RES GESTAE

her daughter of what happened as part of the

res gestae?

Rule 130, Section 42

Ruling: YES. The RTC erred in considering the

revelation as part of res gestae. The court
stressed that in order for the statement to be
part of the res gestae, it must not only be
spontaneous but also be made at a time when
there was no opportunity to concoct or develop a
story. As the Court observed, she did not go
home immediately after the incident. She took a
walk instead and spent some time thinking of
what to do next. She had enough time to make a
decision on what will be the nature of her story.

Section 42. Part of res gestae. Statements

made by a person while a starting occurrence is
taking place or immediately prior or subsequent
thereto with respect to the circumstances
thereof, may be given in evidence as part of res
gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it
a legal significance, may be received as part of
the res gestae. (36a)
PEOPLE VS LUNGAYAN 162 SCRA 100

PEOPLE V PUTIAN 74 SCRA

Facts: This appeal from the decision of the RTC

arose due to the complaint filed by Agripina
Juan Vda. De Garzota, a 52 year old widow,
charging the accused of rape. At about 10 in the
evening of January 20,1980, the complainant
was already asleep inside the room at their
market stall when the accused, who was then
the barangay captain, awakened her by entering
her room after one of her children opened the
door for him. He invited her to join him to
observe the persons drinking wine in the market
because they are in violation of a barangay
ordinance prohibiting such drinking after 10pm.
Agripina consented. While they were standing
two meters away from the open door of the
canteen, the accused suddenly grabbed both of
her hands and allegedly pointed a gun at her
after she shouted loudly. The accused then
pulled her and she fell hitting her head on the
pavement. When she regained consciousness,
she was dragged to a banana grove where she
was allegedly raped. Thereafter, she reached
home at around midnight and one of her
daughters asked her what happened. Agripina
then revealed that the accused abused her and
when pressed for details, she just said that she
will tell everything in the morning, and
thereafter reported the incident. She was also
submitted for medical examination. Based on
the evidence presented, the accused was
convicted. By way of rebuttal during appeal, the
accused emphasized the failure of the
prosecution to establish involuntariness on the
part of the victim.

Facts: Guillermo Putian appealed from the

decision of the Court of First Instance of
Misamis Occidental, finding him guilty of the
murder of Teodulo Panimdim.
The
prosecution
presented
only
two
witnesses: (1) The doctor who treated the victim
at the hospital and who testified on the nature
of his wound and the cause of his death and (2)
the policeman who arrested the accused and
seized from him the dagger allegedly used in the
stabbing and who took down the victim's antemortem statement Identifying "Guirmo" Putian
as his assailant.
On the other hand, the accused did not
testify in his own behalf. The defense presented
only one witness. He testified that appellant
Putian was in the dance hall when the victim
was stabbed outside that hall.
Putian admits that on November 22, 1969
while Teodulo Panimdim was attending a dance
at Barrio Tabo -o, Jimenez, Misamis Occidental,
he (Panimdim) was stabbed in the left groin. As
a result of that assault, Panimdim died five days
later at the provincial hospital.
According to the prosecution, in the evening
of that day, November 22, while Patrolman
Arturo Yap was passing Barrio Tabo-o, he
noticed a commotion at the back of the dance
hall in that barrio. He was informed that
someone had been stabbed. He looked for the
culprit. He found Guillermo Putian behind the
municipal building with a dagger and scabbard
in his possession. Yap investigated Putian. The
latter denied that he stabbed Panimdim. Yap
arrested Putian and surrendered him to Jesus

Issue: Whether the trial court erred in

considering the revelation of the complainant to

Gomonit, the guard at the municipal hall.

because he is both an uncle and a barrio mate.

She also knew Carlito Tala who is a relative of
her mother and Rodolfo Matawaran who is a
"barkada" of Carlito. She recognized all the
accused for the lights were on. 5 When the man
whose face was covered threatened to stab the
kids, Geraldine got so frighten that she revealed
to the accused where her mother hid the money.

ISSUE: WON the statement of Panimdim is a

dying declaration or a part of the res gestae.
Ruling: The trial court, in convicting Putian,
regarded Panimdim's ante -mortem statement as
part of the res gestae. Obviously, it did not give
to that statement the probative value of a dying
declaration because the declarant at the time he
made the statement was not under a
consciousness of an impending death.

After Tolentino took the P4,000.00, he

stabbed Grace Paule with a scythe while the
other three (3) accused held the three (3) other
children who were then stabbed one after the
other by Tolentino. During the stabbing
incident, Grace Paule lost consciousness but
was able to regain it back after about five (5)
minutes and shouted for help. Her mother and
grandmother, who lived nearby, heard her and
immediately proceeded to said house but the
four (4) accused had already left.

The
res
gestae
rule
embraces
(a)
spontaneous exclamations and (b) verbal acts.
The trial court admitted Panimdim's statement
as a spontaneous statement made after the
commission of a felony.
A declaration made by a person immediately
after being wounded, pointing out or naming his
assailant, may be considered as part of the res
gestae and is admissible in evidence. A
statement was given sometime after the stabbing
while the declarant was undergoing treatment at
a medical clinic, where he had no time to
concoct a falsehood or to fabricate a malicious
charge against the accused and no motive has
been shown as to why he would frame-up the
accused would render the statement admissible
as a part of the res gestae

When accused Tolentino's brother informed

Adelaida about the stabbing incident that took
place in her house, Adelaida immediately rushed
to her house and saw all the children with stab
wounds. Glenly was lying on the bed already
dead while her bloodied niece Grace was sitting
down near the door looking pale and holding her
heart. Upon reaching Geraldine, who was lying
at the porch, she asked her the identities of the
person responsible for stabbing them with the
latter answering "Bong -Bong" and also
mentioning the names of Tala and Matawaran.

PEOPLE V TOLENTINO 218 SCRA 337

Grace Paule was the only surviving victim of

this horrible and harrowing experience and
testified that she was awaken by the four (4)
accused who entered the house of her aunt in
the early morning of November 8, 1983 and
subsequently stabbed her and her three (3)
cousins. She positively identified the three (3)
accused because accused Manolito Tolentino is
her uncle as well as her barrio mate and
accused -appellant Carlito Tala is a relative of
her mother while accused Rodolfo Matawaran is
the "barkada" of accused -appellant Tala.

Facts: The case is an appeal by the accused

Tala after being convicted of the crime of robbery
with homicide. Adelaida Lingad left her niece,
Grace Paule and her three (3) children namely:
Geraldine, Glenly and Enrique, all minors, at
home to attend the wake of her uncle in a house
200 meters away from her place. The children
were the only ones left at home. Her husband
was then working abroad. At that time, Adelaida
had P4,000.00 in cash which was wrapped in
newspaper and kept hidden under her bed.
Before leaving the house, Adelaida instructed
the kids to go to bed.

Issue: WON the court erred in admitting the

statement of Geraldine.

At around 1 p.m. or 2 p.m., accused Tala,

Tolentino, Matawaran and an unknown person
whose face was covered entered the house of
Adelaida Lingad by forcibly breaking the window
grill of the comfort room and demanded to know
from the children where their mother hid her
money. Grace Paule knew Manolito Tolentino

Ruling: The trial court had correctly applied the

principle of res gestae, namely: (1) that the
principal act, the res gestae, be a startling
occurrence; (2) that the statements were made
before the declarant had time to contrive or
device a falsehood; and (3) that the statements

made must concern the occurrence in question

and its immediately attending circumstances
11
which are all present in the case at bar as
Geraldine had named accused -appellant as one
of the perpetrators in the commission of the
crime immediately after the occurrence of the
stabbing incident.

the fact that a company records its employees

version of their accidents does not put those
statements in the class of records made in the
regular course of business. The conductors
statement was not made for business purposes,
it was made to prove the truth of the
conductors version of events and assist the
company in avoiding tort liability. The primary
usage of such statement is in litigating, not in
railroading.

ENTRIES IN THE COURSE OF BUSINESS

Rule 130, Section 43

The Supreme Court of the United States

ruled that an accident report created by a
railroad company which was prepared in
anticipation of a lawsuit by the victim was
inadmissible, because it was not prepared in the
regular course of business. Railroad travel, and
not litigation, was the primary business of the
railroad, and therefore the report was not
considered sufficiently reliable to be admitted
into evidence.

Section 43. Entries in the course of business.

Entries made at, or near the time of
transactions to which they refer, by a person
deceased, 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 the entries in his professional capacity or
in the performance of duty and in the ordinary
or regular course of business or duty. (37a)

PHILIPPINE AMERICAN LIFE v. CAPITAL

ASSURANCE 72 O.G. 3941 March 7,

PALMER V HOFFMAN 318 US 109

*Doctrine: Sec. 37, Rule 130 of the Rules of Court

may not be invoked in order to justify the
admission of a statement of account identified by
a witness whose office made the entries thereof
but who has no personal knowledge about how
the account had arisen or of the transactions to
which the entries refer.

Facts: Mrs. Palmer was hit and killed. Mr.

Palmer sued the train company for negligence.
Palmer alleged that the train did not ring its
bell, blow its whistle, or have its lights on as
were required by law. At trial, the train company
(represented by Hoffman) attempted to introduce
a transcript of statement the train conductor
had with the Mass Public Utilities Commission
(a normal part of any train accident
investigation). Palmer objected on the grounds
that the out of court statement was hearsay.
Hoffman argued that the statement was an
exception to hearsay because it was an official
business record and made in the regular course
of business.

Facts: The Galang spouses were the agents of

Philamgen for the collection of premium
payments from the latters insurance policy
holders. Certain payments were not remitted by
the spouses to the Philamgen. As a result, the
spouses, together with Capital Assurance,
executed a Memorandum of Agreement with
Philamgen whereby Capital Assurance and the
spouses agreed to pay jointly and severally the
unremitted premium payments to Philamgen. By
virtue of a stipulation in the agreement which
states that the Galang spouses and Capital
Assurance undertakes to pay Philamgen any and
all obligations of the spouses arising from the
unremitted premium payments, Philamgen wrote
Capital Assurance informing the latter about the
additional amounts incurred by the spouses and
demanding
payment
therefore.
Capital
Assurance answered that it cannot assume the
additional liability of the Galang spouses until
the latter confirms incurring the same. Attached
to this reply was the denial by the spouses of

Issue: Whether or not the statement made by

the conductor of the train was made in the
regular course of business.
Ruling: The US Supreme Court found that the
phrase in the regular course of business
referred to timetables, accounting and other
normal
business
activities.
The
train
conductors statement was not a record made
for the systematic conduct of a business as a
business. While an accident report may affect
the business, it is not typical of entries made
systematically or as a matter of routine to record
events, occurrences or transactions. Basically,

specially enjoined by law, are prima facie

evidence of the facts therein stated. (38)

said
additional
amounts.
Consequently,
Philamgen filed a collection suit, but only as
against Capital Assurance. The City Court of
Manila and the Court of First Instance of Manila
ruled in favor of Philamgen. Capital Assurance
appealed from said decisions. Capital Assurance
argued that Philamgen failed to prove the
existence of the additional accounts incurred by
the Galang spouses. On the other hand,
Philamgen argued that it was able to establish
the same by virtue of the testimony of its
Accounts Control Office Chief, Narciso Bacani,
who testified on a statement of account which
showed the spouses indebtedness.

CALTEX V. AFRICA 16 SCRA 448 March 30,

1966
*Doctrine: The report submitted by a police officer
in the performance of his duties, on the basis of
his own personal observation of the facts
reported, may properly be considered as an
exception to the hearsay rule.
Facts:The petitioner spouses filed an action for
damages against Caltex and Boquiran, the
former as owner of the gasoline station and the
latter as Caltexs agent. Negligence was
attributed on the part of the both of them as the
cause of the fire. The suit resulted from a fire
that broke out in the gasoline station while fuel
was being transferred from the truck into the
underground tank. The fire destroyed a number
of houses and other properties, including that of
the petitioner spouses. The petitioners offered in
evidence two reports, a Police Department
Report and a Fire Department Report, to bolster
their claim against the respondents. The trial
court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the
premises and with respect to the supervision of
the employees. The Court of Appeals ruled out
the reports as double hearsay and, hence,
inadmissible as evidence.

Issue:. Whether Philamgen has satisfactorily

proven that the Galang spouses incurred
additional accounts arising from premium
payments that were unremitted. -NO.
Ruling:
The
statement
of
account
is
inadmissible in evidence. Sec. 37, Rule 130 of
the Rules of Court on which Philamgen based its
argument specifically states that before entries
in the course of business may be received, it
must be shown that they were made by a person
who was in a position to know the facts therein
stated. It also requires that the entries must
have been made by a person deceased, outside
of the Philippines, or unable to testify.
Bacani did not have personal knowledge
of the transactions to which the entries in the
statement of account refers. He merely
computed the charges which his office received
from other departments of Philamgen. Bacani is
not a deceased person, outside of the
Philippines, or unable to testify so that the
entries made could be received in evidence as an
exception to the hearsay rule. The entries in
question being so far removed from the
exceptions to the hearsay rule, cannot and
should not substitute for a witnesss personal
knowledge of the transactions sought to be
established.

Petitioners appealed contending that the

reports in themselves, that is, without further
testimonial evidence on their contents, fall
within the scope of Sec. 35, Rule 130 of the
Rules of Court which provides that entries in
official records made in the performance of his
duty by a public officer of the Philippines, or by
a person in performance of a duty specially
enjoined by law, are prima facie evidence of the
facts therein stated.
Issue: Whether not the reports in question
constitute an exception to the hearsay rule?
-NO.

OFFICIAL RECORDS
Rule 130, Section 44

Ruling: The reports in question do not

constitute an exception to the hearsay rule. The
facts therein stated were not acquired by the
reporting officers through official information,
not having been given by the informants
pursuant to any duty to do so.

Section 44. Entries in official records. Entries

in official records made in the performance of
his duty by a public officer of the Philippines, or
by a person in the performance of a duty

made to take 3 tablets that made her feel dizzy

which the siblings claimed were aspirins . She
was found without her panties on and was
immediately
taken
to
the
hospital
for
examination. The accused denied the allegation
of Dulay arguing that he was at the beach resort
with his family at the time the alleged act
happened. The trial court found the accused
guilty of having raped Dulay.

There
are
three
requisites
for
admissibility under Sec.35, Rule 130:
1) that the entry was made by a public
officer, or by another person specially
enjoined by law to do;
2) that it was made by the public officer in
the performance of his duties, or by such
other person in the performance of a
duty specially enjoined by law; and
3) that the public officer or other person
had sufficient knowledge of the facts by
him stated, which must have been
acquired by him personally or through
official information.

Issue: Whether or not the guilt of Joseph Leones

proven beyond reasonable doubt. -NO.
Ruling: There are a number of significant facts
from the recorded evidence of the prosecution
which materially and substantially debunked
and derailed the theory of Dulay. The lacerations
on the hymen of Dulay would not have been
regarded as healing on the same day when
the rape against her was committed. It would
have been recorded as laceration fresh. It was
also found that Dulay was having her menstrual
period on the day of the alleged rape.

The material facts recited in the reports

as to the cause and circumstances of the fire
were not within the personal knowledge of the
officers who conducted the investigation. To
qualify statements as official information
acquired by the officers who prepared the
reports, the persons who made the statements
not only must have personal knowledge of the
facts stated but must have the duty to give such
statements for record. However, the other Police
Report submitted by Capt. Leoncio Mariano,
having been submitted by a police officer in the
performance of his duties on the basis of his
own personal observation of the facts reported,
may properly be considered as an exception to
the hearsay rule.

PEOPLE
v. LEONES
September 30, 1982

117

SCRA

Manalo v Robles Transportation Company

incorporated 99 Phil 729 (1956)
Facts: this case is all about the subsidiary
liability of RTCI in case of solvency of
Hernandez
A taxicab owned and operated
defendant appellant company.

by

The taxi driven by Edgardo Hrenandez

collided with a passanger truck.

382

Which causes physical injuries which

resulted to death of Armando Manalo

*Doctrine: A medical certificate prepared by a

government hospital doctor, even if he/she was
not presented as witness, is admissible as prima
facie of the facts therein stated and is an
exception to the hearsay rule.

Hernandez found guilty of homicide

through reckless imprudence and sentenced to
one year prision correctional, to indemnify the
heirs of the deceased in the amount of 3000, in
the case of insolvency to suffer subsidiary
imprisonment, and to pay costs. Edgardo
Hernandez served out his sentence but failed to
pay the indemnity. Two writs of execution were
issued against him to satisfy the amount of the
indemnity, but both writs were returned
unsatisfied by the sheriff who certified that
property, real or personal in Hernandez" name
could be found.

Facts: Irene Dulay was a salesgirl employed in

the store of Mr.and Mrs. Pepito Leo nes in La
Union where she also resided. On a certain day
when Dulay suffered from a headache, she
stayed in her room while the remaining members
of the Leones family namely the siblings Joseph
and Elizabeth Leones, went to a nearby beach
resort for a picnic. Dulay filed a criminal
complaint against Joseph alleging that, with the
help of his sister, he successfully had carnal
knowledge of her. According to Dulay, she was

Plaintiffs Emilio Manalo and his wife

Clara Salvador, father and mother respectively of

Armando filed the present action against the
Company to enforce its subsidiary liability,
pursuant to Articles 102 and 103 of the Revised
Penal Code.

People v Cabuang 217 s 675 (1993)

The trial court rendered judgment

sentencing the defendant Company to pay to
plaintiffs damages in the amount P3,000 with
interest at 12 per cent per annum from
November 14, 1952, plus P600 for attorney's fee
and expenses for litigation, with cost. As
aforesaid, the Company is appealing from this
decision.

On 14 October 1988, at around 11

o'clock at night, Evelyn De Vera and her cou sin
Maria Victoria Parana, both 19 years of age,
having come from a house of a common friend,
one Mia Colisao, were walking home along an
uninhabited place in Barangay Buenlag I of
Bayambang, Pangasinan. Suddenly, from out of
the rice paddies along the road, Modesto
Cabuang emerged with a flashlight and asked
them where they were going. Evelyn became very
anxious and started walking faster. Upon the
other hand, Maria Victoria started talking to
Modesto. When Evelyn was about ten (10) feet
ahead of the two, she looked back and saw
Modesto turn and shift his flashlight to the rear,
illuminating the figure of Nardo Matabang, who
had also suddenly appeared behind them from
the rice fields alongside the road. Modesto then
put off and pocketed his flashlight, grab bed
Maria Victoria and covered her mouth. Nardo
Matabang in turn pursued Evelyn, who had
started to run away. She ran and ran until she
entered the yard of a house along the road and
hid in the shadows of the plants and shrubs
inside the yard where she cou ld not seen by
Nardo, but from where she could see him. After
some time, having lost sight of Evelyn, Nardo
went back and rejoined Modesto. Before she
went home, she witnessed her cousin being
taken away by the accused in a tricycle. Evelyn
did not tell anyone about the incident that night.
The next day, Maria was found dead naked with
stab wounds. During police investigation, Evelyn
executed a sworn statement where she identified
2 suspects namely Modesto and Nardo. On the
basis of the evidence found by th e police during
their investigation and on evelyns sworn
statement which she repeated in substantially
identical terms before the trial court. Modesto
and nardo were convicted of the crime of robbery
with rape and homicide. The accused appealed
arguing th at the trial court erred in finding that
Evelyn de Vera had positively identified them as
the assailants of Maria. They point to an entry
in a police blotter which stated that the assailant
were still unidentified although the entry was
made after evelyn was questioned by the police.

Facts: this case is all about robbery with rape

and homicide.

To prove their case, the petitioners

introduced a copy of thedecision in the criminal
case convicting Hernandez of homicide through
reckless imprudence, the writs ofexecution to
enforce the civil liability, and the returns of the
sheriff showing that the 2writs of executionwere
not satisfied because of the insolvency of
Hernandez, the sheriff being unable to locate
any propertyin his name. The trial court ruled in
favor of petitioners and held Robles Trans liable
to pay the indemnity.
Robles transport appealed arguing that
the evidence presented was inadmissible. It
claimed that in admitting as evidence the
sheriffs return of the writ of execution to prove
the insolvency of Hernandez without requiring
said officilas appearance in court, deprived it of
it s opportunity to cross -examine said sheriff.
Issue: Whether the sheriff returns is admissible
as evidence.
Ruling: Yes, A sheriff's return is an official
statement made by a public official in the
performance of a duty specially enjoined by the
law and forming part of official records, and is
prima facie evidence of the facts stated therein.
(Rule 39, section 11 and Rule 123, section 35,
Rules of Court.) The sheriff's making the return
need not testify in court as to the facts stated in
his entry. The law reposes a particular
confidence in public officers that it presumes
they will discharge their several trust with
accuracy and fidelity; and therefore, whatever
acts they do in discharge of their public duty
may be given in evidence and shall be taken of
their public duty may be given in evidence and
shall be taken to be true under such a degree of
caution as the nature and circumstances of
each a case may appear to require.

be dismissed as merely fanciful.

Issue: Whether evely de vera completely

identified the assailant and her sworn statement
can be used as evidence in this case.

It remains only to note that entries in a

police blotter, though regularly done in the
course of performance of official duty are not
conclusive proof of the truth of such entries. In
People v. Santito, Jr., this Court held that entries
in official records like a police blotter are only
prima facie evidence of the facts therein set out,
since the entries in the police blotter could well
be incomplete or inaccurate. Testimony given in
open court during the trial is commonly much
more lengthy and detailed than the brief entries
made in the police blotter and the trial court
cannot base its findings on a police report
merely, but must necessarily consider all other
evidence gathered in the course of the police
investigation and presented in court. In the case
at bar, we conclude that prosecution witness
Evelyn de Vera did positively and clearly identify
Modesto Cabuang and Nardo Matabang as
among those who had raped and killed and
robbed the hapless Maria Victoria Parana.

Ruling: Yes. Upon receiving the report that a

dead body was found in Barangay Buenlag I,
membe rs of the Bayambang Police Station
immediately proceeded to the reported crime
scene on the morning of 15 October 1988. The
police investigator, Pfc. Elegio Lopez, who
initially questioned witness De Vera that
morning, noticed that she was in a state of
shock. He accordingly chose to defer further
questioning until the afternoon of the same day
when Evelyn had calmed down sufficiently to be
able to give a sworn statement to the police.
Thus, there was the initial report prepared and
recorded in the police blotter at around 11
o'clock in the morning, stating that the
assailants were still unidentified; there was,
upon the other hand, Evelyn de Vera's sworn
statement made and completed in the afternoon
of the same day, where she revealed the
identifies of the men she had seen the night
before and who she believed were responsible for
the rape and death of her cousin Maria Victoria.

People v Gabriel Gr. No. L-107735, Feb

1996

Facts: this case is all about fistfight in pier 14

at North Harbor along Marcos Road, Manila

The failure of Evelyn to specify the accused

-appellants as the doers of the horrific rape,
killing and robbery of Maria Victoria the first
time she was questioned by the police, does not
adversely affect her credibility. It is firmly settled
case law that the delay of a witness in revealing
to the police authority what he or she may know
about a crime does not, by itself, render the
witness' testimony unworthy of belief. Evelyn de
Vera was clearly traumatized, in a state of
shock, upon finding out that her cousin who
had been with her just the night before, was
brutally raped and killed. She could not then
and there clearly and calmly recount the events
she had experienced and witnessed that
dreadful night in a logical sequence. The few
hours delay which lapsed from the time the
entry in the police blotter was made, up to the
time Evelyn gave her sworn statement on the
afternoon of the same day, did not have the
effect of eroding the intrinsic credibility and
strength of that statement. It may be noted that
significantly
longer
delays
in
informing
investigating officers of what witnesses had
seen, have been held understandable by this
Court and as not, in themselves, destructive of
the otherwise credible character of such
testimony, especially where the witnesses' fear of
possible retaliation from the accused could not

A fistfight ensued between Jaime Tonog

on one hand and the accused Ricardo San
Gabriel together with "Ramon Doe" on the other.
The fight was eventually broken up when
onlookers pacified the protagonists. Ricardo and
Ramon then hastened towards Marcos Road but
in no time were back with bladed weapons. They
approached Tonog surreptitiously, surrounded
him and simultaneously stabbed h im in the
stomach and at the back, after which the
assailants ran towards the highway leaving
Tonog behind on the ground. During the trial,
the accused leans heavily on the Advance
Information Sheet 6 prepared by Pat. Steve
Casimiro which did not mention h im at all and
named only "Ramon Doe" as the principal
suspect .However, the court still convicted him
for murder.
Issue: Whether the advance information sheet
presented is admissible as evidence.
Ruling: No. Entries in official records, as in the
case of a police blotter, are only prima facie

evidence of the Facts therein stated. They are

not conclusive. The entry in the police blotter is
not necessarily entitled to full credit for it could
be incomplete and inaccurate, sometimes from
either partial sugge stions or for want of
suggestions or inquiries, without the aid of
which the witness may be unable to recall the
connected collateral circumstances necessary for
the correction of the first suggestion of his
memory and for his accurate recollection of all
that pertain to the subject. It is understandable
that the testimony during the trial would be
more lengthy and detailed than the matters
stated in the police blotter. Significantly, the
Advance Information Sheet was never formally
offered by the defense during the proceedings in
the court below. Hence any reliance by the
accused on the document must fail since the
court cannot consider any evidence which has
not been formally offered. Entries in official
records made in the performance of his duty by
a public officer or by a person in the
performance of a duty specially enjoined by law
are prima facie evidence of the facts therein
stated. But to be admissible in evidence three (3)
requisites must concur: (a) The entry was made
by a police officer or by anot her person specially
enjoined by law to do so;; (b) It was made by the
public officer in the performance of his duties or
by such other person in the performance of a
duty specially enjoined by law; and, (c) The
public officer or other person had sufficien t
knowledge of the facts by him stated, which
must have been acquired by him personally or
through official information. The Advance
Information Sheet does not constitute an
exception
to
the
hearsay
rule,
hence,
inadmissible. The public officer who prepare d
the document had no sufficient and personal
knowledge of the stabbing incident. Any
information possessed by him was acquired from
Camba, the alleged eye witness who reported the
crime to the police, which therefore could not be
categorized as official information because in
order to be classified as such the persons who
made the statements not only must have
personal knowledge of the facts stated but must
have the duty to give such statements for the
record.

Facts: Epifania claimed that sometime in 1992,

she discovered that her rice land has been
transferred and registered in the name of her
nephew, Eduardo C. Sison, without her
knowledge and cons ent, purportedly on the
strength of a Deed of Sale she executed on
November 24, 1989. She filed a complaint to
declare the deed of sale null and void. She
alleged that Eduardo tricked her into signing the
Deed of Sale, by inserting the deed among the
documents she signed pertaining to the transfer
of her residential land, house and camarin, in
favor of Demetrio, her foster child and the
brother of Eduardo. Eduardo and Eufemia
Sison, denied that they employed fraud or
trickery in the execution of the Deed of Sale.
They claimed that they purchased the property
from Epifania for P20,000.00. They averred that
Epifania could not have been deceived into
signing the Deed of Absolute Sale because it was
duly notarized before Notary Public Maximo V.
Cuesta, Jr.; and they have complied with all
requisites for its registration, as evidenced by
the Investigation Report by the Department of
Agrarian
Reform
(DAR),
Affidavit
of
Seller/Transferor, Affidavit of Buyer/Transferee,
Certification issued by the Provincial Agrarian
Reform Officer (PARO), Letter for the Secretary of
Agrarian
Reform,
Certificate
Authorizing
Payment of Capital Gains Tax, and the payment
of the registration fees. Some of these
documents even bore the signature of Epifania.
The trial court found that Edu ardo deceived
Epifania into signing the assailed deed by
interspersing the same with the documents
executed by the latter in favor of her foster son,
Demetrio Sison. Court of Appeals declared that
Epifanias allegation of trickery and fraud in the
execution of the questioned deed of sale, was
bare and unsupported. It did not constitute the
required convincing proof as would overcome the
presumption that a private document duly
acknowledged before a notary public is a public
instrument which will also serve as evidence of
the fact which gave rise to its execution as well
as its date.
Issue: Whether or not the deed of sale signed
and acknowledged by Epifinia before notary
public is prima facie evevidenc of its execution?

DELA CRUZ
vs. SISON G.R. No. 163770
February 17, 2005

Ruling: The questioned deed of sale was duly

notarized. It is a settled rule that one who

denies the due execution of a deed where ones
signature appears has the burden of proving
that, contrary to the recital in the jurat, one
never appeared before the notary public and
acknowledged the deed to be a voluntary act.
Epifania never claimed her signatures as
forgeries. In fact, Epifania never questioned the
deed of sale in favor of Demetrio, accepting it as
a valid and binding document. It is only with
respect to the deed of sale in favor of Ed uardo
that she denies knowledge of affixing her
signature. Unfortunately, for both parties, the
notary public, Atty. Maximo V. Cuesta, Jr. before
whom they appeared, died prior to the filing of
the case.

former. According to Lomibao, both Epifania and

Eduardo appeared before her twice, to facilitate
the issuance of the clearance over the transfer
of the property. The DAR visitors logbook
showed the names and signatures of both
parties written one after the other.

COMMERCIAL LISTS
Rule 130, Section 45
Section 45. Commercial lists and the like.
Evidence of statements of matters of interest to
persons engaged in an occupation contained in
a list, register, periodical, or other published
compilat ion is admissible as tending to prove
the truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally
used and relied upon by them therein. (39)

Hence, we apply the rule that documents

acknowledg ed before notaries public are public
documents which are admissible in evidence
without necessity of preliminary proof as to their
authenticity and due execution. They have in
their favor the presumption of regularity, and to
contradict the same, there mus t be evidence
that is clear, convincing and more than merely
preponderant. The burden of proof to overcome
the presumption of due execution of a notarial
document lies on the one contesting the same.
Petitioner failed to discharge this burden.

STATE
OF NEW JERSEY
LUNGSFORD 400 A.2d 843

v. LAWRENCE

Facts: Lungsford was arrested upon being found

in possession of a 1968 Plymouth Road Runner
two -door hardtop. The State alleged that the
Road Runner was stolen on January 8, 1975
from James Wilton. The State was unable to
produce Wilton at trial to identify the vehicle or
testify that it was stolen. In order to attempt to
prove its case the State was required to rely on
the NATB ( National Automobile Theft Bureau)
factory -trace information to establish that the
car in defendant's possession when he was
arrested was the car reported stolen by Wilton. A
car may be traced through any of the
distinguishing numbers placed in the car at the
point of production. In this case, because the
VIN, in the opinion of Detective Walsh of
Newark's auto theft squad, did not appear to
have been factory-installed, the police requested
the NATB to factory -trace the car through the
factory order number. The NATB information led
the police to the Wilton car-theft incident report
through the not quite perfect matchup with the
Division of Motor Vehicles' VIN information.
Defendant testified at trial that he purchased
the car from James Law of Hillside in January
1973. Although he had a title and registration he
could not corroborate the purchase. Both sides
attempted to locate Law but were unsuccessful.

Significantly, it must also be mentioned

that the appellee also contemporaneously
executed
a
notarized
"Affidavit
of
Seller/Transferor", acknowledging that she has
sold 1.45 hectares of her OLT retention area to
appellant Eduardo Sison. Said instrument is
also a public document, to overcome which
appellee failed also to adduce convincing
evidence. Then there is the certification or
clearance issued by the Provincial Agrarian
Reform Office for purposes of registration of the
lot in the name of the defendants -appellants .
The Revenue District Officer Dante Canullas
also approved the transfer to appellant when he
issued a certificate authorizing registration.
There is even the letter of the appellee to the
Secreatry of Agrarian Reform that the area from
which she sold a po rtion to Eduardo came from
her retention limit under PD 27. The obvious
purpose of her letter was to facilitate the transfer
to Eduardo.
The testimony of Municipal Agrarian
Reform Officer Erlinda Lomibao demonstrates
the intent of Epifania to sell her land to the

Defendant's appellate claims emphasize the

hearsay nature of certain evidence admitted at
trial over his objection.

states: A writing offered as a Memorandum or

record of acts, c onditions or events, is
admissible to prove the facts stated therein if the
writing or the record upon which it is based was
made in the regular course of a business, at or
about the time of the act, condition or event
recorded, and if the sources of information from
which it was made and the method and
circumstances of its preparation were such as to
justify its admission.

Issue: Whetheror not the NATB process of

tracing the identity of a car is admissible in
evidence?
Ruling: The NATB procedures for tracing the
identification of motor vehicles could properly be
held by a trial court to be evidential in criminal
case if compliance with the rule that states
"Evidence of a statement of matters of interest to
persons engaged in an occupation contained in
a list, register, periodical, or other published
compilation is admissible to prove the truth of
any relevant matter so stated if the compilation
is published for use by persons engaged in that
occupation and is generally used and relied
upon by them..

The
State
established
that
after
reasonable inquiry the owner of the allegedly
stolen car, James Wilton, could not be located
for trial. The report and supplement contained
the information that Wilton allegedly gave to the
police immediately after he realized his car was
stolen. This was the only evidence in the case
establishing that Wilton's car had been stolen.
This hearsay of Wilton was inadmissible under
the business records exception. While police
records may qualify as business records for
certain purposes and in certain respects, they
are nevertheless not vehicles by which
substantive evidential status may be conferred
upon the o therwise hearsay declarations of a
victim of or witness to a crime, accident or other
occurrence. If the declarant is not available to
testify and if the statement is not admissible
under some other exception to the hearsay rule,
such as excited utterance or dying declaration,
then admissibility cannot be predicated
exclusively upon the circumstance that the
statement was made to a police officer who
paraphrased its content in his report.

To satisfy the threshold the judge must

be convinced that the compilation is published
for use by persons engaged in that occupation
and is generally considered useful and reliable.
If these conditions are met, statements from the
compilation are admissible to prove the truth of
the relevant matter stated.
The rationale of the Rule is that the use
of such materials is necessary because it is too
difficult to call to the witness stand those who
have participated in their preparation or
compilation. The trustworthiness requirement is
satisfied by the requirement that a finding be
made by the judge that the material is regularly
published for use by persons in a given
occupation who rely on it. There is no motive to
falsify;; on the con trary, there is every reason to
be accurate and precise since the success of a
business depends on accuracy and reliability.

The reason for this conclusion lies in the

essential rationale of t he business records
exception which was "founded upon the twin
principles of reliability and necessity." But it is
clear that one of the critical circumstances
importing reliability is the fact that the
informant whose declaration is so recorded is
under a duty, in the context of the activity in
which the record is made, to make an honest
and truthful report. Thus, the business record
exception is predicated not only on the
circumstance that the record itself is kept in the
usual course of the business but also on the
circumstance that the recorded information is
obtained by the recorder from a declarant having
a "business" duty to communicate it truthfully.
Both of these criteria, namely, the recording of
the information in the usual course of the

The information before the trial court in

the instant case concerning the modus operandi
of the NATB was inadequate to permit
admissibility under the rule If the conditions of
admissibility under the rule had been
established and the judge had been satisfied at
a hearing that the proffer was sufficiently
trustworthy, based on the method of compilation
and industry reliance, the evid ence would have
been properly admissible. The report and the
reference in the supplement were admitted by
the trial court pursuant to the "Business
Entries" exception to the hearsay rule which

10

business activity and the providing of that

information by a declarant whose duty it is to
supply it truthfully, must be met before the trial
judge is free to exercise his discretion in
admitting or excluding the business entry based
upon his ultimate evaluation of its reliability.
Here, the second of these criteria was not met.

was a sort of secret scheme". The appellate

court found that petitioner ironically situated
itself in an inconsistent posture by the fact
that its own witness, admittedly an expert one,
heavily relies on the very same pieces of
evidence (price quotations) appellant has so
vigorously objected to as inadmissible evidence.

PNOC SHIPPING AND TRANSPORT

CORPORATION vs. CA G.R. No.
107518. October 8, 1998

Issue: Whether or not the price quotations may

be admitted in evidence?
Ruling: To enable an injured party to recover
actual or compensatory damages, he is required
to prove the actual amount of loss with
reasonable degree of certainty premised upon
competent proof and on the best evidence
available. The burden of proof is on the party
who would be defeated if no evidence would be
presented on either side. He must establish his
case by a preponderance of evidence which
means that the evidence, as a whole, adduced
by one side is superior to that of the other. In
other words, damages ca nnot be presumed and
courts, in making an award must point out
specific facts that could afford a basis for
measuring whatever compensatory or actual
damages are borne.

Facts: When M/V Maria Efigenia XV, owned by

private respondent Maria Efigenia Fishin g
Corporation(Fishing Corp.), was navigating the
waters near Fortune Island in Nasugbu,
Batangas on its way to Navotas, Metro Manila
when it collided with the vessel Petroparcel
which at the time was owned by the Luzon
Stevedoring
Corporation
(LSC).
After
investigation was conducted by the Board of
Marine Inquiry a decision finding the
Petroparcel at fault was rendered. Based on this
finding, Fishing Corp. sued the LSC and the
Petroparcel captain, Edgardo Doruelo praying for
an award of P692,680.00, allegedly representing
the value of the fishing nets, boat equipment
and cargoes of M/V Maria Efigenia XV, with
interest at the legal rate plus 25% thereof as
attorneys fees. The Fishing Corp. amended the
complaint to include the value of the hull. PNOC
acquired LSC thus making him a party to the
case. During the trial, Fishing Corp. presented
evidence consisting of the testimony of its
general manager and sole witness, Edilberto del
Rosario testifying on the cargo carried by the
vessel at the time it collided and the damages
they suffered because of the collision. They also
presented documentary evidence which includes
quotations of prices for the construction of the
broken parts of the vessel. The lower court noted
that petitioner only presented Lorenzo Lazaro,
senior estimator at PNOC Dockyard &
Engineering Corporation, as sole witness and it
did not bother at all to offer any documentary
evidence to support its position. Lazaro testified
that the price quotations submitted by private
respondent were excessive and that as an
expert witness, he used the quotations of his
suppliers in making his estimates. However, he
failed to present such quotations of prices from
his suppliers, saying that he could not produce
a breakdown of the costs of his estimates as it

In this case, actual damages were proven

through the sole testimony of private respon
dents general manager and certain pieces of
documentary evidence. Noticeably, petitioner did
not object to the exhibits in terms of the time
index for valuation of the lost goods and
equipment. In objecting to the same pieces of
evidence, petitioner commented that these were
not duly authenticated and that the Del Rosario
did not have personal knowledge on the contents
of the writings and neither was he an expert on
the subjects thereof.
Price quotations are ordinary private
writings which under the Revised Rules of Court
should have been proffered along with the
testimony of the authors thereof. Del Rosario
could not have testified on the veracity of the
contents of the writings even though he was the
seasoned owner of a fishing fleet because he was
not the one who issued the price quotations.
Section 36, Rule 130 of the Revised Rules of
Court provides that a witness can testify only to
those facts that he knows of his personal
knowledge.
The price quotations presented as
exhibits partake of the nature of hearsay

11

evidence considering that the persons who

issued them were not presented as witnesses.
Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the
personal knowledge of the witness but on the
knowledge of an other person who is not on the
witness stand. Hearsay evidence, whether
objected to or not, has no probative value unless
the proponent can show that the evidence falls
within the exceptions to the hearsay evidence
rule. On this point, we believe that the exhibits
do not fall under any of the exceptions provided
under Sections 37 to 47 of Rule 130.

probative value. Accordingly, as stated at the

outset, damages may not be awarded on the
basis of hearsay evidence.
LEARNED TREATIES
Rule 130, Section 46
Section 46. Learned treatises. A published
treatise, periodical or pamphlet on a subject of
history, law, science, or art is admissible as
tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the
writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or
calling as expert in the subject. (40a)

Under Section 45 of the aforesaid Rule, a

document is a commercial list if: (1) it is a
statement of matters of interest to persons
engaged in an occupation; (2) such statement is
contained in a list, register, periodical or other
published compilation; (3) said compilation is
published for the use of persons engaged in that
occupation, and (4) it is generally used and
relied upon by persons in the same o ccupation.

PRIOR TESTIMONY RULE

Rule 130, Section 47
Section 47. Testimony or deposition at a former
proceeding . The testimony or deposition of a
witness deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence against
the adverse party who had the opportunity to
cross -examine him. (41a)

Based on the above requisites, the price

quotations are not commercial lists for these do
not belong to the category of other published
compilations under Section 45. The exhibits
mentioned are mere price quotations issued
personally to Del Rosario who requested for
them from dealers of equipment similar to the
ones lost at the collision of the two vessels.
These are not published in any list, register,
periodical or other compilation on the relevant
subject matter. Neither are these market reports
or quotations within the purview of commercial
lists as these are not standard handbooks or
periodicals, containing data of everyday
professional need and relied upon in the work of
the occupation. These are simply letters
responding to the queries of Del Rosario. To be
sure, letters and telegrams are admissible in
evidence but these are, however, subject to the
general principles of evidence and to various
rules relating to documentary evidence. The
letter was not admissible in evidence as a
commercial list even though the clerk of the
dealer testified that he had written the letter in
due course of business upon instructions of the
dealer.

CARMELITA TAN and RODOLFO TAN vs.

COURT OF APPEALS G.R. No. L-22793
May 16, 1967
Facts: Petitioners, thru their mother Celestina
Daldo as guardian ad litem, sued respondent
Tan in the CFI for acknowledgment and support.
Celestina Daldo - after petitioners had already
presented oral and documentary evidence and
were about to rest their case - moved to dismiss
the foregoing civil case upon the ground that the
parties had come to an amicable settlement, and
prayed that the same be dismissed with
prejudice and without recourse of appeal. She
also subscribed before the clerk of the CFI to an
affidavit categorically stating that respondent
Francisco Tan "is not the father of my said
minor children named Carmelita and Rodolfo
(herein petitioners) but another person whose
name I cannot divulge";; and that she prepared
said affidavit precisely "to record what is true
and to correct what misinterpretation may arise

Being mere hearsay evidence, failure to

present the author of the letter renders its
contents suspect. As earlier stated, hearsay
evidence, whether objected to or not, has no

12

in the future". The CFI granted the motio n and

dismissed the case. More than a year after the
case was dismissed, petitioners, this time thru
their maternal grandfather Servillano Daldo as
guardian ad litem, commenced the present
action before the Juvenile & Domestic Relations
Court for acknowledgment and support,
involving the same parties, cause of action and
subject matter. The judge rendered judgment
declaring that "the present case is res judicata
by reason of the dismissal with prejudice of the
previous case and that, even on the merits, p
laintiffs have not made out their case with
sufficient
evidence,"
and
dismissed
the
complaint, without costs. On MR, the court
reconsider its decision, and declares the minors
Carmelita and Rodolfo Tan to be the illegitimate
children of the defendant Franc isco Tan alias
and orders the defendant to support said
minors. On appeal, the decision was reversed.

Here, the witnesses in question were

available. Only, they refused to testify. No other
person that prevented them from testifying, is
cited. Certainly, they do not come within the
legal purview of those unable to testify.
Besides in the situation here presented,
petitioners are not at all bereft of remedy. They
could have urged the court to have said
witnesses arrested, punished for contempt. 1
After all, these remedies are in the statute books
to help litigants in the prosecution of their
cases. Petitioners failed to avail of these
remedies, went ahead and submitted their case.
OHIO VS ROBERTS 448 US 56 (1980)
Facts: Defendant, Herschel Roberts, charged
with forgery and fraud, stayed in the apartment
of Anita Isaacs and used checks and credit
cards under the name of Bernard Isaacs (father
of Anita). Anita said that she did allow the
defendant to stay but did not give permission to
use the credit cards and checks. During the
trial, Anita, despite being subpoenaed several
times was not able to attend the hearings. The
prosecution tried to admit into evidence
preliminary hearing testimony but Roberts
contend that it v iolates the confrontation clause
and the court found in favor of Roberts.

Issue: Whether or not the testimonies of the

witnesses in the former trial within the coverage
of the rule of admissibility?
Ruling: The controlling statute is Section 37,
Rule 123 of the 1940 Rules of Court, now
Section 41, Rule 130,:
SEC. 41. Testimony at a former trial.
The testimony of a witness deceased or out of
the Philippines, or unable to testify, given in a
former case between the same parties, relating
to the same matter, the adverse party having
had an opportunity to cross -examine him, may
be given in evidence.

Issue: Whether the preliminary hearing

testimony by an unavailable witness is
admissible?
Ruling: YES. The admission of the preliminary
hearing testimony does not violate the con
frontation clause. The witness was unavailable
and the prosecution, in good faith, made all
possible method to locate the witness. Even then
the witness made several indication of the
reliability of her account during the hearing.
The court found that one could infer reliability
in cases where the evidences falls within a
firmly rooted hearsay exception, but even in
other cases, if particularized guarantees of
trustworthiness can be shown, the evidence
would be admitted.

Concededly, the witnesses at the former

trial were subpoenaed by the Juvenile &
Domestic Relations Court a number of times.
These witnesses did not appear to testify.These
witnesses are not dead. They are not outside of
the Philippines. Can they be categorized as
witnesses of the class unable to testify? The
Court of Appeals, construing this term, held
that "subsequent failure or refusal to appear
thereat [second trial] or hostility since testifying
at the first trial does not amount to inability to
testify, but such inability proceeding from a
grave cause, almost amounting to death, as
when the witness is old and has lost the power
of speech. (Griffith vs. Sauls, 77 Tex 630, 14
S.W. 230, 231; section 37 of Rule 123, Rules of
Court)."

OPINION RULE
Rule 130, Section 48-50
Section 48. General rule. The opinion of
witness is not admissible, except as indicated in

13

the following sections. (42)

may be competent to testify as an expert

although his knowledge his knowledge was
acquired through the medium of practical
experience rather than scientific study and
research. Education as a mode of acquiring
competency is now recognized under the
proposed rules of evidence.

Section 49. Opinion of expert witness. The

opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he shown to posses, may be received in
evidence. (43a)
Section 50. Opinion of ordinary witnesses.
The opinion of a witness for which proper basis
is given, may be received in evidence regarding

US VS TRONO 3 PHIL 213 (1904)

(a) the identity of a person about whom

he has adequate knowledge;
(b) A handwriting with which he has
sufficient familiarity; and

By : Dizon, May
*
Facts: The deceased, Benito Perez, Policarpio
Guevarra, and Felipe Bautista, were arrested in
their respective houses by the defendants
Valentin Trono, subinspector of the municipal
police of the town of Hagonoy, accompanied by
Jose and Agustin who were municipal policemen
and Maximo Angeles. The deceased and his
companions were suspected of the theft of a
revolver belonging to Maximo Angeles. The three
were taken to a place called Sapang-Angelo and
there were beaten and illtreated. They were then
brought to the municipal building of the town
where Benito Perez who has suffered much of
the beatings were complaining of severe pain
and was not able to properly walk. Nothing was
adduced from the investigation of the theft, the
three were subsequently released from custody.
Benito Perez died the next morning. An
investigation ensued and the defense contends
that the death of Benito Perez was not due to the
wounds inflicted during the beatings, but to a
serious illness, from which the deceased had
been suffering for a long time, basing such
allegation on the certificate and testimony of the
physician, Don Andres Icasiano. The trial court
convicted the accused of murder. The defendants
appealed the decisions, relying on the testimony
of the expert witness.

(c) The mental sanity of a person with

whom he is sufficiently acquainted.
The witness may also testify on his
impressions of the emotion, behavior, condition
or appearance of a person. (44a)
DILAG & CO. VS MERCED
(1949)

45 O.G. 5536

Facts: Dilag &Co. filed a case for the theft of a

truck bought from International Harvester
Company against.
During the Japanese occupation the
truck was stolen. After liberation Dilag saw the
truck parked outside a reaturant. Dilag had it
seized and filed complaint of theft against
Merced. Merced claimed that he bought the
truck in good faith and he relied on the copy of
the certificate of registration. Dilag presented
Jose Aguilar of the Bureau of Public works on
the fact of tampering of the motor vehicle
number The court ruled in favor of Dilag and
ordered Merced to pay damages. Merced assailed
the competency of the testimony of Jo se
Aguilar.
Issue: Whether Jose Aguilar of the Bureau of
Public Works was qualified as an expert witness
to prove the alleged tampering of the motor
number?

Issue: Whether the trial court erred in not giving

credence to the expert testimony?

RULING: YES. There is no precise requirement

as to the mode in which skill or experience shall
h ave been acquired. Scientific study and
training are not always essential to the
competency of a witness as an expert. A witness

RULING: NO. The testimony of expert witnesses,

although meriting attention, is not conclusive
upon the courts, but is to be weighed and its
probative value determined in connection with
other proofs adduced. In the case there are to be

14

found sufficient data which show in a conclusive

manner the seriousness of the wounds inflicted
upon Perez which caused his death.

the questioner. However, our courts does not

vests much faith and credit to a lie de tector test
as it is not conclusive for the reason that is has
not as yet attained scientific acceptance as a
reliable and accurate means of ascertaining
truth or deception.

PEOPLE VS ADOVISO 309 SCRA 1 (1999)

Facts: In the evening of February 18, 1990,
Emeterio Vasquez was preparing coffee as his
wife Anastacia was about to sleep. Their
grandson Rufino had already gone to sleep. A
few moments later gunshots were heard and
Emeterio and Rufino were shot. Bonifacio, son of
the s pouses Vasquez, who lived nearby heard
the gunshots and went outside with his son
Elmer to investigate.

State vs. Garver 225 P.2d 771 December 19,

1950
Facts: Robert Garver met his accomplices
Norman Andrus and Leland Marshall in tavern
in downtown Portland, and proposed that they
rob one Ancell Abbott, who was a janitor in the
Fred Meyer Store. Garver claimed to have
information that Abbott would be leaving the sto
re late in the evening carrying about $5,000 in a
shopping bag.
Acting upon Garvers suggestion, Andrus and
Marshall stole an automobile, secured two guns,
and rejoined Garver at about nine oclock in the
evening in the vicinity of the store. Garver armed
himself with one of the guns. They waited until
Abbott appeared carrying the shopping bag, and
followed him several blocks in the stolen
automobile. Andrus remained in the car while
the other two got out and held up Abbott with
guns in hand. The defendant Garver shot Abbott
three times. The three fled, carrying with them
the shopping bag, which, as it turned out,
contained no money but only some clothes.

From the investigation, it was revealed

that Bonifacio vividly saw the incident and
recognized Adoviso as one of the perpetrators of
the crime. Bonifacio was not able to immediately
identify him to the police, because of fear since
the perpetrators were known to be CAFGUs.
Adoviso questioned whether he was properly
identified by the two eyewitnesses and also
offered the testimony of Ernesto Lucena, poly
graph examiner.
The trial court found Adoviso guilty
Adoviso appealed with the contention
that the trial court rendered decision on the
basis of mere conjectures and speculations, and
that the negative result if the polygraph test
should be given weight to tilt the scales of justice
in his favour.

Garver raised the defense of insanity. It

was shown during the trial that Garver was
admitted twice in mental institutions, namely
Veterans Hospital at Roseburg, Oregon and
Oregon State Hospital, as a mentally diseased
person.
A
provisional
diagnosis
of
psychoneurosis hysteria was made. Later
while on parole, at his mothers request, he was
examined by Dr. Gerhard B. Haugen, a
Psychiatrist. Dr. Haugen reported that the
basic
pattern
present
in
Psychopathic
Inferiority. In addition to Dr. Haugens
testimony, the defense also presented the
testimony of Garvers mother, Mrs. Mitchell, and
lay testimonies o f others tending to show the
defendants chronic condition of mental
abnormality.

Issue: Whether or not Adovisos contention was

correct?
Ruling:
NO.
The
eyewitness
Bonifacio
sufficiently explained why he was unable to
immediately identify Adoviso. Bonifacio was
afraid of the Adovison since the latter was a
member of the CAFGU and, as such, was
provided with a gun. The general rule is that
witnesses react to a crime in different ways.
There is no standard form of human behavioural
response to a strange, starling and frightful
event, and there is no standard rule by which
witnesses to a crime must react.

Mrs. Mitchell related to the jury the

history of her son from infancy to the day of the
alleged crime - including his illnesses, both
mental and physical; his hospitalizatio ns;;his

A polygraph is an electromechanical
instrument that simultaneously measure and
records certain physiological changes in the
body and are believed to be involuntary caused
by an examinees conscious attempt to deceive

15

moral delinquencies;;and his crimes, whatever

throw light on his mental condition. She used
the expression in such terrible shape and
physically ill.

explosion. A postman had just delivered a

package addressed to him consisting of a mailing
tube with a screw- on top. The explosion tore
open Ronecs abdomen and tore off his arms.

The Court struck these phrases on the theory

they were opinions and conclusions of the witne
ss. Garver was later convicted of murder by the
lower court.

Prosecutions evidence bore primarily

upon Stifels possible motive for sending the
bomb, upon his capability in relation to
fashioning it, and upon the availability to him of
the materials, being an employee of Procter &
Gamble, from which government evidence
sought to establish that the bomb and bomb
package were made. The prosecution also
introduced the expert testimony of one James
Scott, a chemist and microanalyst attached to
the Identification Bureau of the Post Office
Department Inspection Services. He testified
pertaining to his study of various fragments of
the bomb package by the method of neutron
activation analysis. By this means, Scott sought
to establish whether the pieces of cardboard,
vinyl tape, metal top, and paper gummed label
were or could have been from the same
manufacturer and same batches as similar items
found in the Procter & Gamble inventory.
Employing neutron activation analysis, Scott
testified that in his opinion the mailing label, the
cardboard tube fragments, vinyl tape fragments
and metal cap were of the same elemental
composition as their Proctor and Gamble
counterpart and within reasonable scientific
certainty they were of the same type and same
manufacturer.

Issue: Whether Mrs. Mitchell can testify as to

the mental condition of the defendant Garver?
Ruling: YES, The general rule is that a lay
witness may testify only to facts and not to
opinions or conclusions. But lay witnesses are
frequently permitted to use so -called short
hand descriptions, in reality opinions, in
presenting to the court their impression of the
general physical condition of a person. The court
has held it proper in a personal injury case to
permit laymen, who were intimately acquainted
with the plaintiff prior to her injury and
observed her condition thereafter, to testify that
her health and general physical condition had
materially changed for the worse. It leaves the
witness free to speak his ordinary language,
unbewildered by admonitions from the judge to
testify to facts, when all the while the witness is
sure in his own mind that he is testifying to
facts. The jury understands that what the
witness means, and the right of cross-examination removes the likelihood of harm to
the other side. Too strict adherence to the
opinion rule is undesirable.

The appellant contends that the neutron

activation analysis test results and Scotts
opinion testimony derived therefrom were
inadmissible because the test is too new and
unreliable and has not yet been g enerally
accepted by scientists in its particular field. The
lower court, however, admitted the testimony
and, upon which, convicted Stifel.

United States vs. Stifel 433 F.2d 431 October

29, 1870
Facts: Appellant Orville Stifel was indicted for
murdering Daniel Ronec by sending him a bomb
through the United States mails. The bomb
exploded when Ronec opened the package
containing it. Records that Stifel and one Cheryl
Jones, who was engaged to Ronec at the time of
the latters murder had previously during 1965
and 1966 had a somewhat tempestuous
romance which she sought to end inthe fall of
1966. Subsequently, Stifel wrote Jones two
letters which contained language jury could have
regarded as threats. In 1967, Jones became
engaged to Ronec and their wedding was set for
1968. Stifellearned of both these facts from
Jones. It was only a few weeks before the
wedding day that Ronecaskilled by the

Issue: Whether the lower court

admitting the testimony of Scott?

erred

in

RULING: NO. On questions of science, skill, or

trade, or others of like kind, persons of skill,
sometimes calledexperts, may not only testify to
facts, but are permitted to give their opinions in
evidence. Whether a witness is shown to be
qualified or not as an expert is a preliminary
question to b determined in the first place by the
court;; and the rule is, that if the court admits

16

the testimony, then it is for the jury to decide

whether any weight is to be given to the
testimony.

unable to come forward with any admissible

evidence that it does. In support of its motion,
respondent submitted an affidavit of Steven H.
Lamm, physician and epidemiologist, who is a
well--credentialed expert on the risks from
exposure to various chemical substances. Doctor
Lamm stated that he had reviewed all the
literature on Bendectin and human birth defects
--more than 30 published studies involving over
130,000 patients. No study had found Bendectin
to be a human teratogen (i.e., a substance
capable of causing malformations in fetuses). On
the basis of this review, Doctor Lamm concluded
that maternal use of Bendectin during the first
trimester of pregnancy has not been shown to be
a risk factor for human birth defects.

In Frye v. United States, the court held

that: : Just when a scientific principle or
discovery crosses the line between the
experimental and demonstrable stages is
difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be
recognized, and while courts will go a long way
in admitting expert testimony deduction from a
well--recognized scientific principle or discovery,
the thing from which the deduction is made
must be sufficiently established to have gained
general acceptance in the particular field in
which it belongs.

Petitioners responded to respondent's

motion with the testimony of eight experts of
their own, each of whom also possessed
impressive credentials. These experts had
concluded that Bendectin can cause birth
defects.
Their conclusions were based upon in vitro
(test tube) and in vivo (live animals) studies
that found a link between Bendectin and
malformations, and pharmacolog ical studies of
the chemical structure of Bendectin that
purported to show similarities between the
structure of the drug and that of other
substances known to cause birth defects.

The decision as to whether the state of

technology in this field was such as to render
testimony based on neutron activation analysis
admissible was, of course, a decision for the
judge. Any disputes about the technique
employed by the governments expert or the
results of his test went to the quality of the
evidence and were for consideration by the jury.
The decision may change if decided in the
Philippine courts depending on whether the
neutron activation analysis test will pass the
relevance and reliability test under the
Daubertcase. The Frye test is no longer
controlling since it was already repealed by the
Federal Rules of Evidence. The decision will be
the same if decided under the proposed Rules of
Evidence since no change was introduced with
respect to the rule on admissibility of the
opinion of a witness.

The District Court granted respondents

motion for summary judgment. The c ourt
stated that the scientific evidence is admissible
only if the principle upon which it is based is
sufficiently established to have general
acceptance in the field to which it belongs.
The court concluded that petitioners evidence
did not meet this standard, and that the expert
opinion which is not based on epidemiological
evidence is not admissible to establish
causation.

Daubert v. Merell Dow Pharmaceuticals, Inc.

509 U.S. 579 June 28, 1993
Facts: Petitioners Jason Daubert and Eric
Schuller are minor children born with serious
birth defects. They and their parents sued
respondent in California state court, alleging
that the birth defects had been caused by the
mothers ingestion of Bendectin, a prescription
anti nausea drug marketed by Merrell Dow
Pharmaceuticals. After extensive discovery,
respondent moved for summary judgment,
contending that Bendectin does not cause birth
defects in humans and that petitioners would be

The United States Court of Appeals for

the Ninth Circuit affirmed. Citing Frye v. United
States, the court stated that expert opinion
based on a scientific technique is inadmissible
unless the technique is generally accepted as
reliable in the scientific community. The court
declared that expert opinion based on a
methodology that diverges
significantly from the procedures accepted by
recognized authorities in the fieldcannot be

17

shown to be generally accepted as a reliable

technique.

flexible one, and its focus must be solely on

principles and methodology, not on the
conclusions that they generate. The appropriate
means by which evidence based on valid
principles may be challenged is through cross
--examination,
presentation
of
contrary
evidence,and careful instruction on the burden
of proof, rather than wholesale exclusion under
an uncompromising general acceptance
standard.
UNITED STATES v BONDS 12 F. 3d 540

Issue: Whether the general acceptance test is

the proper standard for admitting expert
testimony
Ruling: NO. The Federal Rules of Evidence, not
Frye, provides the standard for admitting expert
scientific testimony in a federal trial. Frye's
general acceptance test was superseded by
the Rules subsequent adoption. The

Facts: David Hartlaub as gunned down in his

van as he topped at a bank near the Sundusky
Mall I Ohio, where he planned to make at night
deposit of cash from the music store he helped
manage. The killers apparently had no interest
in robbery. Three individuals Wayne Yee, Mark
Verdi and John Ray Bonds - were indicted in
connection with the crime, tried, and convicted
of conspiracy and federal firearms offenses. At
the trail, the Governments theory for the
shooting was that the gunmen, members of the
Hells Ang els motorcycles gang, had mistaken
Hartlaub's yellow van for an identical van driven
by a local member of a rival motorcycle gang, the
outlaws, whom the gunmen allegedly planned to
hit' in retaliation for the shooting of a Hell's
Angels member by an out law the previous year
Illinois.

Rules occupy the field, and, although the

common law of evidence may serve as an aid to
their application, respondent's assertion that
they somehow assimilated Frye is unconvincing.
Nothing in the Rules as a whole or in the text
and drafting history of Rule 702, which
specifically governs expert testimony, gives any
indication th at
general
acceptance
is
a
necessary
precondition to the admissibility of scientific
evidence. Moreover, such a rigid standard would
be at odds with the Rules' liberal thrust and
their general approach of relaxing the traditional
barriers to opinion testimony.
The Rules place appropriate limits on the
admissibility of purportedly scientific evidence
by assigning to the trial judge the task of
ensuring that an expert's testimony both rests
on a reliable foundation and is relevant to the
task at hand. The reliability standard is
established by the requirement that an expert
testimony pertain to
scientificknowledge since the adjective
scientific implies a grounding in sciences
method and procedures, while the word
knowledge connotes a body of known facts or
of ideas inferred from such facts or accepted as
true on good grounds.

The police later found the gateway van

abandoned with its engine still running and the
lights still on. The gun used in the shooting, a
MAC-11 9-mm semi-automatic pistol fitted with
a homemade silencer. Both the gun and the van
carpet were splattered with blood. Serology test
showed that a showed that the blood was not
harlaub's, but rare splattered blood, which only
appear in about 1% of caucasian males,
matched those found in Bond's Blood. Most of
the blood in the van had dripped between the
front seats; shortly after the murder, Bonds wore
his right arm in a sling, and it was later
established that he had serious ricochet wound
which evidently bled between the seats as he
drove the van that night.

Faced with a proffer of expert scientific

testimony under Rule 702, the trial judge, must
make a preliminary assessment of whether the
testimony's underlying reasoning or meth
odology is scientifically valid and properly can be
applied
to
the
facts
at
issue.
Many
considerations will bear on the inquiry,including
whether the theory or technique in question can
be tested, whether it has been subjected topeer
review and publication , its known or potential
error rate and the existence and maintenance of
standards controlling its operation, and whether
it has attracted widespread acceptance within a
relevant scientific community. The inquiry is a

Agents prepared an affidavit seeking to

obtain a search warrant for blood and hair
samples from Bonds. The federal magistrate
judge of Toledo issued a warrant based on the
finding of probable cause. The agents seized the
samples from Bonds. This samples were the

18

basis for evidence that the DNA in Bonds's blood

matched the DNA from the Blood found in the
back seat of the van. All three defendants were
eventually tried and convicted. The defendants
question the judgment. They contended that the
testimony about the DNA evidence was not
based on principles generally accepted in the
scientific community (frye test).

Section 1. Examination to be done in open court.

The examination of 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, or the questions calls for
a different mode of answer, the answers of the
witness shall be given orally. (1a)
Section 2. Proceedings to be recorded. The
entire proceedings of a trial or hearing, including
the questions propounded to a witness and his
answers thereto, the statements made by the
judge or any of the parties, co unsel, or
witnesses with reference to the case, shall be
recorded by means of shorthand or stenotype or
by other means of recording found suitable by
the court.

Issue: Whether or not the DNA evidence was

properly admitted as evidence?
Ruling: The supreme Court in Daubert vs Merell
Dow Pharmaceuticals, Inc. has already rejected
fyre's general acceptance test as the exclusive
test and has redefined the standard for the
admission of expert scientific testimony. The
Supreme Court found that Fyre test was
superseded by the Federal Rule of Evidence 702,
which make expert testimony admissible if the
scientific or specialized knowledge will assist the
trier of fact and if the witness is qualified as an
expert. The Court explained that the trial Judge
must ensure that the scientific testimony is
not only relevant but reliable.

A transcript of the record of the

proceedings made by the official stenographer,
stenotypist o r recorder and certified as correct
by him shall be deemed prima facie a correct
statement of such proceedings. (2a)
Section 3. Rights and obligations of a witness.
A witness must answer questions, although
his answer may tend to establish a claim against
him. However, it is the right of a witness:

Finally, the Court said that when

reviewed in light of the four Daubert factors
(testing, peer review, rate of error, and general
acceptance), the underlying principles and
methodology u sed the FBI to declare matches
and
make
statistical
probabilities
are
scientifically valid. The methodology was valid in
that it resulted from the sound and cogent
reasoning, and was well-grounded or justifiable
and applicable to the Matter at hand. Thus, the
methodology clearly had a grounding in the
methods and procedures of science and was
based on more than subjective belief or
unsupported speculation. The evidence that
Bonds DNA matched at least to some extent the

(1) To be protected from irrelevant,

improper, or insulting questions, and
from harsh or insulting demeanor;
(2) Not to be detained longer than the
interests of justice require;
(3) Not to be examined except only as to
matters pertinent to the issue;
(4) Not to give an answer which will tend to
subject him to a penalty for an offense
unless otherwise provided by law; or
(5) Not to give an answer which will tend
to degrade his reputation, unless it to be the ve
ry fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must
answer to the fact of his previous final conviction
for an offense. (3a, 19a)

DNA found in the crime scene sample was

clearly is relevant to whether defendants Bonds
was present in the victim's van on the night of
murder.

Section 4. Order in the examination of an

individual witness. The order in which the
individual witness may be examined is as
follows;

PRESENTATION OF EVIDENCE:

(a) Direct examination by the proponent;

(b) Cross -examination by the opponent;
(c) Re-direct
examination
by
the
proponent;
(d) Re-cross-examination by the opponent.
(4)

JUDICIAL AFFIDAVIT RULE

EXAMINATION OF WITNESSES
Rule 132, Sections 1-18

19

adverse party.

Section 5. Direct examination. Direct

examination is the examination -in-chief of a
witness by the party presenting him on the facts
relevant to the issue. (5a)

A misleading question is one which

assumes as true a fact not yet testified to by the
witness, or contrary to that which he has
previously stated. It is not allowed. (5a, 6a, and
8a)

Section 6. Cross-examination; its purpose and

extent. Upon the termination of the direct
examination, the witness may be cross
-examined by the adverse party as to many
matters stated in the direct examination, or
connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulnes s
and freedom from interest or bias, or the reverse,
and to elicit all important facts bearing upon the
issue. (8a)

Section 11. Impeachment of adverse party's

witness. A witness may be impeached by the
party against whom he was called, by
contradictory evidence, by evidence that his
general reputation for truth, honestly, or
integrity is bad, or by evidence that he has made
at other times statements inconsistent with his
present, testimony, but not by evidence of
particular wrongful acts, except that it may be
shown by the examination of the witness, or the
record of the judgment, that he has been
convicted of an offense. (15)

Section 7. Re-direct examination; its purpose

and extent . After the cross -examination of
the witness has been concluded, he may be reexamined by the party calling him, to explain or
supplement his answers given during the crossexamination.
On
re-direct-examination,
questions on matters not dealt with during the
cross -examination, may be allowed by the court
in its discretion. (12)

Section 12. Party may not impeach his own

witness. Except with respect to witnesses
referred to in paragraphs
(d) and (e) of Section 10, the party producing a
witness is not allowed to impeach his credibility.

Section 8. Re-cross-examination. Upon the

conclusion of the re-direct examination, the
adverse party may re-cross-examine the witness
on matters stated in his re-direct examination,
and also on such other matters as may be
allowed by the court in its discretion. (13)

A witness may be considered as unwilling

or hostile only if so declared by the court upon
adequate showing of his adverse interest,
unjustified reluctance to testify, or his having
misled the party into calling him to t he witness
stand.

Section 9. Recalling witness. After the

examination of a witness by both sides has been
concluded, the witness cannot be recalled
without leave of the court. The court will grant
or withhold leave in its discretion, as the
interests of justice may require. (14)

The unwilling or hostile witness so

declared, or the witness who is an adverse party,
may be impeached by the party presenting him
in all respects as if he had been called by the
adverse party, except by evidence of his bad
character. He may also be impeached and cross
-examined by the adverse party, but such cross
-examination must only be on the subject
matter of his examination -in-chief. (6a, 7a)

Section 10. Leading and misleading questions.

A question which suggests to the witness the
answer which the examining party desires is a
leading question. It is not allowed, except:

Section 13. How witness impeached by

evidence of inconsistent statements. Before a
witness can be impeached by evidence that he
has made at other times statements inconsistent
with his present testimony, the statements must
be related to him, with the circumstances of the
times and places and the persons present, and
he must be asked whether he made such
statements, and if so, allowed to explain them. If
the statements be in writing they must be
shown to the witness before any question is put

(a) On cross examination;

(b) On preliminary matters;
(c) When there is a difficulty is getting direct
and intelligible answers from a witness
who is ignorant, or a child of tender
years, or is of feeble mind, or a deafmute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or
an officer, director, or managing agent of
a public or private corporation or of a
partnership or association which is an

20

to him concerning them. (16)

STATE vs SCOTT 149 P2d 152

Section 14. Evidence of good character of

witness. Evidence of the good character of a
witness is not admissible until such character
has been impeached. (17)

Facts: Jack Scott was tried before a jury upon a

charge that he had a carnal knowledge with a
female, which he know to be only fourteen years
of age. A verdict of guilty was returned and from
a judgment entered, this appeal has been taken.

Section 15. Exclusion and separation of

witnesses. On any trial or hearing, the judge
may exclude from the court any witness not at
the time under examination, so that he may not
hear the testimony of other witnesses. The judge
may also cause witnesses to be kept separate
and to be prevented from conversing with one
another until all shall have been examined. (18)

Issue: Whether or not it was error for the trial

court to allow leading question to be asked of
the complaining witness, and consequently for
the jury to consider it?
Ruling: The question claimed by the appellant
to have been leading in character are what are
known as alternative forms of questions. The
alternative form of question, which states
whether or not you said... is free from this
defect of form because both the affirmative and
negative answer are presented for the witness
choice. Nevertheless, such a question may
become leading, in so far as it rehearses lengthy
details, which the witness might not otherwise
have mentioned and thus supplies him with full
suggestion which he incorporates without any
effort, by the simple answer.

Section 16. When witness may refer to

memorandum. A witness may be allowed to
refresh his memory respecting a fact, by
anything written or recorded by himself or under
his direction at the time when the fact occurred,
or immediately thereafter, or at any other time
when the fact was fresh in his memory an d
knew that the same was correctly written or
recorded; but in such case the writing or record
must be produced and may be inspected by the
adverse party, who may, if he chooses, cross
examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from
such writing or record, though he retain no
recollection of the particular facts, if he is able
to swear that the writing or record correctly
stated the transaction when made; but such
evidence must be received with caution. (10a)

IMPEACHING ONES OWN WITNESS

BECKER VS. EISEHSTODT 158 A. 2d 706
Facts: Arlene Becker went to see Lester
Eisenstodt, a physician and surgeon, because
she wanted to have the shape of her nose
changed to eliminate a bump. Arlene,
accompanied by her mother went back to the
doctor's office to undergo post-operative
treatment. Eisentodt took a pledget of a cotton
and with a tweezer dipped in into one of the
bottles standing on the tray. Hen then pushed
the cotton all the way up Arlene's nostrils. Later
on, arlene complained of pain as her mother
notice something silvery liqu id ran down
arlene's nose and upper lips were swollen, the
flesh raw and skin was coming off.

Section 17. When part of transaction, writing or

record given in evidence, the remainder, the
remainder admissible .
When part of an act, declaration,
conversation, writing or record is given in
evidence by one party, the whole of the same
subject may be inquired into by the other, and
when a detached act, declaration, conversation,
writing or record is given in evidence, any other
act, declaration, conversation, writing or record
necessary to its understanding may also be
given in evidence. (11a)
Section 18. Right to respect writing shown to
witness. Whenever a writing is shown to a
witness, it may be inspected by the adverse
party. (9a)

During the trial, Becker's counsel presented

Eisenstodt as witness, and asked him if he
inserted a cotton saturated with a 10% solution
of cocaine on Arlene's no strils during the post
operative
treatment. Eisenstodt
answered
positively. Later on, two medical experts were

LEADING QUESTIONS:

21

also presented as witness. A demonstration was

then made to the jury regarding the application
of the said solution.

Loreto took the witness stand and was

last on cross -examined, but it was not
completed. Petitioners counsel asked for the
postponement for the continuation of the cross
-examination twice, which was granted by the
court. On the scheduled hearing set for cross -examination, the petitioners counsel failed to
appear. The Petitioners counsel resumed his
repeatedly postponed cross --examination of
Loreto. The cross -examination was however, cut
short and rescheduled again on the motion of
petitioners counsel. Unfortunately, Loreto died.
At the resumption of the trial, petitioners moved
to strike off the record the entire testimony of
Loreto, which was denied.

The trial court dismissed the case on the

ground that there was no prima facie evidence
of negligence and that the plaintiff called the
defendant as his own witness, hence they are
bound by his testimony because a party by
calling a witness, represents him to be worthy of
some credit, and is therefore bound by his
testimony.
Issue: Whether or not a party by calling a
witness, represents him to be worthy of some
credit, and is therefore bound by his testimony?
Ruling: According to Wigmore, the notion that a
party is morally bound by what is witness says
no longer finds defenders. If a witness is called
on the part of the plaintiff who swears what is
palpably false, it would be extremely hard if the
plaintiff's case should for that reason be
sacrificed. The Court knows of n o rule of law by
which the truth is on such an occasion to be
shut out and justice to be perverted. A party
must not be obliged to receive everything which
a witness called by him may swear to, if his
witness has been false or mistaken in his
testimony, he may prove the truth by the
testimony of others.

Issue: Whether the testimony of Loreto should

be stricken off the record due to lack of cross
-examination of the adverse parties?
Ruling: NO, the right of a party to confront and
cross --examine opposing witnesses in a judicial
litigation, isfundamental right which is part of
due process. Until such cross --examination has
been finished, the testimony of the witness
cannot be considered as complete and may not
be allowed to form part of the evidence to be
considered by the court in deciding the case.
But the right to cross --examine is a personal
one which may be waived expressly or impliedly
by conduct amounting to a renunciation of the
said right.

Therefore, the case was reversed and

remanded for trial taking into account the
testimony of the two expert witnesses
concerning the use of the 10% cocaine solution
that impeaches the testimony of the de fendant.

In the case at bar, the petitioners failure

to crossexamine Loreto is due to its own fault of
repeatedlypostponing the cross --examination
and failing to appear during scheduled hearings.
Under these circumstances, the Court ruled that
the petitioners had waived their right to cross
--examine Loreto. Through their own fault, they
lost their right to cross --examine Loreto. Her
testimony stands.

CROSS-EXAMINATION
EMILIO DE LA PAZ JR. v. INTERMEDIATE
APPELLATE COURT G.R. No. 71537
September 17, 1987

The case was decided properly under the

current rules of evidence because the right of
the petitioner tocross--examine Loreto is
impliedly waived due to its own actions of
repeatedly postponing the cross-- examinations.
If the case were to be decided under the
proposed revised rules of evidence, the decision
will still be the same because the provision on
cross --examination was not changed.

Facts: Loreto de la Paz filed a complaint against

petitioners for a judicial declaration of
ownership of a land registered in the name of
Ponciano de la Paz, alleging that the land was
among the properties adjudicated to her and her
mother as a result of a partition submitted by
the heirs of Ponciano de la Paz. On the other
hand, petitioners claimed that the land was not
accounted for in the probate proceedings of
Ponciano de la Paz, but is actually community
property of the parties.

FULGADO

22

v. COURT

OF APPEALS

181

SCRA 81 February 12, 1990

and Jose Fulgados imminent travel, the

defendants did not move swiftly to cross
--examine the said plaintiff and his witness. As
a matter of fact, it took them more than one year
from the finality of the judgment of the Court of
Appeals lifting the order of default before they
asked the trial court to resume the hearing of
the case. Further, the tasked of recalling a
witness for cross --examination is in law,
imposed on the party who wishes to exercise the
said right because of the fact that it is a
personal right and can be waived. In addition,
even though Jose Fulgado is o ut of the country,
the defendants should have resorted to the
various modes of discovery to cross --examine
Jose. Defendants even disclosed the fact that
they had knowledge that Jose was in the
country for a visit and yet they did not exert any
effort to have him subpoenaed. The acts of the
defendants constitute a waiver of their right to
cross --examine. The Court ordered the trial
court to reinstate the case and allow the direct
testimonies of RupertoFulgadoand Jose Fulgado
to remain in the record.

Facts: RupertoFulgado filed a case against the

defendants for the annulment of certain
contracts of sale and partition with accounting.
After
several
deferments,
the
pre--trial
conference was set. However,the defendants and
their counsel failed to appear on the said date.
Hence, they were declared in default and
RupertoFulgado was allowed to present his
evidence ex parte. The defendants filed a motion
to lift the order of default but such motion was
denied by the trial court. The defendants then
filed an appeal with the Court of Appeals, who
ruled in their favor, lifted the order of default,
and remanded the case to the trial court.
The case was again set for hearing.
Unfortunately, the presiding judge went on
official leave andthe h earing was postponed
anew. RupertoFulgado died, and his sole
witness, Jose Fulgado, which was presented ex
parte, migrated to the United States. When the
hearing resumed, the defendants moved to strike
the testimonies of RupertoFulgado and Jose
Fulgado off the record on the ground that they
were deprived of their right to cross - -examine.
The counsel for Fulgado opposed the motion but
the trial court ruled in favor of the defendants
and ordered the testimonies of RupertoFulgado
and Jose Fulgadobestricken off the record. Since
the plaintiff had no more witnesses to present,
apart from Ruperto and Jose, the trial court
dismissed the case. The Court of Appeals
affirmed the ruling of the lower court. Hence,
this appeal.

The case was decided properly under the

current rules of evidence because the right of
the defendants to cross--examine Ruperto and
Jose Fulgado is impliedly waived due to its
failure to cross --examine them immediately. If
the case were to be decided under the proposed
revised rules of evidence, the decision will still
be the same because the provision on cross
--examination was not changed.
CAPITOL SUBDIVISION, INC. v. PROVINCE
OF NEGROS OCCIDENTAL 52 O.G. 4672
July 31, 1956

Issue: Whether or not the testimonies of the

deceased, RupertoFulgado, and his witness,
Jose Fulgado, should be stricken off the record?

Facts: The Provincial Hospital of Occidental

Negros was erected on a parcel of land in
Bacolod, whose ownership is claimed by the
Province of Negros Occidental by virtue of a
Deed of Sale with Donation executed in its favor
by Jose Benares, as a result of expropriation
proceedings. Although the transfer certificate of
title had not been issued to the province, the
parcel of land stood in the records of the
assessment office as the property of the
province and enjoyed exemption from realty tax.

Ruling: NO, the right to cross --examine is a

personal right which may be forfeited by failure
of a party to avail of the ample opportunity given
him. Where the failure to obtain cross
--examination was imputable to the cross - examiners fault, the lack of cross -examination
is no longer a ground for exclusion according to
the general principle that an opportunity,
though waived, will suffice.
In the case at bar, the defendants had
enough
opportunity
to
cross
--examine
RupertoFulgado before his death, and Jose
Fulgado, before his migration. Despite their
knowledge of RupertoFulgados failing health

Capitol Subdivisions Inc. claims to be the

owner of the land and instituted an action in the
Court of First Instance against the province for

23

recovery of the possession of the said land and

collection of reasonable rents for its use. Capitol
Subdivisions Inc. alleged that the lot was
foreclosed by the Philippine National Bank from
Jose Benares due to the failure of the latter to
pay his debts to the former. Later on, PNB
signed a contract with Carlos Benares wherein
the latter would purchase the lot. Carlos
Benares assigned his rights to the said contract
to Capitol Subdivisions, Inc. and the plaintiff,
after full payment of the purchase price,
obtained a deed of absolute sale from PNB and
as a result, it was issued a transfer of certificate
of title for the lot.

for Capitol Subdivisions Inc., during cross

--examination?
Ruling: YES, The adverse party may, on crossexamination, elicit from the plaintiffs witness all
important facts bearing on the issue and which
were not taken up in the witness direct
examination. Chief Justice Moran stated that
the adverse party may cross --examine a witness
for the purpose of eliciting all important facts
bearing upon the issue. Hence, a party may
cross --examine a witness on matters not
embraced in hisdirect examination, but it does
not mean that a party by doing so is making the
witness his own. The Court set --aside the
decision of the trial court and remanded that
case to the court of origin for further
proceedings.

The Province of Negros Occidental put up

the defense that it had acquired the lot from
Jose
Benares
through
an
expropriation
proceeding, which was amicably settled by the
parties thereby resulting to the execution of a
deed of absolute sale and donation in favor of
the province. However, all the records of the
expropriation proceeding were totally destroyed
during World War II. The province further
alleged that Capitol Subdivisions Inc. had
constructive notice of the expropriation
proceedings, hence not an innocent purchaser. F
urthermore,
the
controlling
stockholder,
president and general manager of Capitol
Subdvisions, Inc. Mr. Alfredo Montelibano, also
have knowledge of those facts. Mr. Montelibanos
incumbency as mayor of Bacolod, the city was
contributing a large sum annually for the
support, operation, and maintenance of the
hospital.

US vs. MARSHALL 762 F. 2d 419

Facts: Defendant Marshall was convicted of the
offense charged, the theft of a lawn mower of a
value in excess of $100, which was the property
of the United States. The lawn mower was
allegedly stolen from the Four Seasons Retail
Store of the Army and Air Force Exchange
Service, the defendant Marshall was supervisor
(assistant manager) of that store, where he had
worked for about ten years. The other principal
actor in the evidentiary facts was Lee, the
manager of the entire post exchange.
The incident upon which the criminal
charge was based arose during an end -ofsummer promotional sale of "Lawn Boy" lawn
mowers by the Four Seasons store from August
24 Athrough September 8, 1983. These large
lawn mowers, ordinarily retailing at $449, were
to be sold at $335.95, in order to clear them
from the premises over the winter.

During the trial, Mr. Montelibano testified

that Capitol Subdivisions Inc. had no knowledge
of the expropriation proceedings nor the Deed of
Sale with Donation at the time it bought the
land. The Province of Negros Occidental failed to
cross -examine Mr. Montelibano on matters due
to Capitol Subdivisions objection an the trial
court sustained the objections. The trial court
ruled in favor of Capitol Subdivisions Inc. on the
ground that Mr. Montelibanowas on the witness
stand as a witness for Capitol Subdivisions Inc.,
hence the province cannot cross -examine him
on any matter that would elicit all important
facts bearing on the issue which was not taken
up in the direct examination of the said witness.

Lee saw the driver, whom he testified he

recognized as the defendant Marshall, alight and
lift one by one two large boxes from the rear of
the van and place them in the carport. The van
then drove off. Lee drove up to the driveway and
recognized the writing on one of the boxes as
showing that it was a "Lawn Boy" packing box;
the other box, although apparently (when lifted
by the driver) lighter in weight, seemed similar
to the first, although Lee was unable to decipher
any wording on it.

Issue: Whether the Province may elicit all

important facts on matters which were not
taken in the direct examination of the witness

When Lee returned to work on Tuesday,

24

September 6, after Labor Day, he made discreet

inquiries in order to ascertain the explanation
for the activities seen that day. Finding no
explanation, he finally, nine days la ter, called
the defendant Marshall in to ask why he had
been to Frederick Street. Marshall replied that
he had never been there or in that locality,
although he had been away from the store
premises at another location in Shreveport from
shortly after 10:00 a.m. until about 11:00 a.m.
that morning.

occurred because, over defense objection, the

trial court permitted a non-expert witness to
give prejudicial hearsay testimony as to the
contents of documents that were not themselves
introduced into evidence, which documents,
moreover, could not have been introduced
without prior authentication, including a query
into their trustworthiness for the purpose for
which introduced. We detailed in Part VI, supra,
the unreliability of the testimony thus
erroneously admitted only in order to illustrate
that, by failing to apply the rules of evidence at
issue, not only was their letter ignored but also
their functional purpose as designed to assure
trustworthiness of the evidence of this nature to
be received, as well as to afford a fair
opportunity to the opponent of the introduction
of the evidence to prevent the trier of fact from
being contaminated by unreliable prejudicial
testimony.

At the trial, the government did not

introduce any evidence as to who had received
the boxes at the Frederick Street residence, nor
did it attempt to prove that the boxes, one of
which was marked "Lawn Boy," actually did
contain lawn mowers. Instead, it relied upon the
following circumstantial evidence and upon the
testimony of Ms. Terri Stanlin, an investigator,
who testified that, on the basis of her review of
the records of the post exchange store, three
lawn mowers were unaccounted for and missing
during the period of Four Seasons' promotional
sale.

We note also that Bitner, the custodian of

the records, was not called by the government to
authenticate the business records of Four
Seasons as to the lawn mowers, and that from
the cross -examination of him by Marshall, it is
doubtful that his testimony would have shown
that the records used by Ms. Stanlin to deduce
that any lawn mowers were missing met the
authentication threshold that, for the purposes
noted (if they had be en offered by the
government), "the method or circumstances of
preparation indicate ... trustworthiness." Id.

To counter the government's case

Marshall also relies upon his cross -examination
of the government investigator (Ms. Sandlin) and
of a government witness.
Issue: Whether or not the cross -examination
relied upon in determining how many lawn
mowers had been sold was correct?

IMPEACHMENT BY BIAS

Ruling: Admitted over defense objection, the

convincing and positive testimony of this
witness, an investigator for an agency of the
United States (with what weight that status
might confer), was that the store records showed
at least three lawn mowers were unaccounted
for. Nevertheless, as our recitation above
indicates, her positive conclusory opinion as to
the number of lawn mowers missing was based
upon a flawed methodology. For a starting figure
of lawn mowers on hand, she had relied upon a
hearsay "correction" of the actual store record;
in determining the number of lawn mowers sold
during the period, she had relied upon cash
register tape s that were incomplete for the
period in question (with the missing tapes quite
possibly indicating other lawn mower sales that
would make up the shortage she found).

US vs. ABEL 469 U.S. 45

By : Ortiz, Katheen
Brief Fact Summary. Respondent, John Abel,
was charged with robbing a bank with two other
men. In order to discredit Respondents witness,
the prosecution offered testimony that he and
the witness were part of a prison gang that
promoted perjury on the behalf of fellow gang
members.
Synopsis of Rule of Law. Evidence that is
probative to the bias of a witness can be
admissible even if it is prejudicial.
Facts. Respondent was charged with robbing
a bank with two other men. One of the men,
Ehle, testified at

Our basic holding is that reversible error

25

Respondents trial to implicate him in the

robbery. Respondent then called Mills to testify
that while in prison, Ehle confided to him that
he would falsely implicate Respondent in order
to receive favorable treatment. To rebut the
credibility of Mills, Ehle was called back to the
stand to testify that he, Mills and Respondent b
elonged to an Aryan gang that swore to perjure
themselves to help a fellow gang member. The
trial court allowed the testimony, and
Respondent was convicted. The Ninth Circuit
Court of Appeals reversed, citing the prejudicial
nature of the testimony.

haired wig pulled back into a bun, a blue denim

hat, which did not obstruct a full view of the
robber's face, gold wire framed dark glasses,
lipstick, rouge, a dark coat, and was carrying a
10 wide red print cloth shoulder bag.
Mrs. Strickland was not able to make a
positive identification of the robber, and much of
the evidence against appellant at the trial
consisted of her description of the robber's
personal features and bank surveillance photos
which the jury was asked to compare to
appellant.
The sole identification witness at the trial
was a Priscilla Martin who testified that on the
afternoon of April 22, while passing by on a bus,
she observed a man she identified as appellant
walk down the steps of the Salvation

Issue. The issue is whether prejudicial

testimony that implicates Respondent with a
prison gang is admissible because it is probative
to the bias of a witness.

Army and touch one of the two doors of the Main

-High branch of the Marine Midland Bank. Mrs.
Martin described the man as wearing red pants,
a black coat, black platform shoes and a black
floppy hat whose brim obstructed a view of his
face from the nose up. She described his hair
style as a frizzled bush, "an afro," but could not
say whether it was a wig. Mrs. Martin stated
that the man was not wearing glasses and that
she could not rec all lipstick but did remember
seeing rouge.

Ruling: The prejudicial testimony is admissible

because it is highly probative of the bias of
Respo ndents witness. The Federal Rules of
Evidence do not directly address impeachment
for bias, but the history of the Rules Advisory
Committee mention bias as a concern that is
encompassed by the Rules.
Discussion. Whether evidence is too prejudicial
or not relevant enough varies case-by-case. In
this instance the testimony was considered very
relevant and was able to override the prejudicial
tone that implicated Respondent with a prison
gang. The Court will often refer to common -law
prior to the adoption of the Federal Rules in
order to justify the scope of their interpretations,
as they did here to allow impeachment for bias.

Mrs. Martin had been acquainted with

appellant for a number of years. She testified
that she knew the appellant for nineteen years
and at one time had lived in the same house
with him. On cross -examination, defense
counsel questioned Mrs. Martin on whether she
had ever had any trouble with appellant or ever
had any arguments or disagreements with him,
and specifically whether she ever accused
appellant of fathering her child and then failing
to support this child. Mrs. Martin denied these
charges.

US vs. HARVEY 547 F.2d 720

Facts: Defendant appeals from a judgment of
conviction after a jury trial in which a verdict of
guilty was found as to each of the two counts of
the indictment, the first charging the appellant
with bank robbery and the second with bank
larceny.

Following
Mrs.
Martin's
testimony,
appellant sought to introduce testimony of Mrs.
Harvey which would have shown that Mrs.
Harvey was a long -time acquaintance of Mrs.
Martin, and that while Mrs. Harvey was on duty
as a nurse in a Buffalo hospital, she
encountered Mrs. Martin, who was there for
treatment of a broken leg. Mrs. Harvey would
have testified that during this encounter Mrs.
Martin accused appellant of fathering her child
and refusing to support it and that Mrs . Martin

On the afternoon of April 22, 1975, the

Main -High branch of the Marine Midland BankWestern was robbed by a man dressed as a
woman. Mrs. Florida Strickland, a teller at the
bank, described the robber as a medium
complexioned black male in his early twenties,
5'11 to 6' in height, 160 lbs., slender build with
broad shoulders, five o'clock shadow and a
prominent Adam's apple. According to Mrs.
Strickland, the robber was wearing a straight -

26

further explained that when her husband

learned of this he beat her and broke her leg,
necessitating the hospital treatment. The trial
judge refused this proffer of testimony,
considering it "collateral" and inadmissible
under Federal Rule of Evidence 613(b). It is this
ruling which appellant maintains was error and
which requires our consideration.

and the identification of Mrs. Martin. We are not

convinced that Mrs. Martin's testimony was an
insignificant part of the case against appellant
and therefore find that denial of the opportunity
to raise a reasonable doubt as to identification
by showing possible bias was prejudicial to
appellant's right to a fair trial.
Accordingly,
we
reverse
appellant's
conviction and remand for a new trial.
IMPEACHMENT
BY PRIOR INCONSISTENT
STATEMENT

Issue: Whether the trial court committed

reversible error in excluding evidence proffered
by the defendant as to possible bias on the part
of the government's chief identification witness.
Ruling: The law is well settled in this Circuit, as
in others, that bias of a witness is not a
collateral issue and extrinsic evidence is
admissible to prove that a witness has a motive
to testify falsely. The law of evidence has long
recognized that a cross -examiner is not
required to "take the answer" of a witness
concerning possible bias, but may proffer
extrinsic evidence, including the testimony of
other witnesses, to prove the facts showing a
bias in favor of or against a party. Special
treatment is accorded evidence which is
probative of a special motive to lie "for if believed
it colors every bit of testimony given by the
witness whose motives are bared. This Circuit
follows the rule, applicable in a number of other
Circuits, that a proper foundation must be laid
before extrinsic evidence of bias may be
introduced. Prior to the proffer of extrinsic
evidence, a witness must be provided an
opportunity to explain the circumstances
suggesting bias.

Villalon vs. IAC GR 73751 September 4, 1986

We now must consider whether the trial

court's error in refusing to admit the testimony
of Mrs. Harvey was so prejudicial as to require
reversal of appellant's conviction. The right to
"place the witness in his proper setting and put
the weight of his testimony and his credibility to
a test" is an essential safeguard to a fair trial.
Exercise of this right is particularly crucial
where the witness offers damaging identification
testimony, for in the absence of independent
contrary evidence, a defendant must rely upon
impeachment of the witness's credibility. The
record reveals that appellant's conviction rests
on the testimony of Mrs. Strickland as to a
description of the robber, bank surveillance
photos which the jury had an opportunity to
review and compare to appellant's appearance,

impeach the credibility of their adverse parties

witnesses (grant ed under Secs. 15 & 16 of R.
132) by proving that on former occasions they
had made statements inconsistent with the
statements made during the trial, despite the
fact that such statements are material to the
issues in the Civil Case. The subject matter in
volved in the disbarment proceedings i.e., the
alleged falsification of the deed of absolute sale
in petitioners favor, is the same issue raised in
the Civil Case wherein the annulment of the
said deed of absolute sale is sought.

Facts: A civil case for annulment of a deed of

sale, among others, was filed by Neval et al
against Atty. Villalon. Previously, Neval et al also
filed a disbarment proceeding against Atty.
Villalon. During the trial of the civil case,
Atty. Villalon introduced in evidence some of
Neval et als testimonies in the disbarment
proceeding which were allegedly inconsistent
with their testimonies in the civil case for the
purpose of impeaching their testimonies. The
trial court granted the Motion to Strike filed by
Neval et al on the ground that its admission
would violate the confidentiality of disbarment
proceedings; and that the same cannot be
waived.

Issue: WON the attorney subject of disbarment ma wa

proceeding
y an
present the inconsistent testimonies therein in a
civil case.
Ruling: AFFIRMATIVE. By issuing its Order to Tria C
strike, the
l
th

While proceedings agains t attorneys

should, indeed, be private and confidential
except for the final order which shall be made
public, that confidentiality is a privileged/ right

27

which may be waived by the very lawyer in

whom and for the protection of whose personal
and professio nal reputation it is vested,
pursuant to the general principle that rights
may be waived unless the waiver is contrary to
public policy, among others.In fact, the Court
also notes that even private respondents
counsel touched on some matters testified to by
NEVAL in the disbarment proceedings and
which were the subject of cross examination.

proven, each and every one is liable for the

criminal acts committed by the members in the
band.
Issue: 1. Whether or not, the statements made
by the witness should be admitted
.
2. Whether or not, the mere presentation
of a declaration should be a ground for
impeaching the credibility of the witness.
Ruling: 1. Yes. The mere fact of having been
excluded from the information to be used as
witness for the government does not prevent a
witness from telling the truth, especially in the
absence of proof showing the interest he might
possibly have in testifying against the accused.

People vs Resabal 50 Phil 780

Facts: The appellant is one of the herein
accused and was convicted by the CFI Cavite of
the crime of robbery in band with homicide. The
penalty imposed upon the herein appellant is
that of cadenaperpetua.

2. No. The
declaration, without
to the witness while
First Instance is no
credibility.

At midnight on May 28, 1925,appellant

and seven other persons approached the house
of the spouses Galicano Ortega and Juana
Garcia and ordered the man who was in the
house to come out. Galicanohid under the
house. One of the assailants focused his
flashlight and as they saw Galicano, whom the y
had ordered to come out, they pushed him out
and as soon as he was out they fired a shot at
him killing him, later forcing his wife Juana
Garcia to stand by his body while they all went
upstairs in the house and opened a trunk and
appropriated P6.50.

mere presentation of a
the same having been read
he testified in the Court of
ground for impeaching his

U.S. vs Webster 734 F.2d 1191

Brief Fact Summary. Webster, Defendant, was
convicted of bank robbery and receiving stolen
funds and sentenced to nine years. The
prosecution had to use out of court statements
by his co-defendant as impeachment evidence
after the co-defendant gave testimony that would
have exculpated Defendant if believed.
Synopsis of Rule of Law. Impeachment by
offering prior inconsistent statements may not
be used to place before the jury evidence not
otherwise admissible.

It was proven beyond a reasonable doubt

that the herein appellant was one of those
assailants. He admitted it in his extrajudicial
statement Exhibit C, the admissibility of which
as evidence is impugned by the defense. But it
sufficiently appears that the admissions
contained in said document were voluntarily
and spontaneously made. The torture alleged by
the defense to have been employed as a means
of obtaining said admissions has not been
proven.

Facts. Defendant, Webster, was convicted of

aiding an abetting in a bank robbery and for
receiving stolen funds. He was sentenced to nine
years. The prosecution had the co -defendant,
King, testify against the Defendant. However,
King gave testimony that exculpated the
Defendant. The prosecution was allowed to
introduce prior inconsistent statements by King
that were incriminating against the Defendant.
The court instructed the jury that it could
consider the statements only as impeachment
evidence. Defendant appeals contending that the
prosecution should not have been able to use
the out of court statements by King.

That EribertoCalle, the herein appellant,

was the one who fired the shot that killed
Galicano has not been sufficiently proven
because that point only appears in the
extrajudicial declarations of his co -accused,
later denied by them at the trial of the case; but
the conspiracy revealed by the concerted and
joint action of these accused having been

Issue. Was it improper to allow the out of court

statement by King to be admitted?

28

Geraldine's mental condition. Doctor Gay, who is

in charge of the treatment of Geraldine's mental
disorder, testified, by way of avowal out of the
presence of the jury, that Geraldine had entered
a state hospital for mental treatment during
October 1961. At that time she was complaining
that her father and brothers had molested her
sexually during her adolescence. She was
discharged from

Held. Justice Posner issued the opinion for the

United States Seventh Circuit Court of Appeals
in affirming the conviction and holding that he
impeachment evidence was not used to pla ce
otherwise inadmissible evidence before the jury
because the prosecution did not know that the
co -defendant would not give useful evidence.
Discussion. In the case, the Court of Appeals
found that prosecution acted in good faith in
putting the co -defendant on the stand. Thus,
the evidence was not offered to intentionally
place inadmissible evidence before the jury. The
prosecution first sought to question the co
-defendant out of the presence of the jury to find
out what information, if any, he would offer.
Defendants
counsel
objected
and
the
questioning was not allowed.

the hospital in January 1962 and readmitted for

treatment on a voluntary basis during 1964.
She has been treated by Doctor Gay since
September 1965.
While Doctor Gay believed that Geraldine
was in a state of remission at the time of the
alleged rape, it was his opinion that she is
schizophrenic and is an immature individual.
Issue: WON the testimony of Dr. Gay should be
admitted into evidence.

IMPEACHMENT BY OTHER MEANS

MOSLEY v COMMONWEALTH 420 SWSd 679
(1976)

Ruling: It is our opinion that the proffered

testimony of Doctor Gay was relevant and
competent and should have been received, not in
extenuation of rape, but for its bearing upon the
question of the weight to be accorded
Geraldine's testimony. For this reason the court
should admonish the jury that the expert
testimony should be considered by it only for the
purpose of affecting the credibility of this
witness, if it does so.

Facts: Appellant was convicted of the crime of

rape and sentenced to ten years' servitude in the
state penitentiary. The sole ground for reversal
of the conviction is that the trial court erred in
excluding the testimony of James Gay, a
psychologist, concerning the mental condition of
the prosecuting witness at the time of the
alleged rape

Generally a witness may be impeached

only as specified in our Rules of Civil Procedure.
However, the modern trend is to permit the jury
to consider expert testimony in the field of *681
mental disorders and relax the rule in sex
offense cases. McCormick in his treatise on
Evidence, Section 45 at page 99, observes:

The record reflects that for several

months prior to the date of the alleged offense,
Geraldine Eden, the prosecuting witness, had
been staying in the home of Elihu Asher where
she was employed as a full-time baby-sitter.
Geraldine, who is 27 years of age, testified that
the Ashers had left their residence to go bowling.
Appellant, an acquaintance of Geraldine and a
relative of Asher entered the Asher home for the
purpose of staying overnight. Geraldine stated
that after the Asher children went to bed,
appellant tried to make love to her and when she
resisted his amorous advances he forcibly tied
her hands behind her back, pushed her down on
a couch, removed her underclothing and raped
her.

"* * * Naturally, the use of psychiatric

testimony as to mental disorders and defects
suggests itself as a potential aid in determining
the credibility of crucial witnesses in any kind of
litigation. In one type of case, namely that of sex
offenses, the indispensible value of this kind of
testimony has been urged by Wigmore, and other
commentators, and such testimony has been
widely received by the courts. * * *."
"* * * It is always open to a defendant to
challenge the credibility of the witnesses offered
by the prosecution who testify against him. * * *.
"What could be more effective for the purpose
than to impeach the mentality or the intellectual

Appellant urges that the court erred in

refusing to permit the jury to consider, for the
purpose of impeaching Geraldine's credibility,
the testimony of Doctor Gay concerning

29

grasp of the witness? If his interest, bias,

indelicate way of life, insobriety and general bad
reputation in the community may be shown as
bearing upon his unworthiness of belief, why not
his imbecility, want of understanding, or
moronic comprehension, which go more directly
to the point? * * *."

Plaintiffs impeachment of a defense witness.

Ruling: The foundation was not proper and was
irreversible error. The witness was only asked
whether he remembered a conversation without
any additional foundation.The Court found that
the exclusion of evidence to further demonstrate
the wrestling activities was no error or harmless
error. The court reasoned that a juror would
typically understand that the conduct would
inflate the likeliho od that Defendant and the
wife would bond. The court held that Plaintiff
cannot question Defendant on a collateral matter
just to catch Defendant in a lie. Further the
admission of affidavits was not admissible.
Furthermore, Oregon Supreme Court looked to
Oregon State rules of evidence and found that in
order to introduce a prior statement impeaching
a witness, you must ask the witness about the
alleged
prior
statement
during
cross
-examination, and give them the opportunity to
explain the prior statement. Therefore, when
questioning a witness about a prior inconsistent
statement, the statement must be shared with
the witness so he may deny or explain it.

COLES v HARSH 276 P 248 (1929)

Facts: Coles (plaintiff) brought suit against
Harsch (defendant), claiming that he had
maliciously alienated the affections of Coless
wife by improper attentions shown to her,
specifically by wrestling with her on many
occasions.Defendant was initially married to
Plaintiffs sister and hung out in the same social
circles as Plaintiff. One activity of the social
circle was the wrestling of men with each others
wives. Plaintiff introduced evidence that
Defendants attention to Plaintiffs wife was
beyond the n orm for their circle, and it led to
the divorce of Plaintiff and his wife, whom
Defendant married shortly thereafter.
Harsch brought James Thompson as a
witness and he testified that the Harschs
conduct toward Mrs. Coles was no different than
his conduct toward his other women friends. On
cross -examination of Thompson, Coles asked
only if Thompson recalled talking to Coles about
a picnic Thompson had gone on. Thompson
testified that he did not recall the conversation.
Later in the trial, to impeach Thomp sons
credibility, Coles testified that Thompson had in
fact told him that at the picnic in question, the
conduct of the defendant and Mrs. Coles with
each other was
disgraceful. The trial court allowed Coless
testimony about Thompsons statement at the
picnic and found in favor of Coles. Harsch
objected on the grounds that the testimony was
hearsay. Coles argued that the testimony was
meant to impeach the credibility of Harsch as a
witness, not to prove the truth of the matter
asserted. Harsch argued that Coles never asked
Thompson about the incident while cross
-examining him, and therefore it was improper
to introduce Coles' testimony to impeach
Thompson. The Trial Judge allowed the
testimony to be admitted and found for Coles
and awarded $17.5k in damages. Harsch
appealed.

US v MEDICAL THERAPY SERVICES 583 F

2d 36 (2d Cir.1978)
Facts: Stanley Berman, Defendant, and his
company, Medical Therapy Sciences, was
convicted of filing false Medicare claims.
Defendant double billed for the same patients
and charge for equipment and supplies either
not needed or not delivered. Barbara Russell, a
friend and employee of Defendant, testified for
the government. Defendant contends that the
prosecution should not have been allowed to call
character witnesses for Russell. The government
brought out prior convictions of Russell on
direct examination arguing that th ey were
anticipating impeachment by Defendant.
Issue: Did the trial judge improperly allow the
character witnesses to testify to bolster Russells
credibility?

Issue: whether a proper foundation was laid for

30

Ruling: Justice Moore issued the opinion for the

United States Second Court of Appeals in
affirming the conviction and holding it was
within the trial courts discretion to allow the

character witnesses testimony. The government

is allowed to bring out the impeachment facts
when it anticipates the defense will do as well.
Further, it notes that it is important that the
trial court maintain discretion to determine
whether the witnesss veracity for truthfulness is
being attached on cross -examination.Character
evidence may be used to support a witness only
after the character of the witness has been
attacked by opinion or reputation evidence.

evidence must be affirmed. However, discretion

in this area must be exercised with caution so
that the jury's attention is not diverted from the
main issues to be tried.
Not every cross examination should trigger
theauthority of Rule 608(a)s provision for
supporting character evidence. As the attack
on this case went even beyond cross
examination, and since Berman's guilt was
established not solely by Russell's testimony but
also by other supporting evidence, conviction is
affirmed.

Rule 608 itself contains no limitation

that precludes a party from offering character
evidenceunder
circumstances
where
it
anticipates impeachment. Rather, the event that
triggers the applicability of the Rule is
attack on the witness' veracity. Under the
Federal Rules , a party may impeach his own
witness. However, putting that witness' veracity
in issue through eliciting impeaching facts
should be distinguished from merely revealing
the witness' background. Indeed, even in
jurisdictions where a party may not discredit his
own witness, it has been held that the fact of
prior convictions may be brought out on direct
examination for non -impeachment purposes.
The Supreme Court held that the trial judge has
the discretion to permit the use of character
witnesses. His proximity to the situation allows
him to make the determination of when, and by
whom, an attack is made. Were the rule to be
otherwise, a party would have to choose between
revealing, on direct, the background of a witness
and its right to use character evidence if the
witness' veracity is subsequently impugned.

NEWTON v. STATE 127 A. 123 (1924)

*Doctrine: In impeachment of witness by
showing previous conviction of crime, counsel
should ask witness the question directly, and not
by indirect question, as to whether he had not
given same testimony during previous trial at
which he had been convicted.
Facts: Emory M. Newton appeals his conviction
for the offense of criminal conspiracy to defraud
existing and prospective customers of commonlaw trust operating blind pools. It is charged
that coconspirators, Gillespie and
Dickey, as public accountants, gave fictitious
value to certain stock when making audit of the
Union Finance Company. In their audit, they
stated that the company was solvent and
capable, and that shares were valued at 50 cents
a share, though originally bought at 20 cents a
share.

The cross examination of Russell

included sharp questioning about her prior
convictions for fraudulent activities (i.e.
obtaining amphetamines), and her character was
also attacked by "specific act" evid ence, namely,
allegations that she had embezzled money and
stolen patients from Berman's company. Berman
argues that such evidence bore solely on her
bias against him, and as such did not constitute
an attack on character.

The relevant issue in this case involves

the action of the court in permitting certain
questions to be asked in the cross--examination
of Harold R. Dickey, Jr., a witness for the
defense.
In the cross -examination, he was asked:
You
testified
concerning
these
transactions in the case of the state against
Dickey and the state against Gillespie, giving
then the same explanations that you have given
us here, did you not? He was directed over
objection to answer that question, and the
following discussion took place:

However, the Court did not agree.

Evidence of corrupt conduct on the part of a
witness should be regarded as an attack on his
truthfulness warranting supportive evidence.
Certainly, the embezzlement and theft of which
Russell was accused can be said to fall within
the category of corrupt conduct, within the
contemplation of Rule 608(a). Thus, the Court
held that decision to permit the character

A. Well, I can't remember exactly all

31

that I said in the last case.

Q. Now, don't split hairs with me. Did you
testify in this same way in the trial of
your own case?

*Doctrine: A witness cannot be impeached upon

matters collateral to the principal issues being
tried. The purpose of the rule is basically two-fold: (1) avoidance of undue confusion of issues,
and (2) prevention of unfair advantage over a
witness unprepared to answer concerning
matters unrelated or remote to the issues at hand.
The test of collateralness is: Could the fact, as to
which error is predicated, have been shown in
evidence for any purpose independently of the
contradiction?

A. Practically.
Q. And you were convicted were you not?
Q. (By Mr. Leach). Go on and answer me?
You were convicted in your trial before
Judge Gorter and Judge
Stanton, were you not?
In answer to the last question the witness
replied that he had been so convicted.

Facts: Two armed men entered the King

Country Residence of Frank Goodell in Seattle, o
n July 14, 1961. As one stood on guard over a
number of people at the home, the other man
took Goodell to a Tradewell store, forced him to
open the safe and turn over the money. Oswalt
was identified as one of the two men.

Issue: Whether such manner of questioning and

the answers elicited therefrom are admissible?
-NO.
Ruling:This method of cross --examining the
witness was held by the court to be highly
objectionable. If the purpose of the examiner
was to impeach the credibility of the witness by
showing that he had been convicted of crime, he
should have asked him that question directly; or,
if he had intended to show that he had in some
othe r case sworn to statements contrary to his
testimony in the instant case, he could have
been asked whether he had made such
conflicting statements.

Oswalts defense was alibi. He called on

August Ardiss testified that Oswalt was a
regular patron at his restaurant. At the time of
the alleged offense, it was impossible for Oswalt
to be in Seattle, as he had accompanied a
restaurant employee to work, assisted in a part
of her work, and escorted her home.
On cross-examination, Ardiss was asked
whether Oswalt had been in everyday for the
past few months or missed occasional periods of
3--4 days. Ardiss replied that to the best of his
knowledge, Oswalt was there every day. In
rebuttal, a police detective was permitted to
testify, over the objection of the defense. The
detective answered that he talked to Oswalt on
June 12, 1961 in Seattle and that Oswalt had
told him that he had arrived in Seattle a couple
of days before the detective talked with him, and
that Oswalt came from Portland. Oswalt was
convicted of armed robbery and first--degree
burglary.

However, these questions had no such object. In

addition to intimidating the witness, their only
apparent pu rpose was to bring to the attention
of the jury the fact that Dickey had made in his
own case when he was tried for the same crime,
the same statement as that to which he testified
in this case, and that the three judges before
whom he was tried discredited that statement
and convicted him. The obvious purpose was to
induce the jury to believe that, as the testimony
of the witness as given before them had already
been discredited by three judges sitting in the
same court in another case, therefore they
should discredit it in this case. This is a wholly
unwarranted conclusion unsupported by any
authority. Case is remanded for new trial.

On appeal, Oswalt contends that the trial

court erred in admitting the rebuttal testimony
of the detective, which constituted impeachment

STATE v. OSWALT 31 P.2d 617 (1963)

32

on a collateral matter. The State contends that

such testimony is admissible not only because it
challenges the credibility of Ardiss but also
establishes Oswalts presence in Seattle
preparatory to the offense.

Ardiss testimony was whether or not Oswalt

could h ave been in Seattle at the time of the
offense on July 14, 1961. Oswalt did not
contend or seek to prove by this witness that he
had not been in Seattle before such date. Thus,
for the purpose of impeaching this witness,
whether or not Oswalt was in Seattle one month
before July 14 was irrelevant and collateral.
While a cross --examiner is within the sound
discretion of the trial court, permitted to inquire
into collateral matters testing the credibility of
the witness, he does so at the risk of being
conclu ded by the answers given. Thus, the
court erred in admitting the questioned
testimony.

Issue:
Whether
the
defendant
Oswalts
whereabouts a month before the commission of
the crime is irrelevant and collateral matter, and
is thus inadmissible to impeach Ardiss
testimony. YES
Ruling:The detectives impeaching testimony is
inadmissible. While relevant and probative
evidence of preparations by an accused for the
commission of a crime is admissible, the state's
argument requires us to speculate that the
defendant could not readily commute between
Portland and Seattle, and that his presence in
Seattle and acquisition of adhesive tape, upon
an isolated occasion a month before the offense
in question, constituted significant evidence of
planning and preparation for the offense in
question, the particular mechanics of which are
unrevealed by the record. This we decline to do.

REFRES HING RECOLLECTION

STATE V. PEOPLES 319 SE2d 177 (1984)
*Doctrine: Given the problems inherent in the
hypnotic

process,

such

as

the

enhanced

suggestibility of the subject, his tendency to

confabulate

when

there

are

gaps

in

his

recollection, his increased confidence in the

truthfulness and accuracy of his post--hypnotic

It is an established rule that a witness

cannot be impeached upon maters collateral to
the principal issue being tried. The purpose of
the rule is two --fold:

recall

which

may

preclude

effective

cross--

examination, and the inability of either experts or

the subject to distinguish between memory and
confabulation, hypnotically refreshed testimony is

(1) to avoid undue confusion of issues;;

and
(2) to prevent unfair advantage over a
witness
unprepared
to
answer
concerning matters unrelated or
remote

simply too unreliable to be used as evidence in a

judicial settin g. Adopting a series of procedural
safeguards would not be effective in combating
the dangers we see in hypnotically refreshed
testimony. We hold, therefore, that hypnotically

to the issues at hand.

refreshed testimony is inadmissible in judicial

proceedings.Our rule of inadmissibility does not,

The TEST for collateralness is: could the

fact, as to which error is predicated, have been
shown
in
evidence
for
any
purpose
independently of the contradiction?

however, render all testimony of a previously

hypnotized witness inadmissible. A person who
has been hypnotized may testify as to facts
which he related before the hypnotic session. The

Applying this test to the present case, it

can be seen that the impeaching testimony of
the detective was upon matters collateral to the
principal issue being tried. The sole issue being
raised by Oswalts defense of alibi, through

hypnotized witness may not testify to any fact

not r elated by the witness before the hypnotic
session.

33

Facts: Bruce Crocket Miller was arrested on

March 27, 1981 for armed robbery unrelated to
this case. Pursuant to a plea agreement, he gave
police a statement concerning the armed
robbery of the Borden Che mical Plant, in

undergoes hypnosis before testifying to refresh

his recollection is admissible. - NO.
Ruling: The court has ruled that a witness
hypnotically refreshed testimony and video
recording of the hypnotic session was
inadmissible, expressly overruling the doctrine
laid down in State vs. McQueen.

Fayetteville, North Carolina which he had privy

to, last May 26, 1980 (which was never
introduced in Peoples trial nor included in the
record of appeal). In connivance with several
others, they had succeeded in taking several
buckets of almost pure silver, used by the plant
in its production of formaldehyde, which was
worth over $90,000.

State vs. McQueen held that the effect of

prior hypn osis goes only to the weight and
credibility, not the admissibility of a witness
testimony. The court observed that hypnosis, as
a tool to refresh or restore memory, was
inherently problematic.

Miller testified against a Robert Peele, the

third man in the robbery of the chemical plant.
Miller outlined, in considerable detail, the
planning and robbery of the plant. He related
that Elmer Leroy Peoples, the defendant in this
case, was the one who recruited him into the
heist and that after their first meeting they met
several other times to plan the robbery. After
consummating the robbery in the chemical
plant, they sold the silver and the proceeds
divided among them.

Hypnosis involves more than the mere

retrieval of stored or suppressed information.
What often seems to be recalled is in reality a
process through which information received
after an event is transformed by the subjects
mind into a memory of that event. Essentially,
the apparent recollection of a hypnotized subje
ct may actually be a view, which he has created
subconsciously. Such a situation raises a
question as to the reliability or the potential
accuracy or recall stimulated by hypnosis. The
possibility that a persons testimony might be
the result of suggestion from another person
presents a firm indictment of the reliability of
such testimony.

An eyewitness to the robbery, a shift

supervisor whom the perpetrators forced to open
the building, named Peoples as one of the
robbers. He was arrested on April 29, 1981. On
October 8, 1981, Detective S.C Sessoms, Jr. of
the Fayetteville Police Department, having
undergone a two -week training course at the
North Carolina Justice Academy, conducted a
hypnotic session with Miller so that he may
remember details of the robbery which he wou ld
not otherwise remember in an ordinary state.
Before hypnotizing Miller, Sessoms read none of
Millers statements concerning the case.

The process of hypnosis also tends to

enhance the subjects confidence in his memory,
whether genuine or invented. When the subject
leaves the hypnotic session, he remembers not
only the content of his new but forgets its
source -that he acquired it during the hypnotic
session. In short, hypnosis not only irrevocably
mask whether a subjects recall induced by it is
true, it also creates a barrier to the
ascertainment of its truthfulness through crossexamination -the method normally relied upon
in the courtroom to determine truthfulness.

Miller was successfully hypnotized, which

lasted for about an hour, and in that state,
related facts corresponding to his subsequent
testimony. Miller also testified that he did not
believe he had been hypnotized. Peoples was
convicted.

Thus, McQueen should be overruled in

so far as it permits the admission of hypnotically
refreshed testimony. Give the problems inherent

Issue: Whether the testimony of a witness who

34

Issue: Whether the trial court erred in

disallowing the defense the right to call back
witness Ceribo, thereby denying Estrada of due
process?

in hypnotically refreshed testimony, it is simply

too unreliable to be used as evidence in a
judicial setting.

Ruling: No. Appellant charges that the trial

court had abused its discretion when it denied
the defense the right to call back witness Ceribo
who, it is claimed, was then ready to retract his
previous testimony for the prosecution, and then
testify for the defense. This, it is pointed out,
was a denial of herein appellant'sright to due
process. The Court cannot agree.Section 14,
Rule 132 of the Rules of Court explicitly
provides that the court may grant orwithhold
leave to recall a witness, in its discretion, as the
interests of justice may require. We believe thatit
was the better part of discretion and caution on
the part of the trial court to have denied as it
did, therequest of the defense to recall Ceribo.
The record is loaded with circumstances tending
to show insidiousattempts, too obvious to be o
verlooked, to tamper with the witnesses for the
prosecution. Under thecircumstances, to allow
such a procedure would only encourage the
perversion of truth and make a mockery of court
proceedings.

RECALLING WITNESS ES
PEOPLE vs. MATEO DEL CASTILLO G.R. No.
L--16941 October 29, 1968
Facts: ( the hukbalahap
ransom)

kidnapped

and

In the afternoon of February 27, 1956, Mrs.

Elvira Taada de Principe, a young, prominent
patron of Gumaca, Quezon, a member of the
rich, well known Principe family, was kidnapped
by a band of Hukbalahaps, headed by one
Commander Pepe Alcantara. She was detained
for 18 days in the Huk lairs deep in the
mountains of the Bondoc Peninsula, and was
released only upon payment of a ransom of
P50,000.00. Estrada vehemently denied that he
was in connivance with the Huks by showing
that he could not have been in Barrio Biga, nor
conferred with Lt. Alcantara at the place in
February,1956, because he never left the town of
Gumaca during the said month, but once when
he went to Lucena City to renewthe plates of his
trucks. He sought to destroy the credibility of
the witnesses for the prosecution. He tried hard
to convince the trial court that a man of his
stature and character an elective official of
social prominence and with substantial income,
and commended by a ranking PC officer for "his
exploits and undertakings" as an "informer" of
the Army could not have been in league with the
Huks in the mountains, and propose to them a
neighbor and family friend as an object of the
heinous crime of kidnapping for ransom. In
support of this defense, there was also an
attempt to put back on the stand, prosecution
witness Ceribo in order that he could explain
why he testified falsely when he testified for the
prosecution. However, this was disallowed by the
trial court. Having failed to convince the trial
court of his innocence, Estrada now appeals.

We have to sustain the finding of the

court below that herein appellant is guilty of the
crime imputed to him in this case. There could
be no question that appellant had knowledge of
the criminal intention of Lt. Alcantara and his
men to kidnap somebody from Gumaca for
ransom. It seems, however, that they had no
definite person in mind in the beginning. So
much so, that they had to call for herein
appellant, a councilor and prominent citizen of
the place, for his cooperation in the matter of
selecting and pointing to the prospective victim.
Appellant suggested the Principes as the most
suitable

object

of

their

criminal

design,

pinpointing Elvira, wife of one of the Principes,

as the ideal victim, with the explanation that the
Principe

family

would

not

meet

with

any

difficulty in producing the ransom money for her

35

release. Lt. Alcantara and his men became

convinced

of

appellant's

suggestion

manufacture and sale of refined granulated

sugar is the owner of the trademark
"VICTORIAS" and d design Ong Su is engaged in
the repacking and sale of refine sugar and is the
owner of the trademark "VALENTINE" and
design. The petitioner allied that its trademark
"Victorias" and diamond design has distinctive of
its sugar long before the respondent used its
trademark; that the registration of "Valentine"
and design has caused and will cause great
damage to petitioner by reason of mistake,
confusion, or deception among the purchasers
because it is similar to its "Victorias" trademark;
that registration was fraudulently obtained by
Ong Su and that "Valentine" falsely suggests a
connection with Saint Valentine or with an
institution or belief connected therewith.

and

reasoning, and then and there they decided to

kidnap Elvira Taada Principe. The Huk leader
told appellant that he (appellant) would be
informed accordingly when the kidnapping was
to be effected and the latter answered that Lt.
Alcantara could count upon him all the time.
Appellant knew, and must have realized the
frightful consequences of being kidnapped by
the Huks. He was not unaware of previous other
kidnappings of promine nt citizens in the
Bondoc Peninsula the kidnapping of ExMayor

Yumul

of

Lopez,

of

Wee

King

of

Catanauan, of the Barrettos of Gumaca, and of

De Leon of Catanauan which had invariably
resulted in either the loss of honor of the
victims, payment of huge amounts for ransom by

The petition was denied since the alleged

infringing trademark of ong su did not actually
infringes
victoriass
trademark.
Victorias
pleadings relied heavily on diamond designed of
the logo which in itself did not constitute
infringement since common geometric shapes
and color patterns are not in themselves
patentable. Moreover, the case was unfair
competition case of which the director of patents
had no jurisdiction. Hence this petition.

their families, or the horrible deaths of the

victims.

With

that

knowledge,

nevertheless,

herein appellant agreed and conspired with Lt.

Alcantara and his men in the kidnapping of
Elvira Taada Principe, who was not only
detained by Lt. Alcantara and his men in the
mountains for eighteen (18) days, but was only
released after the payment of a P50,000.00
ransom. These circumstances, to the mind of the
Court, altogether show that appellant enjoyed
such ascendancy of the mind over that of Lt.

Issue: Whether or not the recalling of witness

under the rules of court has been violated by
not allowing the defendant as witness in the
rebuttal.

Alcantara to the extent that his suggestion was

the efficacious inducement which led the latter
and his men to proceed with the criminal
design, thus making herein appellant a principal
by inducement. However, for failure to obtain the

Ruling: No. The refusal of the Director of

necessary number of votes to affirm the death

Patents to allow respondent Ong Su and witness

sentence in the decision appealed from, the

Emesto Duran to testify on rebuttal is not a

penalty next lower should be imposed.

reversible

effort. The

only

purpose

of the

petitioner in proposing to call Ong Su as a

Victoria Milling Company Inc. v Ong Su 79
Scra 207 (1977)

witness on rebuttal is to ask the latter if he had

Facts: (trademark infringement case)

petitioner

judicial authority to use the alias 'Mariano'. Ang

It

appears,

however,
had

that

already

the

counsel

extensively

of

cross

-examined Ong Su as to a citizenship, alien

Victorias Milling Company, Inc., a
domestic corporation and engaged in the

certificate of registration and the other name

Mariano Ang. It seems immaterial whether or

36

Facts: (this is an arson case)

not Ong Su has judicial authority to use

Mariano Ang as an alias. There is evidence that
even before the last World War, the trademark

Wilfredo sembrano charged for the crime

of arson against the owner of the I love you
restaurant and sauna bath. Among the witness
presented is Benjamin lee, a room boy of the
said restaurant. Lee testified on direct
examination at the hearing of December 8,
1987. His testimony was essentially that
Sembrano had run out of the VIP room where
the fire had started and refused to heed his
(Lee's) call to stop. Lee took the witness stand
again on April 26, 1987 during which he was
cross -examined by defense counsel, gave
additional evidence on redirect examination, was
again questioned on recross -examination by the
same defense counsel, and thereafter allowed to
step down.

'Valentine' and design had been used under the

name of either Ong Su or Mariano Ang. The
petitioner sought to present Emesto T. Duran as
rebuttal

witness

to

prove

that

there

was

confusion among consumers or buyers of sugar

caused by the alleged sorority of the "Victorias"
and "Valentine" trademarks. The presentation of
Emesto T. Duran as rebuttal witness was
objected to by counsel of the respondent on the
ground that the evidence sought to be elicited
from Duran did not directly contradict the
testimony of witness Chicane The objection was
sustained by the hearing officer whose ruling
was subsequently confer by the Director of
Patents. The proposed testimony of Emesto T.
Duran that in February 1963 he went to

The prosecution completed presentation

of its evidence -in-chief in due course. But before
it could rest its case, and two (2) months or so
after Benjamin Lee had comp leted his
testimony, the defendant's original counsel,
Benjamin Formoso, withdrew his appearance
and was substituted by another attorney,
Eduardo S. Rodriguez. The latter then filed a
motion to recall Benjamin lee for futher
examination on the ground that there are some
essential question that did not ask by the
defense counsel who conducted the cross
examination. The court granted the motion. But
since the witness could nolonger be located, the
lower court struck out the entire testimony of
Benjamin Lee, reasoning that it was not the fault
of the defense that Benjamin Lee could no longer
be located. From this the prosecution filed the
present petition on certiorari against the order of
the judge. Hence this petition.

Arangue market and bought one bag of sugar

which he thought was "Victorias" and when he
went home he found out that the sugar was
marked "Valentine" is not sufficient evidence
that the two trademarks are so similar that
buyers

of

sugar

are

confused.

The

words

"Victorias" and "Valentine" are not similar in

spelling and do not have a similar sound when
pronounced. Even the diamond designs are
different. The diamond design of the trademark
"Valentine" has protruding fines at the comers.
Even an illiterate person can see the difference
between the two diamond designs. There is no
evidence that the respondent Ong Su had
obtained the

registration

of

his

trademark

"Valentine" and design by means of fraud. The

said trademark was registered in the Philippines
Patent Office before the petitioner registered its
trademark. The record and evidence show that
Ong Su had also used in his business the name
Mariano Ang. Hence the licenses and permits in

Issue: Whether or not that the recalling of

witness provided by the rules has been violated
by sriking out the testimony of Benjamin lee for
lack of further examination.

the name of Ong Su and/or Mariano Ang were

correctly admitted as evidence.
People v Rivera 200 SCRA 786 (1991)

Ruling: Yes. There is no doubt that a Trial

37

unspecified, it must be stressed had to be

Court has discretion to grant leave for the recall

of a witness. This is clear from a reading of
Section 9, Rule 132 of the Rules of Court, as
amended, 9 viz.:

asked. In doing so, it acted without bas is,

exercised power whimsically or capriciously, and
gravely abused its discretion. So, too, the
respondent
Court
acted
whimsically,
capriciously, and oppressively, in other words,
gravely abused its discretion, in ordering the
striking out of the entire t estimony of Benjamin
Lee after it appeared that he could no longer be
found and produced for further examination. In
the first place, the Court acted unilaterally,
without any motion to this effect by the defense
and thus without according the prosecution a
prior opportunity to show why the striking out
should not be decreed. More importantly, the
striking out was directed without any showing
whatever by the defense of the indispensability
of further cross -examination, what it was that
would have been elicited by further cross
-examination rendering valueless all that the
witness had previously stated. It should be
stressed that Lee was subjected both to cross
-examination and recross -examination by
former counsel of the accused Sembrano.
Obviously the latter was satisfied that there had
been sufficient cross - examination of the
witness. Absence of cross -examination may not
therefore be invoked as ground to strike out
Lee's testimony (as being hearsay). And there is
no showing whatever in this case that it was t he
prosecution that placed the witness beyond the
reach of the Court, much less of the expected
nature or tenor of his additional testimony
which, because not presented, would necessarily
cause the evidence earlier given by Lee to
become hearsay or otherwise incompetent, and
therefore, amenable to being stricken from the
record.

SEC. 9. Recalling witness. After the

examination of a witness by both sides has been
concluded, the witness cannot be recalled
without leave of the court. The court will grant
or withhold leave in its discretion, as the
interests of justice may require.
But obviously that discretion may not be
exercised in a vacuum, as it were, entirely,
isolated from a particular set of attendant
circumstances. The discretion to recall a witness
is not properly invoked or exercisable by an
applicant's mere general statement that there is
a need to recall a witness "in the interest of
justice," or "in order to afford a party full
opportunity to present his case," or that, as
here, " there seems to be many points and
questions that should have been asked" in the
earlier interrogation. To regard expressed
generalities such as these as sufficient ground
for recall of witnesses would make the recall of
witness no longer discretionary but ministerial.
Something more than the bare assertion of the
need to propound additional questions is
essential before the Court's discretion may
rightfully be exercised to grant or deny recall.
There must be a satisfactory showing of some
concrete, substantial ground for the recall. There
must be a satisfactory showing on the movant's
part, for instance, that particularly identified
material points were not covered in the cross
-examination, or that particularly described vital
documents were not presented to the witness
whose recall is prayed for, or that the cross
-examination was conducted in so inept a
manner as to result in a virtual absence thereof.
Absent such particulars, to repeat, there would
be no foundation for a trial court to authorize
the recall of any witness. In the case at bar, the
respondent Trial Court granted the defendant's
motion for recall on nothing more than said
movant's general claim that certain questions

EXCLUSION OF WITNESSES
PEOPLE v. SANDAL 54 PHIL 883 Sep. 5, 1930

38

Facts: This case was a murder case committed

STATE v. BISHOP 492 P2d 509 (1971)

by four moro persons against a certain Eleno

Lamorena. The following facts of record explain
the motive of the assault: When Tomas Permites
went to Manila to look after certain matters he
left Eleno in charge of his interests in
Monungan. While Permites was in Manila, the
appellants caused some injuries to his carabaos,
as a result of which Eleno had a dispute with
them. Eleno sent word of what had happened to
Permites in Manila, and when the latter
returned to Monungan, he verified the facts and
filed a complaint against the appellants. Eleno
was to be the principal witness, and the
defendants knew it. They denied the facts set
forth and attempted to prove an alibi. They were
convicted. They then appealed their case, stating
that the lower court failed to admit the tes
timony of a witness for the defense.

Facts:

Bishop

was

convicted

of

sale

and

possession of dangerous drugs. The question on

appeal is whether the trial court erred in
refusing to grant a request for the exclusion of
witnesses. When the case was called for trial,
defense counsel requested all witnesses be
excluded. During the brief discussion that
followed, the prosecutor stated that most of his
witnesses were police officers. Counsel for the
defendant argued his client would be prejudiced
by allowing the officers to remain. The only
advantage for them being in the courtroom is to
hear the cross examination by defense counsel,
to determine what the theory of the defense is in
this case, and to determine these things instead
of coming in on the questions cold. The trial
judge denied the motion and explained that for
him, it is highly desirable from the public
standpoint that officers have an opportunity to
learn what it is about their police practices that
is being questioned, and to give careful thought
to their own practices. The judge further
explained that some of the police officers were
involved in motions to suppress in "this group of
cases" and should be allowed to see the trials
"that involve the efforts that they've made."

Issue: Whether or not court's refusal to admit

certain witness for defense is valid?
Ruling: An assignment of error alleged by the
appellants in this instance deals with the trial
court's refusal to admit a certain witness
presented by the defense. The court took this
stand for the reason that this witness had been
present during the hearing notwithstanding the
court's order that all witnesses leave the court
room. Under such circumstances it lies within
the court's discretion to admit or reject the
testimony of the witness. And although we are of
opinion that the court below should have
admitted the testimony of this witness,
especially when he stated that he did not hear
what the other witnesses testified, yet there is
nothing to show that this error has affected the
appellants' defense. There is nothing to show
what this witness would have testified if
admitted, and so it cannot be held that his
failure to testify has materially affected the
appellants' defences.

Issue: Whether or not the witnesses should be

included on the grounds of educational
experience and for them to be able to see the
fruits of their labor?
Ruling: If either party requires it, the judge may
exclude from the courtroom any witness of the
adve rse party not at the time under
examination, so that he may not hear the
testimony of other witnesses. State v. Wilson and
State v. EDE suggest that a motion to exclude
normally should be granted. In Ede the court
interpreted the statute not as permissive, but,
rather, as directory in form. The practice of
excluding witnesses from the courtroom except

39

while each is testifying is to be strongly

recommended, particularly where the testimony
of the witnesses is in any measure cumulative or
corroborative. The exclusion of witnesses from
the courtroom during trial is a time -honored
practice designed to prevent the shaping of
testimony by hearing what other witnesses say.

testimony, and the other reasons for the rule of

sequestration, the reasons advanced by the
court were insufficient.

When one party moves to exclude

witnesses and the other party voices no
objection, the motion should always be granted.
When the motion is opposed, the trial court's
discretion comes into play. In this context, as
others, judicial discretion does not mean that
the question of whether to exclude witnesses is
left to the trial court's whim or grace. Instead,
judicial discretion is to be exercised in
conformity with the spirit of the law and in a
manner to subserve and not defeat the ends of
justice. Specifically, the trial court must weigh
the "good cause shown," for not excluding
witnesses against the policy favoring exclusion.

AUTHENTICATION
DOCUMENTS

AND

PROOF

OF

Rule 132 Sections 19-33

Section 19. Classes of Documents. For the
purpose
of
their
presentation
evidence,
documents are either public or private.
Public documents are:

Thus, if the record contains some

showing of good cause for not excluding the
witnesses, and if the trial court made a
reasonable choice between the good cause
shown and the policy favoring exclusion, its
decision will not be disturbed on appeal. But if
the record contains no reason for not excluding
witnesses, or an insufficient reason, then the
trial court has abused its discretion.

(a) The written official acts, or records of the

official acts of the sovereign authority,
official bodies and tribunals, and public
officers, whether of the Philippines , or of
a foreign country;
(b) Documents acknowledge before a
notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines,
of private documents required by law
to the entered therein.

In the case at bar, we find the reasons

advanced by the trial court to explain its refusa l
to exclude to be inadequate. As noted above, the
trial court wanted the police officers who would
be witnesses to be able to view the trial as an
educational experience, and wanted them to be
able to see the fruits of their labors. These
reasons, while undoubtedly salutary as an
educational device, were not relevant to the
purpose of the trial namely, the determination
of whether the defendant was guilty of the crime
charged. Balanced against the danger that the
witnesses' memories might be confused by other

All other writings are private. (20a)

Section 20. Proof of private document. Before
any private document offered as authentic is
received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document
executed or written; or
(b) By evidence of the genuineness of the
signature or handwriting of the maker.

40

such officer has the custody. If the office in

which the record is kept is in foreign country,
the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office. (25a)

Any other private document need only be

identified as that which it is claimed to
be. (21a)
Section 21. When evidence of authenticity of
private document not necessary . Where a
private document is more than thirty years old,
is produced from the custody in which it would
naturally be found if genuine, and is
unblemished
by
any
alterations
or
circumstances of

Section 25. What attestation of copy must state.

Whenever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance, that the
copy is a correct copy of the original, or a
specific part thereof, as the case may be. The
attestation must be und er the official seal of the
attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of
such court. (26a)

suspicion, no other evidence of its authenticity

need be given. (22a)
Section 22. How genuineness of handwriting
proved . The handwriting of a person may be
proved by any witness who believes it to be the
handwriting of such person because he has seen
the person write, or has seen writing purporting
to be his upon which the witness has acted or
been charged, and has thus acquired knowledge
of the handwriting of such person. Evidence
respecting the handwriting may also be given by
a comparison, made by the witness or the court,
with writings admitted or treated as genuine by
the party a gainst whom the evidence is offered,
or proved to be

Section 26. Irremovability of public record.

Any public record, an official copy of which is
admissible in evidence, must not be removed
from the office in which it is kept, except upon
order of a court where the inspection of the
record is essential to the just determination of a
pending case. (27a)

genuine to the satisfaction of the judge. (23a)

Section 27. Public record of a private document.

An authorized public record of a private
document may be proved by the original record,
or by a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
(28a)

Section 23. Public documents as evidence.

Documents consisting of entries in public
records made in the performance of a duty by a
public officer are prima facie evidence of the
facts therein stated. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of the
date of the latter. (24a)

Section 28. Proof of lack of record. A written

statement signed by an officer having the
custody of an official record or by his deputy
that after diligent search no record or entry of a
specified tenor is found to exist in the records of
his office, accompanied by a certificate as above
provided, is admissible as evidence that the
records of his office contain no such record or
entry. (29)

Section 24. Proof of official record. The record

of public documents referred to in paragraph (a)
of Section 19, when admissible for any purpose,
may be evidenced by an official publication
thereof or by a copy attested by the officer
having the legal custody of the record, or by his
deputy, and accompan ied, if the record is not
kept in the Philippines, with a certificate that

Section 29. How judicial record impeached.

41

Any judicial record may be impeached by

evidence of: (a) want of jurisdiction in the court
or judicial officer, (b) collusion between the
parties, or (c) fraud in the party offering the
record, in respect to the proceedings. (30a)

Facts: The plantiff, Francisco Bunag testified

that the property in question was originally
owned by his father Apolonio Bunag Aguas. His
father allowed Jose Bautista Santiago, a
nephew-in-law, to build a house on said lot on
condition that he would pay for the land taxes
as compensation for the use of the land. On the
other hand, the defendant, Bruno Bautista,
testified that he is the owner of the land in
question by virtue of a deed of sale,

Section 30. Proof of notarial documents.

Every instrument duly acknowledged or proved
and certified as provided by law, may be
presented in evidence without further proof, the
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved. (31a)

thumbmarked by Apolonio Bunag; that Bunag

first offered it for sale to his brother Jose
Bautista, bu t as the latter had no money, he
referred the matter to his father; that after he
was contacted in Baguio by his father, he sent
the P100.00 as consideration of the sale and so
the sale was consummated between his father
and Bunag; that he came down from Baguio and
had the house repaired and he stayed there with
his family until liberation when they left the
house and allowed his sister Estrudes Bautista
to live therein; that the property is declared in
his name and he denies that her sister Estrudes
reques ted Apolonio Bunag to allow her to stay
on the property as her sister had a house of her
own then. Brigida Bautista testified that her
brother bought the said property from Apolonio
Bunag and that she was present when Bunag
affixed his thumbmark on the document; that
aside from this deed, there were other
documents supporting the sale as the note
containing the consideration and the parties.
The trial court decided in favor of Bautista the
plaintiff. CA ruled otherwise declaring due
execution and authenticity of the deed of sale
based on the testimony of Brigida Bautista.

Section 31. Alteration in document, how to

explain . The party producing a document as
genuine which has been altered and appears to
have been altered after its execution, in a part
material to the question in dispute, must
account for the alteration. He may show that the
alteration was made by another, without his
concurrence, or was made with the consent of
the parties affected by it, or was otherwise
properly or innocent made, or that the alteration
did not change the meaning or language of the
instrument. If he fails to do that, the document
shall not be admissible in evidence. (32a)
Section 32. Seal. There shall be no difference
between sealed and unsealed private documents
insofar as their admissibility as evidence is
concerned. (33a)
Section 33. Documentary evidence in an
unofficial language . Documents written in an
unofficial language shall not be admitted as
evidence, unless accompanied with a translation
into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are
directed to have such translation prepared
before trial. (34a)

Issue: Whether or not the thumb-marked, nonnotarized and non-witnessed deed of sale of a
parcel of unregistered land can be excluded as
evidence?

E-Commerce Act Sections 5-15

Rules on Electronic Evidence
and 11

Rules 5-6, 9

Ruling: It must be emphasized that the deed of

sale was not acknowledged before a notary
public and neither are there any signatures in

BUNAG v. CA 158 SCRA 299

42

the blank spaces for the signatures of attesting

witnesses. The document is typewritten in
English and over the similarly typewritten words
"APOLONIO BUNIAG" is a thumbprint. The deed
of sale is not notarized and is, therefore, a
private writing whose due execution and
authenticity must be proved before it can be
received in evidence.

that a private writing must be shown to be duly

executed and authenticated. The probative value
of the testimony of Brigida Bautista, who did not
furnish us with any details surrounding the
execution of the deed coming as it does from a
person whose partisanship can not, and should
not, be overlook, fags short from the minimum
requirements of credibility. Indeed it has been
said that the testimony of an eye -witness as to
the execution of a private document must be
positive. He must state that the document was
actually executed by the person whose name is
subscribed thereto. It is not sufficient if he
states in a general manner that such person
made the writing. More so if the document was
merely thumb-marked.
The Court sustains and adopts the trial
court's findings and its conclusion that private
respondents have failed to prove the due
execution and authenticity of the deed of sale.

Before any private writing may be

received in evidence, its due execution
and a uthenticity must be proved
either:
(a) By anyone
executed;

who

saw

the

writing

(b) By evidence of the genuineness of the

handwriting of the maker; or
(c) By a subscribing witness.

The due execution and authenticity of the

deed of sale, not having been satisfactorily prove
n, such private document should be excluded.

The testimony of Brigida Bautista has to

be received with caution, comin g as it does from
a sister of the defendants. The circumstances
other alleged presence during the "execution" of
the deed of sale was not related. Neither does
she give any light as to whether Apolonio Bunag
understood the document. It should be noted
that the deed was written in English. Since it
appears that said document was merely thumb
-marked, it could reasonably be inferred that
Apolonio Bunag, the supposed vendor, was
illiterate. Under the stances, the minimum proof
necessary to establish due authenticity should,
in the least, include evidence that the document
was duly read, explained and translated to
Apolonio Bunag. Unfortunately, no such
evidence was presented. Another fact which
compels this Court to proceed with caution is
the fact that there are no instrumental
witnesses in the document. The mischief that
lurks behind accepting at face value a document
that is merely thumb -marked. Without any
witnesses to it, and not acknowledged before a
notary public could be one of the reasons
behind the requ irement of the rules on evidence

HEIRS OF LACSA VS CA 197 SCRA 234

(1991)
Facts:

This

is

an

action

for

recovery

of

possession with damages and ,preliminary

injunction filed by the petitioners, the heirs of
Demetria Lacsa, against Aurelio Songco and
John Doe based on the principal allegations that
petitioners are heirs of deceased Lacsa who,
during her lifetime, was the owner of a certain
parcel of land. The private respondents allege
that the petitioners Original Certificate of Title
was merely a reconstituted copy upon
petitioners expedient claim that the owners
duplicate copy had been missing when the truth
is that Certificate of title had long been cancelled
by virtue of a sale and transfer of ownership to
Limpin and Guevarra which was in turn
transferred to Inocencio Songco who bought the
land later on. The court ruled in favor of the
private respondents by virtue of their

43

Ruling: NO. The first two requirements in

Section 22 were met. It appearing that it was
executed in 1917, it was more than thirty years
old when it was offered in evidence in 1983. It
was presented in court by the proper custodian
thereof who is an heir of the person who would
naturally keep it. However the document lost a
page which nonetheless affected its authenticity.
It allegedly bears the signature of the vendor of
the portion of the lot in question and therefore
contains
vital
proof
of
the
voluntary
transmission of rights over the subject of the
sale.

inheritance from theor deceased father Inocencio

Songco. Petitioners contend that the court
wrongfully applied the :ancient document
rule, since the documents presented as
evidence by private respondents doesnot bear
the signature of the alleged parties.
Issue: Whether or not the ancient document
rule was properly applied?
Ruling: YES. Under the ancient document
rule, for a private ancient document to be
exempt from proof of due execution and
authenticity, it is not enough that it be more
than thirty years ols; it is also necessa ry that
the following requirements are fulfilled; 1.) that
it is produced form a custody in which naturally
be found if genuine. 2.) that it is unblemished by
any alteration or circumstances of suspicion.
The second requirement refers to the extrinsic
quality of the document itself. The lack of
signatures on the first pages, cannot be held to
detract from the fact that the documents in
question, which were certified as copies of the
originals on file with the Register of Deeds of
Pampanga, are genuine and free from any
blemish or circumstance of suspicion.

PACIFIC
ASIA
OVERSEAS
SHIPPING
CORPORATION VS NLRC 161 SCRA 122
(1988)
Facts: Private respondent Teodoro Rances was
engaged by petitioner PASCOR as radio operator
of a vessel belonging to Pascors foreign
principal, the Gulf-East Hip Management
Limited. Rances failed to get along with his coworkers and was being transferred from one
workplace to the next. The foreign principal
terminated the services of private respondent.
Petitioner filed a complaint against the private
respondent for acts unbecoming a marine officer
and for character assassination with the POEA.
Private respondent denied the charges and in
the complaint demanded an amount which a
court in Dubai had awarded in his favor against
petitioners foreign principal.

BARTOLOME VS IAC 183 SCRA 102 (1990)

Facts: Lot No. 11165 was first declared as his
property by Epitacio Batara. It was entrusted to
his cousin Doroteo Bartolome, who owns a lot
southof Epitacios property. The property is now
the subject of the dispute between

As evidence of the foreign award, private

respondent submitted an original copy
of the decision of the
Dubai court written in Arabic script and
language, with a copy of an English translation
by an unidentified translator and a copy of the
transmittal letter signed by one Mohd.

Resurreccion, daughter of Epitacio, and Ursula

Cid, widow of the son of Doroteo Bartolome.
Ursula Cid presented documents alleging that it
is the deed of sale of the lot in quest ion. The
Intermediate Appellate court ruled in favour of
Ursula Cid based on the deeds of sale which it
considered ancient documents under Section 22.
Rule 132 of the Rules of Court.

Issues: 1. Whether the copy of the Dubai

decision was properly authenticated?
2. Whether the translation was effective?

Issue: Whether the deed of sale presented by Cid

considered ancient docu ment?

Ruling: POEA had no jurisdiction over cases for

the enforcement of foreign judgments. Such a
claim must be brought before the courts. As to

44

the first issue the answer is no. Respondent

Rances failed to submit any attestation issued
by the Dubai official having legal custody of the
original of the decision of the Dubai court that
the copy presented by said respondent is a
faithful copy of the original decision, which
attestation must furthermo0re be authenticated
by a Philippine Consular officer having
jurisdiction in Dubai.

not in bad faith in not allowing the Zalameas to

board despite their
confirmed tickets because the Code of Federal
Regulations of the Civil Aeronautics Board
allows overbooking. TWA solely relied on the
testimony of its customer service agent to prove
the existence of su ch law.
Issue: Whether the U.S. Law allegedly allowing
overbooking was proven?

As to the second issue the answer is no.

The English translation is defective. Section 34
of Rule 132 of the Revised Rules of Court
requires that documents written in a non
-official language (like Arabic)shall not be
admitted as evidence unless accompanied by a
translation into English or Spanish or Filipino.
The
English
translation
submitted
by
respondent is not sworn to as an accurate
translation of the original decision in Arabic.
Neither has that translation been agreed upon
by the parties as a true and faithful one.

Ruling:

No.

Foreign

laws

do

not

prove

themselves nor can the courts may take judicial

notice of them. Like any other fact, they must be
alleged and proved. TWA cannot solely rely on
the testimony of its customer service agent.
Written law may be evidenced by an official
publication thereof or by a copy attested by the
officers having the legal custody of the record, or
by his deputy, and accompanied with a
certificate that such officer has custody. The
certificate may be made by a secretary of an
embassy or legation, consul general, consul, vice
--consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in
the foreign country in which the re cord is kept,
and authenticated by the seal of his office.
Existing jurisprudence states that overbooking
amounts to bad faith, entitling the passengers to
an award of moral damages. And even if US law
allows overbooking, TWA is in bad faith in not
informing its passengers that despite their
confirmed seats there is a possibility that they
will not be able to board.

ZALAMEA v. COURT OF APPEALS 228 SCRA

23 (1993)
Facts: Zalamea and his wife and daughter
purchased, in Manila, three tickets 3 for a flight
from NewYork to Los Angeles on TransWorld
Airlines. While in NY, Zalamea received
confirmations of their reserved flights. However,
when they checked--in at the airport, they were
placed on the wait --list because all the seats
were already taken. Mr. Zalamea was allowed to
board because he was holding the full--fare
ticket of his daughter. On the other hand, Mrs.
and daughter Zalamea were not allowed to
board. The two were constrained to purchase 2
different tickets on an American Airlines flight
which cost them $918. Upon arrival in the
Philippines, Zalamea filed an action for breach of
contract of carriage. The Regional Trial Court
awarded actual and moral damages. The Court
of Appeals deleted award of moral damages
because there was no bad faith. The Supreme
Court modifies and award actual, moral,
exemplary damages. TWA asserted that they are

PEOPLE v. MONLEON 74 SCRA 263

Facts: Monleon was charged with parricide. He
was accused of killing his wife by squeezing her
neck, pressing her head againsta post, and
kicking her in the abdomen while he was in a
drunken stupor. After his wifes death,
Monleon thumb marked a confession, written
entirely in Cebuano and sworn to before the
town mayor. During trial, Monloen denied that
he inflicted violence on his wife. He also said

45

the purok leader and wrote down a dying

declaration wherein he identified the accused.
He died 3 days later. This declaration was
written entirely in Cebuano. Salison brings this
as an error by the trial court;; however, he did
not object to its admission in evidence during
trail.

that some persons threatened to kill him if he

did not affix his thumbmark to his confession,
which he said he merely signed because one Lt.
Bongo asked him to sign it so that the latter
would take care of Monleons children. His son,
Marciano, also executed an affidavit which was
entirely in Cebuano. This affidavit implicated
Monleon for the death of his wife. This a ffidavit
was admitted by the court over the objection of
Monleon. Monleon argues that the trial court
erred in admitting the confession and affidavit of
the son.

Issue: Whether or not the declaration should be

admitted?
Ruling: Yes. The records do not disclose that the
defense offered any objection to the admission of
the declaration. Thus, the defense waived
whatever infirmity the document had at the time
of its submission as evidence.

Issues:1. Whether or not the extrajudicial

confession should be given weight?
2. Whether or not the affidavit, written
entirely in Cebuano, was admissible?

Moreover, while it is true that the Rules

does not allow the admission of documents in an
unofficial language without a translation, the
Court believed that the interest of justice would
be preserved since no objection was made and
that the parties, judicial authorities, and the
personnel concerned appeared to be familiar
with o r knowledgeable with Cebuano anyway.
Also, the written declaration was duly presented
and the person who reduced the declaration in
writing was thoroughly questioned by the court,
the prosecutor, and cross --examined by the
defense counsel. More importantly, everything
written in the declaration of the victim was
confirmed by the eyewitnesses.

Ruling: On the first issue, the Court found that

the extrajudicial was corroborated by evidence of
the corpus delicti. Moreover, the Court found
that the confession was voluntarily executed by
the accused.
On the second issue, the Court stated
the trial court erred in admitting the affidavit
since it was not accompanied with the
corresponding translation. The Rules of Court
provides that documents written in an unofficial
language shall not be admitted as evidence,
unless accompanied with a translation into
English, [Spanish] or the national language.

PEOPLE v. LAZARO 317 SCRA 435 (1999)

However, due to the overwhelming

evidence against Monleon, he was still found
guilty. However, the Court issued a certification
to the Chief Executive recommending that his
penalty be reduced.

Facts: Apolinar Lazaro, while driving a yellow

Toyota Tamaraw jeep, was stopped by P/Sgt.
Bonnets attention was caught by bystarnders
who were shouting that said vehicle had a
bloodied passenger. Bonnet instructed Lazaro to
follow mobile patrol to Bicol Regional Hospital.
Pol. Maj. Tuazon, who got a tip by a phone call
regarding the incident, was waiting for them in
the hospital. Tuazon, knowing that driver was
armed, ordered driver to step out of jeep. He saw
that the driver had a handgun tucked in his
waist. Driver pulled out handgun from its

PEOPLE v. SALISON 253 SCRA 758

Facts: Salison, along with his co--accused, was
charged with the murder of Valmoria. The
evidence revealed that the Valmoria was mauled
to death by the 4 accused. He was hit on the
rear part of his head with wood. Feeling he was
close to death, Valmoria went to the house of

46

holster & dropped it at the back of drivers seat.

Tuazon p ulled out Lazaro out of the vehicle and
got hold of gun which was a .38 revolver
containing 6 empty shells. Lazaro did not
respond when he was asked why he had a gun
and whether he had license to possess such.
Lazaro was later on brought to police
headquarters and the gun was turned over to
investigator. Supt. Antonio Sierra, Chief of
Firearms & Explosives Office (FEO) at Camp
Crame issued a certification that Lazaro was not
a licensed or registered firearm holder of any
kind or caliber.

convicted of simple illegal possession of

firearms?
Ruling: The existence of firearm is beyond
dispute because it is recovered from the
Tamaraw andconfirmed by
Tuazons testimony. Further, the fact that the
accused who possessed the gun does not have
corresponding permit to possess the same is
confirmed by the certification from Firearms and
Explosives Section Chief.
The certification from Firearms &
Explosives Section Chief is admissible as
evidence since its a public document procured
in the line of duty. The fiscal himself witnessed
its signing. The official who issued it is the
proper custodian of records of firearms in the
Philippines. Under Rule 130, Sec. 44, Rules of
Court, official records made in performance of
public duty by a public officer of the Philippines
or by a person in the performance of a duty
specifically enjoined by law are prima facie
evidence of facts stated. A written statement
signed by the officer having custody of official
record or by his deputy that after diligent search
no record or entry of specified tenor is found to
exist in records of his office accompanied by
certification is admissible as evidence that
records of office contains no such record or
entry.

Lazaro claims that on the day of incident,

he had a drinking spree with his nephew
Manolo Lazaro & Ricardo Ronquillo in
Camarines Sur. They left the place at around 3
pm. While traveling, Manolo stopped the jeep to
urinate. Lazaro then saw Ricardo draw a gun
and point it at him. Lazaro and Ricardo then
grappled for possession of gun. After some time,
Lazaro realized that Manolo was hit and he was
asking his uncle to bring him to hospital. He
could not do anything because he was still
grappling with Ricardo. When Ricardo weakened
and stopped moving, he then brought Manolo to
hospital. He left Ricardo who later on died. He
claims that he does not know if gun found in his
possession was the same gun he was grappling
with Ricardo. He further claimed that he and
Ricardo fell from the jeep and he cannot recall
who was holding gun when it was fired. Thus
claiming that shooting of Ricardo was an
accident. Prosecution presented Dr. Jurados
testimony claiming that based on the autopsy,
injuries were not inflicted accidentally since
more than one shot was inflicted on victim.

In the case at bar, the Certification issued

by the Commanding Officer of the PNP Firearm
and Explosive Office, which is the repository of
all records regarding firearms in the Philippines
is competent and admissible evidence to prove
that the accused Lazaro was not a licensed
holder or possessor of a firearm of any kind or
caliber. Indeed, the certificate of a custodian
that he has diligently searched for a document
or an entry of a specified tenor and has been
unable to find it should be sufficient evidence of
its non --existence in his office as though he
made such testimony on the stand.

Issue: 1. Whether the elements of illegal

possession of firearms was proven by the
prosecution? Whether the certification from
Firearms & Explosives Section Chief is
admissible?
2.

Whether

Lazaro

should

only

be

The Court cited the cases of People vs.

47

Molina & People vs. Feloteo which held that

illegal possession of firearm will only be an
aggravating circumstance and no longer
punishable as a separate offense. The
amendmen ts of Republic Act 8294 took effect
on July 6, 1997, while the crime in the case at
bar is committed on May 5, 1991. Although
penal
laws
generally
have
prospective
application, retroactivity is allowed if such would
be advantageous to accused. Hence, the
amendment that the use of unlicensed firearm
as an aggravating circumstance in a murder
case, should be applied to Lazaro. In the case at
bar, homicide and illegal possession of firearms
were tried separately. By virtue of retroactivity,
this is no longer possible. Lazaro is acquitted of
illegal possession of firearms.

Hence, this petition for certiorari.

Issue: Whether or not Judge Burgos committed
grave abuse of discretion in disallowing the
prosecution witness form holding an actual
demonstration in court of the contents of the
diskettes seized from private respondents? --YES.
Ruling: There was neither testimonial nor
physical evidence to support the conclusion of
Judge Burgos that the diskettes might have
been tampered with or their contents altered in
order to secure the conviction of the accused.
The mere facts that the diskettes had been in
possession o f the prosecution does not
necessarily imply that it had altered or tampered
with the evidence to suit its prosecutorial
objective. The presumption of regularity in the
performance of official duty prevails in the
absence of evidence to contrary.

PEOPLE VS. BURGOS 200 SCRA 67

Facts: An information for violation of Republic
Act no. 1700 was filed against Deduro et. al., by
the City Prosecutor of Cebu. No bail was
recommended on the ground that the offense
charged was non -bailable and the respondents
were allegedly leaders of the Communist Party of
the Philippines.

The judge's apprehension that the

evidence might have been tampered with could
be relieved by designating a competent person
agreeable to both parties who can perform the
task of printing out the contents of the said
diskettes. The lack of confidence in the
prosecution witness should not in any way affect
the integrity of the diskettes or the right of the
prosecution to show the contents of the
diskettes.

Private respondents filed their petitions

for temporary release on bail pending trial. Su
ch petitions were opposed except for that of
Catalina Paras because she was then pregnant.
While the prosecution was still presenting
evidence, Judge Burgos issued the assailed
order fixing bail for five of the eight respondents.
Furthermore, Judge Burgos disallowed the
prosecution's request for its witness, Eulogio
Llego, a computer programmer, to print out in
open court the materials encoded in certain
diskettes seized from private respondents by
virtue of a search warrant.

IBM PHILIPPINES, INC., VIRGILIO L. PEA,

and

VICTOR

V.

REYES,

petitioners,

vs.

NATIONAL LABOR RELATIONS COMMISSION

Judge Burgos reasoned out that the contents of

the said diskettes could have been manipulated
which would be prejudicial to the rights of the
accused,
because
the
prosecution
has
possession prior to the hearing of the diskettes.

and ANGEL D. ISRAEL, respondents [G.R. No.

117221. April 13, 1999]
Facts: This is a petition for certiorari to set aside

48

the decision,[1] dated April 15, 1994, of the

National Labor Relations Commission (NLRC)
finding private respondent to have been illegally
dismissed and ordering his reinstatement and
the payment of his wages from August 1991
until he is reinstated.

respondent because of the latters unsatisfactory

performance in the company and he was given
sufficient warning and opportunity to reform
and improve his attitude toward attendance, but
to their regret, he never did. It was alleged that
private respondent was constantly told of his
poor attendance record and inefficiency through
the companys internal electronic mail (e -mail)
system. According to petitioners, this system
allows paperless or telematic communication
among IBM personnel in the company offices
here and abroad. An employee is assigned a
User ID and the corresponding password is
provided by the employee himself and,
theoretically, known only to him. Employees are
then expected to turn on their computers
everyday, log in to the system by keying in
their respective IDs and passwords in order to
access and read the messages sent to and stored
in the computer system. To reply, an employee
types in or encodes his message -response and
sends the same to the intended recipient, also
via
the
computer
system.
The
system
automatically records the time and date each
message was sent and received, including the
identification of the sender and receiver thereof.
All messages are recorded and stored in
computer disks .

Petitioner IBM Philippines, Inc. (IBM) is a

domestic corporation engaged in the business of
selling computers and computer services.
Petitioners Virgilio L. Pea and Victor V. Reyes
were ranking officers of IBM during the period
pertinent to this case.
On April 1, 1975, private respondent Angel D.
Israel commenced employment with IBM as
Office Products Customer Engineer. For the next
sixteen (16) years, he occupied two other positio
ns in the company, received numerous awards,
and represented the company in various
seminars and conferences in and out of the
country.
On February 1, 1990, private respondent
was assigned to the team supervised by
petitioner Reyes.
On June 27, 1991, petitioner Reyes
handed a letter to private respondent informing
the latter that his employment in the company
was to be terminated effective July 31, 1991 on
the ground of habitual tardiness and
absenteeism

Private respondent appealed to the NLRC which,

on April 15, 1994, reversed the labor arbiters
decision and found private respondents
dismissal illegal. The NLRC ruled: (1) that the
computer print-outs which petitioners presented
in evidence to prove that private respondents
office attendance was poor were insufficient to
show that the latter was guilty of habitual
absences and tardiness; and (2) that private
respondent was not heard in his defense before
the issuance of the final notice of dismissal.

Alleging that his dismissal was without

just cause and due process, private respondent
filed a complaint with the Arbitration Branch of
the Department of Labor and Employment
(DOLE) on July 18, 1991.
In his position paper filed on September
6, 1991, he claimed that he was not given the
opportunity to be heard and that he was
summarily dismissed from employment based
on charges which had not been duly proven.

Issue: petitioner sought to prove that private

respondent was sufficiently notified of the
charges against him and was guilty thereof
because of his failure to deny the said charges.

Petitioners denied private respondents

claims. It was alleged that several conferences
were held by the management with private

Ruling: The supreme Court applied the ruling

49

in Uichico v. NLRC: which states as follows ...

Talistic, wife of Melencio. According to the

prosecution, while Lolito Talisic was tending

xxxxx It is true that administrative and

their store, accused Cario and Diaz, who were

quasi-judicial bodies like the NLRC are not

bound by the technical rules of procedure in the
adjudication of cases. However, this procedural
rule should not be construed as a license to
disregard certain fundamental evidentiary rules.
While the rules of evidence prevailing in the
courts of law or equity are not controlling in
proceedings before the NLRC, the evidence
presented before it must at least have a
modicum of admiss ibility for it to be given some
probative value. The Statement of Profit and
Losses submitted by Crispa, Inc. to prove its
alleged losses, without the accompanying
signature of a certified public accountant or
audited by an independent auditor, are noth ing
but self-serving documents which ought to be
treated as a mere scrap of paper devoid of any

armed

with

knives,

stoned

the

store

and

probative value. Xxxx

store, but he was intercepted on the way by

attacked Lolito Talisic. Meanwhil, Rosalia Talisic,

who was cooking at the time near the store,
upon se eing what happened, called for her
husband,

Melencio

Talisic,

to

help

Lolito.

Melencio rushed to the scene and tried to pacify

the protagonists. While he placed his arms on
the shoulders of Diaz, Balingit suddenly stabbed
Melencio at the back with a knife, thereby
wounding

Melencio.

After

being

stabbed,

Melencio got a bolo from the kitchen of his

house, but Diaz grabbed it from him, and he
(Melencio) ran to a room in his store. Diaz then
entered the room and, upon seeing Melencio, he
hacked him on the head, wounding Melencio
and causing him to fall to the floor. Meanwhile,
the bleeding Lolito tried to run away from the
Cario, who stabbed him on the chest, causing

Hence, in the case at bar, the computer

print -outs, which constitute the only evidence
of petitioners, afford no assurance of their
authenticity because they are unsigned. The
decisions of this Court, while adhering to a
liberal view in the conduct of proceedings before
administrative agencies, have nonetheless
consistently required some proof of authenticity
or reliability as condition for the admission of
documents.

him to fall to the ground, dead. Diaz then

destroye d the showcase of Melencio's watches
and took away watches and money from the
store.

While

he

was

doing

this,

his

co

--conspirators waited for him outside the store.

Afterwards, the accused hurriedly fled from the
crime

scene.

Melencio's

wife

(Rosalia),

eye

witness to the incident, then called for help. On

the other hand, the accused Carino raised the
defense of alibi. He said that on the day of the
incident, he was walking home. On the way, he

WHEREFORE,
the
petition
is
DISMISSED and the decision of the NLRC,
dated April 15, 1994, is hereby AFFIRMED.

met one Ricardo Sibay who was walking in

zigzag manner and he (Sibay) suddenly stabbed
Carino. Carino then went to a hospital to be

PEOPLE
v. CARINO
September 26, 1988

G.R.

No.

treated and to the police station to report the

73876

incident. In the police station, he was informed

that he was a suspect in the killing of Lolito and
wounding of Melencio.

FACTS: Accused--appellants Cario and Diaz

(and one Balingit who is still at large) were
charged

with

the

crime

of

Robbery

ISSUE:

with

Whether the lower court erred in

considering that there was conspiracy in killing
Lolito Talisic and wounding Melencio Talisic and
robbery?

Homicide and Frustrated Homicide. The victims

in this case are Lolito Talistic (deceased) and
Melencio Talistic. The eyewitness was Rosalia

50

the admissibility of documentary evidence.

Petitioner is the employer of respondents.
Petitioner alleges that respondent (Aviles), being
then sub - agents of Interpacific, and as such
enjoying its trust and confidence, collected from
its various clients' payments for airway bills
which, instead of remitting it to their principal,
they unlawfully converted to their own personal
use and benefit.

HELD:No. It is the contention of accused-appellant Cario that conspiracy has not been
established in the case at bar. Appellant made
reference to the failure of the trial court to
consider the sworn statements of Jenny Arceo,
Ricardo Sibay and victim Melencio Talisic which
contradicted the finding of conspiracy. We find
such argument meritless. A perusal of the entire
records of the case shows that the defense did
not formally offer in evidence such sworn
statements and evidence not formally offered
cannot be cons idered by the court. The trial
court only considered what was formally offered
to it. From the testimonies of the prosecution's
witnesses, the trial court established that the
three accused acted in concert and with a
common design and purpose as shown by their
simultaneous arrival at the scene of the crime,

At the trial, the prosecution (Interpacific)

introduced photocopies of the airway bills
supposedly received by the accused for which
they had not rendered proper accounting. This
was done in, the course of the direct
examination of one of the prosecution witnesses.
The defense objected to their present ation,
invoking the best evidence rule. The prosecution
said it would submit the original airway bills in
due time. Upon such undertaking, the trial
court allowed the marking of the said
documents. However, contrary to its promise,
the prosecution d id submit the original airway
bills nor did it prove their loss to justify their
substitution
with
secondary
evidence.
Nevertheless, when the certified photocopies of
the said bills formally were offered, in evidence,
the defense interposed no objection.

mutually helping one another in the killing of

Lolito Talisic and in the stabbing of Melencio
Talisic and in the robbing of the store and by
their simultaneous flight from the scene of the
crime. Appellant Lauro Cario also averred that
the trial court committed grave error in not
giving weight to the statement of co--accused
Diaz confirming the absence of the accused
Cario at the time when the incident started.
Again, We cannot sustain such argument. A
cursory reading of the testimony reveals that
Diaz did not actually and categorically state that
Lauro Cario was not at the scene of the crime.
Witness was merely silent on this point. Such
silence did not negate Cario's presence at the
scene of the crime especially when the latter was
positively Identified as the malefactor by
prosecution witness and the victim himself,
Melencio Talisic.

INTERPACIFIC TRANSIT
NO. 86062, June 06, 1990

VS. AVILES

The RTC acquitted the accused. The RTC

held that the certified photocopies of the airway
by were not admissible under the rule that
there can be no evidence of a writing the
content of which is the subject of inquiry other
than the writing itself. Loss of the originals had
not been proved to justify the exception to the
rule as one of the prosecution witness had
testified that they were still in the ITI bodega.
Neither had it been shown that the originals had
been recorded in an existing record a certified
copy of which is made evidence by law. Because
the accused was acquitted, petitioner seeks to
press the civil liability of the respondents, on
the ground that the dismissal of the criminal
action did not abate the civil claim for the
recovery of the amount.

G.R.

Facts: This case hinges on the proper

interpretation and application of the rules on

51

the dismissal of the complaint.

Issue: Whether or not the objection of the
defense to the photocopies of the airway bill is
in accordance with the law?

While the case is still pending, Delos

Reyes wrote a letter addressed to the Sheriff of
Batangas and tendered the amount of 4,925.00
plus interest as redemption price for the land on
April 26, 1978. The Sheriff then on his reply
refused to accept the tendered amount on the
ground that the redemption period had already
expired.

Ruling: In the case at bar, the photocopies of

the airway bills were objected to by the private
respondents as secondary evidence only when
they were being identified for marking by the
prosecution. They were nevertheless marked as
exhibits upon the promise that the original
airway bills would be submitted later. It is true
that the original were never produced. Yet,
notwithstanding this omission, the defense did
not object when the exhibits as previously
marked were formally offered in evidence. And
these did not object when the exhibits as
previously marked were formally offered in
evidence. And these were subsequently admitted
by the trial court. The time for objecting the
evidence is when the same is offered. The
objection of the defense to the photocopies of the
airway bill while they were being identified and
marked as exhibits did not constitute the
objection it should have made when the exhibits
were formally offered in evidence by the
prosecution. No valid and timely objection was
made at that time.

The trial court and the CA decided in

favor of Sps. Ylagan stating that the redemption
period had already prescribed because the first
tendered payment was insufficient.
During the appealed decision on the
Supreme Court, the Sps. Ylagan contends
the admission of Delos
Reyes letter and tender of payment to the Sheriff
of the Court.
Issue: Whether or Not the letter of Reyes
tendering the price to the Sheriff and the latters
respo nse may be taken into account of
timelines of the redemption being not formally
offered as evidence.
Ruling: Yes. The Court ruled that the Sec. 35,
Rule 132 of the Rules of court that while the
subject provision must be strictly implemented
during ordinary proceedings, the policy is hardly
applicable in summary proceedings where no
full blown trial is held in the interest of speedy
administration of justice.

DELOS REYES V. IAC G.R. NO. 74768,

AUGUST 11, 1989
*Rule 132, Sec. 35 must be liberally construed on
Summary Proceedings

In this case, the Court noted that the

letters were formally submitted by Delos Reyes

Facts: Delos Reyes obtained a loan in the

amount of 3,000 from the Rural Bank of Bauan
which is secured by a real estate mortgage.
Being unable to pay the loan, the mortgage was
extrajudicially foreclosed and was sold to Sps.
Ylagan on April 29, 1976 . The sale was
registered in RD of Batangas on May 4, 1977.

when it wa s submitted during the hearing on

Delos Reyes motion to dismiss where both
counsels of the parties are present. In fact,
Judge
Relova took cognizance of the letters in his
order. Further, Sps. Ylangan never questioned
the admissibility of the letters during their
hearing on May 9, 1978 when the letters were
presented. They only did so when the case was
already on appeal.

Sps, Ylangan moved to eject Delos Reyes

from the subject property. On her answer, Delos
Reyes raised the defense of irregularity on the
auction and sale of the property thus, sought

52

Lastly, based on the rule on summary

procedure, the decision of the judge must be
based on the pleadings, depositions, admissions
of affidavits and documents on file with the
court
after
presumably
examining
the
authenticity and credibility of the evidence
before him.

Under the rule of multiple admissibility

of evidence, even if Consunji's confession may
not be competent as against his co-accused
Panganiban, being hearsay as to the latter, or to
prove conspiracy between them without the
conspiracy being established by other evidence,
the confession of Consunji was, nevertheless,
admissible as evidence of the declarant's own
guilt, and should have been admitted as such.

PEOPLE vs YATCO 97 Phil 940

Facts: In an amended information filed by the
City Attorney of Quezon City on March 22, 1955,
Juan Consunji, Alfonso Panganiban, and
another whose identity is still unknown, were
charged with having conspired together in the
murder of one Jose Ramos. During the progress
of the trial on May 18, 1955, while the
prosecution was questioning one of its
witnesses, Atty. Arturo Xavier of the National
Bureau of Investigation, in connection with the
making of a certain extra-judicial confession
(allegedly made before him) by defendant Juan
Consunji to the witness, counsel for the other
defendant Alfonso Panganiban interposed a
general objection to any evidence on such
confession on the ground that it was hearsay
and therefore incompetent as against the other
accused Panganiban. The lower court ordered
the exclusion of the evidence o bjected to, but on
an altogether different ground: that the
prosecution could not be permitted to introduce
the confessions of defendants Juan Consunji
and Alfonso Panganiban to prove conspiracy
between them, without prior proof of such
conspiracy by a number of definite acts,
conditions, and circumstances.

Manifestly, the rule refers to statements

made by one conspirator during the pendency of
the unlawful enterprises("during its existence")
and in furtherance of its object, and not to a
confession made, as in this case, lon g after the
conspiracy had been brought to an end.

Issue: Whether or not the confession made is

admissible as evidence.

We see no need for the present to discuss

the question of the admissibility of the
individual extrajudicial confessions of two or
more accused for the purpose of establishing
conspiracy between them through the identity of
the confessions in essential details. After all, the
confessions are not before us and have not even
been formally offered in evidence for any
purpose. Suffice it to say that the lower Court

Besides, the prosecution had not yet

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

Ruling: Yes. The Court held that the lower court

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

53

should have allowed such confessions to be

given in evidence at least as against the parties
who made them, and admit the same
conditionally to establish conspiracy, in order to
give the prosecution a chance to get into the
record all the relevant evidence at its disposal to
prove the charges. At any rate, in the final
determination and consideration of the case, the
trial Court should be able to distinguish the
admissible from the inadmissible, and reject
what, under the rules of evidence, should be
excluded.

Line used M/V Sweet Love owned and operated

by Sweet Lines. The cargoes were comingled
with similar cargoes belonging to Evergreen
Plantation.
When
the
shipments
were
discharged, it was discovered that there were
damages, losses and shortages on the cargoes
covered by bills of lading.
SLI failed to adduce any evidence in
support of their ground of prescription and that
the bills of lading said to contain the shortened
periods for filing and for instituting a court
action against the carrier were never offered in
evidence.

There is greater reason to adhere to such

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

Issue: Whether or not the bills of lading may be

considered as evidence though not formally
offered.
Ruling: Yes. Although the bills of lading were
not offered in evidence, the litigation obviously
re volves on such bills of lading which are
practically the documents or contracts sued
upon, hence they are inevitably involved and
their provisions cannot be disregarded in the
determination of the relative rights of the parties
thereto.

Wherefore, the order excluding the

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

The bills of lading can be categorized as

actionable documents which under the Rules
must be properly pleaded either as causes of
action or defenses, and the genuineness and
due execution of which are deemed admitted
unless specifically denied under oath by the
adverse party.

PHILAMGEN AND TIP V. SWEETLINES INC. ET

AL. GR. NO. 87343, AUGUST 5, 1992
*Judicial admissions, verbal or written made by
the parties in the pleadings or in the court o f the
trial or other proceedings in the same case are
conclusive no evidence being required to prove the
same, and cannot be contradicted unless shown
to have been made through palpable mistake or
that no such admission was made.

PHILAMGENs failure to specifically deny

the existence, much less the genuineness and
due execution of the instruments in question
amounts to an admission. Judicial admissions,
verbal or written made by the parties in the
pleadings or in the court of the trial or other
proceedings in the same case are conclusive no
evidence being required to prove the same, and
cannot be contradicted unless shown to have
been made through palpable mistake or that no
such admission was made. Moreover, when the
due execution and genuineness of an

Facts: The vessel SS VISHVA YASH belonging to

or operated by SCI Line took on board 2
consignments of cargoes for shipment from LA to
Manila and Davao covered by bills of landing
issued by SCI Line. The cargoes were insured by
Tagum Plastics and PHILMGEN. For the purpose
of transs hipment from Manila to Davao, SCI

54

Issue: Whether or not the testimony of Ocampo

should be considered admissible as evidence in
accordance with Sec. 35, Rule 132 of Revised
Rules on Evidence.

instrument are deemed admitted because of the

adverse partys failure to make a specific verified
denial thereof, the instrument need not to be
presented formally in evidence for it may be
considered an admitted fact.
CATUIRA
v. CA, G.R.
SEPTEMBER 12, 1994

NO.

Ruling: The petition is devoid of merit. The

reason for requiring that evidence be formally
introduced is to enable the court to rule
intelligently upon the objection to the questions
which have been asked. 7 As a general rule, the
proponent must show its relevancy, materiality
and competency. Where the proponent offers
evidence deemed by counsel of the adverse party
to be inadmissible for any reason, the latter has
the right to object. But such right is a mere
privilege which can be waived. Necessarily, the
objection must be made at the earliest
opportunity, lest silence when there is
opportunity to speak may operate as a waiver of
objections.

105813,

* The new rule would require the testimony of a

witness to offer it at the time the witness is
called to testify. This is the best time to offer the
testimony so that the court's time will not be
wasted. Since it can right away rule on whether
the testimony is not necessary because it is
irrelevant or immaterial.
Facts: On June 8 1990, 2 informations for
estafa were filed against Catuira for having
issued 2 checks for payment to Ocampo,
however, when the same was encashed it was
dishonored for insufficiency of funds. After the
prosecution presented their evidence, Catuira
filed a Motion to Dismiss by way of Demurrer to
Evidence. Catuira contended that the testimony
of Ocampo was inadmissible in ev idence since it
was not properly introduced when she was
called to testify as mandated in Sec. 35, Rule
132 of the Revised Rules on Evidence. Catuira
also argued that even if the testimony of Ocampo
was considered, the evidence of the prosecution
still failed to prove that the checks were issued
in payment of an obligation. However, the motion
was denied for lack of merit and the motion to
reconsider was likewise denied.

Thus, while it is true that the prosecution

failed to offer the questioned testimony when
private respondent was called to the witness
stand, petitioner waived this procedural error by
failing to object at the appropriate time, i.e.,
when the ground for objection became
reasonably apparent the moment private
respondent was called to testify without any
prior offer having been made by the proponent.
Most apt is the observation of the appellate
court:
While it is true that the prosecution failed
to offer in evidence the testimony of the
complaining witness upon calling her to testify
and that it was only after her testimony and
after th e petitioner moved that it be stricken
that the offer was made, the respondent Court
did not gravely err in not dismissing the case
against the petitioner on the ground invoked.
For, she should have objected to the testimony of
the complaining witness when it was not first
offered upon calling her and should not have
waited in ambush after she had already finished
testifying. By so doing she did not save the time
of the Court in hearing the testimony of the

On appeal, Catuira contended that

shecould not have waived her right to object to
the admissibility of the testimony of private
respondent since the rule requires that it must
be done only at the time such testimony is
presented and the records plainly show that the
opportunity for petitioner to object only came
when
the
prosecution
attempted,
albeit
belatedly, to offer the testimony after it has
rested its case.

55

witness that after all according to her was

inadmissible. And for her failure to make known
her objection at the proper time, the procedural
error or defect was waived.

that the evidence must be duly identified by

testimony duly recorded and it must be
incorporated in the records of the case.
Issue: Whether or Not the documents
marked as exhibits but not formally offered
should be recognized by th e Court.

Indeed, the rationale behind Sec. 34,

Rule 132, is manifest in the minutes of the
Revision of Rules Committee. 10 Thus The new
rule would require the testimony of a witness to
offer it at the time the witness is called to testify.
This is the best time to offer the testimony so
that the court's time will not be wasted. Since it
can right away rule on whether the testimony is
not necessary because it is irrelevant or
immaterial.

Ruling: Yes. While the provision of the Rules of

court states that for the evidence to be
considered, the same must be formally offered.
Corollarily, the mere fact that a particular
document is identified and marked as an exhibit
does not mean that it is formally offered as part
of the evidence. In Interpacific Transit, Inc. v.

VDA. DE ONATE v. CA, G.R. No. 116149,

NOVEMBER 23, 1995

Aviles, 10 the Court made a distinction between

identification of documentary evidence and its
formal offer as an exhibit. The first is done in
the course of the trial and is accompanied by the
marking of the evidence as an exhibit while the
second is done only when the party rests its
case and not before. A party, therefore, may opt
to formally offer his evidence if he believes that it
will advance his cause or not to do so at all. In
the event he chooses to do the latter, the trial
court is not authorized by the Rules to consider
the same.

* evidence not formally offered to be admitted

and considered by the trial court provided the
following requirements are present, viz.: first, the
same must have been duly identified by
testimony duly recorded and, second, the same
must have been incorporated in the records of the
case.
Facts: Taguba bought a parcel of land from
Vda. De Onate in 1976 for 5,000 payable in 4
installments. Taguba successfully paid her
obligation however, after full payment, Vda. De
Onate failed to reduce their contract in writing.
On December 30, 1976 Taguba died. On her
death, the heirs of taguba inisiated a case
against Vda. De Onate seeking the execution of
a public document of sale in favor of Taguba
and her heirs in which Vda. De Onate refused
to do so.

However, in People v. Napat-a 11 citing

People v. Mate, 12 the Court relaxed the
foregoing rule and allowed evidence not formally
offered to be admitted and considered by the
trial court provided the following requirements
are present, viz.: first, the same must have been
duly identified by testimony duly recorded and,
second, the same must have been incorporated
in the records of the case.
In the case at bench, the Court
finds that the requisites were fully
satisfied. The pieces of evidence in question
were identified in her testimony which was
duly recorded. Likewise, the pieces of
evidence
are
duly
attached
and
incorporated and made integral part
thereof.

The trial court on its decision ruled in

favor of Taguba. On appeal, Vda. De Onate
contented the recognition of the trial court to
Tagubas evidence particularly Exhibits F ,
F-1, F-2 and F-3 which had been
marked but was never formally offered as
required by the Rules of Court.
On sustaining the trial court, the Court
of Appeals still admitted the evidence for having
complied with the requisites of for admission;

56