaintance with defendant as commencing thirty years before The law of evidence relating to proof of reputation in criminal cases has developed almost entirely at
the trial. Defendant, on direct examination, voluntarily called attention to his conviction twenty years the hands of state courts of last resort, which have such questions frequently before them. This
before. While the jury might conclude that a matter so old and indecisive as a 1920 arrest would shed Court, on the other hand, has contributed little to this or to any phase of the law of evidence, for the
little light on the present reputation, and hence propensities, of the defendant, we cannot say that, in reason, among others, that it has had extremely rare occasion to decide such issues, as the paucity
the context of this evidence and in the absence of objection on this specific ground, its admission was of citations in this opinion to our own writings attests. It is obvious that a court which can make only
an abuse of discretion. infrequent sallies into the field cannot recast the body of case law on this subject in many, many
years, even if it were clear what the rules should be.
We do not overlook or minimize the consideration that "the jury almost surely cannot comprehend the
Judge's limiting instructions," which disturbed the Court of Appeals. The refinements of the We concur in the general opinion of courts, text writers, and the profession that much of this law is
evidentiary rules on this archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to
one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proved a
Page 335 U. S. 485 workable, even if clumsy, system when moderated by discretionary controls in the hands of a wise
and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply
subject are such that even lawyers and judges, after study and reflection, often are confused, and to upset its present balance between adverse interests than to establish a rational edifice.
surely jurors, in the hurried and unfamiliar movement of a trial, must find them almost unintelligible.
However, limiting instructions on this subject are no more difficult to comprehend or apply than those The present suggestion is that we adopt for all federal courts a new rule as to cross-examination
upon various other subjects -- for example, instructions that admissions of a codefendant are to be about prior arrest, adhered to by the courts of only one state and
limited to the question of his guilt and are not to be considered as evidence against other defendants,
and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is Page 335 U. S. 487
powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as
the one before us, the law foreclosed this whole confounding line of inquiry unless defendant thought rejected elsewhere. [Footnote 24] The confusion and error it would engender would seem too heavy a
the net advantage from opening it up would be with him. Given this option, we think defendants in price to pay for an almost imperceptible logical improvement, if any, in a system which is justified, if at
general, and this defendant in particular, have no valid complaint at the latitude which existing law all, by accumulated judicial experience, rather than abstract logic. [Footnote 25]
allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the
defense. See Greer v. United States, 245 U. S. 559. The judgment is

Affirmed.
74
cases where denial of immediate review would render impossible any review whatsoever of an
U.S. Supreme Court individual's claims,"
United States v. Nixon, 418 U.S. 683 (1974)
United States v. Nixon United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the unique
No. 73-1766 circumstances of this case, where it would be inappropriate to subject the President to the procedure
Argued July 8, 1974 of securing review by resisting the order and inappropriate to require that the District Court proceed
Decided July 24, 1974* by a traditional contempt citation in order to provide appellate review. Pp. 418 U. S. 690-692.
418 U.S. 683
Following indictment alleging violation of federal statutes by certain staff members of the White House 2. The dispute between the Special Prosecutor and the President presents a justiciable controversy.
and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Pp. 418 U. S. 692-697.
Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and
documents relating to precisely identified conversations and meetings between the President and (a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal
others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District jurisdiction. United States v. ICC,337 U. S. 426. P. 418 U. S. 693.
Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special
Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule (b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure
17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the and authority to represent the United States, and has given the Special Prosecutor explicit power to
subpoenaed material, having rejected the President's contentions (a) that the dispute between him contest the invocation of executive privilege in seeking evidence deemed relevant to the performance
and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary of his specially delegated duties. While the regulation remains in effect, the Executive Branch is
lacked authority to review the President's assertion of executive privilege. The court stayed its order bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.
pending appellate review, which the President then sought in the Court of Appeals. The Special
Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766), and (c) The action of the Special Prosecutor within the scope of his express authority seeking specified
the President filed a cross-petition for such a writ challenging the grand jury action (No. 73-1834). evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the
The Court granted both petitions. President's assertion of privilege in opposition thereto, present issues "of a type which are
traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430, and the fact that both litigants
Held: are officers of the Executive Branch is not a bar to justiciability. Pp. 418 U. S. 696-697.

1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291, was therefore 3. From this Court's examination of the material submitted by the Special Prosecutor in support of his
properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for certiorari before judgment motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the
was filed in this Court, and is now properly before this Court for review. Although such an order is motion to quash comported with Rule 17(c), and that the Special Prosecutor has made a sufficient
normally not final and subject to appeal, an exception is made in a showing to justify a subpoena for production before trial. Pp. 418 U. S. 697-702.

"limited class of 4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-
level communications, without more, can sustain an absolute, unqualified Presidential privilege of
Page 418 U. S. 684 immunity from judicial process under all circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5
U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, the confidentiality of
75
Page 418 U. S. 685 UNITED STATES of America, Plaintiff-Appellee, v. David Lee
JACKSON, Defendant-Appellant.
Presidential communications is not significantly diminished by producing material for a criminal trial No.06-41680.
under the protected conditions of in camera inspection, and any absolute executive privilege under Decided: November 17, 2008
Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Before SMITH, WIENER, and HAYNES, Circuit Judges.Traci Lynne Kenner, Asst. U.S. Atty.
(argued), Tyler, TX, Joseph R. Batte, Asst. U.S. Atty., Beaumont, TX, for U.S. Douglas Milton Barlow
Pp. 418 U. S. 703-707.
(argued), Barlow Law Firm, Beaumont, TX, Robert A. Morrow, Spring, TX, for Jackson.

5. Although the courts will afford the utmost deference to Presidential acts in the performance of an David Jackson was sentenced to death for murder. He appeals, arguing that (1) the district court
Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694), when a claim of refused to conduct a hearing to determine whether his due process rights were violated by
Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not prosecutorial delay; (2) the Federal Death Penalty Act (FDPA) is unconstitutional; (3) the district
court improperly dismissed two jurors during voir dire; (4) the court allowed improper testimony;
on the ground that military or diplomatic secrets are implicated, but merely on the ground of a (5) the court incorrectly excluded certain pieces of evidence; (6) the court unconstitutionally
generalized interest in confidentiality, the President's generalized assertion of privilege must yield to restricted counsel's ability to object; (7) the court erred by not allowing Jackson to impeach a
the demonstrated, specific need for evidence in a pending criminal trial and the fundamental government witness with evidence of a prior conviction for sexual assault; (8) the court incorrectly
demands of due process of law in the fair administration of criminal justice. Pp. 418 U. S. 707-713. allowed the government to impeach one of Jackson's witnesses with a non-final conviction; (9)
Jackson should have been allowed to allocute; (10) the jury should have been instructed at sentencing
that it could consider residual doubts about Jackson's guilt; (11) the verdict is inconsistent; and
6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court (12) the district court incorrectly denied a motion for new trial. Finding no reversible error, we
erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be affirm.
transmitted to the District Court. Pp.418 U. S. 713-714.
I.
7. Since a president's communications encompass a vastly wider range of sensitive material than
Jackson, a federal prisoner, began arguing with another inmate, Daryl Brown, while a third inmate,
would be true of an ordinary individual, the public interest requires that Presidential confidentiality be Arzell Gulley, watched. A fight broke out, the details of which are disputed: Jackson claims that
afforded the greatest protection consistent with the fair administration of justice, and the District Court Brown pulled out a shank,1 but the government contends that Brown was unarmed and only
has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or attempted to begin a fistfight. In any case, the confrontation culminated with all three running from
inadmissible in the criminal prosecution be accorded the high degree of respect due a President, and the yard where the argument started and through one of the prison units into a cell, where Jackson or
Gulley allegedly held Brown as the other attacked him with a shank. After approximately thirty
that such material be returned under seal to its lawful custodian. Until released to the Special seconds, Jackson and Gulley left the cell walking in opposite directions. Brown, bleeding profusely,
Prosecutor, no in camera material is to be released to anyone. Pp. 418 U. S. 714-716. collapsed and was soon pronounced dead.

No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted. Jackson was apprehended with Brown's blood on his clothes and an injury to his palm consistent with
recent use of a shank. While held by security, he tried to flush gambling paraphernalia down the
toilet. When guards tried to place another inmate in the special housing unit with him, he allegedly
BURGER, C.J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, told officials that he would kill the inmate if the inmate were not removed, saying if you don't believe
J., who took no part in the consideration or decision of the cases. me, look at the [security] tapes, I'll kill again.

Page 418 U. S. 686 A grand jury indicted Jackson and Gulley for murder and possession of a dangerous weapon in
prison. The district court granted a motion to sever their trials, and Jackson was separately
reindicted, convicted on both counts, and sentenced to death.
United States Court of Appeals,Fifth Circuit.
76
At sentencing, the government presented evidence of Jackson's other convictions, including multiple A panel of this circuit recently addressed both arguments in Gulley's appeal, United States v.
counts of armed robbery and various firearms charges, and testimony about his poor disciplinary Gulley, 526 F.3d 809, 819-20 (5th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 159, 172 L.Ed.2d 116
record in prison. An expert witness for the government who had conducted psychiatric evaluations (2008). The Gulley panel noted that under Fifth Circuit law, the defendant bears the burden of
of Jackson testified that there was a high probability that he would commit violent crimes in the proving that the pre-indictment delay caused substantial, actual prejudice and was intentionally
future. undertaken by the government for the purpose of gaining some tactical advantage over the accused
Id. at 820 (quoting United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir.1996) (en banc)). To
Jackson presented evidence of a poor home life growing up, low intelligence, post-traumatic stress demonstrate prejudice, the defendant must offer more than mere speculation of lost witnesses, faded
disorder, and institutionalization. He also noted that the government had not sought the death memories or misplaced documents; he must show an actual loss of evidence that would have aided
penalty against Gulley, and he submitted an apology he had written for his most recent armed the defense and that cannot be obtained from other sources. Id. (citation omitted).
robbery. Jackson also apologized to Brown's family, though he blamed Brown for starting the fight.
Jackson explained, I just wanted to stab [Brown]. I didn't want to kill him. The panel noted that district courts should usually carry a motion to dismiss for pre-indictment
delay with the case, and make the determination of whether actual, substantial prejudice resulted
II. from the improper delay in light of what actually transpired at trial. Id. (quoting Crouch, 84 F.3d at
1516). Because the defendant must prove both bad faith and prejudice, a court need not hold a
hearing on the government's motives for the delay where the court has determined that no prejudice
The district court's factual findings are reviewed for clear error; its legal conclusions, de novo.
resulted from it. Id.
United States v. Avants, 367 F.3d 433, 441 (5th Cir.2004). We review for abuse of discretion the
decision to exclude jurors, United States v. Fields, 483 F.3d 313, 357 (5th Cir.2007), cert. denied, ---
U.S. ----, 128 S.Ct. 1065, 169 L.Ed.2d 814 (2008); evidentiary decisions, United States v. Marrero, The primary question, then, is whether the district court clearly erred in ruling that Jackson is
904 F.2d 251, 260 (5th Cir.1990); rulings regarding trial orderliness, United States v. Redd, 355 F.3d unable to show that the delay has caused an actual, substantial prejudice to his defense at this point in
866, 876-77 (5th Cir.2003); refusals to give requested jury instructions, United States v. Arnold, 416 time. To demonstrate prejudice, Jackson argues that (1) there is a potential witness who remains
F.3d 349, 356 (5th Cir.2005); and denials of new trials, United States v. Rivera, 295 F.3d 461, 470 unfound that could have impeached a government witness; (2) there are missing video tapes that
(5th Cir.2002). might have exculpatory information; (3) there was a summit among groups in prison that could
have produced more witnesses for the defense; and (4) his mother died, thereby depriving him of her
testimony at sentencing.
A.

The first three proffered examples of prejudice are nothing more than mere speculation of lost
Jackson raises Fifth and Sixth Amendment challenges to the lengthy delays in his prosecution. The
witnesses, faded memories or misplaced documents and do not demonstrate an actual loss of
murder occurred in December 1999, but the government did not charge Jackson until November
evidence that would have aided the defense and that cannot be obtained from other sources. Id.
2003, and then only for possession of a prohibited object, the shank used to stab Brown. That
On appeal, Jackson provides no information about the potential witness, whom that witness could
charge was dismissed without prejudice in February 2004. In April 2005, the government charged
have impeached, or how.2 Jackson also has yet to produce evidence that the video tapes ever existed
Jackson again, this time for capital murder and possession of a dangerous weapon. He finally
or that the summit actually occurred, nor has he adequately explained why these pieces of evidence
received a trial in October 2006 and was convicted a month later.
were important beyond non-specific explanations that they could easily have yielded more witnesses,
more connections, [and] more depth to the understanding of this incident. [B]ecause actual,
Jackson argues that the delays violated his Fifth Amendment right to due process. In the substantial prejudice to the defense at trial is required, a showing of mere potential or possible trial
alternative, he claims that the case should be remanded for a hearing with discovery on the prejudice does not suffice. Crouch, 84 F.3d at 1523 (emphasis omitted).
government's motives for the delays.
The final proffered prejudice is more plausible. The fact that Jackson's mother died and thus
could not testify is not as speculative as his other examples-we at least know who she is and that she
existed. He has not explained, however, what testimony she could have offered. Instead, in the
motion to the district court and his brief on appeal, he indicates only that his mother was the one
witness whose testimony may have caused the jury to spare [his] life. He does not give any hint as
to what her testimony would have been, let alone demonstrate that other, available witnesses could
not have provided the same information.3
77
The district court therefore did not clearly err when it concluded that Jackson was not prejudiced Further, as already discussed, the district court did not clearly err when it concluded that
by the prosecution's delay. There was no need for an evidentiary hearing. Jackson suffered no prejudice during the entirety of the prosecutorial delay. The court therefore had
no obligation to conduct an inquiry into other Barker factors-including the reason for the delay-and
Jackson also argues that the delays violated his Sixth Amendment right to a speedy trial, because he properly rejected Jackson's Sixth Amendment claim without holding an evidentiary hearing.
did not receive a trial until nearly three years after his 2003 indictment. He concedes, however, that
any delay caused by his own requests for continuances should be discounted. According to Jackson, B.
then, the relevant delay for Sixth Amendment purposes runs from November 2003, the date of his
initial charge, to July 2005, the date of his first request for a continuance. Jackson makes at least two separate arguments that the FDPA is unconstitutional. 6 First, he
submits that the death penalty is cruel and unusual in violation of the Eighth Amendment. Second,
The Sixth Amendment protects the right of the accused to a speedy and public trial. U.S. Const. he contends that the Fifth and Sixth Amendments require that any non-statutory aggravating factors
amend. VI. This protection attaches when the defendant has been formally indicted or actually used to support the death sentence be alleged in the indictment. Neither claim is supported by law.
restrained accompanying arrest. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.1991).
Additionally, the period between a withdrawn indictment and a reindictment does not count for Sixth Jackson concedes that this Court must reject [the Eighth Amendment] claim based on binding Fifth
Amendment purposes. Instead, when no indictment is outstanding, only the actual restraints Circuit precedent He is correct.7
imposed by arrest and holding to answer a criminal charge engage the particular protections of the
speedy trial provision of the Sixth Amendment. United States v. Loud Hawk, 474 U.S. 302, 310-11, The claim based on the Fifth and Sixth Amendments is similarly precluded.8 [I]t [is] neither
106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citations and internal quotations omitted). constitutional nor statutory error for the non-statutory aggravating factors to be omitted from the
indictment. United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005).
We evaluate speedy trial claims by considering four factors-the length of delay, the reason for the
delay, the defendant's assertion of the right, and the prejudice to him-in a two-step process. At the In response, Jackson argues that Bourgeois is undermined by Cunningham v. California, 549 U.S.
first step, we examine the length of the delay, which is to some extent a triggering mechanism. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which addressed a California sentencing system whereby
Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the most criminal offense statutes prescribed three tiers of punishment; the sentencing judge was
other factors that go into the balance. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d required to impose the middle term unless he found aggravating or mitigating circumstances by a
101 (1972). A delay of less than one year will rarely qualify as presumptively prejudicial for preponderance of the evidence. The Court invalidated the arrangement because, under the Sixth
purposes of triggering the Barker inquiry. Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir.1994)
Amendment, [f]actfinding to elevate a sentence falls within the province of the jury employing a
(concluding that where prejudice could not be presumed, we need not even consider the other
beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the
factors in order to deny [defendant]'s speedy trial claim). If the delay raises a presumption of
preponderance of the evidence lies. 127 S.Ct. at 870. Jackson claims that the statutory scheme
prejudice, we move to the second step, at which the length of the delay, the reason for the delay, and
invalidated in Cunningham is indistinguishable from the FDPA fact-finding and weighing
defendant's diligence in asserting his or her rights is weighed against the prejudice to the defendant.
procedures and that the FDPA is even more structured, and thus more suspect.
United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.2002) (citation omitted).
Jackson's reliance on Cunningham is misplaced. The Sixth Amendment deficiencies identified in the
Because Jackson did not suffer a prejudicial delay, his Sixth Amendment claim fails to pass the
California plan are not present in the FDPA. First, the factfinding in the present case was performed
threshold inquiry. We note that the government vigorously disputes that Jackson's first indictment
by a jury, not a judge. Second, the FDPA requires aggravating factors to be proved beyond a
triggered his speedy trial right. We need not resolve that disagreement, however, because even
reasonable doubt. 18 U.S.C. 3593(c). Because Cunningham is not on point and does not
assuming the first indictment is the correct triggering date, Jackson cannot demonstrate
undermine Bourgeois, which remains the controlling authority in this circuit, we reaffirm the
presumptively prejudicial delay.
constitutionality of the FDPA.

The first indictment was withdrawn in February 2004, and from then until the second indictment,
C.
Jackson was not subject to any actual restraints imposed by arrest and holding to answer a criminal
charge, Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648, in connection with Brown's murder. 4 Jackson
has therefore suffered, at most, six months of delay: three months from November 2003 through Jackson argues that the court improperly excluded for cause two veniremen, Janice Epps and Barbara
February 2004 and three months from April 2005 through July 2005. A six-month delay is too Lee. According to Jackson, they were erroneously excluded based on objections to the death penalty
short to raise a presumption of prejudice.5 that did not affect their ability to serve as jurors.
78
Under Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a sentence Before the fight with Jackson began, Brown took off his shirt. Jackson argues that the court
of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding improperly allowed a government witness to speculate about what Brown was thinking when he did
veniremen for cause simply because they voiced general objections to the death penalty or expressed that.
conscientious or religious scruples against its infliction. Nonetheless, potential jurors may be
excused where they have indicated either (1) that they would automatically vote against the Jackson sought to demonstrate that he acted in self-defense and that Brown initiated the
imposition of capital punishment without regard to any evidence that might be developed at the trial confrontation by pulling a shank on him. The government contends instead that Brown was
of the case before them, or (2) that their attitude toward the death penalty would prevent them from unarmed and initiated only a fistfight, from which he attempted to withdraw when Jackson drew his
making an impartial decision as to the defendant's guilt. Id. at 522 n. 21, 88 S.Ct. 1770. own shank.

In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court clarified The government presented Derric Wilson, a special investigator at the prison, who testified that
that the standard is whether the juror's views would prevent or substantially impair the performance inmates typically remove their shirts before a fistfight, because otherwise opponents may be able to
of his duties as a juror in accordance with his instructions and his oath [T]his standard does not grab onto their clothes. But in a knife fight, Wilson said, it has been my experience that inmates
require that a juror's bias be proved with unmistakable clarity (internal quotations omitted). The have typically padded their clothing, with some even going so far as to improvise protective vests
Court specified, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007), that a out of newspapers and magazines and make improvised body armor. Jackson objected, saying that
trial court removing a potential juror makes a judgment based in part on the demeanor of the juror, was pure speculation as to what [was] in the mind of an inmate when he takes his shirt off.
a judgment owed deference by reviewing courts. Further, when there is ambiguity in the
prospective juror's statements, the trial court, aided as it undoubtedly [is] by its assessment of [the Jackson urges that the court abused its discretion in permitting the testimony, which he claims was
venireman's] demeanor, [is] entitled to resolve [the question] in favor of the State. Id. at 2223 inadmissible because it was an unfounded opinion based upon mere conjecture. Alternatively, he
(quoting Witt, 469 U.S. at 434, 105 S.Ct. 844). contends that if witnesses cannot testify as to what was in a defendant's mind, they should not be able
to say what was in a potential victim's mind.
Jackson argues that Epps should not have been excused. Though he acknowledges that [a]fter
stating her position over and over [she] finally just shut down and said she wouldn't vote for death, Wilson's testimony was rationally related to what he observed as a prison official and was helpful for
he contends that her voir dire as a whole demonstrated otherwise and that the prosecutor's badgering understanding prison fights. He indicated both that he had not observed the yard fight between
led to the statements used to justify her exclusion for cause. Brown and Jackson and that his testimony was founded on unrelated investigations he had
conducted.10 Accordingly, his testimony was not mere conjecture regarding what Brown was
We disagree. In Epps's questionnaire, she answered that I don't believe I have the right to say if thinking, but rather background information about prison fights that the jury could consider or
someone should live or die. Under questioning, she admitted that she could accept the death disregard.
penalty for those that kill children or for just no reason at all. The court asked for additional
questioning as to her ability to follow juror instructions in cases where death might result, which led Moreover, a district court may admit testimony about a potential victim's state of mind. [I]n the
to her statement that I would have to vote against the death penalty, and then she was excused. ordinary circumstance[,] we do not permit witnesses to speculate about a defendant's state of mind
or intent, United States v. Chavis, 772 F.2d 100, 107 (5th Cir.1985), because intent is one of the
The court observed Epps's demeanor and heard her answers. Those answers were inconsistent for a ultimate issues for the jury. By contrast, the prejudice to a defendant is both less direct and less
time, which alone might have been ground to excuse her. Ultimately, however, she stated that she substantial where a witness is testifying about what someone other than the defendant thought.
would not vote for death. In light of the deference owed, the court did not abuse its discretion. 9 Therefore, even assuming arguendo that Wilson testified as to Brown's state of mind, the court did
not abuse its discretion.
It is just as evident that the district court did not err as to Lee. During government questioning, she
agreed that even if the evidence pointed in the direction of a death sentence, she might not be able to Jackson argues that even if the testimony was admissible, the court erred when it allowed Wilson to
vote that way, because I'm not sure if I can live with myself if I do. Later, as with Epps, Lee testify as a lay witness under Federal Rule of Evidence 701.11 He claims that some of Wilson's
vacillated somewhat during questioning by the defense. Finally, under instruction to give a yes or no testimony improperly crossed the line into expert testimony governed by Federal Rule of Evidence
answer, she was asked whether her feelings about the death penalty would substantially impair her 702.12
ability honestly to answer the questions presented, and she said yes. The district court properly
relied on that statement and excused her. Jackson did not raise this issue in the district court, so we review only for plain error. To prove
plain error, he must show (1) there was error, (2) the error was plain, (3) the error affected his
D. substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of
79
judicial proceedings. United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United Brown's prior specific acts were not admissible to prove his alleged propensity for violence.
States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). First, as recognized by the Seventh, Eighth, and Ninth Circuits, the plain language of Rule 405(b)
limits the use of specific instances of conduct to prove essential elements of a charge or defense.
The distinction between lay and expert witness testimony is that lay testimony results from a process Second, Brown's character was not an essential element of the self defense claim in the strict sense
of reasoning familiar in everyday life, while expert testimony results from a process of reasoning because a self defense claim may be proven regardless of whether the victim has a violent or passive
which can be mastered only by specialists in the field. United States v. Sosa, 513 F.3d 194, 200 (5th character.
Cir.2008) (citations and internal quotations omitted). To be considered expert, testimony must
involve more than common sense or the officer's past experience formed from firsthand Gulley, 526 F.3d at 819 (internal citations and quotations omitted).
observation. Id.
Jackson attempts to avoid Gulley by citing Holmes v. South Carolina, 547 U.S. 319, 321, 126 S.Ct.
Wilson indicated that his testimony was based on his investigat[ion of] various assaults and fights 1727, 164 L.Ed.2d 503 (2006), which addressed the constitutionality of an evidence rule under which
with knives and fights with fists[.] He represented that he was familiar with the clothing that the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic
inmates typically wear when they're fighting with knives and aware of how inmates go about fist- evidence that, if believed, strongly supports a guilty verdict. The Court noted that evidentiary rules
fighting[.] Based on those predicates, it appears that Wilson testified only as a lay witness drawing are given wide latitude unless they infringe upon a weighty interest of the accused and are arbitrary
from his past experiences formed from firsthand observation as an investigative agent. or disproportionate to the purposes they are designed to serve. Id. at 324, 126 S.Ct. 1727 (citation
Accordingly, any error in admitting his statements as lay rather than expert testimony was not plain. and internal quotations omitted). The Court concluded that the evidentiary rule was
unconstitutional, because it was arbitrary in the sense that it does not rationally serve the end that
E. the rule[ was] designed to further. Id. at 330-31, 126 S.Ct. 1727 (internal quotations omitted).

To demonstrate that he acted in self-defense, Jackson tried to introduce Brown's prison disciplinary Jackson does not argue with any specificity why rules 404(a) and 405 are disproportionate or
records into evidence. The district court barred the evidence, ruling that it should be admitted only arbitrary, i.e., [that they are] rules that exclude[] important defense evidence but that [do] not
if Jackson could prove that he had knowledge of the specific acts described by the records. Jackson serve any legitimate interests. Id. at 325, 126 S.Ct. 1727. By limiting the admissibility of specific
contends that that ruling was improper and deprived him of the ability to present a complete defense. acts, rules 404 and 405 serve the legitimate interest of ensuring that juries do not acquit or convict on
impermissibly prejudicial grounds, but those rules allow limited exceptions where more context is
Under Federal Rule of Evidence 404(a), character evidence is generally not admissible for the necessary in the interest of justice.13 This careful balance is hardly disproportionate or arbitrary, and
purpose of proving action in conformity therewith on a particular occasion The rules make an Jackson provides no argument to the contrary beyond assertion.
exception, however, and permit the introduction of [e]vidence of a pertinent trait of character of the
alleged victim of the crime offered by an accused Fed. R. Evid. 404(a)(2). Federal Rule of Jackson also claims that the government opened the door to the records. Defense witness Darrell
Evidence 405 provides that such a trait of character may always be demonstrated to the jury by Evans, one of Jackson's fellow inmates, testified that Brown always have big knives and it be hanging
presenting evidence of the victim's reputation. On the other hand, testimony about specific out of his pocket On cross-examination, the government expressed some skepticism and asked,
instances of conduct may be used only if the character or a trait of character of a person is an Are you saying that if you're walking around with a shank hanging out of your pocket, that a guard is
essential element of a charge, claim, or defense Fed. R. Evid. 405 (emphasis added). not going to notice that? Based on that question, Jackson again sought to admit the disciplinary
records, this time to rebut the impression that Brown did not possess shanks because the guards did
not notice it.
The district court was correct to limit Jackson's ability to present Brown's disciplinary records.
Brown's propensity for violence is a pertinent trait of character, because it supports Jackson's
argument that Brown was the first aggressor. Accordingly, the court allowed extensive testimony on This argument is equally unavailing. First, the witness immediately clarified his testimony by
Brown's reputation in the prison community. explaining that the knives would hang out of Brown's pockets only when he was sitting down in his
cell, not walking around in plain view of the guards. Second, the court correctly noted that the
disciplinary records would not be even arguably relevant unless they demonstrated that the guards
The disciplinary records that Jackson attempted to introduce, however, involved specific instances
had in fact caught Brown with a shank.
of conduct. Under rule 405, such evidence is admissible only if Brown's violent character was an
essential element of [Jackson's] defense. In Gulley, addressing the same issue, we held,
Of the records even remotely related to violence,14 only two came from the prison; one documents an
incident in which Brown threw hot coffee on a guard, and the other reports that he threatened to stab
a guard. The remaining records came from other prisons, and even there, only two involved shanks.
80
Any relationship between the subject of cross-examination and the proffered evidence was tenuous value is significant; second, because Richards is still required to register as a sex offender, he has
at best, and the court did not abuse its discretion in excluding it. not yet been release[d] from the confinement imposed; and third, excluding the impeachment
evidence violated Jackson's Sixth Amendment right to cross-examine.
F.
Jackson argues the evidence was probative because Richards was a registered sex offender, a result
Jackson avers that the district court violated his Sixth Amendment right to counsel when it allowed of his felony conviction[, and so] he likely may also be untruthful. Further, because he was subject
only the lawyer that had conducted the direct examination of a witness to object during that witness's to an ongoing legal obligation to register as a sex offender, he might have potential bias to testify for
cross-examination. Because Jackson did not object to that ruling and so did not preserve the issue the government, thereby staying in the good graces' of those who could prosecute him should he ever
for appeal,15 we review only for plain error. fail to comply with his registration requirements.

Plain is synonymous with clear or obvious, and at a minimum, contemplates an error which was As Jackson admits, however, registration as a sex offender is a scarlet letter. So although the jury
clear under current law at the time of trial Under plain error, if a defendant's theory requires the might have considered Richards more likely to be untruthful if it had known of his conviction, there is
extension of precedent, any potential error could not have been plain. United States v. Garcia- a significant danger that it would have instead improperly discounted his testimony because of
Rodriguez, 415 F.3d 452, 455 (5th Cir.2005) (citing United States v. Hull, 160 F.3d 265, 271-72 (5th personal revulsion for sex offenses. Moreover, there was ample reason for the jury to find Richards
Cir.1998)) (internal quotations omitted). untrustworthy without introducing the prejudicial evidence-the jury already knew that (1) Richards
had been convicted of several other crimes (including burglary and theft); (2) he was currently in
Any error here is not plain. Although Jackson correctly notes that federal law allows him to have prison for a 1999 bank robbery; (3) the government would attempt to get his bank robbery sentence
two attorneys, he can point to no caselaw that requires both of them to be permitted to object at the reduced in exchange for his testimony; and (4) he had a history of mental issues and drug abuse.
same time; instead, Jackson argues for an extension of our existing Sixth Amendment jurisprudence. Given the potentially severe prejudice that could have resulted from admitting the conviction and its
The government, meanwhile, admits that it can find no authority on the issue; it cites general mostly cumulative probative value, the district court did not abuse its discretion. 17
precedent acknowledging the discretion a district court is afforded to control the trial. 16 Because this
is a question of first impression and the law was not obvious at the time of trial, any error was not The court also did not commit constitutional error. Evidentiary rules generally are upheld unless
plain. they infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the
purposes they are designed to serve (citation and internal quotations omitted). Holmes, 547 U.S. at
G. 324, 126 S.Ct. 1727. [W]ell-established rules of evidence permit trial judges to exclude evidence if its
probative value is outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury. See, e.g., Fed. R. Evid. 403. Id. at 326, 126 S.Ct. 1727
Jackson argues that the district court erred when it forbade him from impeaching government (emphasis added). The decision to exclude the evidence because of its prejudicial value was
witness Victor Richards with evidence that Richards is a registered sex offender. Richards, an therefore constitutionally permissible.
inmate, testified that Jackson and Gulley chased Brown into a cell and stabbed him. In the 1980's,
Richards was convicted of sexual assault, sentenced to two years of probation, and required to
register as a sex offender. H.

Federal Rule of Evidence 609 establishes two relevant restrictions relevant regarding impeachment Defense witness Shannon Agofsky testified that Brown had a knife and said he was going to assault
by prior criminal convictions. First, under rule 609(a)(1), the impeachment evidence is subject to Jackson. The government impeached Agofsky under Federal Rule of Evidence 609 with evidence
Federal Rule of Evidence 403, which says that even relevant evidence may be excluded if its that Agofsky had been convicted of two counts of capital murder. Agofsky's case has an unusual
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, procedural history, however, that leads Jackson to question whether Agofsky was improperly
or misleading the jury Fed.R.Evid. 403. Second, under rule 609(b), evidence of a conviction may impeached with non-final convictions.
not be used if a period of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction, whichever is the later date Agofsky's convictions for capital murder were the result of a single killing. In July 2006, in United
Fed.R.Evid. 609(b). States v. Agofsky, 458 F.3d 369 (5th Cir.2006), we held that the Double Jeopardy Clause forbade
convicting Agofsky of both counts, because the charges amounted to the same offense. 18 Id. at 371-
72. We nonetheless concluded that one of the two death sentences could stand. Id. at 372-73.
The district court excluded the evidence on both grounds, finding that the conviction was too old and
Accordingly, we vacated the convictions to prevent double jeopardy and remanded with instruction
unfairly prejudicial. On appeal, Jackson raises three arguments: First, the conviction's probative
81
to impose, at the Government's election, a guilty verdict and death sentence for either Federal Jackson contends that the district court violated his Eighth Amendment rights when it failed to
Murder or Murder by a Federal Prisoner. Id. at 375. instruct the jury at sentencing that if it had residual doubts about his guilt, it should not sentence
him to death. Binding Supreme Court precedent, however, forecloses this argument.
Agofsky petitioned for writ of certiorari; because of the pending petition, the Fifth Circuit stayed the
mandate in August 2006. After the Court denied certiorari in January 2007, Agofsky v. United In Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), Justice White,
States, 549 U.S. 1182, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007), the Fifth Circuit lifted the stay of the writing for four Justices, first noted that [t]his Court's prior decisions, as we understand them, fail to
mandate, which finally issued in February 2007. Agofsky testified at Jackson's trial in October recognize a constitutional right to have [residual] doubts considered as a mitigating factor. 23 Even if
2006-after the Agofsky panel had rendered its opinion but before the Court denied certiorari and the the Eighth Amendment guaranteed such a right, mere denial of a jury instruction did not impair the
mandate issued. right, because the trial court placed no limitation whatsoever on [defendant]'s opportunity to press
the residual doubts' question with the sentencing jury. Id. The Court also rejected the argument
On appeal, Jackson argues that Agofsky should not have been impeached with either conviction. that jurors needed to be told they could consider residual doubt. Accordingly, even if petitioner had
The question now is whether, at the time of the impeachment, Agofsky had two convictions (per the some constitutional right to seek jury consideration of residual doubts' about his guilt during his
original district court verdict), zero convictions (per the panel order vacating the convictions), or one sentencing hearing-a questionable proposition-the rejection of petitioner's proffered jury instructions
conviction (per the instruction that the district court reimpose one of the two original convictions on did not impair this right. Id. at 175, 108 S.Ct. 2320 (emphasis added). Justice O'Connor, for
remand). We conclude that he was correctly impeached with both convictions. herself and Justice Blackmun, went further and wrote that the Eighth Amendment does not require
[consideration of residual doubt by the sentencing body]. Id. at 187, 108 S.Ct. 2320.
This court's decisions are not final until we issue a mandate. Charpentier v. Ortco Contractors,
480 F.3d 710, 713 (5th Cir.2007). In Charpentier, we rejected the argument that an award ceased to The Fifth Circuit has also addressed the issue. Although there is a difference between rules relating
exist on the date we issued our opinion [vacating the award]. Id. Similarly, Agofsky's convictions to what mitigating evidence the jury may consider and rules relating to instructing the jury how to
did not cease to exist when the panel opinion vacating them was entered. Because the mandate had consider such evidence, a criminal defendant is not constitutionally entitled to instruct the jury to
not yet issued, the original district court judgment remained in effect; Agofsky was still convicted of consider residual doubt Smith v. Black, 904 F.2d 950, 968-69 (5th Cir.1990), vacated on other
both crimes at the time of his testimony.19 grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992).

Further, under rule 609(e), [t]he pendency of an appeal therefrom does not render evidence of a We find no error in the denial of Jackson's request for a jury instruction on residual doubt. First,
conviction inadmissible. Accordingly, neither the stayed mandate in this court nor the pending neither the Supreme Court nor the Fifth Circuit has held that a defendant is entitled to such an
certiorari petition20affected the admissibility of Agofsky's convictions. 21 We note, however, that the instruction.24 Second, even if we assume some right to consideration of residual doubt, the trial
rules permitted Jackson to present information about Agofsky's appeal to ameliorate the court placed no limitation whatsoever on [Jackson]'s opportunity to press the residual doubts'
impeachment. Fed. R. Evid. 609(e) ( Evidence of the pendency of an appeal is admissible.). question with the sentencing jury. Jackson was able to argue self-defense at sentencing, and the
Jackson declined to do so despite being reminded of the option by the district court. court explicitly instructed the jury that it could consider [a]ny other[ factors] you may find from the
evidence and anything else about the commission of the crime that would mitigate against
I. imposition of the death penalty. Following Franklin and Smith, we therefore conclude that any
right to consideration of residual doubt was not impaired.
Jackson argues that, as a matter of constitutional right, he should have been allowed to submit a
statement of allocution to the jury.22 The district court denied Jackson's request to allocute, citing K.
United States v. Hall, 152 F.3d 381, 396 (5th Cir.1998) (We conclude that a criminal defendant in a
capital case does not possess a constitutional right to make an unsworn statement of remorse before As part of rendering its sentencing verdict, the jury completed a special verdict form that included an
the jury that is not subject to cross-examination.), abrogated on other grounds by United States v. extensive sixty-item list of potential mitigating factors. Only one of those factors was found by all
Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). twelve jurors,25 and fifty of them received zero support.

Jackson's brief does not even mention Hall, let alone attempt to distinguish it. This panel may not Jackson argues that the verdict is inconsistent with the evidence presented at trial. He claims that
overrule the decision of a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th in one case, the verdict contradicted an explicit government stipulation. Elsewhere, he claims that
Cir.1999). Accordingly, we follow Hall and uphold the district court's order. the jury failed to find factors that had been demonstrated at trial beyond all doubt. He concludes
that [n]o rational juror could have viewed the evidence and then answered the questions regarding
J. the mitigating factors in such a manner without violating his oath as a juror.
82
As an initial matter, we have expressed doubt that a special verdict on mitigating factors is The jury did not merely rubber-stamp the prosecution's request for a death sentence. Four jurors
reviewable.26Assuming, arguendo, that we possess the authority to review the jurors' special found that Jackson's father was abusive and that the abuse was mitigating. Every juror found it
findings regarding mitigating factors, we must accept the jurors' factual determinations unless no mitigating that Jackson had no positive role model. Six found it mitigating that he was in prison for
reasonable juror could have arrived at the conclusion reached by the juror in question. Hall, 152 a non-violent offense. Ten found it mitigating that he was not actively looking to kill someone.
F.3d at 413. Further, verdict inconsistencies are generally tolerated. See Agofsky, 458 F.3d at Nine found it mitigating that he was the first aggressor. Eight found it mitigating that there are
375.27 prisoners with worse records who are not sentenced to death.

Jackson's strongest claim that the verdict is inconsistent involves Gulley. The government stipulated In short, the jurors appear to have properly and conscientiously carried out their duties. We cannot
that Gulley did not receive the death penalty, but on the special verdict form, only one juror found conclude that their findings are beyond the bounds of reason or are inconsistent with the
that to be a proven mitigating factor. Jackson argues that in making that finding, [e]leven of the government's stipulations.
twelve jurors found an uncontroverted, stipulated, written in stone fact, not to be a fact.
L.
Jackson's argument overstates his case. The special verdict form asked whether the jury found that
[a]n equally culpable defendant, Arzell Gulley, did not receive a sentence of death as a result of the Jackson argues that the court erred in denying him a new trial or at least a hearing regarding his new
offense (emphasis added). The government stipulated only that Gulley did not receive a sentence of trial motion. He contends the jury erroneously believed that even if he were sentenced to life
death; the jury, meanwhile, could have rationally concluded that he was not equally culpable. without parole, it was still possible he could be released before the end of his life-despite the district
Jackson testified that Gulley didn't help me kill the man and in fact yelled [l]et's get out of here court's explicit instruction to the contrary. To support this contention, Jackson offered an affidavit
after the first stab. Thus, the jury's finding is neither inconsistent with the government's stipulation of an investigator who contacted jurors after the trial. The affidavit stated that a number of them
nor irrational. believed that Jackson could be released early, as had happened with a cooperating witness who
testified at trial.
The other findings that Jackson cites as inconsistent all relate to factors that the government did not
stipulate to be true, e.g., Jackson's head injury as a baby, low I.Q. score, possible retardation, 28 bad A juror's affidavit may not be received on a matter about which the juror would be precluded from
home life, good behavior in prison, and diligence in teaching himself to read. Jackson argues that testifying. A juror may testify regarding only three aspects of the events surrounding deliberations:
the evidence overwhelmingly established those factors without controversion by the government. (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2)
whether any outside influence was improperly brought to bear upon any juror, or (3) whether there
This mitigation evidence, however, could rationally be called into question. Much of it was provided was a mistake in entering the verdict onto the verdict form. Fed. R. Evid. 606(b) (emphasis added).
by Jackson's childhood and current girlfriend, whom the jury was free to disbelieve, 29 and the
government used cross-examination to cast doubt on the reliability of Jackson's expert witnesses. In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir.1998), a death penalty case like Jackson's, we
Likewise, despite Jackson's claims to good behavior and educational achievement, the jury, upon unambiguously stated that [r]ule 606(b) has consistently been used to bar testimony when the jury
learning that he ran a gambling operation in prison, reasonably could have concluded that his misunderstood instructions and that outside influence refers to a factor originating outside of
rehabilitation was not going well. normal courtroom proceedings which influences jury deliberations, such as a statement made by a
bailiff to the jury or a threat against a juror (emphasis added). Jones is on point, 30 and the proffered
Further, and more fundamentally, the jury was not required to find that a factor was mitigating, even affidavit should not be received. The affidavit does not provide evidence that extraneous prejudicial
if it believed the factor's factual predicate to be true. All the law requires is that jurors be aware that information was improperly brought to the jury's attention or that any outside influence was
they can consider a factor to be mitigating. See Bernard, 299 F.3d at 485-86. For example, no improperly brought to bear upon any juror. At most, it indicates that some jurors apparently
juror found that Jackson experienced persistent falling when trying to walk until he was 5 years old misunderstood what Jackson concedes was the court's explicit instruction. Any misunderstanding
and this factor is mitigating. In reaching that conclusion, the jurors could have believed Jackson was seemingly caused by the testimony of a government witness, which came as a valid part of his
experienced problems walking but that the factor did not weigh against a sentence of death. direct examination during normal courtroom proceedings.

Because the investigator's affidavit was inadmissible, and Jackson presented no other evidence of
jury confusion, the district court was well within its discretion to deny a new trial. Moreover, given
that Jackson had not proffered any admissible evidence, the court properly denied the motion to hold
an evidentiary hearing.31
83
For the reasons stated, we AFFIRM the conviction and sentence. 8. The government disputes whether this issue was raised in the district court. If it was raised
and preserved, we would review the legal question de novo; otherwise, we would review only for plain
FOOTNOTES error. United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir.1992) (en banc). We need not
decide whether the issue was adequately raised, however, because we affirm even under de novo
review.
1. A shank is a homemade knife.

9. See United States v. Bernard, 299 F.3d 467, 474-75 (5th Cir.2002) (affirming dismissal of
2. Jackson gives no citations to this information in the trial record. See Fed. R.App. P. 28(a)(9)
potential juror who indicated on her questionnaire that she did not feel [she] ha[d] the right to judge
(A) (noting need to include contentions and the reason for them, with citations to the authorities and
whether a person lives or dies and then wavered during questioning).
parts of the record on which the appellant relies).

10. As Jackson's brief acknowledges, [t]he government made no effort to connect these other
3. Jackson's mother presumably would have testified regarding Jackson's background and
unrelated incidents to either Jackson nor [sic] the deceased.
upbringing, but Jackson presented other witnesses on that same topic, including a childhood friend
who had personally witnessed much of the abuse Jackson suffered. And although Jackson suggests
that his mother could have effectively pleaded for her son's life, the district court properly ruled that 11. Rule 701 provides,If the witness is not testifying as an expert, the witness' testimony in the form
general pleas for mercy would not be permitted. See Kelly v. Lynaugh, 862 F.2d 1126, 1133 n. 12 (5th of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on
Cir.1988) (noting that stepfather's request that jury spare defendant's life is not mitigating evidence the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the
required to be admitted under Eighth Amendment); see also Jackson v. Dretke, 450 F.3d 614, 617-18 determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
(5th Cir.2006) (holding that state court's decision to exclude execution impact testimony by knowledge within the scope of Rule 702.
defendant's family and friends did not contradict Supreme Court governing law and was not
unreasonable application of Supreme Court precedent). 12. Rule 702 provides,If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
4. He was held on unrelated matters, including an arrest for bank robbery. knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles and methods
5. See, e.g., United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976) (finding that a delay of 10
reliably to the facts of the case.
1/212 months was not presumptively prejudicial).

13. As the advisory committee notes to rule 405 explain,Of the three methods of proving character
6. Jackson appears to raise a third argument that the due process clause is violated where
provided by [rule 405], evidence of specific instances of conduct is the most convincing. At the same
aggravating factors are treated differently from elements of a crime. He neither explains that
time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume
contention nor cites any law but instead attempts to incorporate arguments made to the district court
time. Consequently the rule confines the use of evidence of this kind to cases in which character is,
by reference as if fully set out for this Court's consideration.Argument by reference is not permitted;
in the strict sense, in issue and hence deserving of a searching inquiry. When character is used
an appellant who requests the adoption of previously filed legal and factual arguments abandon[s
circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and
those] arguments by failing to argue them in the body of his brief. Yohey v. Collins, 985 F.2d 222,
opinion. These latter methods are also available when character is in issue.Fed.R.Evid. 405 advisory
224-25 (5th Cir.1993) (citing Fed. R.App. P. 28(a)(4), now Fed. R.App. P. 28(a)(9), which requires a
committee's note.
brief to contain appellant's contentions and the reasons for them). This argument-if it even is a
separate argument-is waived.
14. The majority of the records describe simple acts of mischief (e.g., falsely triggering fire
sprinklers) or insubordination (e.g., refusing to follow instructions from prison officials).
7. See, e.g., United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) (We are bound by Supreme
Court precedent which forecloses any argument that the death penalty violates the Constitution under
all circumstances.). 15. The issue arose when one of Jackson's lawyers, Mr. Barlow, objected during the cross-
examination of a witness that Jackson's other lawyer, Mr. Morrow, had directly examined. After
questioning was complete and the jury had been excused, the judge ordered, I don't want one of you
objecting and then the other one. That was Mr. Morrow's witness. Mr. Barlow, don't object if he's
the person responsible for the witness. Jackson's counsel responded by saying only Yes, your
honor.
84
16. The government cites, for example, United States v. Pace, 10 F.3d 1106, 1114 (5th Cir.1993) concluded that we once again face a situation where we need not resolve whether such a right
(stating that the court of appeals must determine whether the trial court imposed unreasonable exists Id.
limits on cross-examination such that a reasonable jury might have received a significantly different
impression of a witness' credibility had defense counsel pursued his proposed line of cross- 24. The lengthy list of cases that Jackson cites suggest, at most, that a defendant is permitted to
examination) (citation and internal quotations omitted). argue residual doubt. None stands for the proposition that the Eighth Amendment compels a jury
instruction on residual doubt.
17. Because we affirm the decision to exclude the evidence as unfairly prejudicial under rule 403,
we need not address its ruling that the conviction was too old to be admissible under rule 609(b). 25. Factor #15: [Jackson] had no positive role model in his life as a child and this factor is
mitigating.
18. He was convicted of both premeditated, first degree murder and premeditated, first degree
murder by a federal prisoner serving a term of life imprisonment. 26. See United States v. Hall, 152 F.3d 381, 413 (5th Cir.1998) ([W]e question whether the jurors'
failure to find a particular mitigating factor constitutes a proper subject of review for this court.),
19. The existence of the convictions did not automatically make them admissible. Rule 609(a)(1) abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145
states that convictions for crimes that do not involve acts of dishonesty are admissible subject to rule L.Ed.2d 792 (2000); see also United States v. Bernard, 299 F.3d 467, 485 (5th Cir.2002) (This court
403, which allows the district court to exclude evidence where the probative value is substantially has previously expressed doubt regarding its authority to review jury findings relating to mitigating
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury factors. [United States v.] Hall questions whether a jury's failure to find the existence of a mitigating
Fed.R.Evid. 609(a)(1). Because Jackson did not raise a rule 403 challenge at trial or on appeal, we factor is subject to appellate review, since the FDPA does not require the jury to make special findings
do not review the district court's decision on the matter. of the existence of, or degree of jury unanimity upon, mitigating factors.) (internal citation omitted).

20. In Agofsky's case, the Supreme Court was acting as an appellate court. See U.S. Const. art. 27. As explained in United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984),
III, 2. Agofsky's certiorari petition is therefore included in rule 609(e)'s reference to pendency of [W]ith few exceptions [involving crooked members of the venire panel or improper outside influences
an appeal. on the jury during trial], once the jury has heard the evidence and the case has been submitted, the
litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a
21. Jackson argues that the obvious purpose of rule 609(e) is to respect the presumption of jury's thought processes; through this deference the jury brings to the criminal process, in addition to
correctness which ought to attend judicial proceedings and that that purpose is not served by the collective judgment of the community, an element of needed finality.(Internal citations omitted.)
respecting a conviction that a court of appeals has reversed while certiorari is pending. That The case Jackson cites repeatedly as contrary persuasive authority, Getsy v. Mitchell, 456 F.3d 575
argument is unavailing under the peculiar circumstances of this case.Agofsky's conviction was not (6th Cir.2006), was vacated by the en banc court, Getsy v. Mitchell, 495 F.3d 295, 300, 309 (6th
reversed on the merits-indeed, the district court was ordered to re-enter the conviction on one count. Cir.2007) (en banc) (noting that [p]erhaps some day the Supreme Court will hold that inconsistent
Further, rule 609(e) is pellucid, and we must follow it. It is well established that when the statute's verdicts are unconstitutional[, b]ut this is not the law of the land today ), cert. denied, --- U.S. ----,
language is plain, the sole function of the courts-at least where the disposition required by the text is 128 S.Ct. 1475, 170 L.Ed.2d 299 (2008).
not absurd-is to enforce it according to its terms. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct.
1023, 157 L.Ed.2d 1024 (2004) (internal quotations and citations omitted); see also, e.g., Garcia v. 28. Jackson alludes to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)
Gloor, 618 F.2d 264, 268 (5th Cir.1980) ([W]e start with [the statute's] plain words without pausing (barring executions of the mentally retarded), but he does not make an Atkins claim.
to consider whether a statute differently framed would yield results more consonant with fairness and
reason.). 29. See, e.g., Hall, 152 F.3d at 413 (In support of his claim that he experienced an upbringing that
militated against the imposition of the death penalty, Hall offered only the testimony of two of his
22. A statement of allocution is [a]n unsworn statement from a convicted defendant to the family members, which the jury was free to believe or disbelieve.) (emphasis added).
sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct,
apologize for the crime, or say anything else in an effort to lessen the impending sentence. Black's 30. To avoid the impact of Jones, Jackson mischaracterizes the order denying a new trial as a
Law Dictionary 83 (8th ed.2004). misstatement of the law. He seizes on the court's statement that because the jury charge did not
directly address or even allude to the possibility of future sentence reductions, the jury cannot be
23. The Court recently reiterated this aspect of Franklin in Oregon v. Guzek, 546 U.S. 517, 525, 126 accused of explicitly disregarding the court's instructions He argues that the court incorrectly
S.Ct. 1226, 163 L.Ed.2d 1112 (2006). The Guzek Court, noting that Franklin did not resolve whether focused on the correctness of its instructions rather than the jury's violation of them.Jackson
the Eighth Amendment affords capital defendants such a right [to consideration of residual doubt], overlooks the final sentences in the paragraph, in which the court properly explained it was
85
concerned only with influences external to the trial: Moreover, so long as any misunderstanding clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict
regarding the jury charge was not the result of an improper outside source or extraneous influence, evidentiary hearing was unnecessary.).
the district court need not grant a new trial (citing Jones, 132 F.3d at 245-46). The court then
explained that Jackson had failed to offer any evidence that showed that the jury's erroneous JERRY E. SMITH, Circuit Judge:
understanding of what life without parole meant had originated outside of the trial.

31. See, e.g., Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)
([T]he District Court did not err in deciding, based on the inadmissibility of juror testimony and the