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C. TESTIMONIAL EVIDENCE
1. Qualification of Witnesses
Section 20. Witnesses; their qualifications. Except as provided in the
next succeeding section, all persons who can perceive, and perceiving, can
make their known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction
of a crime unless otherwise provided by law, shall not be ground for
disqualification. (18a)
SUBSECTION 4. - Witnesses to Wills
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)
Section 6. Burden of Proof of Age. - Any person alleging the age of the child
in conflict with the law has the burden of proving the age of such child.
If the age of the child is contested prior to the filing of the information in
court, a case for determination of age under summary proceeding may be
filed before a court which shall render its decision within 24 hours from
receipt of the appropriate pleadings of all the parties. (n)
In all cases involving a child, the court shall make a categorical finding as to
the age of the child.
RULE 119
Trial
Section 17. Discharge of accused to be state witness. When two or more
persons are jointly charged with the commission of any offense, upon motion
of the prosecution before resting its case, the court may direct one or more
of the accused to be discharged with their consent so that they may be
witnesses for the state when, after requiring the prosecution to present
July 3, 2013
Petitioner Luisa Navarro Marcos appeals the Decision1 dated February 28,
2011 and Resolution2 dated July 29, 2011 of the Court of Appeals (CA) in
CA-G.R. SP No. 92460.
The antecedent facts follow:
Spouses Andres Navarro, Sr. and Concepcion Medina-Navarro died in 1958
and 1993, respectively. They left behind several parcels of land including a
108.3997-hectare lot (subject lot) located in Cayabon, Milagros, Masbate. 3
The spouses were survived by their daughters Luisa Navarro Marcos, herein
petitioner, and Lydia Navarro Grageda, and the heirs of their only son Andres
Navarro, Jr. The heirs of Andres, Jr. are the respondents herein.4
Petitioner and her sister Lydia discovered that respondents are claiming
exclusive ownership of the subject lot. Respondents based their claim on the
Affidavit of Transfer of Real Property dated May 19, 1954 where Andres, Sr.
donated the subject lot to Andres, Jr.5
Believing that the affidavit is a forgery, the sisters, through Assistant Fiscal
Andres Marcos, requested a handwriting examination of the affidavit. The
PNP handwriting expert PO2 Mary Grace Alvarez found that Andres, Sr.s
signature on the affidavit and the submitted standard signatures of Andres,
Sr. were not written by one and the same person.6
Thus, the sisters sued the respondents for annulment of the deed of
donation before the Regional Trial Court (RTC) of Masbate, where the case
was docketed as Civil Case No. 5215.7
After the pre-trial, respondents moved to disqualify PO2 Alvarez as a
witness. They argued that the RTC did not authorize the handwriting
examination of the affidavit. They added that presenting PO2 Alvarez as a
witness will violate their constitutional right to due process since no notice
was given to them before the examination was conducted.8 Thus, PO2
Alvarezs report is a worthless piece of paper and her testimony would be
useless and irrelevant.9
In its Order10 dated August 19, 2004, the RTC granted respondents motion
and disqualified PO2 Alvarez as a witness. The RTC ruled that PO2 Alvarezs
supposed testimony would be hearsay as she has no personal knowledge of
the alleged handwriting of Andres, Sr. Also, there is no need for PO2 Alvarez
to be presented, if she is to be presented as an expert witness, because her
testimony is not yet needed.
The sisters sought reconsideration of the order but the RTC denied their
motion in an Order11 dated October 11, 2005.
Aggrieved, the sisters filed a petition for certiorari before the CA, which
however, dismissed their petition in the assailed Decision dated February 28,
2011 on the ground that the dismissal of Civil Case No. 5215 has mooted
the issue of PO2 Alvarezs disqualification as a witness.
Later, the CA likewise denied their motion for reconsideration in its
Resolution dated July 29, 2011. The CA refused to take judicial notice of the
decision of another CA Division which reinstated Civil Case No. 5215. The CA
held that a CA Justice cannot take judicial notice of decisions or matters
pending before another Division of the appellate court where he or she is not
a member. The CA also held that the sisters were negligent for belatedly
informing it that Civil Case No. 5215 was reinstated.
Hence, this appeal.
Petitioner argues that the CA erred in refusing to reconsider the assailed
decision in light of the reinstatement of Civil Case No. 5215. Petitioner adds
that the CA erred in not ruling that the RTC committed grave abuse of
discretion in disqualifying PO2 Alvarez as a witness.12 They stress that PO2
Alvarez will be presented as an expert witness to render an opinion on
whether the disputed handwriting was indeed made by Andres, Sr. or
whether it is a forgery.13
In their comment,14 respondents counter that the CA properly disqualified
PO2 Alvarez. They also agreed with the CA that her disqualification was
mooted by the dismissal of Civil Case No. 5215.
We find in favor of petitioner.
The CA ruling that the dismissal of Civil Case No. 5215 has mooted the issue
of PO2 Alvarezs disqualification as a witness can no longer be justified.
Hence, we reverse the CA ruling. While we agree with the CA in considering
the RTCs Orders15 which dismissed Civil Case No. 5215, we are unable to
agree with its refusal to take judicial notice of the Decision 16 of another CA
Division which reinstated Civil Case No. 5215. Subsequent proceedings were
even held in the reinstated Civil Case No. 5215 per Orders 17 issued by the
RTC which were already submitted to the CA. That Civil Case No. 5215 was
reinstated is a fact that cannot be ignored.
We also agree with petitioner that the RTC committed grave abuse of
discretion in disqualifying PO2 Alvarez as a witness. Grave abuse of
allowed in Tamani. But the RTC already ruled at the outset that PO2
Alvarezs testimony is hearsay even before her testimony is offered and she
is called to the witness stand. Under the circumstances, the CA should have
issued a corrective writ of certiorari and annulled the RTC ruling.
True, the use of the word "may" in Section 49, Rule 130 of the Rules on
Evidence signifies that the use of opinion of an expert witness is permissive
and not mandatory on the part of the courts.23 Jurisprudence is also replete
with instances wherein this Court dispensed with the testimony of expert
witnesses to prove forgeries.24 However, we have also recognized that
handwriting experts are often offered as expert witnesses considering the
technical nature of the procedure in examining forged documents. 25 More
important, analysis of the questioned signature in the deed of donation
executed by the late Andres Navarro, Sr. in crucial to the resolution of the
case.
In sum, the RTC should not have disqualified P02 Alvarez as a witness. She
has the qualifications of witness and possess none of the disqualifications
under the Rules. The Rules allow the opinion of an expert witness to be
received as evidence. In Tamani, we used the opinion of an expert witness.
The value of P02 Alvarez's expert opinion cannot be determined if P02
Alvarez is not even allowed to testify on the handwriting examination she
conducted.
WHEREFORE, we GRANT the petition. We SET ASIDE the (1) Decision dated
February 28, 2011 and Resolution dated July 29, 2011 of the Court of
Appeals in CA-G.R. SP No. 92460, and (2) Orders dated August 19, 2004
and October II, 2005 of the Regional Trial Court in Civil Case No. 5215. We
DENY respondents' motion to disqualify P02 Mary Grace Alvarez as a
witness.
No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
PADILLA, J.:
This is an appeal interposed by the defendant, Rodolfo Rizo y Rabino, from
the judgment * rendered in Criminal Case No. 5083 of the Regional Trial
Court at Masbate, Masbate, the dispositive part of which reads, as follows:
WHEREFORE, the Court finds the accused, Rodolfo Rizo, GUILTY
beyond reasonable doubt of the crime of Rape and hereby
sentences said accused to suffer the penalty of RECLUSION
PERPETUA, to pay the victim, Felicidad Valencia, the amount of
P20,000.00 without subsidiary imprisonment in case of
insolvency, to acknowledge the offspring named John Paul
Valencia as his legitimate son and to support the child at
P200.00 a month until he reaches the age of majority, and to
pay the costs.
The record shows that on 28 May 1986, Concepcion Dimen noticed that the
stomach of her 22-year old mentally retarded sister, Felicidad Valencia, was
bigger than usual. She was suspicious and obtained a sample of Felicidad's
urine which she sent to a hospital for examination. The result showed that
Felicidad was pregnant. 1Upon questioning, Felicidad revealed that the herein
defendant-appellant, Rodolfo Rizo, the husband of her "yaya", Ana Rizo, had
sexual intercourse with her in the bodega. 2 Concepcion Dimen and her
brother, Boy Valencia, confronted the accused and the latter admitted that
he had sexual intercourse with Felicidad. Consequently, the appellant was
brought to the Masbate police station for investigation. There, with the
assistance of CLAO Atty. Osias Tambago, he also admitted having done the
act. 3
In view thereof, Rodolfo Rizo was charged with the crime of Rape before the
Regional Trial Court at Masbate, Masbate. The case was docketed therein as
Criminal Case No. 5083.
On 22 October 1986, Felicidad Valencia delivered a baby at a Manila
Hospital, whom they named John Paul Tiongson Valencia. 4
At the trial, Dr. Emilio Quemi, a medical specialist at the Masbate Provincial
Hospital, declared that he examined Felicidad Valencia on 7 July 1986 and
Q Now, after you lie (sic) down, what did Ompoy do?
A He placed himself on top of me. (Witness
demonstrating that while she was lying down Ompoy
was on top of her).
Q Now, after that did it last long when Ompoy was
on top of you?
A (Witness nodded her head signifying yes).
ATTY. BOSA (continuing)
Q When you lied down did Ompoy also take off his
pants?
A (Witness nodded her head signifying yes).
Q After Ompoy took off his pants that was the time
he lied on top of you?
A (Witness nodded her head signifying yes).
Q Ompoy touched your private parts?
A (Witness nodded her head signifying yes that he
placed his organ on her vagina).
ATTY. ANTONIO
Your Honor, may I make a manifestation that the
fiscal and the private prosecutor should refrain
from. . .
COURT
She could hardly be heard of. I think you could also
be given the privilege (sic) because we could hardly
get the testimony. I myself who is around a meter
from the witness could not hear the testimony. The
mumbling and the nodding of the head is the only
thing I could see.
ATTY. ANTONIO
ATTY. BOSA
I think that would be all, Your Honor, for the witness.
COURT (to the Witness)
Q How did you know that the penis of Ompoy
entered into your vagina?
A While in the bodega he inserted his penis into my
vagina.
Q How did you feel when the penis of Ompoy entered
into your vagina?
A That we are in the bodega his penis entered into
my vagina.
Q When the penis of Ompoy entered into your
vagina, was it painful or not?
A (Witness shook her head signifying no). 8
xxx xxx xxx
COURT (continuing)
Q Again what did Ompoy do to you?
A He held my right hand and told me "Fely come
with me" and then I said "I do not like".
Q What else happened after that?
A Then I seated on a chair to get my paper to go to
school then he held my hands.
Q After that what happened?
A He asked me.
Q Asked of what?
A He asked me to go to the bodega and he held my
hands.
The defendant Rodolfo Rizo, however, did not confirm nor deny the
testimony of Felicidad that he had sexual intercourse with her. After the
prosecution rested its case, the said accused, instead of presenting evidence
in exculpation, filed a motion to dismiss (demurrer to evidence) claiming
insufficiency of evidence in that there is no evidence to prove his guilt other
than the inadmissible testimony of Felicidad Valencia who is mentally
defective and, therefore, incompetent to testify, pursuant to the provisions of
Rule 130, Sec. 19 of the Rules of Court. 10
But the trial court found Felicidad Valencia to be a competent witness and
rendered judgment against the accused.
Hence, the present recourse.
In this appeal, the accused-appellant insists that Felicidad Valencia is an
incompetent witness so that he should be exonerated from the charge of
Rape.
The appeal is without merit. To begin with, the accused-appellant, knowing
Felicidad Valencia to be mentally defective or a mental retardate, did not
object to her competency as a witness before she was placed on the witness
knife in the ground, the men left and he followed them again to a place
which he described as near. While thereat, he saw one of the culprits
uncovered his face. He recognized him as the person who went to the left
side of the car and stabbed the victim who was later on identified as the
accused Edwin Aleman. After which, the two men left. He decided not to
follow them and went home instead. It was about 11:00 oclock in the
evening when he arrived home. After waking up at 8:00 oclock the following
morning, he returned to the scene of the incident. There were many people
gathered in the area, including policemen. He saw a chubby girl and
requested her to call the policemen. He rode in a car with the police officers
and the chubby girl. They went to a house in a far place, but no one was
there. He recognized and identified the face of the fat man depicted in the
picture (Exhibit "N") shown to him.
On cross-examination, he stated that he did not receive any death threat. In
the year 2003, his grandfather died in Nueva Ecija and he attended the
wake. He stayed there until his father, grandmother and another person,
whom he does not know but of the same age as that of his father, fetched
him on September 12, 2003. He was taken to Antipolo where he stayed at
the house of the relatives of the victim until December 10, 2003, the day he
initially testified in court. There was no sign language interpreter in the said
house. The relatives of the victim gave him some money which he used to
buy for two shirts, two pants and a pair of shoes.
Before going to the basketball court which is a little farther from their house
at 7:00 oclock in the evening, he already ate his evening meal at 6:00
oclock. There were six of them, boys and girls playing basketball. The
basketball court was a full court but they were not playing a real game, just
running and shooting. At about 8:00 oclock, they stopped playing, they sat
down and had soft drinks. After finishing his soft drink, he urinated in the
shrubbery near the five parked cars.
He added that he is familiar with Sikatuna Bliss but he does not know what
building in Sikatuna Bliss was fronting the five cars that were parked near
the basketball court. It was the first time that he saw the fat man and the
two male persons who wore black bonnets which covered their whole face.
The fat man was already inside his car when he was repeatedly stabbed. The
fat man was not using his cell phone when the one with the knife knocked
twice on the window of the car. The window of the car was half-opened when
the fat man was immediately stabbed. The man with a gun was on the other
side of the car when he fired his gun once. He did not notice any argument
between the fat man and his attacker. He kept a distance of about eight to
ten meters between him and the two men as he followed them. There were
no persons around when the two men attacked the fat man. After witnessing
the stabbing, his initial reaction was to follow the culprits. He did not call his
playmates because they were still playing. In fleeing, the two male persons
did not run. They just walked fast. He had been [on] their trail for about nine
minutes before they removed their bonnets. He followed them for about
thirty minutes.
When he gave his statements to the police, he did not tell them that the
knife was buried under the ground. It was 9:56 oclock when the men took
off their bonnets. The man with the knife removed the bloodstained white tshirt that he was wearing and, along with his bonnet, threw it away in a
place he described as flowing or running water. At about 10:00 oclock, the
two men boarded a motorcycle and left. It was the man with the gun who
drove the motorcycle. He took the same route when he walked back home.
It was about 10:00 oclock when he passed by the car of the fat man again.
There were no persons when he went back to the basketball court. Thus, he
just went home to sleep and the following morning, he gave his statement to
the police.
On re-direct examination, he was asked and he made a drawing (Exhibit
"O") showing the basketball court (Exhibit "O-1"), the five parked cars near
the place where he urinated (Exhibit "O-2"), the exact spot where he
urinated (Exhibit "O-3") and the car of the fat man (Exhibit "O-4"). When
asked how he was able to see the face of the accused, he answered that
"there was light in the area which he described as near the flowing water
where the accused removed his bonnet." He stated that the light near the
flowing water came from a light bulb and the distance from the witness
stand up to second door outside the courtroom represents how far he was
from the man with the knife when the latter took off his bonnet. 7
Mark was 14 years old when he testified. He is a deaf-mute. He was assisted
in his testimony by Daniel Catinguil, a licensed sign language interpreter
from the Philippine Registry of Interpreters for the Deaf who has been
teaching in the Philippine School for the Deaf since 1990. Catinguil had also
completed a five-year course at the Philippine Normal University with a
degree in teaching special education children.8
Accused-appellant was 26 years old and a resident of Area 6, Barangay
Botocan, Project 2, Quezon City when he testified. He interposed denial and
alibi as his defenses. He claimed that, at the time the incident happened on
February 10, 2003, he was at the billiards hall which was a 15-minute walk
from his residence. A road separates the billiards hall from Sikatuna Bliss. 9
On that particular night, accused-appellant went to the billiards hall at
around 7:00 in the evening and played billiards against a certain Ruben.
They played until around 10:00 in the evening. Just as they were finished
playing, accused-appellants sister, Hilda Aleman, arrived to fetch him for
dinner. He went home with her. The following morning, after having
breakfast, he watched a basketball game and talked to his friends. At around
noon, while on his way back to his house, a neighbor, Vangie Barsaga, called
him and informed him that police officers came to his house looking for him.
At around 3:00 in the afternoon of that day, he went to the nearest police
station, Camp Karingal, where he presented himself to Senior Police Officer
(SPO) 1, at that time Police Officer 3, Leonardo Pasco of that stations
District Police Intelligence Unit. He asked SPO1 Pasco if they were looking for
a certain Edwin Aleman and, upon receiving a positive answer, he introduced
himself. He was informed that he was a suspect in a killing incident. He was
told to stay put while they were waiting for the alleged eyewitness to arrive.
On February 13, 2003, he was twice made to join a police line-up together
with five others. In both instances, they were ordered to turn around several
times and they complied. Thereafter, he was given a spot report: re:
Voluntary Surrender of Alleged Suspect in a Robbery w/ Homicide Case by a
police officer and was informed that he would be turned over to the custody
of the Criminal Investigation Division of Camp Karingal. 10
Accused-appellants testimony that he was at the billiards hall on February
10, 2003 playing against Ruben until around 10:00 in the evening was
corroborated by Filomena Fungo, grandmother of Ruben, who saw accusedappellant and Ruben playing when she went to the billiards hall twice that
night to fetch Ruben.11 Hilda, accused-appellants sister, also corroborated
accused-appellants testimony that she fetched him from the billiards hall at
around 10:00 in the evening of February 10, 2003. She further stated that,
upon getting home, she and accused-appellant ate dinner together and,
thereafter, watched some television shows until accused-appellant went to
sleep some 30 minutes later.12
Accused-appellant also attempted to show that the eyewitness, Mark, failed
to identify him during the police line-up. Defense witness SPO1 Leonardo
Pasco stated that he was the one who prepared the spot report although it
was his superior who signed it. He further stated that Mark failed to identify
accused-appellant during the police line-up. Another defense witness,
barangay kagawad Ricofredo Barrientos, stated that he was with Mark on
February 13, 2003 when Mark was asked to identify the robber-killer of the
victim from a line-up. According to Barrientos, a police officer made a
gesture to Mark by slashing his throat with the use of his hand and, after
viewing the persons in the line-up, Mark shook his head. The line-up was
presented to Mark twice and he shook his head in both instances. 13
After studying the parties respective evidence, the trial court rejected the
defenses of accused-appellant for their inherent weakness and implausibility.
On the other hand, it viewed the prosecutions evidence favorably,
particularly the eyewitness testimony of Mark and his positive identification
of accused-appellant as the one who stabbed the victim. In particular, the
trial court found Marks testimony simple and credible. He had no ill motive
that would make him testify falsely against accused-appellant. While there
were minor inconsistencies in his testimony, the discrepancies were
inconsequential and did not affect the truthfulness of Marks narration. Thus,
in its Decision dated November 16, 2005, the trial court found accusedappellant guilty beyond reasonable doubt of the crime of robbery with
homicide. The dispositive portion of the Decision reads:
WHEREFORE, finding the accused Edwin Aleman guilty beyond reasonable
doubt of the crime of Robbery with Homicide, described and penalized under
Article 294 of the Revised Penal Code, as amended by Republic Act 7659, in
relation to Article 63 of the Revised Penal Code, the court hereby sentences
him to suffer the penalty of reclusion perpetua and to indemnify the heirs of
Ramon Jaime Birosel as follows:
1. The amount of FIFTY THOUSAND PESOS (P50,000.00) as civil
indemnity for the death of the victim;
2. The amount of FIFTY THOUSAND PESOS (P50,000.00) as moral
damages; and
3. The amount of FOUR HUNDRED SEVENTY-SEVEN THOUSAND FIFTYFOUR PESOS AND THIRTY CENTAVOS (P477,054.30) as actual
damages.
He is also ordered to reimburse the heirs of the victim the amount of THREE
THOUSAND FIVE HUNDRED PESOS (P3,500.00) representing the value of the
Nokia 3315 cellular phone, the amount of THREE THOUSAND FIVE HUNDRED
PESOS (P3,500.00) representing the value of the S-45 Siemens cellular
phone, and the amount of TWENTY THOUSAND PESOS (P20,000.00)
representing the value of the necklace, which were all taken from the victim.
With costs against the accused.14
Accused-appellant appealed his case to the Court of Appeals. He anchored
his appeal on the claim that the trial court erred in convicting him for
robbery with homicide. His claim was four-pronged, all aimed at discrediting
the eyewitness, Mark.15
hear and speak may prevent a deaf-mute from communicating orally with
others but he/she may still communicate with others in writing or through
signs and symbols and, as in this case, sketches. Thus, a deaf-mute is
competent to be a witness so long as he/she has the faculty to make
observations and he/she can make those observations known to others. As
this Court held in People v. Tuangco27:
A deaf-mute is not incompetent as a witness. All persons who can perceive,
and perceiving, can make known their perception to others, may be
witnesses. Deaf-mutes are competent witnesses where they (1) can
understand and appreciate the sanctity of an oath; (2) can comprehend facts
they are going to testify on; and (3) can communicate their ideas through a
qualified interpreter. Thus, in People vs. De Leon and People vs. Sasota, the
accused was convicted on the basis of the testimony of a deaf-mute. x x x.
(Citations omitted.)
When a deaf-mute testifies in court, "the manner in which the examination
of a deaf-mute should be conducted is a matter to be regulated and
controlled by the trial court in its discretion, and the method adopted will not
be reviewed by the appellate court in the absence of a showing that the
complaining party was in some way injured by reason of the particular
method adopted."28
In this case, both the trial and the appellate courts found that Mark
understood and appreciated the sanctity of an oath and that he
comprehended the facts he testified on. This Court sees no reason in ruling
otherwise.
Mark communicated his ideas with the help of Catinguil, a licensed sign
language interpreter from the Philippine Registry of Interpreters for the Deaf
who has been teaching in the Philippine School for the Deaf since 1990 and
possessed special education and training for interpreting sign language. The
trial and the appellate courts found Catinguil qualified to act as interpreter
for Mark. No ground to disturb that finding exists.
Mark communicated a credible account of the things he perceived on that
fateful February 10, 2003 the situation of the victim who had just boarded
his car; the respective positions of accused-appellant and his still
unidentified cohort vis--vis the victim; accused-appellants knock on the
window of the victims car and the sudden series of stabs accused-appellant
inflicted upon the victim; the taking of the victims various personal
properties; accused-appellants walk away from the crime scene; and, the
revelation of accused-appellants identity when he finally removed the
bonnet that covered his face, unaware that someone was secretly and
In sum, the trial and the appellate courts correctly convicted accusedappellant for the special complex crime of robbery with homicide. Accusedappellants crime is punishable under Article 294(1) of the Revised Penal
Code, as amended by Republic Act No. 7659, by reclusion perpetua to death.
Article 63 of the Revised Penal Code states that when the law prescribes a
penalty consisting of two indivisible penalties, and the crime is not attended
by any aggravating circumstance, the lesser penalty shall be
imposed.36 Considering that no modifying circumstance attended the
commission of the crime, the penalty imposed by the trial and the appellate
courts, reclusion perpetua, is proper.
The civil indemnity is increased from P50,000.00 to P75,000.00, the current
amount of civil indemnity awarded in cases of murder.37 Robbery with
homicide belongs to that class of felony denominated as "Robbery with
violence against or intimidation of persons"38 under Article 294 of the
Revised Penal Code and the killing or death of a person is committed "by
reason or on occasion of the robbery." The increase in the amount of civil
indemnity is called for as the special complex crime of robbery with
homicide, like murder, involves a greater degree of criminal propensity than
homicide alone where the civil indemnity awarded is P50,000.00.
The P50,000.00 imposed as moral damages is proper and conforms to recent
jurisprudence.39
The reimbursement of actual damages in the total amount of P477,054.30
for various funeral-related expenses is proper as it is fully supported by
evidence on record. The same holds true for the payment of the value of the
items taken from the victim, namely, two cellphones at P3,500.00 each and
the necklace at P20,000.00.
In addition, and in conformity with current policy, we also impose on all the
monetary awards for damages (namely, the civil indemnity, moral damages
and actual damages) interest at the legal rate of 6% per annum from date of
finality of this Decision until fully paid.40
WHEREFORE, the Decision dated September 28, 2007 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 02100 affirming the Decision dated
November 16, 2005 of the Regional Trial Court of Quezon City, Branch 76 in
Criminal Case No. Q-03-118348 which found accused-appellant Edwin
Aleman guilty beyond reasonable doubt of the special complex crime of
robbery with homicide is AFFIRMED with MODIFICATION in so far as legal
interest at the rate of 6% per annum is imposed on the civil indemnity,
moral damages and actual damages awarded to the heirs of the victim,
which shall commence from the date of finality of this decision until fully
paid.
SO ORDERED.
Gonzales v. Court of Appeals (CA) Digest
Gonzales v. CA
G.R.
No.
L-37453
May
Guerrero, J. (Ponente)
25,
1979
Facts:
1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent)
are the nieces of the deceased Isabel Gabriel who died a widow. A will was
thereafter submitted to probate. The said will was typewritten, in Tagalog
and appeared to have been executed in April 1961 or two months prior to
the death of Isabel. It consisted of 5 pages including the attestation and
acknowledgment, with the signature of testatrix on page 4 and the left
margin of all the pages.
2. Lutgarda was named as the universal heir and executor. The petitioner
opposed the probate.
3. The lower court denied the probate on the ground that the will was not
executed and attested in accordance with law on the issue of the
competency and credibility of the witnesses.
Issue: Whether or not the credibility of the subscribing witnesses is material
to the validity of a will
RULING: No. The law requires only that witnesses posses the qualifications
under Art. 820 (NCC) and none of the disqualifications of Art. 802. There is
no requirement that they are of good standing or reputation in the
community, for trustworthiness, honesty and uprightness in order that his
testimony is believed and accepted in court. For the testimony to be
credible, it is not mandatory that evidence be established on record that the
witnesses have good standing in the the community. Competency is
distinguished from credibility, the former being determined by Art. 820 while
the latter does not require evidence of such good standing. Credibility
depends on the convincing weight of his testimony in court.
- See more at: http://lawsandfound.blogspot.com/2013/02/gonzales-vcourt-of-appeals-ca-digest.html#sthash.LtP3D52G.dpuf
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-38468-69 June 29, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LORENZO TUVERA y BAUTISTA alias "ENSO", CORNELIO DE LA CRUZ
alias "NELY", and MATIAS GULENG, accused, CORNELIO DE LA CRUZ
y DUMALAY alias "NELY", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Ponciano C. Gonzales, Jr. for defendant-appellant.
ESCOLIN, J.:
Appeal from the decision of the Circuit Criminal Court of San Fernando, La
Union, in Criminal Cases Nos. 72 and 73, the dispositive portion of which
reads:
WHEREFORE, the court finds the accused Cornelio dela Cruz
guilty beyond reasonable doubt of the crime of:
(1) Murder, as charged in Criminal Case No. 72 and hereby
sentences him to suffer imprisonment for the rest of his natural
life and to indemnify the heirs of the deceased in the amount of
P18,000.00 and to pay the costs;
(2) Robbery, as charged in Criminal Case No. 73, and hereby
sentences him to suffer imprisonment of from 2 years and 4
months of prision correccional to 6 years and 1 day of prision
mayor, plus the accessory penalties provided for by law and to
pay the costs.
For reasonable doubt the co-accused Matias Goleng is acquitted.
On September 14, 1972, a search party composed of policemen of Bacnotan,
La Union, proceeded to the mountains of Bo. Ubbog to look for Amadeo
Orejudos, barrio captain of said barrio, who has been reported missing. In
the course of their search, they found the lifeless body of Orejudos lying
near a shallow creek. The body was covered with branches, leaves and some
earth. Dr. Julita Draculan, who conducted the autopsy, described the victim's
injuries as follows:
Anterior:
1. Wound, incised, 5 inches long, horizontally across the neck,
depth causing injury to the trachea and severing big blood
vessels of the neck, left side.
2. Wound, lacerated, inch long, below lateral end, eye, left.
3. Wound, lacerated, 1- inches long, diagonally above right
eyebrow, depth causing fracture of the skull.
4. Wound lacerated, 2-1/4 inches long, diagonally and slightlly
above the median to wound No. 3, depth causing fracture of the
skull.
5. Wound, lacerated, 2 inches long, diagonally above lateral
end, eyebrow left.
Posterior:
6. Wound, incised, 4-3/4 inches long, inch deep, horizontally,
inferior portion, occipital region.
7. Wound, lacerated, 4 inches long, inch deep, horizontally,
just above wound No. 6.
8. Wound, lacerated, 3 inches long, parietal region, left, depth
causing fracture of the skull.
Upon receiving information that the persons last seen in the company of the
victim were Lorenzo Tuvera and Cornelio dela Cruz, Pat. Espejo summoned
them to the police station. In the ensuing investigation, Tuvera pointed to
dela Cruz as the killer of Orejudos. At first, dela Cruz denied the accusation
and, instead, countered by charging that Tuvera was the author of the crime.
However, after Tuvera narrated the details of how dela Cruz perpetrated the
crime, the latter readily admitted responsibility for the killing of Orejudos. He
also informed the police that he took the gun of the victim. Asked as to the
place where he had kept the gun, dela Cruz directed the police to a small hut
in the mountains of Bo. Ubbog, where they recovered a 'Hi-standard' Cal. 22
revolver with ammunitions, licensed in the name of the deceased Amadeo
Orejudos. Dela Cruz executed two written statements which he signed in the
presence of the Chief of Police, the Fiscal, and Judge Nemesio Molina of the
Municipal Court of Bacnotan.
During the investigation, Tuvera also informed the police investigators that
one Matias GULENG had offered dela Cruz the amount of P4,000.00 to kill
Orejudos. Cornelio dela Cruz, Lorenzo Tuvera and Matias Guleng were
subsequently indicted for murder qualified by treachery, and in a separate
information, dela Cruz and Tuvera were accused of the crime of robbery for
having taken and carried away a 'Hi-standard' revolver, Cal. 22 with
ammunitions, belonging to the deceased Orejudos, valued at P300.00.
At the trial, accused Tuvera, on motion of the prosecution, was discharged
from the information and utilized as state witness. His testimony in open
court, as summarized by the Solicitor General, is as follows:
He testified that in the morning of September 14, 197 2 he went
to the mountains of barrio Ubbog, Bacnotan, La Union to pasture
his carabao (pp. 125-126, tsn, May 23, 1973). After transferring
his carabao, he proceeded to his hut in the mountains and found
Cornelio dela Cruz there drying peanuts (p. 127, Id). While
Tuvera was making bamboo strands for tying firewood, De la
Cruz told him, "Here comes Amadeo Orejudos. I have some
business with him. Do not interfere or else you will be the first
one to be killed or it will be you whom I will report as the killer.
(p. 128, Id). Upon hearing these words, Tuvera got scared. (p.
129, Id).
When Orejudos arrived, De la Cruz asked Tuvera to place the
potful of peanuts on the stove and requested Orejudos to shape
a piece of wood into an arrow (pp. 130-133, Id). Both Tuvera
and Orejudos complied with the request of De la Cruz. While
Tuvera was putting the pot of peanuts on the stove, De la Cruz
was standing beside Orejudos who was then fashioning the piece
of wood into an arrow (p. 135, Id). Tuvera started to kindle fire
in the stove, and as he raised his head to pause after near
exhaustion from blowing at the fire, he saw De la Cruz clubbing
Orejudos three times with a piece of wood about three feet long
and about the size of a man's wrist in circumference (pp. 135137, Id). The deceased Orejudos was seated facing West,
shaping the piece of wood into an arrow when De la Cruz, who
was then on the side but a little bit at the rear, delivered the first
blow which landed on the left temple of the deceased (pp. 137138, Id). The first blow felled Orejudos to the ground on his
back, snoring (p. 138, Id). De la Cruz stooped down and with all
force struck the right temple of the deceased (id). The third blow
hit the forehead (pp. 138-139, Id). The deceased was unable to
parry any of the blows because he was unaware of the attack (p.
139, Id).
After inflicting the third blow, De la Cruz took the gun from the
pocket of the deceased, pointed it to Tuvera and ordered him to
drag the body of the victim (p. 140, Id). Tuvera could not drag
the body because of fear so he asked De la Cruz to help him do
the job (id). Finally, both of them helped together drag the body
to the creek where De la Cruz hacked the deceased twice the
first landed on the neck; the second, on the nape (p. 141, 144145, Id). The bolo used by De la Cruz in hacking the deceased
belonged to the latter (p. 141, Id).lwphl@it After the hacking,
De la Cruz ordered Tuvera to cut branches of an "aludig" tree
which were used, in addition to earth, in covering the body.
Appellant imputes as error the action of the trial court "in accepting and
giving weight to the testimony of co-accused Lorenzo Tuvera who turned
state witness." It is noted that in assigning such error, appellant does not
question either the correctness or the propriety of Tuvera's discharge under
Section 9 of Rule 119 of the Rules of Court. It is merely contended that the
testimony of said state witness is subject to the gravest suspicion and,
therefore, not entitled to any weight or credence whatsoever.
The contention is devoid of merit. An accused is always a competent witness
for or against his co-accused, and the fact that he had been discharged from
the information does not affect the quality of his testimony, for the
admissibility, the relevancy, as well as the weight that should be accorded
his declarations are to be determined by the Rules on Evidence. And in this
connection, it has been held that the uncorroborated testimony of an
accused, when satisfactory and convincing, may be the basis for a judgment
of conviction of his co-accused. 1
The trial court had the opportunity to observe the demeanor and manner of
testifying of the witnesses of both the prosecution and the defense, and it
assessed the testimony of Tuvera to be convincing and credible. What is
more, the declarations of this witness find solid corroboration in the
statements contained in the appellant's affidavits. The latter not only
admitted having killed the deceased Orejudos, he also informed the police
authorities of the place where he hid the gun which he took from the victim.
In fact, the police officers did recover the said gun at the same hut pointed
to by him.
On the other hand, Rule 119, Section 17, of the Revised Rules on Criminal
Procedure, upon which petitioner relies reads:
Section 17. Discharge of accused to be state witness. When two or more
persons are jointly charged with the commission of any offense, upon motion
of the prosecution before resting its case, the court may direct one or more
of the accused to be discharged with their consent so that they may be
witnesses for the state when, after requiring the prosecution to present
evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
(b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said
accused;
(c) The testimony of said accused can be substantially corroborated in
its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.
Evidence adduced in support of the discharge shall automatically form part
of the trial. If the court denies the motion for discharge of the accused as
state witness, his sworn statement shall be inadmissible in evidence.
The discharge of an accused under Republic Act No. 6981 as availed of by
the prosecution in favor of the private respondents, is distinct and separate
from the discharge of an accused under Section 17, Rule 119 of the Revised
Rules on Criminal Procedure.
The discharge of an accused to be a state witness under Republic Act No.
6981 is only one of the modes for a participant in the commission of a crime
to be a state witness. Rule 119, Section 17, of the Revised Rules on Criminal
Procedure, is another mode of discharge. The immunity provided under
Republic Act No. 6981 is granted by the DOJ while the other is granted by
the court.
Rule 119, Section 17, of the Revised Rules on Criminal Procedure,
contemplates a situation where the information has been filed and the
accused had been arraigned and the case is undergoing trial. The discharge
of an accused under this rule may be ordered upon motion of the
prosecution before resting its case, that is, at any stage of the proceedings,
from the filing of the information to the time the defense starts to offer any
evidence.10
On the other hand, in the discharge of an accused under Republic Act No.
6981, only compliance with the requirement of Section 14, Rule 110 of the
Revised Rules of Criminal Procedure11 is required but not the requirement of
Rule 119, Section 17.
More to the point is the recent case of Soberano v. People12 where this Court
held:
An amendment of the information made before plea which excludes some or
one of the accused must be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court in compliance with
Section 14, Rule 110. Section 14, Rule 110 does not qualify the grounds for
the exclusion of the accused. Thus, said provision applies in equal force
when the exclusion is sought on the usual ground of lack of probable cause,
or when it is for utilization of the accused as state witness, as in this case, or
on some other ground.
At this level, the procedural requirements of Section 17, Rule 119 on the
need for the prosecution to present evidence and the sworn statement of
each state witness at a hearing in support of the discharge do not yet come
into play. This is because, as correctly pointed out by the Court of Appeals,
the determination of who should be criminally charged in court is essentially
an executive function, not a judicial one. x x x. (Underscoring supplied.)
In this connection, Section 12 of Republic Act No. 6981 13 provides that the
issuance of a certification of admission into the program shall be given full
faith by the provincial or city prosecutor who is required not to include the
witness in the criminal complaint or information, and if included, to petition
for his discharge in order that he can be utilized as a state witness. This
provision justifies the regularity of the procedure adopted by the prosecution
for the discharge of the private respondents.
The case of Webb v. De Leon,14 reiterated in the subsequent case of People
v. Peralta,15 is quite elucidating in this regard.
Petitioners argument lacks appeal for it lies on the faulty assumption that
the decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the
of Atty. Eugene Tan and his driver, it appears that they were included in an
alleged military operation and unaware that the persons they abducted were
innocent civilians because they were misled by their military superiors into
believing that these individuals were unnamed communist rebels. From their
account, private respondents claim to have been oblivious that the persons
subject of their surveillance were to be abducted and subsequently killed.
The rule prevailing in this jurisdiction is that the discharge of an accused to
be utilized as a state witness because he does not appear to be the most
guilty, is highly factual in nature. The discretionary judgment of the trial
court on this factual issue is seldom interfered with by the appellate courts
except in case of grave abuse of discretion,17 which we find not present in
the case at bar.
On the issue of failure of the prosecution to present the sworn statement
and memorandum of agreement between the private respondents and the
DOJ, there is no requirement under Republic Act No. 6891 that the same be
first presented in court before an accused may be admitted to the WPSBP.
Moreover, the DOJ which is tasked to implement the provisions of Republic
Act No. 6981, has determined that the private respondents have satisfied
the requirements for admission under the WPSBP. This interpretation of the
provisions of Republic Act No. 6981 by the DOJ deserves the respect of the
court under the principle that the determination of a government agency
tasked to implement a statute is accorded great respect and ordinarily
controls the construction of the courts.18
WHEREFORE, in view of the foregoing, the Decision and Resolution of the
Court of Appeals dated 30 September 1999 and 4 April 2000, respectively,
are AFFIRMED. This case is ordered REMANDED to the
Regional Trial Court of Tagaytay City, Branch 18, for continuation of hearing
to its conclusion with deliberate dispatch.
Costs against petitioner.
SO ORDERED.
RULE 130
Rules of Admissibility
Section 21. Disqualification by reason of mental incapacity or immaturity.
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making
known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined
and of relating them truthfully. (19a)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
CRUZ, J.:
The novel defense in this prosecution for rape is that the physical evidence
of the complainant's violation was caused not by the male organ but by the
five fingers of one of the appellants that were thrust into her vagina in anger
and not lust. The defense faults the trial judge for giving credence to the
complainant. It avers that her testimony should not have been accepted at
all because she is admittedly a mental retardate and therefore unreliable per
se.
These curious arguments will not be dismissed out of hand by this Court.
The appellants are entitled to be heard in their defense, no less than the
prosecution, although neither party is necessarily to be believed if its
evidence falls short of the strict standards of the law.
The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at
Casabahan, Gandara, Samar, Alejandro Salomon and Feliciano Conge, who
were apparently waiting for her, accosted her and forcibly took her to the
ricefield some ten meters away. There she was raped by Salomon with
Conge's assistance. On her way home, she met her brother Senecio, to
whom she related her ordeal. The two of them reported her rape to their
father. That same night, the family walked the three-kilometer distance to
the police station, where Restituto Soria signed a complaint for the rape of
his daughter by Salomon and Conge. 1 Sylvia was medically examined at the
Gandara General Hospital by Dr. Susan Tanseco, who issued the following
certificate: 2
A physical examination has been done on Miss Sylvia Soria, 20
years of age, a resident of Brgy. Casab-ahan, Gandara, Samar.
P.E. showed a single, linear, laceration on the labia minora at
6:00 o'clock position. There are isolated erythematous areas on
both thighs. There is also the presence of sandy particles on the
genital area. Speculum exam, however, showed negative
findings.
Three days later, Salomon and Feliciano could no longer be found. It was
only after a four-month search that they were arrested in Aguado, Plaser,
Masbate, from where, after being detained there for one month, they were
taken back to Samar. 3 Following a protracted investigation, an information
for rape was filed against them on August 9, 1988, with the Regional Trial
Court in Calbayog City. 4
The principal witness for the prosecution was Sylvia Soria herself, who
recounted in detail the manner of her ravishment by Salomon with the help
of his co-accused Conge. She described how she was dragged to the ricefield
by the two accused and there undressed against her will. As Conge spread
and pinned her legs, Salomon mounted and penetrated her, although with
difficulty because she was still a virgin. She felt pain in her vagina and
"something slippery." She could not cry out or repel the attack because the
two were stronger than she and Conge was holding a bolo. 5 After her rape,
Salomon sucked and twisted her nipples and demanded that he suck his
penis. Her low mentality was demonstrated in her angry testimony of her
refusal: "The devil with him, it is not an icedrop." 6
The prosecution presented several other witnesses, 7 including Dr. Tanseco,
who affirmed her medical certificate of the complainant's examination. On
cross-examination, she declared that the laceration in Sylvia's vagina could
depends on its nature and credibility or, otherwise put, the quality of his
perceptions and the manner he can make them known to the court. 16 Thus,
in People v. Gerones, 17 the Court accepted the testimony of a rape victim
notwithstanding that she had the mentality of a nine or ten-year old
"because she was able to communicate her ordeal... clearly and
consistently." In the case of People vs. Rondina, this Court declared:
The testimony of the offended party herself was especially telling
and credible despite the fact that she was somewhat mentally
deficient, as the trial court noticed. Although she was really of
limited intelligence, the complainant nevertheless did not forget
the harrowing experience she suffered during that frightful night
in the bushes when the three men seared her memory with the
lust they forced upon her. The tale she narrated in court was not
woven out of sheer imagination but born in anguish and
remembered with pain and as plain an unembellished as the
simple life she led. If she spoke in forthright language at the
trial, it was because she was speaking the truth of that horrible
ravishment she could not push out of her mind.
In the case before us, the trial court noted that although Sylvia's speech was
slurred and it was necessary at times to ask her leading questions, "her
testimony was positive, clear, plain, coherent and credible." Her mental
condition did not vitiate her credibility. We also believe, as we have observed
often enough in many cases 18 that a woman will not expose herself to the
humiliation of a rape trail, with its attendant publicity and the morbid
curiosity it will arouse, unless she has been truly wronged and seeks
atonement for her abuse.
The defense points to a supposed hostility between Sylvia's and Salomon's
respective fathers due to a conflict over a piece of land and the
administrative charge Epifanio filed against Restituto when they were both
teaching at the local school. It suggests that this was the reason for Sylvia's
false charge against Salomon, who has simply been caught in the crossfire,
as it were, between Restituto and Epifanio.
The connection is far-fetched. It is unnatural for a parent to use his offspring
as an engine of malice, especially if it will subject a daughter to
embarassment and even stigma, as in this case. There is no evidence that
Sylvia's father is an unnatural parent. Besides, the enmity itself is in the
view of the Court not deep enough to provoke the charge, assuming that
Restituto Soria was willing to use his daughter to falsely accuse his enemy's
son. Significantly, the complaint was filed by Restituto against the son and
not the father who was his real adversary.
recanted and said he put his fingers together in the shape of a cone before
plunging them into Sylvia's bared organ. 28
We are satisfied with the findings of the trial court that the appellants, in
conspiracy with each other, committed the crime of rape upon Sylvia Soria,
with Salomon actually violating her as Conge helped restrain her while also
frightening her with his bolo. The crime was committed with force and
intimidation, and worse, against a mental retardate, who fortunately was
nevertheless able to narrate the details of her outrage. The theory of the
defense is absurd. The trial court was correct in rejecting it. The assessment
of the evidence, especially the credibility of the witnesses, is the primary
function of the judge presiding at the trial. We defer to the findings of the
trial court in the case at bar, there being no showing that they were reached
without basis.
The Court cannot conclude this opinion without remarking on the
extraordinary lengths to which an accused will go to falsify the truth and
evade the sanctions of the law. The defense in this case is illustrative of such
desperation. What the appellants have not considered is that the Court is not
without experience in detecting falsehood and should not have been
expected to be deluded by the ridiculous story they blandly submitted.
Counsel should remember that gullibility is not one of the traits of this Court.
WHEREFORE, the appeal is DISMISSED. The decision of the trial court is
AFFIRMED, except for the award of moral, exemplary, and actual damages
and attorney's fees, which were disallowed. The civil indemnity is retained at
P30,000.00. Costs against the appellants.
SO ORDERED.
DECISION
DAVIDE, JR., J.:
Maria Gina Avila Mendoza, a mother of three young children, was put to fire
in her home in Balasing, Sta. Maria, Bulacan, on 22 November 1989. She
suffered extensive second to fourth degree burns and died of hypostatic
pneumonia and infected fourth degree burns on 30 November 1989. Her
husband, accused-appellant Rolando Mendoza, was charged with the crime
of parricide in an information filed on 29 June 1990 with Branch 8 of the
Regional Trial Court (RTC) of Malolos, Bulacan. The accusatory portion
thereof read:
That on or about the 22nd day of November, 1989, in the municipality
of Sta. Maria, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Rolando
Mendoza, armed with a kerosene gas [sic] and with intent to kill his
wife Maria Gina Mendoza, with whom he was united in lawful wedlock,
did then and there wilfully, unlawfully and feloniously attack, assault
and burn with the kerosene gas he was then provided, the said Maria
Gina Mendoza which directly caused her death.
Contrary to law.1
Trial on the merits was had after accused-appellant entered a plea of not
guilty at his arraignment.2
The prosecution presented as its witnesses Paul Michael Mendoza, a fiveyear old child of the victim and the accused-appellant; Jhun Avila, Teofisto
Avila, and Rodora Avila, the victim's brother, father, and sister, respectively;
and Dr. Nieto M. Salvador, the Medico-Legal Officer of the National Bureau of
Investigation (NRI). On its part, the defense presented the accusedappellant himself and Erlinda Porciuncula, a childhood friend.
The testimonies of the witnesses for the prosecution established the
following facts:
The accused-appellant and the victim were married on 30 January 1985 at
the Sto. Cristo Parish Church in Bocaue, Bulacan and lived in Balasing, Sta.
Maria, Bulacan.3 Their union bore three children: Paul Michael, the eldest,
who was born on 7 June 1985,4 John-John, and Paula, the youngest.5
In the evening of 22 November 1989, the accused-appellant and his wife
were in their residence with their children. At around 4:00 a.m. the next
COURT:
How did he burn your mother?
A
At first he tied up my mother, then he poured kerosene [sic]
upon my mother, Sir.
Q
A
Yes Your Honor. They were quarreling because my mother
wanted me to go with my father to [sic] street corner.
Q
Q
What you mean is that your mother was objecting you to go
[sic] with your father?
A
My mother wanted me to go with my father but my father
refused me [sic] to go with him, Your Honor.
Q
Q
And because of that quarrel, your father tied the hands of your
mother?
A
Q
Then he put kerosene [sic] at the front body [sic] of your
mother?
A
Q
Was that the first time that you[r] mother and your father
quarreled?
A
Q
At the time when your mother was tied and then kerosene [sic]
was poured upon her dress, was your father drunk?
A
Q
Your father always went out and when he returned he was
always drunk?
A
children to her. They then went to the Manila Sanitarium Hospital where the
victim was immediately given first aid and transferred to "the isolated Room
No. 328." The accused-appellant requested the witness to buy medicine and
inform the relatives of the victim of what had happened, which she acceded
to. She was able to visit the victim three more times before the victim died
on 30 November 1989, and on two of these occasions, she saw the accusedappellant at the hospital. 19
Accused-appellant Rolando Mendoza testified that on 22 November 1989,
between 5:00 to 6:00 p.m., three persons who wanted to befriend him
visited him in his house. These three persons, of whom the accusedappellant could only name one, brought a bottle of liquor and had a drinking
session with him, which lasted about an hour or two. As these three persons
were leaving, the accused-appellant offered to accompany them to the road.
After doing so, he returned home, whereupon he saw his wife jumping up
and down and removing her burning clothes. He saw a pail of water which he
then used to douse out the flames. At this time, his wife cursed him and
said: "Putang-ina mo sawang-sawa na ako sa buhay na ito," and "Huwag mo
akong pakialaman." 20 The accused-appellant did not mind her, merely
proceeded to remove her dress and cried for help. The neighbors came over
and he entrusted the children to them. Several others arrived and he asked
one of them who owned a vehicle to help him bring his wife to the hospital.
They were able to bring her to St. Mary's Hospital, but since the hospital did
not have a burns specialist, they were advised to bring the victim to a
hospital in Manila. The driver of the jeep, however, refused to bring them to
Manila as he had neither a driver's license nor gas. The accused-appellant
was instead brought to Bocaue, Bulacan, and there he was able to procure
another vehicle and borrow some money. Eventually, his wife was brought to
the Manila Sanitarium Hospital after the PGH refused to admit the victim. He
stayed with his wife from the time she was admitted up to the time she died,
and even bought the needed medicines. He did not attend her wake nor
burial because of the threats his brother-in-law made. When asked if he
knew why his wife burned herself, he surmised that she was
"aburido" 21 from all their financial difficulties. 22
In giving full credence to the testimony of eyewitness Paul Michael,
trial court observed that:
23
the
lion to meet his brother-in-law and face any and all consequences. In
the same way that if his conscience is clear, no threat, real, or
imaginary, in the whole world would prevent him from staying by the
side of his wife during her last moments on earth. The fact that he
went into hiding, ashamed or fearful of the death of his wife is an
indication of his guilt. Further, the burning in the dress and body of
Gina gives support to the claim of the prosecution that she was
burned. Paul Michael testified that the hands of his mother were tied at
the back. Jhun Avila testified that the branches and leaves of the
atienza tree were burned. They tend to show that Gina was tied at the
back, placed near the trunk of a tree and burned. Being tied, only the
front portion of her body would naturally be burned. The tendency of
one who burns himself is to burn his whole body and not stay
stationary in one position so that both his front and back portions of
his body would be burned. In this case, however, only the front portion
of Gina's dress and body were burned as well as the branches and
leaves of the atienza tree. That indicates that while the victim was
burning, she remained stationary in the place where she was tied. 25
Accordingly, the trial court convicted the accused-appellant as follows:
WHEREFORE, the Court finds the accused Rolando Mendoza guilty
beyond reasonable doubt of the crime of Parricide, defined and
penalized under Article 246 of the Revised Penal Code and hereby
sentences him to a penalty of reclusion perpetua, and to indemnify the
parents of the victim Maria Gina Avila-Mendoza the sum of P88,000.00
representing the amount of hospital bills of the victim. No cost.
SO ORDERED.
26
In this appeal, the accused-appellant prays for a reversal of the lower court's
decision, maintaining that if his evidence is considered in its entirety, it
would show his innocence. The accused-appellant underscores the fact that:
[A]fter November 22, 1989, the date of the incident, the child Paul
Michael Mendoza had been and remains under the custody and care of
the parents and brothers and sisters of the late Maria Gina Mendoza,
who in full and unwavering anger, hatred, hostility, resentment,
revenge and spite against the accused, pursued the charge against the
accused and the ones who brought the child to the court to testify. 27
He thus asks this Court to disregard the testimony of Paul Michael for being
"open to serious question and consideration" as it was "often attended [by]
unintelligible answers and punctuated by contrary answers to previously
given answers"; "[b]esides the child's tender age, he suffer[s] from [a] lack
or inadequacy of sense of duty to tell the truth." He further claims that per
the findings of the Medico-Legal Officer, the victim did not die of burns but of
hypostatic pneumonia. 28
After a thorough examination of the records and scrutiny of the evidence, we
find no merit in this appeal. The accused-appellant's seven-page Brief
miserably fails to present convincing grounds why the challenged decision
should be overturned.
The lower court convicted the accused-appellant primarily on the basis of the
testimony of eyewitness Paul Michael Mendoza, and it is obvious that the
pith of the present appeal is the child's competency to testify and the
credibility of his testimony.
Section 20, Rule 130 of the Rules of Court provides:
Except as provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to others,
may be witnesses . . . .
With respect to the disqualification of children to be witnesses, Section 21(b)
of the abovementioned rule reads:
The following persons cannot be witnesses:
xxx
xxx
xxx
The first time Paul Michael was presented as [a] witness, the only
thing substantial he testified on was that his father boxed his mother
in the mouth and tied her. On further questions, he refused to answer
anymore. The Court noticed the reason for such adamant attitude of
the witness. His father, the accused, was directly in his sight and
whenever their eyes met, the child could speak no more. The second
time the witness was presented, the private prosecutor covered the
child from the accused. The Court likewise directed the accused to sit
farther away thereby placing the accused out of the direct sight of the
witness. As a result, the child was able to testify freely and extensively
without hesitation. 39
We defer to such observation and explanation. Indeed, there are certain
matters that aid the trial court in assessing the credibility of a witness which
are not available to the appellate court, such as emphasis, gesture, and the
inflection of the voice of the witness. The trial court had the distinct
opportunity to make such observations and to avail of such aids while Paul
Michael was on the witness stand, 40 thusly, we find no reason to disregard
the assessment made by the trial court.
The accused-appellant's contention that Paul Michael's testimony could have
been influenced by the relatives of Gina, who were full of "unwavering anger,
hatred, hostility, resentment, revenge," more so since the child had been in
their custody since after 22 November 1989, is unacceptable. The charge is
nothing but unmitigated speculation as not a shred of evidence was offered
in support thereof. Not even the rigorous cross-examination Paul Michael
underwent dented the probative force of his testimony; on the contrary, it
merely added strength thereto as it elicited nothing less than the boy's
adherence to truth.
We realize how extremely painful it was for Paul Michael to reveal that it was
his father who burned his mother. He knew that such a revelation could send
his father to jail and thus brand him a son of a killer or a convict. If he did,
nevertheless, it was to expose the truth and give justice to his mother who
met an excruciatingly painful death. Verily, "from the mouths of children we
get the truth." 41
Neither are we persuaded by the accused-appellant's claim that the cause of
death of his wife was hypostatic pneumonia and not due to the burns she
sustained. Such a claim borders on misrepresentation, for as earlier shown,
both the Autopsy Report (Exhibit "H-1") and the Certificate of PostMortem Examination (Exhibit "H-1") indicated the cause of death to be
"hypostatic pneumonia; infected fourth degree burns." Moreover, as testified
to by Dr. Nieto Salvador, the proximate cause of the hypostatic pneumonia
was Gina's recumbent position due to the fourth degree burns she suffered.
Thus:
COURT:
What could have caused hypostatic pneumonia?
A
The victim was recumbent because of her intensive infections in
front of her body and therefore she was always lying down which could
have caused the hypostatic pneumonia.
What you mean [is] it [was] because of the fourth degree burns the
victim sustained in front that's why she was always lying down and
unable to change her position?
A
Q
Do you mean that hypostatic pneumonia can be acquire[d] by
merely always lying down?
A
A
That's why it is called hypostatic because hypostatic means that
the assumed position of the patient is recumbent and the recumbent
position of the patient would greatly affect the fluids in the lungs as it
can't flow down.
xxx
xxx
xxx
Q
Would you say that hypostatic pneumonia may also be caused
by fourth degree burns?
A
Yes, Sir. 42
It goes without saying that an accused is liable for all the consequences of
his felonious act. 43
Finally, the accused-appellant was never seen after the death of his wife neither during her wake nor at her burial. His whereabouts were unknown.
He did not even bother to visit his children or inform them where to find him
in case they needed him, knowing all too well that he was the only parent
left to them. In short, he was even afraid to see his children; he could not
trust them. In a manner of speaking, he was afraid of his own shadow. All
his protestations of innocence are thus belied by his flight as indicative of
guilt on his part, or of his guilty mind. It has been said that the wicked man
flees though no man pursueth, but the righteous are as bold as a lion. 44 The
explanation proffered for his flight is lame and feeble, moreover, he offered
no credible proof that indeed the family of his wife had threatened him
bodily harm.
The trial court correctly appreciated in favor of the accused-appellant the
mitigating circumstance of intoxication. The accused-appellant committed
the felony in question in a state of intoxication and there was no sufficient
proof that it was habitual nor subsequent to the plan to commit the
felony. 45 It failed, however, to award civil indemnity to the children of the
victim. Conformably with current case law, they should be awarded the sum
of P50,000.00.
WHEREFORE, the instant appeal is hereby DISMISSED. Being in accordance
with the facts and the law, the challenged decision of Branch 8 of the
Regional Trial Court of Bulacan in Criminal Case No. 1414-M-90 is,
AFFIRMED, subject to the above modification on the additional award of
P50,000.00, as civil indemnity, to the heirs of the victim, Gina Avila
Mendoza.
Costs against the accused-appellant.
SO ORDERED.
Section 22. Disqualification by reason of marriage. During their
marriage, neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, except in a civil case by
one against the other, or in a criminal case for a crime committed by one
against the other or the latter's direct descendants or ascendants. (20a)
FIRST DIVISION
[G. R. No. 140634. September 12, 2002
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO
PANSENSOY,Accused-Appellant.
DECISION
CARPIO, J.:
The Case
Before this Court is an appeal from the Decision1 dated September 13, 1999
in Criminal Case No. 94-11527 of the Regional Trial Court of Antipolo City,
Branch 73, convicting appellant Roberto Pansensoy (appellant for brevity) of
the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua. The trial court also ordered appellant to pay the heirs of the victim
P50,000.00 as civil indemnity, P40,000.00 as actual damages and
P20,000.00 as moral damages.
The Charge
Asst. Provincial Prosecutor Rolando L. Gonzales filed an
Information2 charging appellant with the crime of murder, committed as
follows:
That on or about the 8th day of May, 1994, in the Municipality of Antipolo,
Province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a handgun, with intent to kill
and by means of treachery and evident premeditation, did, then and there
willfully, unlawfully and feloniously attack, assault and shoot one Hilario
Reyes y Inovero, hitting him on his forehead, thereby inflicting upon him a
mortal gunshot wound, which directly caused his death.
CONTRARY TO LAW.
Arraignment and Plea
When arraigned on February 20, 1995, the appellant, assisted by his
counsel, entered a plea of not guilty.3 Thereafter, trial on the merits followed.
The Trial
The prosecution presented the following witnesses: (1) Analie Pansensoy,
eyewitness to the actual shooting of the victim; (2) Dr. Emmanuel Aranas,
the medico-legal officer who conducted the autopsy on the victim; (3) SPO1
Reynaldo Anclote, the police officer who conducted the investigation of the
incident; (4) Gregoria Reyes, mother of the victim; and (5) Rogelio Fullente,
neighbor of the victim. For its part, the defense presented the appellant as
its lone witness.
Version of the Prosecution
8, 1994, he was in his home in Lumang Bayan which was about ten meters
away from where Hilario was staying. According to him, their houses were
separated by a driveway which could accommodate one jeep. He heard
several knocks and opened the door of his house. When he opened the door
he found out that somebody was knocking on the door of Hilario and
ordering him to come out. The first time he saw the man knocking on
Hilarios door, the man was not carrying anything. When he heard a gunshot,
he opened the door again and saw the man carrying something before he
left. Rogelio further narrated that when the man asked Hilario to come out,
Hilario was standing by the door. The man asked Hilario if he loved his wife
and Hilario answered yes. The man then fired a shot and Hilarios head bent
forward before he fell down. He does not know the caliber of the gun but
just heard the gunshot. He went to the parents of Hilario to report the
incident. On cross-examination, Rogelio testified that when appellant
knocked on the door, it was Hilario who opened the door. Hilario sat on the
bench by the door. When Hilario answered yes to appellants question of
whether he loved his wife, appellant immediately fired a shot. Rogelio
testified that he watched appellant fire the shot and then left to report the
incident to the parents of Hilario.8
Version of the Defense
As expected, the defense had a different version as told by the appellant
himself.
Appellant, twenty-eight years old and a security guard, invoked self-defense
in his testimony. He testified that Analie is his wife and they have three
children. According to him, their relationship as husband and wife was
normal.
On May 8, 1994, at about 6:30 p.m., a certain Amadong Bisaya (Bisaya for
brevity) told him that he saw his wife with their youngest child and Tisoy,
referring to Hilario, board a jeep on their way to Lumang Bayan. He had met
Bisaya before when the latter told him some time in April 1994 that he
always saw appellants wife with another man. He asked Bisaya to
accompany him to Lumang Bayan where Bisaya pointed to the room where
his wife and Tisoy entered.
The appellant kicked the door of the room and there he found his wife and
Tisoy lying beside each other. They were only clad in their underwear. He
dragged his wife out of the room by her hair and while doing so, he saw
Tisoy pull a gun from the table which was covered with clothes. He let go of
his wife and jumped on Tisoy to grab the gun.
While they struggled for possession of the gun he hit the testicles of Tisoy
with his knees. Tisoy fell on his knees but was still holding the gun. Still
grappling for possession of the gun, appellant held on to the back portion of
the gun and part of the trigger, while his other hand held Hilarios hand which
was holding the butt of the gun. When Hilario knelt down, appellant was able
to twist Hilarios hand and to point the barrel of the gun towards the latter.
The gun suddenly went off. At that moment, Tisoy was holding the trigger of
the gun. Tisoy was shot on the head and fell down. It was Tisoy who was
holding the trigger when the gun fired and hit him on the head. Tisoy was
still holding the gun when he fell to the floor.
He confronted his wife and pulled her hair and slapped her. His wife was just
seated in the corner of the room. He asked her where their child was. But
before she could answer, their child went inside the room and embraced her
mother very tightly. He tried to pull their daughter away from Analie but the
latter did not let go of the child. He told Analie that he would kill her too if
she did not release the child. He started to count one, two, which made his
wife release their daughter. He left the room with the child and proceeded to
their house. Tisoy was still sprawled on the ground face down when he left. 9
The Trial Courts Ruling
The trial court accorded full faith and credence to the testimony of Analie
and rejected the version of the appellant that he acted in self-defense. It
found the testimony of Analie credible and observed that she remained
unperturbed during the cross-examination. The trial court also noted that
appellant, who was then a security guard, was charged by his employer with
the crime of qualified theft for the loss of a .38 caliber revolver. Appellant
allegedly committed the theft on May 8, 1994, the very same day the
shooting incident happened. The gun used in shooting the victim was not
found at the scene of the crime but the slug recovered was that of a .38
caliber revolver. Although appellant was subsequently acquitted of the
charge, the trial court considered this as evidence of a circumstance
connected with the crime. The trial court further noted that appellant went
into hiding from the time the shooting incident happened until the case was
filed in court on August 24, 1994.
The trial court pronounced judgment thus:
WHEREFORE, premises considered, the accused is hereby found guilty
beyond reasonable doubt with the crime of murder and is hereby sentenced
to the penalty of reclusion perpetua. The accused is hereby further ordered
to pay the heirs of Hilario Reyes y Inovero the amount of P50,000.00 as
the door, and when it opened he saw his wife and Hilario inside the room
clad in their underwear. He pulled the hair of his wife and dragged her
outside while she was embracing him. At this point, Hilario pulled a gun from
the table. He let go of his wife, jumped on Hilario and grappled for
possession of the gun. While trying to wrest the gun from Hilario, he hit
Hilarios testicles with his knees. Hilario fell on the floor but was still holding
the gun. When Hilario knelt down, appellant was able to hold and twist
Hilarios hand, pointing the gun towards the latter. The gun suddenly went off
and Hilario was hit on the head.
On the other hand, Analie testified that when she opened the door to their
room, she saw appellant holding a gun. She embraced appellant and tried to
wrest the gun from him but failed. Hilario went out and sat on a bench.
Appellant approached him and asked him questions. Appellant counted and,
at the count of three, shot Hilario in the head.
The conflicting versions of the prosecution and of the defense as to who
initiated the aggression was settled by the trial court which gave full faith
and credence to the testimony of Analie over that of appellant. The trial
court, which had the opportunity to observe the demeanor of the witnesses
on the stand, was convinced of the truthfulness of Analies testimony and not
that of appellants.
Undeterred, appellants first assignment of error is focused on the sufficiency
of the evidence for the prosecution, questioning in particular the trial courts
assessment of the credibility of the prosecutions eyewitness, Analie.
According to him, Analies testimony is flawed as she insisted that she and
appellant had been separated for more than three years but this is belied by
the fact that their youngest daughter is barely a year old. He also points out
that appellants version that he dragged his wife outside by pulling her hair
was more believable and in accord with human behavior rather than Analies
version that appellant took time to interrogate the victim regarding how
much the latter loved his wife and other personal circumstances before
shooting him.
We find no reason to reverse or alter the evaluation of the trial court. We
reiterate the time tested doctrine that a trial courts assessment of the
credibility of a witness is entitled to great weight even conclusive and
binding if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence.14 The alleged flaws in the testimony of
Analie do not serve to impair her credibility or diminish the truthfulness of
her remarks as to who initiated the aggression and fired the shot.
The allegedly incredible statements do not pertain to the act of killing, but
rather to minor or incidental matters which happened before and after the
fact of killing. Analies testimony that she had been separated from appellant
for three years which, as pointed out by appellant, was belied by the age of
their youngest daughter, does not necessarily impair her credibility. Analies
3-year separation from appellant does not preclude Analies still having a
child with appellant. As to Analies version that appellant interrogated Hilario
before shooting him, suffice it to say that it is a matter of common
observation that the reaction of a person when confronted with a shocking or
unusual incident varies.15 As admitted by appellant himself, it was the first
time he saw his wife and Hilario together, veritably confirming what Bisaya
had told him some time in April 1994 that Bisaya always saw his wife
with someone else. It was not at all strange for appellant to have asked
Hilario if he really loved his wife. Were we to agree with the appellant and
treat each strange or unusual event in the occurrence of a crime, such as
appellants interrogation of the victim, as basis for reasonable doubt, no
criminal prosecution would prevail.16crlwvirtualibrry
In any event, a thorough evaluation of the transcript of stenographic notes
indicates that Analie, as observed by the trial court, testified in a candid and
straightforward manner as follows:
Q: Why do you know said Hilario Reyes?
A: He is my live-in partner.
Q: When did you start to be the live-in partner of Hilario Reyes?
A: February 1994.
Q: Up to what time did you become to be the live-in partner of Hilario
Reyes?
A: Three months.
Q: What was the reason why your live-in relationship lasted only three
months?
A: Because Roberto killed Hilario Reyes.
Q: When was this Hilario Reyes killed?
A: May 8, 1994.
Q: Madam witness, you stated that you are the wife of the accused Roberto
Pansensoy, is that correct?
A: Yes, sir.
Q: Are you legally married to accused Roberto Pansensoy?
A: Yes, sir.
Q: And if you remember, when were you married?
A: 1990.
Q: Where were you married?
A: At Negros Occidental.
Q: You stated that on May 8, 1994, you were at Lumang Bayan, Antipolo,
Rizal, am I correct?
A: Yes, sir.
Q: In what particular place at Lumang Bayan is that?
A: Inside the village.
Q: What were you doing then inside the village?
A: We are renting a house there.
Q: Who is your companion while renting that house?
A: Hilario Reyes.
Q: And who is this Hilario Reyes?
A: The victim.
Q: What is your relation with the victim?
A: Live-in partner.
Q: How long have you been living in together, Madam Witness?
A: Three months.
Q: On that date May 8, 1994 you stated a while ago that you were resting
together with Hilario Reyes, is that correct?
A: Yes, sir.
Q: Inside the room of the house being rented by Hilario Reyes?
A: Yes, sir.
Q: What was Hilario Reyes doing then?
A: He was laying (sic).
Q: Lying where?
A: Inside.
Q: Thereafter, what happened next while Hilario Reyes was resting?
A: I heard Roberto knock on the door.
Q: After which, what happened next, Madam Witness?
A: I opened the door and I saw Roberto.
Q: What did you do upon seeing Roberto on the door?
A: He was holding a gun and I embraced him, because I wanted to take the
gun away from him.
Q: Is it not because you feel that Roberto Pansensoy might inflict harm on
your living in partner, is that correct?
A: Yes, sir, I wanted to avoid trouble.18crlwvirtualibrry
From Analies testimony, it is all too apparent that the first requisite of selfdefense is absent. The unlawful aggression did not come from the victim but
from appellant himself. The aggression not having come from the victim,
appellants claim of self-defense cannot prosper. The trial court relied on
Analies testimony to convict appellant and we find that her testimony is
sufficient to support appellants conviction.
As the legitimate wife of appellant, Analies testimony would have been
disregarded had appellant timely objected to her competency to testify
under the marital disqualification rule. Under this rule, neither the husband
nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other or the latters
direct descendants or ascendants.19 However, objections to the competency
of a husband and wife to testify in a criminal prosecution against the other
may be waived as in the case of other witnesses generally.20 The objection to
the competency of the spouse must be made when he or she is first offered
as a witness.21 In this case, the incompetency was waived by appellants
failure to make a timely objection to the admission of Analies testimony.
We note that Rogelio was presented to corroborate Analies testimony, but he
gave a rather confusing account of what he allegedly saw or heard on the
night of the shooting. During his direct examination, he claimed that he
heard a gunshot, but on cross-examination he claimed that he opened the
door of his house and actually saw appellant shoot Hilario. In any event, it is
well-settled that the testimony of a lone eyewitness, if credible and positive,
is sufficient to convict an accused.22 On the other hand, a plea of selfdefense cannot be justifiably appreciated, if it is not only uncorroborated by
independent and competent evidence, but also extremely doubtful by
itself23 as in the instant case.
Moreover, appellants behavior after the incident runs contrary to his
proclaimed innocence. Appellants act of fleeing from the scene of the crime
instead of reporting the incident to the police authorities are circumstances
highly indicative of guilt and negate his claim of selfdefense.24crlwvirtualibrry
Lastly, we find it unnecessary to consider as corroborative evidence the
charge of qualified theft for the loss of a .38 caliber revolver filed against
appellant by his employer security agency. The trial court discussed at length
that the offense was committed on the same day the shooting incident
happened and that the slug recovered from the scene of the crime was from
a .38 caliber revolver. According to the trial court, while the gun was not
recovered from the scene of the crime, it was safe to assume that the
accused had a gun when he went to the place of the victim. While SPO1
Anclote testified regarding the nature of the slug, he admitted that he never
inspected the scene of the crime and that the slug was merely handed to
him by SPO2 Catanyag who was not presented in court to testify. Hence,
reliance on this as evidence of a circumstance connected with the crime
rests on shaky ground and is superfluous in light of Analies credible
eyewitness account.
Second Issue: Passion and Obfuscation
inferred with certainty that the intention of the accused who carried knives
was to look for the deceased in order to kill him. In like manner, it cannot be
inferred with certainty that appellant already had the intention to kill Hilario
when appellant carried his gun on his way home after his duty as a security
guard.
Fourth Issue: Damages and Penalty
In view of the foregoing, the crime proven in this case is not murder, but
only homicide34with the mitigating circumstance of passion and obfuscation.
The penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal. With the mitigating circumstance of passion and
obfuscation, the penalty which may be imposed pursuant to the second
paragraph of Article 64 of the Revised Penal Code is reclusion temporal in its
minimum period. Appellant is entitled to the benefit of the Indeterminate
Sentence Law as well, which allows the imposition of an indeterminate
sentence, with the minimum period within the range of the penalty next
lower to that prescribed by law and the maximum period within the range of
the latter after appreciating any modifying circumstances. Appellant can thus
be sentenced to an indeterminate penalty ranging from eight (8) years
of prision mayor as minimum to fourteen (14) years and eight (8) months
of reclusion temporal as maximum.35crlwvirtualibrry
As for damages, the trial court ordered appellant to pay the heirs of the
victim the following amounts: P50,000.00 as indemnity; P40,000.00 as
actual damages; P20,000.00 as moral damages; and to pay the costs.
Consistent with prevailing jurisprudence, we sustain the award of
P50,000.00 to the heirs of Hilario. The amount is awarded without need of
proof other than the commission of the crime 36 and the consequent death of
the victim.
An appeal in a criminal proceeding throws the whole case open for review
and it becomes the duty of this Court to correct any error in the appealed
judgment, whether it is made the subject of an assignment of error or
not.37 Therefore, we delete the award of P40,000.00 as actual damages. To
seek recovery of actual damages, it is necessary to prove the actual amount
of loss with a reasonable degree of certainty, premised upon competent
proof and on the best evidence obtainable.38 Since the prosecution did not
present receipts to prove the actual losses suffered, such actual damages
cannot be awarded. We raise the award of moral damages from P20,000.000
to P50,000.00 in line with current jurisprudence39 for the pain wrought by
Hilarios death as testified to by Gregoria, mother of the
victim.40crlwvirtualibrry
The trial court overlooked the award for loss of earning capacity despite the
testimony of Gregoria on her sons daily income. The absence of
documentary evidence to substantiate the claim for the loss will not preclude
recovery of such loss.41 Gregoria testified that her son had been earning
P800.00 daily as manager and driver of two passenger jeepneys.42This
amounts to P19,200.00 monthly excluding Sundays. The defense did not
object to Gregorias testimony on her sons earning capacity. The rule is that
evidence not objected to is deemed admitted and may be validly considered
by the court in arriving at its judgment.43 It was also established that at the
time of his death, Hilario was thirty-six (36) years old. 44 Loss of earning
capacity is computed based on the following formula: 45crlwvirtualibrry
Net = life expectancy x Gross Annual - living expenses
Earning Income (GAI) (50% of GAI)
Capacity [2/3(80-age
at death)]
x = 2(80-36) x GAI - [50%of GAI]
3
x = 2(44) x P 230,400 - P 115,200
3
x = 88 x P 115,200
3
x = 29.33 x P 115,200
Net earning capacity = P 3,379,200.00
WHEREFORE, the judgment of Branch 73 of the Regional Trial Court of
Antipolo City in Criminal Case No. 94-11527 is MODIFIED. Appellant
ROBERTO PANSENSOY is found guilty beyond reasonable doubt of the crime
of HOMICIDE as defined and penalized under Article 249 of the Revised
Penal Code, instead of murder. Applying the Indeterminate Sentence Law
and taking into account the mitigating circumstance of passion and
obfuscation, appellant is hereby sentenced to suffer an indeterminate
penalty ranging from Eight (8) years of prision mayor minimum,
AQUINO, J.:
Avelino Ordoo was charged in the municipal court of San Gabriel, La Union
with having raped his daughter, Leonora, on October 11, 1970. The verified
complaint dated November 7, 1973 was signed by the twenty four year old
victim (Criminal Case No. 104).
In support of that complaint, Catalina Balanon Ordoo, the mother of
Leonora, executed a sworn statement wherein she disclosed that on that
same date, October 11th, Leonora had apprised her of the outrage but no
denunciation was filed because Avelino Ordoo threatened to kill Leonora
and Catalina (his daughter and wife, respectively) if they reported the crime
to the police.
Catalina Ordoo in her sworn statement further revealed that her husband
had also raped their other daughter, Rosa, on March 25 and April 7, 1973.
He was charged in court with that offense.
Catalina Ordoo said that the rape committed by Avelino Ordoo against
Leonora was mentioned during the investigation and trial of Avelino Ordoo
for the rape committed against Rosa Ordoo. Catalina's statement on this
point is as follows:
Q Why did you not file the complaint against your husband
concerning the incident involving Leonora Ordoo?
A We Also narrated the incident during the investigation in the
Fiscal's Office and also when I testified in court in the case of my
daughter Rosa Ordoo but then my daughter Leonora Ordoo
was still in Manila, sir.
During the preliminary investigation of the rape committed against Leonora,
Catalina manifested that she was no longer afraid to denounce Avelino
Ordoo because he was already in jail for having raped Rosa Ordoo.
The case against Avelino Ordoo, where Leonora Ordoo was the
complainant, was elevated to the Court of First Instance of La Union, San
Fernando, Branch (Criminal Case No. 356). On May 29, 1974 the Fiscal
presented Catalina Ordoo as the second prosecution witness. After she had
stated her personal circumstances, the defense counsel objected to her
competency. He invoked the marital disqualification rule found in Rule 130 of
the Rules of Court which provides:
Sec. 20. Disqualification by reason of interest or relationship.
The following persons cannot testify as to matters in which they
are interested, directly or indirectly, as herein enumerated:
xxx xxx xxx
(b) A husband cannot be examined for or against his wife
without her consent; nor a wife for or against her husband
without his consent, except in a civil case by one against the
other or in a criminal case for a crime committed by one against
the other;
xxx xxx xxx
Using the criterion thus judiciously enunciated in the Cargill case, it can be
concluded that in the law of evidence the rape perpetrated by the father
against his daughter is a crime committed by him against his wife (the
victim's mother). *
That conclusion is in harmony with the practices and traditions of the Filipino
family where, normally, the daughter is close to the mother who, having
breast-fed and reared her offspring, is always ready to render her counsel
and assistance in time of need. Indeed, when the daughter is in distress or
suffers moral or physical pain, she usually utters the word Inay (Mother)
before she invokes the name of the Lord.
Thus, in this case, when Avelino Ordoo, after having raped his daughter
Leonora in the early morning of October 11, 1970, tried to repeat the beastly
act in the evening of that date, Leonora shouted "Mother" and, on hearing
that word, Avelino desisted.
That the rape of the daughter by the father, an undeniably abominable and
revolting crime with incestuous implications, positively undermines the
connubial relationship, is a proposition too obvious to require much
elucidation.
In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a
competent witness against the husband in a prosecution for rape committed
by the husband against his stepdaughter, who is the wife's natural daughter
because the crime was "an outrage upon nature in its dearest and tenderest
relations as well as a crime against humanity itself". The court adopted the
interpretation that "a criminal action or proceeding for a crime committed by
one against the other" may refer to a crime where the wife is the individual
particularly and directly injured or affected by the crime for which the
husband is being prosecuted (See Dill vs. People, 19 Colo. 469, 475, 36 Pac.
229, 232).
In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the
statutory provision that husband or wife shall in no case be a witness for or
against the other, except in a criminal proceeding for a crime committed by
one against the other, that the wife was competent to testify against the
husband in a case where he was prosecuted for incest committed against his
stepdaughter.
In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife
may testify against the husband in a case where he was prosecuted for
incest committed against their eleven-year old daughter because incest is a
"crime committed against the wife". (See Owens vs. State, 32 Neb. 167, 49
N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs. Segura, 60
Phil. 933).
The trial court did not err in holding that Catalina Ordoo could testify
against her husband, Avelino Ordoo, in the case where he is being tried for
having raped their daughter, Leonora.
WHEREFORE, the petition for certiorari and prohibition is dismissed. No
costs.
SO ORDERED.
Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Makasiar, Esguerra,
Fernandez and Muoz Palma, JJ., concur.
Antonio, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-46306 February 27, 1979
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MARIANO C. CASTAEDA, JR., as Judge of the Court of First
Instance of Pampanga, Branch III, and BENJAMIN F. MANALOTO,
respondents.
Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner.
Moises Sevilla Ocampo for private petitioner.
Cicero J. Punzalan for respondent.
SANTOS, J.:
On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein
private respondent Benjamin Manaloto was charged before the Court of First
Instance of Pampanga, presided by respondent Judge, Hon. Mariano C.
Hence, this petition for certiorari file by the office of the Provincial Fiscal, on
behalf of the People of the Philippines, seeking set aside the aforesaid order
of the respondent Judge and praying that a preliminary injunction or a
ternporary restraining order be issued by this Court enjoining said judge
from further proceeding with the trial of aforesaid Criminal Case No. 1011.
On June 20, 1977, this Court resolved (a) to issue a temporary restraining
order, and (b) to require the Solicitor General to appear as counsel for the
petitioner. 3 The Office of the Solicitor General filed its Notice of Appearance
on June 27, 1977, 4 and its Memorandum in support of the Petition on
August 30, 1977. 5 The respondents filed their Memorandum on September
5, 1977. 6 Whereupon, the case was considered submitted for decision. 7
From the foregoing factual and procedural antecedents emerges the sole
issues determinative of the instant petition, to wit: Whether or not the
criminal case for Falsification of Public Document filed against herein private
respondent Benjamin F. Manaloto who allegedly forged the signature of
his wife, Victoria M. Manaloto, in a deed of sale, thereby making it appear
that the latter gave her marital consent to the sale of a house and lot
belonging to their conjugal partnership when in fact and in truth she did not
may be considered as a criminal case for a crime committed by a husband
against his wife and, therefore, an exception to the rule on marital
disqualification.
We sustain petitioner's stand that the case is an exception to the marital
disqualification rule, as a criminal case for a crime committed by the
accused-husband against the witness-wife.
1. The act complained of as constituting the crime of Falsification of Public
Document is the forgery by the accused of his wife's signature in a deed of
sale, thereby making it appear therein that said wife consented to the sale of
a house and lot belonging to their conjugal partnership when in fact and in
truth she did not. It must be noted that had the sale of the said house and
lot, and the signing of the wife's name by her husband in the deed of sale,
been made with the consent of the wife, no crime could have been charged
against said husband Clearly, therefore, it is the husband's breach of his
wife's confidence which gave rise to the offense charged. And it is this same
breach of trust which prompted the wife to make the necessary complaint
with the Office of the Provincial Fiscal which, accordingly, filed the aforesaid
criminal case with the Court of First Instance of Pampanga. To rule,
therefore, that such criminal case is not one for a crime committed by one
spouse against the other is to advance a conclusion which completely
disregards the factual antecedents of the instant case.
2. This is not the first time that the issue of whether a specific offense may
be classified as a crime committed by one spouse against the other is
presented to this Court for resolution. Thus, in the case of Ordoo v.
Daquigan, 8 this Court, through Mr. Justice Ramon C. Aquino, set up the
criterion to be followed in resolving the issue, stating that:
We think that the correct rule, which may be adopted in this jurisdiction, is
that laid down in Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314,
wherein the court said:
The rule that the injury must amount to a physical wrong
upon the is too narrow; and the rule that any offense
remotely or indirectly affecting domestic within the
exception is too broad. The better rule is that, WHEN AN
OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND VITALLY
IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN
THE EXCEPTION to the statute that one shall not be a
witness against the other except in a criminal prosecution
for a crime committed (by) one against the other.
Applying the foregoing criterion in said case of Ordoo v. Daquigan this
Court held that the rape committed by the husband of the witness-wife
against their daughter was a crime committed by the husband against his
wife. Although the victim of the crime committed by the accused in that can
was not his wife but their daughter, this Court, nevertheless, applied the
exception for the reason that said criminal act "Positively undermine(d) the
connubial relationship. 9
With more reason must the exception apply to the instant case where the
victim of the crime and the person who stands to be directly prejudiced by
the falsification is not a third person but the wife herself. And it is undeniable
that the act comp of had the effect of directly and vitally impairing the
conjugal relation. This is apparent not only in the act Of the wife in
personally lodging her complaint with the Office of the Provincial Fiscal, but
also in her insistent efforts 10 in connection with the instant petition, which
seeks to set aside the order disqualified her from testifying against her
husband. Taken collectively, the actuations of the witness-wife underacore
the fact that the martial and domestic relations between her and the
accused-husband have become so strained that there is no more harmony to
be preserved said nor peace and tranquility which may be disturbed. In such
a case, as We have occasion to point out in previous decisions, "identity of
interests disappears and the consequent danger of perjury based on that
Identity is nonexistent. Likewise, in such a situation, the security and
confidence of private life which the law aims at protecting will be nothing but
Ideals which, through their absence, merely leave a void in the unhappy
home. 11 Thus, there is no reason to apply the martial disqualification rule.
3. Finally, overriding considerations of public policy demand that the wife
should not be disqualified from testifying against her husband in the instant
case. For, as aptly observed by the Solicitor General," (t)o espouse the
contrary view would spawn the dangerous precedent of a husband
committing as many falsifications against his wife as he could conjure,
seeking shelter in the anti-marital privilege as a license to injure and
prejudice her in secret all with unabashed and complete impunity.
IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March
31, 1977, disqualifying Victoria Manaloto from testifying for or against her
husband, Benjamin Manaloto, in Criminal Case No. 1011, as well as the
order dated May 19, 1977, denying the motion for reconsideration are
hereby SET ASIDE. The temporary restraining order issued by this Court is
hereby lifted and the respondent Judge is hereby ordered to proceed with
the trial of the case, allowing Victoria Manaloto to testify against her
husband.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 143439 October 14, 2005
MAXIMO ALVAREZ, Petitioner,
vs.
SUSAN RAMIREZ, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari1 assailing the Decision2 of the
Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled
"Susan Ramirez, petitioner, versus, Hon. Benjamin M. Aquino, Jr., as Judge
RTC, Malabon, MM, Br. 72, and Maximo Alvarez, respondents."
Susan Ramirez, herein respondent, is the complaining witness in Criminal
Case No. 19933-MN for arson3pending before the Regional Trial Court,
Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner.
He is the husband of Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza Alvarez to the
witness stand as the first witness against petitioner, her husband. Petitioner
and his counsel raised no objection.
Esperanza testified as follows:
"ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your
Honor.
COURT:
Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the purpose of
proving that the accused Maximo Alvarez committed all the elements of the
crime being charged particularly that accused Maximo Alvarez pour on May
29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagatdagatan, Navotas, Metro Manila, the house owned by his sister-in-law Susan
Ramirez; that accused Maximo Alvarez after pouring the gasoline on the
door of the house of Susan Ramirez ignited and set it on fire; that the
accused at the time he successfully set the house on fire (sic) of Susan
Ramirez knew that it was occupied by Susan Ramirez, the members of the
family as well as Esperanza Alvarez, the estranged wife of the
accused; that as a consequence of the accused in successfully setting the
fire to the house of Susan Ramirez, the door of said house was burned and
together with several articles of the house, including shoes, chairs and
others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q: When you were able to find the source, incidentally what was the source
of that scent?
A: When I stand by the window, sir, I saw a man pouring the gasoline in the
house of my sister (and witness pointing to the person of the accused inside
the court room).
Q: For the record, Mrs. Witness, can you state the name of that person, if
you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point him?
A: Witness pointing to a person and when asked to stand and asked his
name, he gave his name as Maximo Alvarez."4
In the course of Esperanzas direct testimony against petitioner, the latter
showed "uncontrolled emotions," prompting the trial judge to suspend the
proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion 5 to disqualify
Esperanza from testifying against him pursuant to Rule 130 of the Revised
Rules of Court on marital disqualification.
Respondent filed an opposition6 to the motion. Pending resolution of the
motion, the trial court directed the prosecution to proceed with the
presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned Order
disqualifying Esperanza Alvarez from further testifying and deleting her
testimony from the records.7 The prosecution filed a motion for
reconsideration but was denied in the other assailed Order dated October 19,
1999.8
strained. In fact, they were separated de facto almost six months before the
incident. Indeed, the evidence and facts presented reveal that the
preservation of the marriage between petitioner and Esperanza is no longer
an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested in laying the
truth before the courts so that the guilty may be punished and the innocent
exonerated, must have the right to offer the direct testimony of Esperanza,
even against the objection of the accused, because (as stated by this Court
in Francisco14), "it was the latter himself who gave rise to its necessity."
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial
court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez
to testify against petitioner, her husband, in Criminal Case No. 19933-MN.
Costs against petitioner.
SO ORDERED.
Court, without infringing on her marital privilege not to testify against her
husband under section 20 (b) of Rule 130. The trial court, presided by the
respondent Judge Jesus Rodriguez, ruled in the affirmative and required the
wife to appear and testify. The petitioners sued for certiorari but the Court of
Appeals dismissed their petition1 and denied their motion for
reconsideration.2 Hence this appeal.3
On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant &
Cold Storage Co. in Iloilo, together with C.N. Hodges and Ricardo Gurrea,
filed an action in the Court of First Instance of Iloilo for the annulment of a
judgment rendered against the La Paz Ice Plant by the Court of First
Instance of Manila in civil case 39827. Named as defendants were Marciano
C. Roque, in whose favor judgment was rendered, and the spouses Jose
Manuel and Paquita Lezama. The complaint alleged that, because of
mismanagement by the Lezamas, the La Paz Ice Plant was placed under the
receivership of Dineros; that during the pendency of the receivership,
Marciano C. Roque brought an action against the La Paz Ice Plant in the
Court of First Instance of Manila for the collection of P150,000, which sum
he had supposedly lent to it; that summons was served not on the receiver
but on the spouses Jose Manuel and Paquita Lezama; and that, through the
collusion of the Lezamas, Roque was able to obtain judgment by default
against the company. It was claimed that, because the summons was served
on Jose Manuel Lezama instead of on the receiver, the Court of First Instance
of Manila acquired no jurisdiction over the La Paz Ice Plant and that,
therefore, the decision of that court was void.1vvphi1.nt
In their answer, the defendant spouses (the herein petitioners), while
admitting that the company was placed under receivership, maintained that
Jose Manuel Lezama nevertheless remained president of the La Paz Ice Plant
and that as such he had authority to receive in behalf of the company the
court summons in civil case 39827. They denied entering into collusion with
Roque and averred that they did not contest Roque's claim because they
knew it to be a legitimate obligation which the La Paz Ice Plant had incurred
pursuant to a resolution of its board of directors.
Issues having been joined, the case was thereupon heard. At the hearing
Dineros asked the court to issue asubpoena to Paquita Lezama to testify as
"a witness summoned by the plaintiffs in accordance with the Rules of
Court." The request was granted over the objection of the petitioners who
invoked the following provision of the Rules of Court:
A husband cannot be examined for or against his wife without her
consent; nor a wife for or against her husband without his consent,
except in a civil case by one against the other, or in a criminal case for
13. That the herein defendants specifically deny all the allegations
contained in paragraph 13 of the complaint; the truth is, that the
herein defendants have not conspired and acted in bad faith with the
plaintiff [Marciano C. Roque] in Civil Case No. 39827 of the Court of
First Instance of Manila for the rendition of the said judgment referred
to therein; for the truth is, that the herein defendants, in their
capacities as President-Manager and Secretary of the La Paz Ice Plant
& Cold Storage Co., Inc., believing as they believe that the obligation
sought to be enforced by said civil action being legitimate and the
allegations of the complaint in said Civil Case No. 39827 of the Court
of First Instance of Manila are true, they did not deem it wise to
contest the same; that the obligation of P150,000.00 of the La Paz Ice
Plant & Cold Storage Co., Inc., which the defendant Marciano C. Roque
sought to be enforced in Civil Case No. 39827 of the Court of First
Instance of Manila was legitimately contracted in accordance with law;
that said obligation was duly entered in the books of the corporation
and that the said loan is not fictitious; that the amount realized
therefrom was spent for the benefit of the said corporation.
Thus, while the petitioners denied the charge that the loan was fictitious,
they did not deny the allegation that it was Paquita Lezama who, as
secretary of the company, signed the minutes of the meeting at which Jose
Manuel Lezama was allegedly authorized to negotiate the loan and that it
was she who, likewise as secretary, made the entry in the books of the
corporation.
It was obviously to test the truth of the assertion that the loan transaction
was above board that Dineros, the company receiver, wanted Paquita
Lezama on the witness stand, not as a spouse witness "for or against her
husband," but rather as an adverse party in the case.
It is postulated that a party can make, as it were, such forays into his
opponent's position on the strength of section 6 of Rule 132 which provides:
Direct examination of unwilling or hostile witnesses. A party may
interrogate any unwilling or hostile witness by leading questions. A
party may call 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 adverse party, and interrogate him by leading
questions and contradict and impeach him in all respects as if he had
been called by the adverse party and the witness thus called may be
contradicted and impeached by or on behalf of the adverse party also,
and may be cross-examined by the adverse party only upon the
subject-matter of his examination in chief.
The basic issue may therefore be restated thus: In this case where the wife
is a co-defendant in a suit charging fraud against the spouses, can the wife
be compelled to testify as an adverse party witness concerning her
participation in the alleged fraud without violating section 20 (b) of Rule
130?
It is argued that the wife may be so compelled but her testimony would be
receivable only against her.10 It is even suggested that "each may testify in
his or her own behalf, although the testimony may inure to the benefit of the
other spouse, or against his or her own interest, although the testimony may
also militate against the other spouse."11 Upon the other hand, it is insisted
that compelling Paquita Lezama to testify will transgress section 20(b) of
Rule 130, especially if her testimony will support the plaintiff's charge.
The complaint charges "fraudulent conspiracy" on the part of the spouses
and one Marciano C. Roque to make it appear that the La Paz Ice Plant &
Cold Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is
called upon to testify as an adverse party witness on the basis of her
following participation in the alleged fraudulent scheme: "that it was Paquita
Lezama who as Secretary of the company signed the minutes of the meeting
during which Manuel Lezama was allegedly authorized to negotiate the loan
and that it was she who, likewise as Secretary, made the entry in the books
of the corporation."
Evidently, Paquita Lezama will be asked to testify on what actually transpired
during the meeting and will be asked questions on the matter of the veracity
or falsity of the entry in the books of the corporation. Whether her testimony
will turn out to be adverse or beneficial to her own interest, the inevitable
result would be to pit her against her husband. The interests of husband and
wife in this case are necessarily interrelated. Testimony adverse to the wife's
own interests would tend to show the existence of collusive fraud between
the spouses and would then work havoc upon their common defense that the
loan was not fictitious. There is the possibility, too, that the wife, in order to
soften her own guilt, if guilty she is, may unwittingly testify in a manner
entirely disparaging to the interests of the husband.
Because of the unexpensive wording of the rule which provides merely that
the wife cannot be examined "for or against her husband without his
consent," it is further argued that "when husband and wife are parties to an
action, there is no reason why either may not be examined as a witness for
or against himself or herself alone," and his or her testimony could operate
only against himself or herself.12
On October 7, 1997, the trial court rendered its Decision ruling for
respondent. The dispositive of the Decision reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, as follows:
(1) DIRECTING them to render an accounting in acceptable form
under accounting procedures and standards of the properties,
assets, income and profits of the Shellite Gas Appliance Center
Since the time of death of Jacinto L. Sunga, from whom they
continued the business operations including all businesses
derived from Shellite Gas Appliance Center, submit an inventory,
and appraisal of all these properties, assets, income, profits etc.
to the Court and to plaintiff for approval or disapproval;
(2) ORDERING them to return and restitute to the partnership
any and all properties, assets, income and profits they
misapplied and converted to their own use and advantage the
legally pertain to the plaintiff and account for the properties
mentioned in pars. A and B on pages 4-5 of this petition as
basis;
(3) DIRECTING them to restitute and pay to the plaintiff
shares and interest of the plaintiff in the partnership of the listed
properties, assets and good will (sic) in schedules A, B and C, on
pages 4-5 of the petition;
(4) ORDERING them to pay the plaintiff earned but unreceived
income and profits from the partnership from 1988 to May 30,
1992, when the plaintiff learned of the closure of the store the
sum of P35,000.00 per month, with legal rate of interest until
fully paid;
(5) ORDERING them to wind up the affairs of the partnership
and terminate its business activities pursuant to law, after
delivering to the plaintiff all the interest, shares, participation
and equity in the partnership, or the value thereof in money or
money's worth, if the properties are not physically divisible;
(6) FINDING them especially Lilibeth Sunga-Chan guilty of
breach of trust and in bad faith and hold them liable to the
plaintiff the sum of P50,000.00 as moral and exemplary
damages; and,
invoke the "Dead Man's Statute' or "Survivorship Rule" under Section 23,
Rule 130 of the Rules of Court that provides:
"SEC. 23. Disqualification by reason of death or insanity of adverse
party. Parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such
deceased person, or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind."
Petitioners thus implore this Court to rule that the testimonies of respondent
and his alter ego, Josephine, should not have been admitted to prove certain
claims against a deceased person (Jacinto), now represented by petitioners.
We are not persuaded.
A partnership may be constituted in any form, except where immovable
property of real rights are contributed thereto, in which case a public
instrument shall necessary.6 Hence, based on the intention of the parties, as
gathered from the facts and ascertained from their language and conduct, a
verbal contract of partnership may arise.7 The essential profits that must be
proven to that a partnership was agreed upon are (1) mutual contribution to
a common stock, and (2) a joint interest in the profits. 8 Understandably so,
in view of the absence of the written contract of partnership between
respondent and Jacinto, respondent resorted to the introduction of
documentary and testimonial evidence to prove said partnership. The crucial
issue to settle then is to whether or not the "Dead Man's Statute" applies to
this case so as to render inadmissible respondent's testimony and that of his
witness, Josephine.
The "Dead Man's Statute" provides that if one party to the alleged
transaction is precluded from testifying by death, insanity, or other mental
disabilities, the surviving party is not entitled to the undue advantage of
giving his own uncontradicted and unexplained account of the transaction. 9
But before this rule can be successfully invoked to bar the introduction of
testimonial evidence, it is necessary that:
"1. The witness is a party or assignor of a party to case or persons in
whose behalf a case in prosecuted.
2. The action is against an executor or administrator or other
representative of a deceased person or a person of unsound mind;
Also, the fact that Josephine is the sister of the wife of respondent does not
diminish the value of her testimony since relationship per se, without more,
does not affect the credibility of witnesses.16
Petitioners' reliance alone on the "Dead Man's Statute" to defeat
respondent's claim cannot prevail over the factual findings of the trial court
and the Court of Appeals that a partnership was established between
respondent and Jacinto. Based not only on the testimonial evidence, but the
documentary evidence as well, the trial court and the Court of Appeals
considered the evidence for respondent as sufficient to prove the formation
of partnership, albeit an informal one.
Notably, petitioners did not present any evidence in their favor during trial.
By the weight of judicial precedents, a factual matter like the finding of the
existence of a partnership between respondent and Jacinto cannot be
inquired into by this Court on review.17 This Court can no longer be tasked to
go over the proofs presented by the parties and analyze, assess and weigh
them to ascertain if the trial court and the appellate court were correct in
according superior credit to this or that piece of evidence of one party or the
other.18 It must be also pointed out that petitioners failed to attend the
presentation of evidence of respondent. Petitioners cannot now turn to this
Court to question the admissibility and authenticity of the documentary
evidence of respondent when petitioners failed to object to the admissibility
of the evidence at the time that such evidence was offered.19
With regard to petitioners' insistence that laches and/or prescription should
have extinguished respondent's claim, we agree with the trial court and the
Court of Appeals that the action for accounting filed by respondents three
(3) years after Jacinto's death was well within the prescribed period. The
Civil Code provides that an action to enforce an oral contract prescribes in
six (6) years20 while the right to demand an accounting for a partner's
interest as against the person continuing the business accrues at the date of
dissolution, in the absence of any contrary agreement.21 Considering that the
death of a partner results in the dissolution of the partnership22, in this case,
it was Jacinto's death that respondent as the surviving partner had the right
to an account of his interest as against petitioners. It bears stressing that
while Jacinto's death dissolved the partnership, the dissolution did not
immediately terminate the partnership. The Civil Code23 expressly provides
that upon dissolution, the partnership continues and its legal personality is
retained until the complete winding up of its business, culminating in its
termination.24
In a desperate bid to cast doubt on the validity of the oral partnership
between respondent and Jacinto, petitioners maintain that said partnership
that had initial capital of P200,000.00 should have been registered with the
Securities and Exchange Commission (SEC) since registration is mandated
by the Civil Code, True, Article 1772 of the Civil Code requires that
partnerships with a capital of P3,000.00 or more must register with the SEC,
however, this registration requirement is not mandatory. Article 1768 of the
Civil Code25 explicitly provides that the partnership retains its juridical
personality even if it fails to register. The failure to register the contract of
partnership does not invalidate the same as among the partners, so long as
the contract has the essential requisites, because the main purpose of
registration is to give notice to third parties, and it can be assumed that the
members themselves knew of the contents of their contract.26 In the case at
bar, non-compliance with this directory provision of the law will not
invalidate the partnership considering that the totality of the evidence proves
that respondent and Jacinto indeed forged the partnership in question.
WHEREFORE, in view of the foregoing, the petition is DENIED and the
appealed decision is AFFIRMED.
SO ORDERED.1wphi1.nt
FIRST DIVISION
[G.R. No. L-58164. September 2, 1983.]
JOSE GUERRERO, MARIA GUERRERO, MAGDALENA GUERRERO
ESPIRITU, assisted by her husband CANDIDO ESPIRITU, GREGORIO
GUERRERO, CLARA GUERRERO, Et Al., Petitioner, v. ST. CLARES
REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA GUERRERO,
assisted by ANGELO CARDEO, PERLINDA GUERRERO, etc., Et Al.,
Respondents.
Romeo J. Callejo, for Petitioners.
Poblador, Nazareno, Azada, Tomacruz & Paredez Law Offices for
respondent United Housing Corp.
Neptali Gonzales & Associates for respondent Guerreros.
F.B. Santiago & Associates for respondent St. Clares Realty Co., Ltd.
SYLLABUS
169-171)
3. ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM
PRESENTING FURTHER PROOF; CASE AT BAR. Prior to the issuance
of the courts order of June 14, 1974, by which the plaintiffs were
"deemed to have waived their right to further present or formally offer
their evidence," the following had testified as witnesses of the
plaintiffs, namely: Alfredo Zamora, Roman Mataverde, Moises
Javillionar, Dominador Ramirez, Bonifacio Sumulong, Frisco Cervantes,
Laura Cervantes and Jose Cervantes. It was error to hold that the
testimonial evidence should have been formally offered, or that
without such offer, such evidence was waived. The offer of testimonial
evidence is effected by calling the witness to the stand and letting him
testify before the court upon appropriate questions. (Moran,
Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122)
4. ID.; JUDGMENT RENDERED SOLELY ON THE BASIS OF
DEFENDANTS EVIDENCE DISREGARDING THAT OF THE PLAINTIFFS;
REMAND TO TRIAL COURT PROPER RECOURSE. The trial court
rendered its decision solely on the basis of the defendants evidence
and without regard to the proofs that the plaintiffs had presented on
July 17, 1974 before the Court of Appeals could finally resolve
plaintiffs petition to disqualify the trial judge. As modified by the Court
of Appeals, the decision sentences the plaintiffs to pay damages and
attorneys feet, apart from the costs of suit, in the staggering amount
of Two Million One Hundred Eighty Three Thousand and Five Hundred
(P12,183,500.00) Pesos, without plaintiffs having been gives, the
chance to complete their evidence, to cross-examine the witnesses of
the defense, and to present rebuttal evidence. The way the trial court
and the Court of Appeals proceeded in this case, litigation became
more a game of technicalities than a proceeding to search the truth
and mete justice. No other fairer course of action is demanded but for
this Court to remand the case for further proceedings.
DECISION
VASQUEZ, J.:
In their petition for review by certiorari, petitioners are seeking a reversal of
the decision of the former Court of Appeals (now the Intermediate Appellate
Court) dated April 30, 1981 in CA-G.R No. 57597-R, and its resolution dated
According to the original and amended complaints, the Deed of Sale in favor
of Manuel Guerrero was fraudulent, simulated and falsified for the reason,
among others, that Cristina Guerrero was not the owner of the land at the
time she purportedly sold it; that Manuel Guerrero obtained OCT No. 4591 in
fraud of the plaintiffs; that the Deeds of Sale to the defendants Guerreros
and St. Clares Realty Company, Ltd. and the transfer certificates of title in
their favor are fraudulent and simulated, and ineffective against the plaintiffs
for the reason, among others, that at the time of execution of the Deeds of
Sale, the defendants Guerreros knew that the property belonged to Andres
Guerrero; that long after the complaint in the present case has been filed,
the plaintiffs came to know that the St. Clares Realty Company, Ltd.
executed a "Joint Venture Agreement" with the United Housing Corporation
under which the latter bound itself to develop the property into a residential
subdivision; and that the said agreement was entered into in gross and
evident bad faith.
Separate answers were filed by the defendants Guerreros, St. Clares Realty
Company, Ltd. and United Housing Corporation. The defendants Guerreros
alleged that Cristina Guerrero was the absolute owner of the property; that
the action of the plaintiffs had prescribed and they are guilty of laches. St.
Clare s Realty Company, Ltd. averred that its contract with United Housing
Corporation was made in good faith. United Housing Corporation averred
that there is no privity of interest between plaintiffs and this defendant
considering that the plaintiffs are not parties to the Joint Venture
Agreement.
Issues having been joined, the case proceeded to trial.
Frisco Cervantes, grandson of Cristina Guerrero, testified as a witness of the
plaintiffs that having had previous information that the disputed lot was
borrowed from Andres Guerrero and that Cristina Guerrero merely
mortgaged it to Manuel Guerrero, he went to the house of Manuel Guerrero
in Barrio San Dionisio, Paraaque, Rizal, in 1968 at the behest of the
plaintiffs, to inquire about the mortgage; that in reply, Manuel Guerrero
stated that the land had been sold but it would be changed with another lot
of the same area; that in 1970, Sotero Cervantes and Laura Cervantes,
children of Cristina Guerrero, and he went to see Manuel Guerrero at the
Sta. Rita Church in Paraaque; that Sotero and Laura asked if they could get
the land back, that Manuel Guerrero answered that it were better to change
the disputed lot with another parcel of the same area and value; that as he
was not satisfied with the answer, Frisco Cervantes went to the Office of the
Register of Deeds in Pasig, Rizal, where he obtained a copy of a Deed of Sale
in favor of Manuel Guerrero which he delivered to the children of Andres
Guerrero.chanroblesvirtualawlibrary
Roman Mataverde, Chief Geodetic Engineer of the Bureau of Lands
designated as Officer-In-Charge of the Surveys Division, testified for the
plaintiffs that in the Bureaus Lot Data Computation Book showing the list of
claimants for Lot 4752, Case 4, Cadastre 299, Paraaque, Rizal, (Exhibit A),
which was surveyed on December 10, 1957, Andres Guerrero is listed as
claimant. The records of the Bureau of Lands from 1957 (when Lot 4752 was
cadastrally surveyed for Andres Guerrero) until 1962 show no claimant to
the property except Andres Guerrero. In 1962, the Bureau of lands received
a letter with an affidavit attached to it from Manuel Guerrero requesting that
an advance plan be made. Advance Plan No. 10008 was made without
Andres Guerrero being notified. But in the advance plan, the Bureau of
Lands listed Andres Guerrero as original claimant so that he would not be
prejudiced when a case comes to trial.
Dominador Ramirez testified that during the rainy season of 1936, Andres
Guerrero asked him to work on his land located at Barrio San Dionisio,
Paraaque, Rizal, with an area of four (4) hectares, more or less. As tenant,
his agreement with Andres Guerrero was that he would till the land in
consideration of 50% of the harvests with Andres Guerrero shouldering the
cultivation expenses. From 1936 to about 1941 or 1942, he worked on the
land and gave 50% of the produce to Andres Guerrero who went personally
to the field to get the same. In 1941 or 1942, he stopped working on the
land because war had broken out.
On October 19, 1973, Laura Cervantes testified that her mother, Cristina
Guerrero, had been sick for a long time before she died at the age of 80
years in 1948; and that her mother could walk only inside their house in
Paraaque; that the money spent for the illness of her mother came from
Manuel Guerrero; and that, through her children, Cristina Guerrero could ask
money from Manuel Guerrero because of the land that Andres Guerrero had
lent to her.
After Laura Cervantes had thus testified, counsel for the defendants
Guerreros objected to the line of questioning on the ground that the said
witness was testifying "on matters which are prohibited under Sec. 20(a),
Rule 130, of the Rules of Court." The trial court having ruled that the witness
"may answer", defendants counsel registered a continuing objection. The
court allowed the witness to continue her testimony subject to such
objection. (TSN, pp. 9-20, October 19, 1973.)
Resuming her testimony, Laura Cervantes stated that the land was lent by
Andres Guerrero to Cristina Guerrero; that Manuel Guerrero loaned money
to Cristina Guerrero for quite some time; that shortly after the death of
Cristina Guerrero, Manuel Guerrero went to their house, accompanied by
Felicisimo Guerrero, and summed up the loans he had extended to Cristina
Guerrero in the total amount of P1,900.00; and that Felicisimo Guerrero
asked Laura Cervantes to sign a piece of paper to attest to the fact that a
certain amount of money had been borrowed from Manuel
Guerrero.cralawnad
On October 24, 1973, the defendants Guerreros filed a written motion to
disqualify Laura Cervantes as a witness on the basis of Section 20(a), Rule
130, of the New Rules of Court. The motion was opposed by the plaintiffs.
On November 16, 1973, the trial court granted the motion and declared that
Laura Cervantes, Jose Cervantes as well as other witnesses similarly
situated, are disqualified to testify in the case.
On February 12, 1974, plaintiffs filed a "Motion For The Honorable Presiding
Judge Of This Honorable Court To Inhibit Himself And/Or To Transfer Case To
Another Branch." Oppositions to the said motion were filed. On April 26,
1974, the trial court denied the motion.
At the continuation of the trial on June 14, 1974, plaintiffs and their counsel
failed to appear despite due notice and repeated previous warnings to their
lawyer. Instead of appearing in court, plaintiffs, thru counsel, filed an urgent
motion to reset the hearing, which was opposed by the defendants. On even
date, the court issued an order as follows:jgc:chanrobles.com.ph
"In view of the non-appearance of the plaintiffs as well as their counsel for
todays hearing, they are deemed to have waived their right to further
present or formally offer their evidence in court, and on motion of
defendants counsels, the Clerk of Court, Atty. Juan A. Carambas, is hereby
authorized and commissioned to receive the evidence for the defendants.
After the defendants have closed their case, they are given 10 days within
which to file their respective memoranda and the case is deemed submitted
for decision after receipt of the complete transcript of stenographic notes."
(Record on Appeal, p. 212.)
On June 22, 1974, plaintiffs filed a "Manifestation" to the effect that they did
not waive their rights to present further evidence, to cross-examine
defendants witnesses, and to present rebuttal evidence; and that they were
reserving the exercise of those rights upon the finality of the decision of the
Court of Appeals in a petition for certiorari, prohibition and mandamus
against the Presiding Judge of the trial court, which they were then
preparing to file.
Indeed, on June 25, 1974, plaintiffs instituted the said special civil action,
which was docketed in the Court of Appeals as its CA-G.R. No. SF-03120.
The action sought the disqualification of the trial judge from continuing with
the hearing of the case. On June 27, 1974, the Court of Appeals denied the
petition outright. Copy of the resolution was received by the plaintiffs on July
2, 1974. They filed a motion for reconsideration on July 17, 1974.
On the same date, July 17, 1974, the trial court rendered its decision with
the following dispositive part:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered in favor of the defendants (and)
against the plaintiffs:chanrob1es virtual 1aw library
1. Dismissing the complaint and Amended Complaint;
2. Ordering the plaintiffs to pay the private defendant Guerreros the amount
of P20,000.00 for actual damages, P500,000.00 for moral damages and
P10,000.00 as attorneys fees;
3. Ordering the plaintiffs to pay the defendant St. Clares Realty Co. Ltd., the
amount of P1,923,000.00 as actual damages, P50,000.00 as exemplary
damages and P5,000.00 as attorneys fees;
4. Ordering the plaintiffs to pay the defendant United Housing Corporation
the amount of P90,500.00 as actual damages; P100,000.00 for loss of
goodwill and business reputation, P80,000.00 as exemplary damages,
P15,000.00 as lawyers fees; and
5. To pay the cost of suit.
The Register of Deeds of Rizal is hereby directed to cancel the Lis Pendens in
Transfer Certificate of Title No. 340842 in the name of the St. Clares Realty
Co., Ltd., Book T-1971. Meanwhile, the defendant United Housing
Corporation is ordered to proceed and continue with its commitments under
the Memorandum Agreement dated October 12, 1971." (Record on Appeal,
pp. 259-261.)cralawnad
On July 20, 1974, or three (3) days before plaintiffs received the decision,
they filed with the trial court a "Motion Ex-Abundantia Cautela" praying that
should the Court of Appeals render an adverse resolution in CA-G.R. No. SF03120, the lower court should set aside its order of June 14, 1974 and allow
plaintiffs to present other evidence, cross-examine witnesses of the
defendants, and present rebuttal evidence.
substantive issues refer to the lack of basis for the grant of actual, moral and
exemplary damages in the huge amount of over two million pesos; and the
error of ruling that the action was barred by prescription and laches.
Petitioners underscore the procedural errors they attribute to the lower
courts which resulted in the deprivation of their full opportunity to ventilate
their case and prove the validity of their claim. They assail the ruling that
their witnesses Laura Cervantes, Jose Cervantes "and others similarly
situated" are disqualified to testify; and that they waived the right to present
their evidence when they failed to appear at a hearing set by the trial judge
during the pendency of proceedings taken by the petitioners to disqualify
him due to alleged hostility manifested by the latter towards the
petitioners.chanroblesvirtualawlibrary
At this instance, We consider it unnecessary to discuss the substantive
merits of the petitioners cause of action. The record reveals that they have
not yet completed the presentation of their evidence. Whatever evidence
they had previously presented were apparently not considered in the
rendition of the questioned decisions for not having been "formally offered."
It does not strike Us as fair and just that the petitioners would be made
answerable for damages in such a huge amount for having filed an allegedly
baseless and unfounded action without affording them the full opportunity of
establishing the merit of their claim. On the face of the record, We are
convinced that they had been denied that chance due to some mistaken and
capricious application of pertinent procedural rules.
The first question of importance that engages the attention of this Court is
whether or not the witnesses Laura Cervantes and Jose Cervantes were
correctly disqualified from testifying in the case and their testimonies
excluded on the basis of Section 20(a), Rule 130, of the Rules of Court,
which provides as follows:jgc:chanrobles.com.ph
"Section 20. Disqualification by reason of interest or relationship. The
following persons cannot testify as to matters in which they are interested,
directly or indirectly as herein enumerated:chanrob1es virtual 1aw library
(a) Parties or assignors of parties to a case, or persons in whose behalf a
case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased person or
against such person of unsound mind, cannot testify as to any matter of fact
occurring before the death of such deceased person or before such became
of unsound mind."cralaw virtua1aw library
Upon the facts and under the law, this Court is fully persuaded that the
affirmative rulings of both the trial court and the Court of Appeals were
made in error. The plain truth is that Laura Cervantes and Jose Cervantes
are not parties in the present case, and neither are they assignors of the
parties nor "persons in whose behalf a case is prosecuted." They are mere
witnesses by whose testimonies the plaintiffs aimed to establish that it was
not Cristina Guerrero, but Andres Guerrero, who owned the disputed land at
the time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did
not really sell but merely mortgaged the property to Manuel
Guerrero.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
"Following this rule of construction, it may be said that incompetency to
testify established in the provision above quoted, affects only the persons
therein mentioned, and no others, that is, only parties plaintiff or their
assignors, persons in whose behalf a case is prosecuted. Mere witnesses who
are neither parties plaintiff, nor their assignors, nor persons in whose behalf
a case is prosecuted, are not included in the prohibition." (Moran, Comments
on the Rules of Court, 1970 ed., Vol. 5, p. 166.)
By excluding the testimonies of the two witnesses and by barring them from
further testifying, upon reasoning that unduly strained the meaning of the
provisions of the Rules of Court relied upon, the trial court deprived itself of
the opportunity of knowing the truth in this case.
Moreover, the present case is not a claim or demand against the estate of
the deceased Manuel Guerrero. The defendants Guerreros are not the
executors or administrators or representatives of such deceased. They are
being sued as claimants of ownership in their individual capacities of the
disputed lot. The lot is not a part of the estate of Manuel Guerrero. Hence,
the inapplicability of the dead mans rule.
"It has been held that statutes providing that a party in interest is
incompetent to testify where the adverse party is dead or insane, must be
applied strictly in accordance with their express wording, irrespective of their
spirit. The law uses the word against an executor or administrator or other
representative of a deceased person. It should be noted that after the
mention of an executor or administrator the words or other representative
follows, which means that the word representative includes only those who,
like the executor or administrator, are sued in their representative, not
personal, capacity. And that is emphasized by the law by using the words
against the estate of such deceased persons, which convey the idea of an
estate actually owned by the deceased at the time the case was brought and
that, therefore, it is only his rights that are to be asserted and defendant in
the litigation by the person representing him, not the personal rights of such
representative." (Moran, ibid, pp. 169-171.)
The next question that requires attention is whether or not the exclusion of
plaintiffs evidence and their preclusion from presenting further proof was
correctly sustained by the respondent Court of appeals. Prior to the issuance
of the courts order of June 14, 1974, by which the plaintiffs were "deemed
to have waived their right to further present or formally offer their
evidence", the following had testified as witnesses of the plaintiffs, namely:
Alfredo Zamora, Roman Mataverde, Moises Javillonar, Dominador Ramirez,
Bonifacio Sumulong, Frisco Cervantes, Laura Cervantes and Jose Cervantes.
It was error to hold that the testimonial evidence should have been formally
offered, or that without such offer, such evidence was waived. The offer of
testimonial evidence is effected by calling the witness to the stand and
letting him testify before the court upon appropriate questions. (Moran,
Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p.
122.)chanrobles virtual lawlibrary
Notwithstanding rigid cross-examination conducted by the lawyers of the
defendants, the witnesses discovered the following facts: In the 1930s
Andres Guerrero physically possessed the disputed lot, paid the real estate
taxes for it, had the same cultivated through a tenant, defrayed the
cultivation expenses, and exclusively enjoyed the owners share in the
harvests. Andres Guerrero loaned the lot to his sister, Cristina Guerrero,
before he died. Cristina Guerrero became ill prior to the year 1948. She
could walk only inside her house in Paraaque, Rizal. The money spent for
her illness was borrowed from Manuel Guerrero. After the death of Cristina
Guerrero, Manuel Guerrero and Felicisimo Guerrero came to her house and
the money loaned to her was totalled in the amount of P1,900.00. On
December 10, 1957, the questioned lot was cadastrally surveyed and
denominated as Lot 4752 of the Paraaque Cadastre. Andres Guerrero was
the lone claimant. Until 1962, no other person claimed the lot.
The foregoing proofs bear materially on the questions raised by the plaintiffs
as to whether or not: (1) Cristina Guerrero or Andres Guerrero owned the lot
when the former purportedly sold it to Manuel Guerrero in 1948; (2) Cristina
Guerrero really sold or merely mortgaged the land to Manuel Guerrero; (3)
Manuel Guerrero and, after him, the defendants Guerreros were buyers in
good faith. Instead of insulating itself from evidence that could lead it to the
truth, the trial court should have addressed itself to the questions why: (1) if
it is true that Cristina Guerrero was the owner of the disputed lot in 1948,
the cadastral surveyors who actually repaired to the field listed Andres
Guerrero as the sole claimant of the property, (2) until 1962, no other
person except Andres Guerrero claimed the lot as his own; (3)
notwithstanding the purported deed of sale by Cristina Guerrero to Manuel
Guerrero was executed on April 24, 1948, it was presented for registration
with the Register of Deeds almost ten (10) years later only on February 27,
1958 (TSN, p. 15, January 9, 1974); (4) in the deed of sale to Manuel
Guerrero, it is stated that he appeared in Paraaque, Rizal, before Atty. Jose
D. Villena who was a notary public in Makati, Rizal; (5) the area of the land
bought by Manuel Guerrero was 33,090 square meters whereas the area of
the land sold by him to the defendants Guerreros was 42,299 square
meters. The court also ought rather to have noticed the fact that in the deed
of sale in favor of Manuel Guerrero, it is stated that the subject parcel of
land "is surrounded by muddikes besides the stone monuments that visibly
marked all its "boundaries", which clearly indicate a previous survey and
which may in turn lead to the question if the deed of sale to Manuel Guerrero
might have been made after the cadastral survey in 1957 and not in 1948.
The trial court rendered its decision solely on the basis of the defendants
evidence and without regard to the proofs that the plaintiffs had presented
on July 17, 1974 before the Court of Appeals could finally resolve plaintiffs
petition to disqualify the trial judge. As modified by the Court of Appeals, the
decision sentences the plaintiffs to pay damages and attorneys fees, apart
from the costs of suit, in the staggering amount of Two Million One Hundred
Eighty Three Thousand and Five Hundred (P2,183,500.00) Pesos, without
plaintiffs having been given the chance to complete their evidence, to crossexamine the witnesses of the defense, and to present rebuttal evidence. The
way the trial court and the Court of Appeals proceeded in this case, litigation
became more a game of technicalities than a proceeding to search the truth
and mete justice. No other fairer course of action is demanded but for this
Court to remand the case for further proceedings.chanrobles.com.ph :
virtual law library
WHEREFORE, the decision of the respondent Court of Appeals is hereby set
aside. Let the records of the case be remanded to the court of origin with
instruction to the trial court to allow the plaintiffs to complete their evidence,
to cross-examine the defendants witnesses, and to present rebuttal
evidence if they so desire, and thereafter to decide the case anew.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16741
The next issue is whether or not the claim is already barred by prescription
and laches. Under the New Civil Code, an action upon a written contract
must be brought within 10 years from the time the right of action accrues.
(Art. 1144, par. 1). In the case at bar, the cause of action accrued on
December 3, 1943 (the date when the note became due and demandable)
and petitioners filed their "reclamation" only on November 13, 1954.
Apparently, the action has already prescribed, because more than ten years
had elapsed before any suit was filed. However, it must be remembered that
the provisions on moratorium had the effect of suspending the statute of
limitations from November 18, 1944 when Executive Order No. 25 was
issued, to May 18, 1953, the date of promulgation of the decision in the case
of Rutter v. Esteban (G.R. No. L-3708) holding such provisions no longer
applicable (Rio y Compania v. Sandoval, G. R. No. L-9391, November 28,
1956; Compania Maritima vs. Court of Appeals, G.R. No. L-14949, May 30,
1960). Thus, from December 3, 1943 to November 13, 1954, eleven years,
eleven months and ten days have elapsed. Deducting from this period eight
years and six months, the time during which the statute of limitations was
suspended, it is clear that petitioners' claim has not yet prescribed when it
was filed on November 13, 1954.
Respondents, however, contend that Republic Act No. 342, which took effect
on July 26, 1948, lifted the moratorium on debts contracted during the
Japanese occupation. The contention is untenable. This court has already
held that Republic Act No. 342 did not lift the moratorium on debts
contracted during the war (Uy v. Kalaw Katigbak. G.R. No. L-1830, Dec. 31,
1949) but modified Executive Order No. 32 is to pre-war debts, making the
protection available only to debtors who had war damage claims (Sison v.
Mirason, G.R. No. L-4711, Oct. 31, 1952).
In order that the defense of laches may prosper, the following elements must
be present: (1) conduct on the part of defendant, or one under whom he
claims, giving rise to the situation complained of, (2) delay in asserting
complainant's right after knowledge or notice of defendant's conduct and an
opportunity to sue, (3) lack of knowledge or notice on the part of the
defendant that complainant would assert the right on which he bases suit,
and (4) injury or prejudice to defendant in the event relief is accorded.
(Villoria v. Secretary of Agriculture and Natural Resources, G.R. No. L-11754,
April 29, 1960) Assuming that the first three elements are present, we do
not see how the last element may exist, for neither injury or prejudice to
respondent may occur by the allowance of the claim. It should be
emphasized here that mere lapse of time during which there was neglect to
enforce the right is not the sole basis of the rule on laches, but also the
changes of conditions which arise during the period there has been neglect.
FERNAN, J.:
This is an appeal by certiorari from the decision of the then Court of Appeals
in CA-G.R. No. 27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs.
Genaro Goni, et. al., Defendants-Appellants" as well as from the resolution
denying petitioners' motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre
de Maria situated in the Municipality of Bais, Negros Oriental, were originally
owned by the Compania General de Tabacos de Filipinas [TABACALERA].
Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest
Both parties appealed the decision to the then Court of Appeals; the plaintiff
from the portion awarding damages on a claim that he was entitled to more,
and defendants, from the entire decision.
On December 15, 1966, the Court of Appeals promulgated its decision,
affirming that of the lower court, with the modification that the amount of
damages to be paid by defendant-heirs to the plaintiff should be the total
net income from field no. 3 from the crop year 1950-51 until said field is
finally delivered to the plaintiff plus interest thereon at the legal rate per
annum. 6
Petitioners filed a motion for reconsideration, but were denied the relief
sought in a resolution dated February 9, 1967. Hence, the present appeal by
certiorari whereby petitioners raise the following questions of law:
MAY RESPONDENT GASPAR VICENTE TESTIFY ON
MATTERS OF FACT OCCURRING BEFORE THE DEATH OF
PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM
OR DEMAND UPON HIS ESTATE. IN VIOLATION OF RULE
123, SEC, 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)?
MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER
24,1949 BE NOVATED INTO A VERBAL AGREEMENT OF
LEASE DURING THE LIFETIME OF THE PROMISSOR,
WHOSE DEATH OCCURRED ON NOVEMBER 12, 1951, BY
FACTS AND CIRCUMSTANCES SUBSTANTIATED BY
COMPETENT ORAL EVIDENCE IN THIS CASE?
SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO
PAID P12,460.24 WHICH WAS TO BE ACCOUNTED AND TO
BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF
LEASE, WHO IN HIS ORIGINAL COMPLAINT DID NOT
ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF
P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT
FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH
CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE
CROP YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO
P4,374.78 FOR EVERY CROP YEAR SUBSEQUENT TO 195859 PLUS
INTEREST? 7
We find that neither the trial nor appellate court erred in ruling for the
admissibility in evidence of private respondent Vicente's testimony. Under
ordinary circumstances, private respondent Vicente 8 would be disqualified
Vicente. When Vicente thus took the witness stand, it was in a dual capacity
as plaintiff in the action for recovery of property and as defendant in the
counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently,
as defendant in the counterclaim, he was not disqualified from testifying as
to matters of fact occurring before the death of Praxedes Villanueva, said
action not having been brought against, but by the estate or representatives
of the estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent
to testify to transactions or communications with the deceased or
incompetent person which were made with an agent of such person in cases
in which the agent is still alive and competent to testify. But the testimony of
the adverse party must be confined to those transactions or communications
which were had with the agent. 13 The contract/promise to sell under
consideration was signed by petitioner Goi as attorney-in-fact (apoderado)
of Praxedes Villanueva. He was privy to the circumstances surrounding the
execution of such contract and therefore could either confirm or deny any
allegations made by private respondent Vicente with respect to said
contract. The inequality or injustice sought to be avoided by Section 20(a) of
Rule 130, where one of the parties no longer has the opportunity to either
confirm or rebut the testimony of the other because death has permanently
sealed the former's lips, does not actually exist in the case at bar, for the
reason that petitioner Goi could and did not negate the binding effect of the
contract/promise to sell. Thus, while admitting the existence of the said
contract/promise to sell, petitioner Goi testified that the same was
subsequently novated into a verbal contract of lease over fields nos. 4 and
13 of the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation
is changed or altered. 14 In order, however, that an obligation may be
extinguished by another which substitutes the same, it is imperative that it
be so declared in unequivocal terms, or that the old and the new obligations
be on every point incompatible with each other. 15 "Novation is never
presumed. It must be established that the old and the new contracts are
incompatible in all points, or that the will to novate appear by express
agreement of the parties or in acts of equivalent import. 16
The novation of the written contract/promise to sell into a verbal agreement
of lease was clearly and convincingly proven not only by the testimony of
petitioner Goi, but likewise by the acts and conduct of the parties
subsequent to the execution of the contract/promise to sell. Thus, after the
milling season of crop year 1949-50, only fields nos. 4 and 13 were delivered
to private respondent Vicente. Fields nos. 3, 4 and 13 were subsequently
registered in Villanueva's name and mortgaged with the RFC. Villanueva
when the action for recovery of property was filed. Such failure was
satisfactorily explained by petitioners in their motion for reconsideration filed
before the then Court of Appeals, in this manner:
... Mr. Genaro Goni is also a farmer by profession and that
there was no need for him to demand a yearly accounting
of the total production because the verbal lease agreement
was for a term of 5 years. The defendant Mr. Genaro Goni
as a sugar planter has already full knowledge as to the
annual income of said lots nos. 4 and 13, and since there
was the amount of P12,460.25 to be liquidated, said
defendant never deemed it wise to demand such a yearly
accounting. It was only after or before the expiration of the
5 year lease that said defendant demanded the accounting
from the herein plaintiff regarding the production of the 2
lots that were then leased to him.
It is the custom among the sugar planters in this locality
that the Lessee usually demands an advance amount to
cover the rental for the period of the lease, and the
demand of an accounting will be only made after the
expiration of the lease period. It was adduced during the
trial that the amount of P12,460.75 was considered as an
advance rental of the 2 lots which was leased to the
Plaintiff, lots nos. 4 and 13; so we humbly believe that
there was no necessity on the part of defendant Mr.
Genaro Goi to make a yearly demand for an accounting
for the total production of 2 parcels leased to the plaintiff.
18
Petitioners, having clearly and sufficiently shown that the contract/promise
to sell was subsequently novated into a verbal lease agreement, it follows
that they are entitled to a favorable decision on their counterclaim.
Discussion of the third issue raised therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial
administrator of the estate of private respondent Gaspar Vicente and/or his
successors-in-interest are hereby ordered to: a) surrender possession of
fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners;
b) render an accounting of the produce of said fields for the period beginning
crop-year 1950-51 until complete possession thereof shall have been
delivered to petitioners; and c) to pay the corresponding annual rent for the
said fields in an amount equivalent to 15% of the gross produce of said
fields, for the periods beginning crop-year 1950-51 until said fields shall
decrees Nos. 191390, 191504, and 190925, relative to lots Nos. 1062, 1263,
and 491 of this cadastral record, as well as the original certificates of title
Nos. 3247, 3298, and 3297 in regard thereto, and hereby annulled and set
aside, and it is ordered that in lieu thereof new decrees and certificates of
title be issued for lots Nos. 1062, 1263, and 491, as the exclusive property
of Anastacia Vianzon, of legal age, widow, and resident of Orani Bataan, free
from all encumbrances and liens. In regard to lot No. 460, the court sustains
the decree already issued in due time with respect to said lot." Sometime
later, a motion for a new trial was presented with accumulated affidavits by
counsel for the losing party. This motion was denied by the trial judge.
On July 19, 1926, the administratrix of the estate began action against
Anastacia Vianzon for the recovery of specified property and for damages.
The issue was practically the same as in the cadastral case Judgment was
rendered by Judge Rovira couched in the following language: "Therefore, the
court renders judgment absolving the defendant from the complaint in this
case, and only declares that one- half of the value of the shares in the
Sociedad Cooperativa de Credito Rural de Orani, to the amount of ten pesos
(P10), belonging to the intestate estate of Marcelino Tongco, which one-half
interest must appear in the inventory of the property of the estate of the
deceased Marcelino Tongco." The motion for a new trial was denied by His
Honor, the trial judge.
From both of the judgments hereinbefore mentioned, the administratrix of
the estate of Marcelino Tongco had appealed. The first action filed, which
was in the cadastral case, has now become the last in number and is 27399.
The second action filed in the property case has now become the first in
number and is 27498. As pursuant to the agreement of the parties the two
cases were tried together, they can be best disposed of together on appeal.
The first, third, fourth, and fifth errors assigned in the property case and the
second error assigned in the cadastral case primarily concern findings of fact
and relate to the discretionary power of the trail judge. The second error
assigned in the property case and the first error assigned in the cadastral
case attack the ruling of the trial judge to the effect that the widow was
competent to testify.
It is true that by reason of the provisions of article 1407 of the Civil Code the
presumption is that all the property of the spouses is partnership property in
the absence of proof that it belongs exclusively to the husband or to the
wife. But even proceeding on this assumption, we still think that the widow
has proved in a decisive and conclusive manner that the property in question
belonged exclusively to her, that is, it would, unless we are forced to
disregard her testimony. No reversible error was committed in the denial of
the motion for a new trial for it is not at all certain that it rested on a legal
foundation, or that if it had been granted it would have changed the result.
Counsel for the appellant, however, asserts that if the testimony of the
widow be discarded, as it should be, then the presumption of the Civil Code,
fortified by the unassailable character of Torrens titles, arises, which means
that the entire fabric of appellee's case is punctured. Counsel relies on that
portion of section 383 of the Code of Civil Procedure as provides that "Parties
or assignors of parties to an action or proceeding, or persons in whose
behalf an action or proceeding is prosecuted, against an executor or
administrator or other representative of a deceased person, . . ., upon a
claim or demand against the estate of such deceased person . . ., cannot
testify as to any matter of fact occurring before the death of such deceased
person . . . ." Counsel is eminently correct in emphasizing that the object
and purpose of this statute is to guard against the temptation to give false
testimony in regard to the transaction is question on the part of the
surviving party. He has, however, neglected the equally important rule that
the law was designed to aid in arriving at the truth and was not designed to
suppress the truth.
The law twice makes use of the word "against." The actions were not
brought "against" the administratrix of the estate, nor were they brought
upon claims "against" the estate. In the first case at bar, the action is one by
the administratrix to enforce demand "by" the estate. In the second case at
bar, the same analogy holds true for the claim was presented in cadastral
proceedings where in one sense there is no plaintiff and there is no
defendant. Director of Lands vs. Roman Catholic Archibishop of Manila
[1920], 41 Phil., 120 nature of cadastral proceedings; Fortis vs. Gutierrez
Hermanos [1906], 6 Phil., 100 in point by analogy; Maxilom vs. Tabotabo
[1907], 9 Phil., 390 and Kiel vs. Estate of P. S. Sabert [1924], 46 Phil., 193
both clearly distinguishable as can be noted by looking at page 197 of the
last cited case; Sedgwick vs. Sedgwick [1877], 52 Cal., 336, 337; Myers vs.
Reinstein [1885], 67 Cal., 89; McGregor vs. Donelly [1885], 67 Cal., 149,
152; Booth vs. Pendola [1891], 88 Cal., 36; Bernardis vs. Allen [1902], 136
Cal., 7; Calmon vs. Sarraille [1904], 142 Cal., 638, 642; Bollinger vs. Wright
[1904], 143 Cal., 292, 296; Whitney vs. Fox [1897], 166 U. S. 637, 648.)
Moreover, a waiver was accomplished when the adverse party undertook to
cross-examine the interested person with respect to the prohibited matters.
(4 Jones on Evidence, pp. 767 et seq.; Stair vs. McNulty [1916], 133 Minn.,
136; Ann. Cas., 1918D 201.) We are of the opinion that the witness was
competent.
The result, therefore, must be to adhere to the findings and rulings of the
trial judge. No prejudicial error is noted in the proceedings.
Judgment affirmed, with the costs of this instance against the appellant.
deceased from the claimant corresponding to the years 1942, 1943, and the
first half of 1944, at P36,000 per annum.
The issues raised by this appeal are:
1. Whether appellant's claims of P63,000 and P868.67 have been established
by satisfactory evidence; and
2. Whether the deceased Richard T. Fitzsimmons was entitled to his salary as
president of the Atlantic, Gulf & Pacific Company of Manila from January,
1942, to June 27, 1944, when he died in the Santo Tomas internment camp.
I. Upon the claim of P63,000 (item A) the evidence for the claimant
consisted of the testimony of Santiago Inacay and Modesto Flores, chief
accountant and assistant accountant, respectively, of the Atlantic, Gulf &
Pacific Company of Manila. (It is admitted that all the prewar books and
records of the company were completely destroyed or lost during the war.)
Santiago Inacay testified in substance as follows: He was chief of the
accounting department of the Atlantic, Gulf & Pacific Company from June,
1930, to December, 1941, and from March, 1945, to the present. The
officers of the company had the privilege of maintaining personal accounts
with the company. The deceased Fitzsimmons maintained such an account,
which consisted of cash advances from the company and payments of bills
from outside for his account. On the credit side were entered the salaries of
the official and the payments made by him. "The personal account of Mr.
Fitzsimmons, in the year 1941, was on the debit balance; that is, he owed
money that debit account of Mr. Fitzsimmons, basing on your recollections?
A. In my collections of the account, personal account of Mr. Fitzsimmons,
as of the last statement of account rendered in the year 1941, it was around
P63,000." At the end of each month the accounting department rendered to
the deceased a statement of his account showing the balance of his account,
and at the bottom of that correctness of the balance. The last statement of
account rendered to the deceased was that corresponding to the month of
November, 1941, the office of the company having closed on December 29,
1941. Asked how it was possible for him to remember the status of the
personal account of Mr. Fitzsimmons, he replied: "As Mr. Fitzsimmons was
the president and member of the board of directors, I have to remember it,
because it is very shameful on my part that when the said officer and other
officers of the company come around and ask me about their balance, I
could not tell them the amount of their balance, although not in exact
to his account. All the books, receipts, papers, documents, and accounts
referring to the personal account of Mr. Fitzsimmons were lost during the
war. Witness remembered that the personal account of Mr. Fitzsimmons on
December 29, 1941, was on the debit side, amounting to P63,000 more or
less, according to his best recollection. On cross-examination he testified
that in the absence of the records he could not state what part of the
P63,000 represented cash advances and what part represented payments
made by the company to the creditors of Mr. Fitzsimmons.
Aside from Santiago Inacay and Modesto Flores, the claimant also called as
witnesses Mr. Henry J. Belden and Mr. Samuel Garmezy, vice-presidenttreasurer and president, respectively, of the claimant company, to testify on
the status of the personal account of the deceased Fitzsimmons with the
company as of December, 1941; but upon objection of the administrator the
trial court refused to admit their testimony on that point on the ground that
said witnesses were incompetent under section 26(c) of Rule 123, they being
not only large stockholders and members of the board of directors but also
vice-president-treasurer and president, respectively, of the claimant
company.
In view of the ruling of the trial court, counsel for he claimant stated in the
record that Mr. Belden, if permitted to testify, would testify as follows: That
the deceased Fitzsimmons, being president of the Atlantic, Gulf and Pacific
Company in the year 1941, had a current account with said company which,
upon the outbreak of the war in December, 1941, had a debt balance against
him of P63,000, and that said sum or any part thereof had not been paid. At
the suggestion of the court counsel asked his witness whether, if permitted,
he really would so testify, and the witness answered in the affirmative,
whereupon the court said: "Let Attorney Gomez's offer of testimony ratified
by the witness Mr. Belden be made of record."
With regard to the witness Mr. Garmezy, counsel for the claimant also made
the following offer of proof, to wit: That if said witness were allowed to
testify, he would testify as follows:
That sometimes in Novembersometime during the last days of
November, or the first days of December, 1941he received a
copy of the trial balance sheet, and in that trial balance sheet,
among other things, the personal accounts of each and every
one of the officers of the Atlantic, Gulf and Pacific Co., including
himself, and also the deceased R. T. Fitzsimmons, appear; and
that this witness would also testify to the fact that on that
occasion he checked up his own personal record with the entries
appearing in the said trial balance sheet, and he then had
that any obligation not included in the inventory would be borne by him
alone after his wife had received her share.
According to Exhibit 1 the gross value of the assets of the conjugal
partnership between the deceased Fitzsimmons and his wife Miguela Malayto
as of November, 1943, was P174,700, and the total amount of the
obligations was P30,082. These obligations consisted of only two itemsone
of P21,426 in favor of the Peoples Bank and Trust Company and another of
P8,656 in favor of the Philippine Bank of Commerce. In other words, no
obligation whatsoever in favor of the Atlantic, Gulf and Pacific Company of
Manila was listed in said inventory Exhibit 1. And upon that fact the
administrator based his opposition to the claim in question.
Before weighing the evidence hereinabove set forth to determine whether it
is sufficient to prove appellant's claim of P63,000, it necessary for us to pass
upon appellant's first and third assignments of error referring, respectively,
to the trial court's rejection of the testimony of the witnesses Belden and
Garmezy and its admission of Exhibit 1.
The question raised by the first assignment of error is whether or not the
officers of a corporation which is a party to an action against an executor or
administrator of a deceased person are disqualified from testifying as to any
matter of fact occurring before the death of such deceased person, under
Rule 123, section 26(c), of the Rules of Court, which provides:
Parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor or administrator
or other representative of a deceased person, or against a
person of unsound mind, upon a claim or demand against the
estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind.
This provision was taken from section 383, paragraph 7, of our former Code
of Civil Procedure, which in turn was derived from section 1880 of the Code
of Civil Procedure of California.
In the case of City Savings Bank vs. Enos, 135 Cal., 167; 67 Pac., 52, 55,
the Supreme Court of California, interpreting said article 1880, said:
. . . The provision applies only to parties or assignors of parties,
and Haslam was neither the one nor the other. If he was a
stockholder, which it is claimed he was, that fact would make no
forth, and we can consider it together with the testimony of the chief
accountant and the assistant accountant who, according to the appellant
itself, were "the only ones in the best of position to testify on the status of
the personal account" of the deceased Fitzsimmons.
The third assignment of error raises the question of the admissibility of
Exhibit 1. Appellant contends that it is a self-serving declaration, while
appellee contends that it is a declaration against interest.
A self-serving declaration is a statement favorable to the interest of the
declarant. It is not admissible in evidence as proof of the facts asserted.
"The vital objection to the admission of this kind of evidence is its hearsay
character. Furthermore such declarations are untrustworthy; to permit their
introduction in evidence would open the door to frauds and perjuries." (20
Am. Jur., Evidence, sec. 558, pages 470-471.).
On the other hand, a declaration against the interest of the person making it
is admissible in evidence, notwithstanding its hearsay character, if the
declaration is relevant and the declarant has died, become insane, or for
some other reason is not available as a witness. "The true test in reference
to the reliability of the declaration is not whether it was made ante litem
motam, as is the case with reference to some classes of hearsay evidence,
whether the declaration was uttered under circumstances justifying the
conclusion that there was no probable motive to falsify." (Id., section 556,
pp. 467-468.)
Insofar, at least, as the appellant was concerned, there was no probable
motive on the part of Fitzsimmons to falsify his inventory Exhibit 1 by not
including therein appellant's present claim of P63,000 among his obligations
or liabilities to be deducted from the assets of the conjugal partnership
between him and his divorced wife. He did not know then that he would die
within one year and that the corporation of which he was the president and
one of the largest stockholders would present the claim in question against
his estate. Neither did he know that the books and records of that
corporation would be destroyed or lost. Yet, although he listed in said
inventory his obligations in favor of the Peoples Bank and Trust Company
and the Philippine Bank of Commerce aggregating more than P30,000, he
did not mention at all any obligation in favor of the corporation of which he
was the president and one of the largest stockholders.
Assuming that he owed his corporation P63,000 for which he signed receipts
and vouchers and which appeared in the books of said corporation, there
was no probable motive for him not to include such obligation in the
inventory Exhibit 1. It would have been to his interest to include it so that
his estranged and divorced wife might share in its payment. The net assets
appearing in Exhibit 1 amounted to P144,618, one-half of which was
adjudicated to the children and the other half was divided between the
spouses, so that each of the latter received only P36,154.50. By not
including the obligation of P63,000 claimed by the appellant (assuming that
he owed it), Fitzsimmons' adjudicated share in the liquidation of the conjugal
partnership would be short by nearly P27,000 to meet said claim, whereas
by including said obligation he would have received a net share of more than
P10,000 free from any liability.
We find no merit, that Exhibit 1, insofar as the commission therefrom of the
claim in question was concerned, far from being self-serving to, was a
declaration against the interest of, the declarant Fitzsimmons. He having
since died and therefore no longer available as a witness, said document was
correctly admitted by the trial court in evidence.
We have no reason whatsoever to doubt the good faith of Messrs. Samuel
Garmezy and Henry J. Belden, president and vice-president-treasurer,
respectively, of the claimant corporation, in presenting the claim of P63,000
against the estate of Fitzsimmons, nor the good faith of the administrator Mr.
Marcial P. Lichauco in opposing said claim. They are all men of recognized
integrity and of good standing in society. The officers of the claimant
corporation have shown commendable fairness in their dealings with the
estate of Fitzsimmons. They voluntarily informed the administrator that
Fitzsimmons had paid P64,500 on account of the purchase price of 545
shares of stock of the company, and not P45,000 only, as the administrator
believed. Likewise, they voluntarily informed him in connection with his claim
for Fitzsimmons' back salaries that Fitzsimmons' annual salary was P36,000
and not P30,000, as the administrator believed. We can therefore readily
assume that Messrs. Garmezy and Belden believed in good faith that the
books of the corporation showed a debit balance of around P63,000 as of the
outbreak of the Pacific war on December 8, 1941.
On the other hand, if Mr. Fitzsimmons, who was the president and one of the
largest stockholders of the claimant corporation, really owed the latter
around P63,000 on December 8, 1941, and had not paid it before he
liquidated his conjugal partnership in November, 1943, as a consequence of
the decree of divorce he obtained against his wife, we see no reason why did
not include such obligation in said liquidation. Judging from the high opinion
which the officers and stockholders of the corporation entertained of
Fitzsimmons as shown by their resolution hereinafter quoted, they cannot
impute bad faith to him in not acknowledging the claim in question.
seized by the Japanese invader. Fitzsimmons, together with the other officers
of the corporation, was interned by the enemy in the Santo Tomas
internment camp, where he died on June 27, 1944.
At the annual meeting of the stockholders of the corporation held on January
21, 1946, the president, S. Garmezy, reported among other things as
follows:
While interned, the Company borrowed money on notes signed
by Mr. Fitzsimmons and Mr. Garmezy; money was also received
for the same purpose without signing of notes. Mr. Kihlstedt, who
before the war was Superintendent of the Philippine Iron Mines,
helped a great deal in obtaining this money, bringing it to Camp
and distributing it to families living outside the Camp. Mr.
Kihlstedt being a Swedish citizen, was able to live outside and he
did some very good work.
And in that meeting the following resolutions, among others, were approved:
RESOLVED, that all acts in 1941 through 1945 of the Directors in
office since their election in 1941 and elected in the interim, as
duly recorded in the minutes of the meetings of the Board, are
hereby approved, ratified and confirmed, and are to be accepted
as acts of this corporation.
RESOLVED, that in the death of R. T. Fitzsimmons, President of
the Company from March, 1939, to the time of his death, which
occurred in the Santo Tomas Internment Camp, Manila, on June
27, 1944, the Company suffered a distinct loss and his country a
loyal American;
FURTHER, that his passing is keenly felt and mourned by those
of the Company with whim he was associated for more than
thirty years, not only for the kindness, consideration and
tolerance he showed to all at all times;
BE IT FURTHER RESOLVED, that the Company convey its
sympathies to the family and other immediate relatives of the
late Mr. Fitzsimmons, transmitting to them a copy of this
resolution.
Based upon those facts, the trial court granted the "back pay" claimed by
the appellee.
We are clearly of the opinion that the estate of Fitzsimmons is not entitled to
its counterclaim of P90,000 or any part thereof.
Let judgment be entered modifying that of the trial court to read as follows:
The appellant Atlantic, Gulf and Pacific Company of Manila is
ordered to pay to the administrator the sum of P64,500 upon the
retransfer by the latter to the former of the 545 shares of stock
purchased by the decedent in 1939.
The administrator is ordered to pay to the said company the sum
of P868.67.
The claim of the company against the estate for P63,000 and the
counterclaim of the estate against the company for P90,000 are
disapproved.
It is so ordered, without costs.
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for
a crime committed by one against the other or the latter's direct
descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice
given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be
examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in such
capacity;
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be examined
as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in
capacity, and which would blacken the reputation of the patient;
right side of the breast and then in the epigastric region, and fearing that
the deceased might secure some other weapon or receive assistance from
the people in the adjoining room, he again stabbed him, this time in the
back.
The defendant's testimony as to the struggle described is in conflict with the
evidence presented by the prosecution. But assuming that it is true, it is
very evident that it fails to establish a case of self-defense and that, in
reality, the only question here to be determined is whether the defendant is
guilty of murder or of simple homicide.
The court below found that the crime was committed with premeditation and
therefore constituted murder. This finding can only be sustained by taking
into consideration Exhibit L, a letter written to the defendant by his wife and
siezed by the police in searching his effects on the day of his arrest. It is
dated May 25, 1924, two days before the commission of the crime and
shows that the writer feared that the defendant contemplated resorting to
physical violence in dealing with the deceased.
Counsel for the defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence. The numerical
weight of authority is, however, to the effect that where a privileged
communication from one spouse to another comes into the hands of a third
party, whether legally or not, without collusion and voluntary disclosure on
the part of either of the spouses, the privilege is thereby extinguished and
the communication, if otherwise competent, becomes admissible. (28 R.C.L.,
530 and authorities there cited.) Such is the view of the majority of this
court.
Professor Wigmore states the rule as follows:
For documents of communication coming into the possession of a third
person, a distinction should obtain, analogous to that already indicated
for a client's communications (ante, par. 2325, 2326); i. e., if they
were obtained from the addressee by voluntary delivery, they should
still be privileged (for otherwise the privilege could by collusion be
practically nullified for written communications); but if they were
obtained surreptitiously or otherwise without the addressee's consent,
the privilege should cease. (5 Wigmore on Evidence, 2nd ed., par.
2339.)
The letter in question was obtained through a search for which no warrant
appears to have been issued and counsel for the defendant cites the causes
of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber
Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the
proposition that documents obtained by illegal searches of the defendant's
effects are not admissible in evidence in a criminal case. In discussing this
point we can do not better than to quote Professor Wigmore:
The foregoing doctrine (i. e., that the admissibility of evidence is not
affected by the illegality of the means through which the party has
been enabled to obtain the evidence) was never doubted until the
appearance of the ill-starred majority opinion of Boyd vs. United
States, in 1885, which has exercised unhealthy influence upon
subsequent judicial opinion in many States.
xxx
xxx
xxx
The progress of this doctrine of Boyd vs. United States was as follows:
(a) The Boyd Case remained unquestioned in its own Court for twenty
years; meantime receiving frequent disfavor in the State Courts (ante,
par. 2183). (b) Then in Adams vs. New York, in 1904, it was
virtually repudiated in the Federal Supreme Court, and the orthodox
precedents recorded in the State courts (ante, par. 2183) were
expressly approved. (c) Next, after another twenty years, in 1914
moved this time, not by erroneous history, but by misplaced
sentimentality the Federal Supreme Court, in Weeks vs. United
States, reverted to the original doctrine of the Boyd Case, but with a
condition, viz., that the illegality of the search and seizure should first
have been directly litigated and established by a motion, made before
trial, for the return of the things seized; so that, after such a motion,
and then only, the illegality would be noticed in the main trial and the
evidence thus obtained would be excluded. ... (4 Wigmore on
Evidence, 2nd ed., par. 2184.)
In the Silverthorne Lumber Co. case the United States Supreme Court
adhered to its decision in the Weeks Case. The doctrine laid down in these
cases has been followed by some of the State courts but has been severely
criticized and does not appear to have been generally accepted. But
assuming, without deciding, that it prevails in this jurisdiction it is,
nevertheless, under the decisions in the Weeks and Silverthorne cases,
inapplicable to the present case. Here the illegality of the search and seizure
was not "directly litigated and established by a motion, made before trial, for
the return of the things seized."
The letter Exhibit L must, however, be excluded for reasons not discussed in
the briefs. The letter was written by the wife of the defendant and if she had
testified at the trial the letter might have been admissible to impeach her
testimony, but she was not put on the witness-stand and the letter was
therefore not offered for that purpose. If the defendant either by answer or
otherwise had indicated his assent to the statements contained in the letter
it might also have been admissible, but such is not the case here; the fact
that he had the letter in his possession is no indication of acquiescence or
assent on his part. The letter is therefore nothing but pure hearsay and its
admission in evidence violates the constitutional right of the defendant in a
criminal case to be confronted with the witnesses for the prosecution and
have the opportunity to cross-examine them. In this respect there can be no
difference between an ordinary communication and one originally privileged.
The question is radically different from that of the admissibility of testimony
of a third party as to a conversation between a husband and wife overheard
by the witness. Testimony of that character is admissible on the ground that
it relates to a conversation in which both spouses took part and on the
further ground that where the defendant has the opportunity to answer a
statement made to him by his spouse and fails to do so, his silence implies
assent. That cannot apply where the statement is contained in an
unanswered letter.
The Attorney-General in support of the contrary view quotes Wigmore, as
follows:
. . . Express communication is always a proper mode of evidencing
knowledge or belief. Communication to a husband or wife is always
receivable to show probable knowledge by the other (except where
they are living apart or are not in good terms), because, while it is not
certain that the one will tell the other, and while the probability is less
upon some subjects than upon others, still there is always some
probability, which is all that can be fairly asked for admissibility. ...
(1 Wigmore, id., par. 261.)
This may possibly be good law, though Wigmore cites no authority in support
of his assertion, but as far as we can see it has little or nothing to do with
the present case.
As we have already intimated, if Exhibit L is excluded, there is in our opinion
not sufficient evidence in the record to show that the crime was
premeditated.
The prosecution maintains that the crime was committed with alevosia. This
contention is based principally on the fact that one of the wounds received
by the deceased showed a downward direction indicating that the deceased
was sitting down when the wound was inflicted. We do not think this fact is
sufficient proof. The direction of the wound would depend largely upon the
manner in which the knife was held.
For the reasons stated we find the defendant guilty of simple homicide,
without aggravating or extenuating circumstances.
The sentence appealed from is therefore modified by reducing the penalty to
fourteen years, eight months and one day of reclusion temporal, with the
corresponding accessory penalties and with the costs against the appellant.
So ordered.
Johnson, Malcolm, Johns, and Romualdez, JJ., concur.
epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13109
March 6, 1918
In Greenleaf's classical work on evidence, in section 337 [vol. I], the author
says, in stating the reasons for the rule at common law:
The great object of the rule is to secure domestic happiness by placing
the protecting seal of the law upon all confidential communications
between husband and wife; and whatever has come to the knowledge
of either by means of the hallowed confidence which that relation
inspires, cannot be afterwards divulged in testimony even though the
other party be no longer living.
This case does not fall with the text of the statute or the reason upon which
it is based. The purpose of section 58 is to protect accused persons against
statements made in the confidence engendered by the marital relation, and
to relieve the husband or wife to whom such confidential communications
might have been made from the obligation of revealing them to the
prejudice of the other spouse. Obviously, when a person at the point of
death as a result of injuries he has suffered makes a statement regarding
the manner in which he received those injuries, the communication so made
is in no sense confidential. On the contrary, such a communication is made
for the express purpose that it may be communicated after the death of the
declarant to the authorities concerned in inquiring into the cause of his
death.
The same theory as that upon which section 58 of General Orders No. 58 is
based, underlies section 383, paragraph 3 of Act No. 190, which reads as
follows:
A husband cannot be examined for or against his wife without her
consent; nor a wife for or against her husband without his consent;
nor can either, during the marriage or afterwards, be, without the
consent of the other, examined as to any communication made by one
to the other during the marriage; but this exception does not apply to
a civil action or proceeding by one against the other, or to a criminal
action or proceeding for a crime committed by one against the other.
The only doubt which can arise from a reading of this provision relates to the
meaning of the words "during the marriage or afterwards," and this doubt
can arise only by a consideration of this phrase separately from the rest of
the paragraph. Construed as a whole it is evident that it relates only to cases
in which the testimony of a spouse is offered for or against the other in a
proceeding to which the other is a party. The use of the word "afterwards" in
the phrase "during the marriage or afterwards" was intended to cover cases
in which a marriage has been dissolved otherwise than by death of one of
the spouses as, for instance, by decree of annulment or divorce.
For the reason stated, the judgment of the court below is hereby set aside
and a new trial is granted at which the testimony of the witness Susana
Ezpeleta will be admitted, together with any additional evidence which may
be offered on the part of the prosecution or the defense. At the new trial
granted the accused, the testimony taken at the former hearing shall be
considered. The costs of this appeal shall be de officio. So ordered.
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(b) An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice
given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be
examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in such
capacity;
RULE 138
Attorneys and Admission to Bar
section 20. Duties of attorneys. It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice
and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear
to him to be just, and such defenses only as he believes to be honestly
debatable under the law.
(d) To employ, for the purpose of maintaining the causes confided to
him, such means only as are consistent with truth and honor, and
never seek to mislead the judge or any judicial officer by an artifice or
false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself,
to preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his
knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of
an action or proceeding, or delay any man's cause, from any corrupt
motive or interest;
(h) Never to reject, for any consideration personal to himself, the
cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the guilt of
the accused, to present every defense that the law permits, to the end
that no person may be deprived of life or liberty, but by due process of
law.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9231
January 6, 1915
UY CHICO, plaintiff-appellant,
vs.
THE UNION LIFE ASSURANCE SOCIETY, LIMITED, ET AL., defendantsappellees.
Beaumont and Tenney for appellant.
Bruce, Lawrence, Ross and Block for appellees.
TRENT, J.:
An appeal from a judgment dismissing the complaint upon the merits, with
costs.
The plaintiff seeks to recover the face value of two insurance policies upon a
stock of dry goods destroyed by fire. It appears that the father of the
plaintiff died in 1897, at which time he was conducting a business under his
own name, Uy Layco. The plaintiff and his brother took over the business
and continued it under the same name, "Uy Layco." Sometime before the
date of the fire, the plaintiff purchased his brother's interest in the business
and continued to carry on the business under the father's name. At the time
of the fire "Uy Layco" was heavily indebted and subsequent thereto the
creditors of the estate of the plaintiff's father. During the course of these
proceedings, the plaintiff's attorney surrendered the policies of insurance to
the administrator of the estate, who compromised with the insurance
company for one-half their face value, or P6,000. This money was paid into
court and is now being held by the sheriff. The plaintiff now brings this
action, maintaining that the policies and goods insured belonged to him and
not to the estate of his deceased father and alleges that he is not bound by
the compromise effected by the administrator of his father's estate.
The defendant insurance company sought to show that the plaintiff had
agreed to compromise settlement of the policies, and for that purpose
introduced evidence showing that the plaintiff's attorney had surrendered
the policies to the administrator with the understanding that such a
compromise was to be effected. The plaintiff was asked, while on the witness
stand, if he had any objection to his attorney's testifying concerning the
surrender of the policies, to which he replied in the negative. The attorney
was then called for that purpose. Whereupon, counsel for the plaintiff
formally withdrew the waiver previously given by the plaintiff and objected
to the testimony of the attorney on the ground that it was privileged.
Counsel, on this appeal, base their argument of the proposition that a waiver
of the client's privilege may be withdrawn at any time before acted upon,
and cite in support thereof Ross vs. Great Northern Ry. Co., (101 Minn., 122;
111 N. W., 951). The case of Natlee Draft Horse Co. vs. Cripe and Co. (142
Ky., 810), also appears to sustain their contention. But a preliminary
question suggest itself, Was the testimony in question privileged?
Our practice Act provides: "A lawyer must strictly maintain inviolate the
confidence and preserve the secrets of his client. He shall not be permitted
in any court, without the consent of his client, given in open court, to testify
to any facts imparted to him by his client in professional consultation, or for
the purpose of obtaining advice upon legal matters." (Sec. 31, Act No. 190.)
A similar provision is inserted in section 383, No. 4, of the same Act. It will
be noted that the evidence in question concerned the dealings of the
plaintiff's attorney with a third person. Of the very essence of the veil of
secrecy which surrounds communications made between attorney and client,
is that such communications are not intended for the information of third
persons or to be acted upon by them, put of the purpose of advising the
client as to his rights. It is evident that a communication made by a client to
his attorney for the express purpose of its being communicated to a third
person is essentially inconsistent with the confidential relation. When the
attorney has faithfully carried out his instructions be delivering the
communication to the third person for whom it was intended and the latter
acts upon it, it cannot, by any reasoning whatever, be classified in a legal
sense as a privileged communication between the attorney and his client. It
is plain that such a communication, after reaching the party for whom it was
intended at least, is a communication between the client and a third person,
and that the attorney simply occupies the role of intermediary or agent. We
quote from but one case among the many which may be found upon the
point:
The proposition advanced by the respondent and adopted by the trial
court, that one, after fully authorizing his attorney, as his agent, to
enter into contract with a third party, and after such authority has
been executed and relied on, may effectively nullify his own and his
duly authorized agent's act by closing the attorney's mouth as to the
giving of such authority, is most startling. A perilous facility of fraud
and wrong, both upon the attorney and the third party, would result.
The attorney who, on his client's authority, contracts in his behalf,
pledges his reputation and integrity that he binds his client. The third
party may well rely on the assurance of a reputable lawyer that he has
authority in fact, though such assurance be given only by implication
from the doing of the act itself. It is with gratification, therefore, that
we find overwhelming weight of authority, against the position
assumed by the court below, both in states where the privilege
protecting communications with attorneys is still regulated by the
common law and in those where it is controlled by statute, as in
Wisconsin. (Koeber vs. Sommers, 108 Wis., 497; 52 L. R. A., 512.)
Other cases wherein the objection to such evidence on the ground of
privilege has been overruled are: Henderson vs. Terry (62 Tex., 281); Shove
vs. Martin (85 Minn., 29); In re Elliott (73 Kan., 151); Collins vs. Hoffman
(62 Wash., 278); Gerhardt vs. Tucker (187 Mo., 46). These cases cover a
variety of communications made by an authority in behalf of his client to
third persons. And cases wherein evidence of the attorney as to
compromises entered into by him on behalf of his client were allowed to be
proved by the attorney's testimony are not wanting. (Williams vs.
Blumenthal, 27 Wash., 24; Koeber vs. Sommers, supra.)
1. The court has the right to know that the client whose privilege is
sought to be protected is flesh and blood.
2. Privilege begins to exist only after the atty-client relationship has been
established.
3. Privilege generally pertains to be the subject matter of the
relationship.
4. With due process consideration, the opposing party should know his
adversary.
EXCEPTION: LAWYERS MAY INVOKE THE PRIVILEGE WHEN:
1. Strong probability exists that revealing the clients name would
implicate the client in the very activity for which he sought the
lawyers advice.
2. Disclosure would open to civil liability of client. (present in this case)
3. Government lawyers have no case against the lawyers client unless by
revealing the clients name it would provide them the only link that
would form the chain of testimony necessary to convict an individual of
a crime. (present in this case)
4. Relevant to the subject matter of the legal problem on which client
seeks legal assistance. (present in this case)
5. Nature of atty-client relationship has been previously disclosed and it
is the identity which is intended to be confidential.
Old Code of Civil Procedure enacted by the Philippine Commission on August
7, 1901:Section 383 of the Code specifically "forbids counsel, without
authority of his client to reveal any communication made by the client to him
or his advice given thereon in the course of professional
employment." 28 Passed on into various provisions of the Rules of Court, the
attorney-client privilege, as currently worded provides:Sec. 24.
Disqualification by reason of privileged communication. The following
persons cannot testify as to matters learned in confidence in the following
cases:An attorney cannot, without the consent of his client, be examined as
to any communication made by the client to him, or his advice given thereon
in the course of, or with a view to, professional employment, can an
attorney's secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity. 29Further, Rule 138 of the Rules
of Court states:Sec. 20. It is the duty of an attorney: (e) to maintain
inviolate the confidence, and at every peril to himself, to preserve the
secrets of his client, and to accept no compensation in connection with his
client's business except from him or with his knowledge and approval.This
duty is explicitly mandated in Canon 17 of the Code of Professional
Responsibility which provides that:Canon 17. A lawyer owes fidelity to the
cause of his client and he shall be mindful of the trust and confidence
reposed in him.Canon 15 of the Canons of Professional Ethics also demands
a lawyer's fidelity to client:The lawyers owes "entire devotion to the interest
of the client, warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability," to the end that nothing be taken
or be withheld from him, save by the rules of law, legally applied. No fear of
judicial disfavor or public popularity should restrain him from the full
discharge of his duty. In the judicial forum the client is entitled to the benefit
of any and every remedy and defense that is authorized by the law of the
land, and he may expect his lawyer to assert every such remedy or defense.
But it is steadfastly to be borne in mind that the great trust of the lawyer is
to be performed within and not without the bounds of the law. The office of
attorney does not permit, much less does it demand of him for any client,
violation of law or any manner of fraud or chicanery. He must obey his own
conscience and not that of his client.
In re Grand Jury
rief Fact Summary. The Third Circuit Court of Appeals (Third Circuit)
considered a case from the Virgin Islands and a case from Delaware
together, to decide whether a parent-child privilege should be recognized.
The case from the Virgin Islands involved a grand jury seeking to force the
testimony of a father against a son. The case from Delaware involved a
grand jury seeking to have a daughter testify against her father.
Synopsis of Rule of Law. Federal Rules of Evidence (F.R.E.) Rule 501
provides that witness privileges are to be governed by the principles of
common law as interpreted by the United States courts in light of reason and
experience.
Facts. The Third Circuit considered a case from the Virgin Islands and one
from Delaware together. In the Virgin Islands case, the grand jury
subpoenaed the father of the target of the investigation as a witness. The
target was eighteen years old and involved in illegal transactions. The father
moved to quash the subpoena arguing that his conversations with his son
were privileged under F.R.E. Rule 501. The district court entered an order
denying a motion to quash, but stayed the order pending an appeal.
In the Delaware case, a sixteen year old daughter was subpoenaed to testify
before the grand jury as part of an investigation regarding her fathers
participation in an alleged kidnapping of a woman. The daughters counsel
made a motion to quash, and so did the fathers counsel, arguing a parentchild privilege. The district court denied the motion. The daughter refused to
testify and was found in contempt. The imposition of sanctions was stayed
pending appeals.
and giving judgment for the plaintiff to recover of said defendant, upon the
first and fourth causes of action, the sum of $202,500, United States
currency, equivalent to $405,000, Philippine currency, with legal interest
from June 2, 1921, and with costs. From this judgment the defendant
company appealed.
The plaintiff is a citizen of the United States, resident in the City of Manila,
while the defendant is a corporation organized under the law of the
Philippine Islands with its principal office in the City of Cebu, Province of
Cebu, Philippine Islands. Said company appears to be the owner by a
valuable deposit of bituminous limestone and other asphalt products, located
on the Island of Leyte and known as the Lucio mine. On April 21, 1920, one
William Anderson, as president and general manager of the defendant
company, addressed a letter Exhibit B, to the plaintiff Barton, authorizing the
latter to sell the products of the Lucio mine in the Commonwealth of
Australia and New Zealand upon a scale of prices indicated in said letter.
In the third cause of action stated in the complaint the plaintiff alleges that
during the life of the agency indicated in Exhibit B, he rendered services to
the defendant company in the way of advertising and demonstrating the
products of the defendant and expended large sums of money in visiting
various parts of the world for the purpose of carrying on said advertising and
demonstrations, in shipping to various parts of the world samples of the
products of the defendant, and in otherwise carrying on advertising work.
For these services and expenditures the plaintiff sought, in said third cause
of action, to recover the sum of $16,563.80, United States currency. The
court, however, absolved the defendant from all liability on this cause of
action and the plaintiff did not appeal, with the result that we are not now
concerned with this phase of the case. Besides, the authority contained in
said Exhibit B was admittedly superseded by the authority expressed in a
later letter, Exhibit A, dated October 1, 1920. This document bears the
approval of the board of directors of the defendant company and was
formally accepted by the plaintiff. As it supplies the principal basis of the
action, it will be quoted in its entirety.
(Exhibit A)
CEBU, CEBU, P. I.
October 1, 1920.
JAMES D. BARTON, Esq.,
Cebu Hotel City.
DEAR SIR: You are hereby given the sole and exclusive sales agency for
our bituminous limestone and other asphalt products of the Leyte Asphalt
and Mineral Oil Company, Ltd., May first, 1922, in the following territory:
Australia
Saigon
Java
New Zealand
India
China
Tasmania
Sumatra Hongkong
Siam and the Straits Settlements, also in the United States of America until
May 1, 1921.
As regard bituminous limestone mined from the Lucio property. No orders for
less than one thousand (1,000) tons will be accepted except under special
agreement with us. All orders for said products are to be billed to you as
follows:
In
In
In
In
Per ton
P15
14
12
10
with the understanding, however that, should the sales in the above territory
equal or exceed ten thousand (10,000) tons in the year ending October 1,
1921, then in that event the price of all shipments made during the above
period shall be ten pesos (P10) per ton, and any sum charged to any of your
customers or buyers in the aforesaid territory in excess of ten pesos (P10)
per ton, shall be rebated to you. Said rebate to be due and payable when
the gross sales have equalled or exceeded ten thousand (10,000) tons in the
twelve months period as hereinbefore described. Rebates on lesser sales to
apply as per above price list.
You are to have full authority to sell said product of the Lucio mine for any
sum see fit in excess of the prices quoted above and such excess in price
shall be your extra and additional profit and commission. Should we make
any collection in excess of the prices quoted, we agree to remit same to your
within ten (10) days of the date of such collections or payments.
All contracts taken with municipal governments will be subject to inspector
before shipping, by any authorized representative of such governments at
whatever price may be contracted for by you and we agree to accept such
not later than May 5, 1921, upon terms stated in the letter Exhibit G. Upon
this letter the plaintiff immediately indorsed his acceptance.
The plaintiff then returned to Manila; and on March 2, 1921, Anderson wrote
to him from Cebu, to the effect that the company was behind with
construction and was not then able to handle big contracts. (Exhibit FF.) On
March 12, Anderson was in Manila and the two had an interview in the
Manila Hotel, in the course of which the plaintiff informed Anderson of the
San Francisco order. Anderson thereupon said that, owing to lack of capital,
adequate facilities had not been provided by the company for filling large
orders and suggested that the plaintiff had better hold up in the matter of
taking orders. The plaintiff expressed surprise at this and told Anderson that
he had not only the San Francisco order (which he says he exhibited to
Anderson) but other orders for large quantities of bituminous limestone to be
shipped to Australia and Shanghai. In another interview on the same
Anderson definitely informed the plaintiff that the contracts which be claimed
to have procured would not be filled.
Three days later the plaintiff addressed a letter (Exhibit Y) to the defendant
company in Cebu, in which he notified the company to be prepared to ship
five thousand tons of bituminous limestone to John Chapman Co., San
Francisco, loading to commence on May 1, and to proceed at the rate of one
thousand tons per day of each twenty-four hours, weather permitting.
On March 5, 1921, Frank B. Smith, of Sydney, had cabled the plaintiff an
order for five thousand tons of bituminous limestone; and in his letter of
March 15 to the defendant, the plaintiff advised the defendant company to
be prepared to ship another five thousand tons of bituminous limestone, on
or about May 6, 1921, in addition to the intended consignment for San
Francisco. The name Henry E. White was indicated as the name of the
person through whom this contract had been made, and it was stated that
the consignee would be named later, no destination for the shipment being
given. The plaintiff explains that the name White, as used in this letter, was
based on an inference which he had erroneously drawn from the cable sent
by Frank B. Smith, and his intention was to have the second shipment
consigned to Australia in response to Smith's order.
It will be noted in connection with this letter of the plaintiff, of March 15,
1921, that no mention was made of the names of the person, or firm, for
whom the shipments were really intended. The obvious explanation that
occurs in connection with this is that the plaintiff did not then care to reveal
the fact that the two orders had originated from his own subagents in San
Francisco and Sydney.
To the plaintiff's letter of March 15, the assistant manager of the defendant
company replied on March, 25, 1921, acknowledging the receipt of an order
for five thousand tons of bituminous limestone to be consigned to John
Chapman Co., of San Francisco, and the further amount of five thousand
tons of the same material to be consigned to Henry E. White, and it was
stated that "no orders can be entertained unless cash has been actually
deposited with either the International Banking Corporation or the Chartered
Bank of India, Australia and China, Cebu." (Exhibit Z.)
To this letter the plaintiff in turn replied from Manila, under date of March,
1921, questioning the right of the defendant to insist upon a cash deposit in
Cebu prior to the filling of the orders. In conclusion the plaintiff gave orders
for shipment to Australia of five thousand tons, or more, about May 22,
1921, and ten thousand tons, or more, about June 1, 1921. In conclusion
the plaintiff said "I have arranged for deposits to be made on these
additional shipments if you will signify your ability to fulfill these orders on
the dates mentioned." No name was mentioned as the purchaser, or
purchases, of these intended Australian consignments.
Soon after writing the letter last above-mentioned, the plaintiff embarked for
China and Japan. With his activities in China we are not here concerned, but
we note that in Tokio, Japan, he came in contact with one H. Hiwatari, who
appears to have been a suitable person for handling bituminous limestone
for construction work in Japan. In the letter Exhibit X, Hiwatari speaks of
himself as if he had been appointed exclusive sales agent for the plaintiff in
Japan, but no document expressly appointing him such is in evidence.
While the plaintiff was in Tokio he procured the letter Exhibit W, addressed to
himself, to be signed by Hiwatari. This letter, endited by the plaintiff himself,
contains an order for one thousand tons of bituminous limestone from the
quarries of the defendant company, to be delivered as soon after July 1,
1921, as possible. In this letter Hiwatari states, "on receipt of the cable from
you, notifying me of date you will be ready to ship, and also tonnage rate, I
will agree to transfer through the Bank of Taiwan, of Tokio, to the Asia
Banking Corporation, of Manila, P. I., the entire payment of $16,000 gold, to
be subject to our order on delivery of documents covering bill of lading of
shipments, the customs report of weight, and prepaid export tax receipt. I
will arrange in advance a confirmed or irrevocable letter of credit for the
above amounts so that payment can be ordered by cable, in reply to your
cable advising shipping date."
In a letter, Exhibit X, of May 16, 1921, Hiwatari informs the plaintiff that he
had shown the contract, signed by himself, to the submanager of the Taiwan
Bank who had given it as his opinion that he would be able to issue, upon
request of Hiwatari, a credit note for the contracted amount, but he added
that the submanager was not personally able to place his approval on the
contract as that was a matter beyond his authority. Accordingly Hiwatari
advised that he was intending to make further arrangements when the
manager of the bank should return from Formosa.
In the letter of May 5, 1921, containing Hiwatari's order for one thousand
tons of bituminous limestone, it was stated that if the material should prove
satisfactory after being thoroughly tested by the Paving Department of the
City of Tokio, he would contract with the plaintiff for a minimum quantity of
ten thousand additional tons, to be used within a year from September 1,
1921, and that in this event the contract was to be automatically extended
for an additional four years. The contents of the letter of May 5 seems to
have been conveyed, though imperfectly, by the plaintiff to his attorney, Mr.
Frank B. Ingersoll, of Manila; and on May 17, 1921, Ingersoll addressed a
note to the defendant company in Cebu in which he stated that he had been
requested by the plaintiff to notify the defendant that the plaintiff had
accepted an order from Hiwatari, of Tokio, approved by the Bank of Taiwan,
for a minimum order of ten thousand tons of the stone annually for a period
of five years, the first shipment of one thousand tons to be made as early
after July 1 as possible. It will be noted that this communication did not truly
reflect the contents of Hiwatari's letter, which called unconditionally for only
one thousand tons, the taking of the remainder being contingent upon future
eventualities.
It will be noted that the only written communications between the plaintiff
and the defendant company in which the former gave notice of having any
orders for the sale of bituminous limestone are the four letters Exhibit Y, AA,
BB, and II. In the first of these letters, dated March 15, 1921, the plaintiff
advises the defendant company to be prepared to ship five thousand tons of
bituminous limestone, to be consigned to John Chapman, Co., of San
Francisco, to be loaded by March 5, and a further consignment of five
thousand tons, through a contract with Henry E. White, consignees to be
named later. In the letter Exhibit BB dated May 17, 1921, the plaintiff's
attorney gives notice of the acceptance by plaintiff of an order from Hiwatari,
of Tokio, approved by the Bank of Taiwan, for a minimum of ten thousand
annually for a period of five years, first shipment of a thousand tons to be as
early after July 1 as possible. In the letter Exhibit H the plaintiff gives notice
of an "additional" (?) order from H. E. White, Sydney, for two lots of
bituminous limestone of five thousand tons each, one for shipment not later
than June 30, 1921, and the other by July 20, 1921. In the same letter
thousand tons from F. B. Smith, to be shipped to Brisbane, Australia, by June
30, and a similar amount within thirty days later.
After the suit was brought, the plaintiff filed an amendment to his complaint
in which he set out, in tabulated form, the orders which he claims to have
received and upon which his letters of notification to the defendant company
were based. In this amended answer the name of Ludvigsen & McCurdy
appears for the first time; and the name of Frank B. Smith, of Sydney, is
used for the first time as the source of the intended consignments of the
letters, Exhibits G, L, M, and W, containing the orders from Ludvigen &
McCurdy, Frank B. Smith and H. Hiwatari were at no time submitted for
inspection to any officer of the defendant company, except possibly the
Exhibit G, which the plaintiff claims to have shown to Anderson in Manila on
March, 12, 1921.
The different items conspiring the award which the trial judge gave in favor
of the plaintiff are all based upon the orders given by Ludvigsen & McCurdy
(Exhibit G), by Frank B. Smith (Exhibit L and M), and by Hiwatari in Exhibit
W; and the appealed does not involve an order which came from Shanghai,
China. We therefore now address ourselves to the question whether or not
the orders contained in Exhibit G, L, M, and W, in connection with the
subsequent notification thereof given by the plaintiff to the defendant, are
sufficient to support the judgment rendered by the trial court.
The transaction indicated in the orders from Ludvigsen, & McCurdy and from
Frank B. Smith must, in our opinion, be at once excluded from consideration
as emanating from persons who had been constituted mere agents of the
plaintiff. The San Francisco order and the Australian orders are the same in
legal effect as if they were orders signed by the plaintiff and drawn upon
himself; and it cannot be pretended that those orders represent sales to
bona fide purchasers found by the plaintiff. The original contract by which
the plaintiff was appointed sales agent for a limited period of time in
Australia and the United States contemplated that he should find reliable and
solvent buyers who should be prepared to obligate themselves to take the
quantity of bituminous limestone contracted for upon terms consistent with
the contract. These conditions were not met by the taking of these orders
from the plaintiff's own subagents, which was as if the plaintiff had bought
for himself the commodity which he was authorized to sell to others. Article
267 of the Code of Commerce declares that no agent shall purchase for
himself or for another that which he has been ordered to sell. The law has
placed its ban upon a broker's purchasing from his principal unless the latter
with full knowledge of all the facts and circumstances acquiesces in such
course; and even then the broker's action must be characterized by the
utmost good faith. A sale made by a broker to himself without the consent of
the principal is ineffectual whether the broker has been guilty of fraudulent
conduct or not. (4 R. C. L., 276-277.) We think, therefore, that the position
of the defendant company is indubitably sound in so far as it rest upon the
contention that the plaintiff has not in fact found any bona fidepurchasers
ready and able to take the commodity contracted for upon terms compatible
with the contract which is the basis of the action.
It will be observed that the contract set out at the beginning of this opinion
contains provisions under which the period of the contract might be
extended. That privilege was probably considered a highly important incident
of the contract and it will be seen that the sale of five thousand tons which
the plaintiff reported for shipment to San Francisco was precisely adjusted to
the purpose of the extension of the contract for the United States for the
period of an additional year; and the sales reported for shipment to Australia
were likewise adjusted to the requirements for the extention of the contract
in that territory. Given the circumstances surrounding these contracts as
they were reported to the defendant company and the concealment by the
plaintiff of the names of the authors of the orders, -- who after all were
merely the plaintiff's subagents, the officers of the defendant company
might justly have entertained the suspicion that the real and only person
behind those contracts was the plaintiff himself. Such at least turns out to
have been the case.
Much energy has been expended in the briefs upon his appeal over the
contention whether the defendant was justified in laying down the condition
mentioned in the letter of March 26, 1921, to the effect that no order would
be entertained unless cash should be deposited with either the International
Banking Corporation of the Chartered Bank of India, Australia and China, in
Cebu. In this connection the plaintiff points to the stipulation of the contract
which provides that contracts with responsible parties are to be accepted
"subject to draft attached to bill of lading in full payment of such shipment."
What passed between the parties upon this point appears to have the
character of mere diplomatic parrying, as the plaintiff had no contract from
any responsible purchaser other than his own subagents and the defendant
company could no probably have filled the contracts even if they had been
backed by the Bank of England.
Upon inspection of the plaintiff's letters (Exhibit Y and AA), there will be
found ample assurance that deposits for the amount of each shipment would
be made with a bank in Manila provided the defendant would indicated its
ability to fill the orders; but these assurance rested upon no other basis than
the financial responsibility of the plaintiff himself, and this circumstance
doubtless did not escape the discernment of the defendant's officers.
With respect to the order from H. Hiwatari, we observe that while he
intimates that he had been promised the exclusive agency under the plaintiff
for Japan, nevertheless it does not affirmatively appear that he had been in
of trial, have been consolidated several other cases of similar character. The
cause is now before us for resolution upon the complaint and answer
interposed by the two respondents.
The respondent Teal Motor Co., Inc. is plaintiff in a civil action instituted in
the Court of First Instance of Manila (civil case No. 35825) for the purpose of
recovering upon two fire insurance policies issued by the Orient Insurance
Company, aggregating P60,000, upon a stock of merchandise alleged to be
of the value of P414,513.56, which, with the exception of salvage valued at
about P50,000, was destroyed by a fire on or about January 6, 1929. In one
of the clauses of the policies sued upon is a stipulation to the effect that all
benefit under the policy would be forfeited if, in case of loss, the claim
should be rejected by the insurer and action or suit should not be
commenced within three months after such rejection. In the answer of the
Orient Insurance Company, interposed in the civil case mentioned, it is
alleged, by way of defense, that the company rejected the claim on April 15,
1929, that notice of such rejection was given to the plaintiff by letter on the
same day, and that suit was not instituted on the policy until August 3,
1929, which was more than three months after the rejection of the claim.
In a replication to the answer of the defendant, containing the foregoing and
other defenses, the plaintiff admitted that the adjusters of the defendant
company had, on April 15, 1929, notified the plaintiff that the Orient
Insurance Company would not pay the claim, basing refusal upon alleged
incendiarism and fraud on the part of the plaintiff; and by way of avoidance,
it was alleged in the replication that, after notification of denial of liability by
the insurance company, one E. E. Elser, as representative of the company,
expressly requested the plaintiff to defer judicial action until after the
following July 31, stating that three were great possibilities that an
extrajudicial compromise might be arranged in the matter; and it was
further asserted, in the replication, that the plaintiff had deferred action,
relying upon this request.
It will thus be seen that the reason for the admitted delay in the institution
of the action is an important issue in the case, or case, now in course of
trial.
It further appears that while case No. 35825 was in course of trial, as it still
is, before the respondent judge, in the Court of First Instance of Manila, the
witness E. M. Bachrach, president of the Teal Motor Co., Inc., while being
examined in chief by the attorneys for the plaintiff, and speaking of the
circumstances surrounding the institution of the action, said that he had
reported certain conversations to plaintiff's attorneys, and he added: "I
waited for about a week longer and not having heard anything about it, in
the meantime, on the 13th of July, I received a letter from our attorneys,
Guevara, Francisco & Recto, urging me to file these cases." The attorney for
the defendant, Orient Insurance Company, thereupon interposed, saying: "I
ask that the witness be required to produce the letter referred to from Mr.
Guevara, or else his answer be stricken out. (To the witness) Have you got
the letter there?" The witness replied that he had the letter with him and
that he had no objection to show that part of the letter in which Guevara
urged him to proceed with the cases. Upon being asked about the other part
of the letter, the witness said that the other part contained private matter,
"between the attorney and ourselves," meaning between the Teal Motor Co.,
Inc., and its attorneys. Thereupon the attorney for the defendant, Orient
Insurance Company, said he would like to see the letter, inquiring as to its
date. The witness replied that it bore date of July 13, 1929; and upon the
court inquiring whether the witness had any objection to the reading of the
letter by the attorney for the defendant, the witness replied that he wished
to consult with his attorney. Upon this the attorney for the adversary party,
the Orient Insurance Company, suggested that he would like to have the
letter marked without his reading it, and it was accordingly marked as
Exhibit 49. The attorney then said: "In view of the production of the letter, I
withdraw the objection to the statement of the witness as to its contents,"
and he added: "I now ask the permission of the court to read the letter for
my information." The court thereupon inquired of the attorney for the Teal
Motor Co., Inc., whether he had any objection, and the attorney observed
that he would have no objection to the disclosing of that part of the letter
which referred exactly to the point of the urging of the filing of the
complaints, and he added: "Unfortunately, the other part of the letter being
a communication between a client and attorney, I don't think, if your Honor
please, it can be disclosed without the consent of both."
In the course of the colloquy which thereupon unsued between the attorney
for the plaintiff and the attorney for the defendant, it was stated by the
attorney for the plaintiff that only a part of the letter had anything to do with
the urging of the presentation of the complaints in the cases to which the
witness had testified, and that the other part of the letter referred to the
contract of fees, or retaining of the services of plaintiff's attorneys in
connection with said cases, a matter, so the attorney suggested, entirely
distinct from the urging of the presentation of the cases. The attorney for
the defendant thereupon insisted before the court that, inasmuch as all the
letter refers to the case then in court, the entire document should be
exhibited, in conformity with the rule that when part of a document is
offered in evidence, the entire document must be presented.
Upon this the respondent judge ruled as follows: "Objection of the counsel
for the plaintiff and the witness, Mr. Barchrach, to the showing or reading of
the whole letter in the record is sustained, and it is ordered that only that
part of the letter which has been referred to by Mr. Bachrach in his testimony
be read and transcribed into the record." To this ruling the attorney for the
defendant excepted and the respondent judge then said: "Let that part of
the letter pointed out by Mr. Bachrach be transcribed in the record;"
whereupon the following part of the letter was read out in court and
incorporated in the transcript.
July 13, 1929
DEAR SIR: As you know, your attorney Mr. Basilio Francisco has turned
over to us, prior to his departure, all the papers in connection with the
insurance claim of the Teal Motor Co., Inc., on destroyed or burned
merchandise, and everything is now ready for filing of the
corresponding complaints in the Court of First Instance.
When the matter above quoted had been thus read into the record, the
attorney for the defendant made the following observation: "In view of the
fact that counsel for the plaintiff has just now read into the record and
presented as evidence a part of the letter of July 13, I now request that the
entire letter be produced." This request was overruled by the court, and the
attorney for the defendant excepted. After further discussion, upon the
suggestion of the attorney for the defendant and by agreement of the
counsel for both parties, the second page of the letter was marked 49-A by
the clerk court.
The incident was renewed when it came at turn of the attorney for the
defendant to cross-examine the same witness E. M. Bachrach, when the
attorney for the defendant, having ascertained from the witness that he still
had the letter in his possession, and that he had not answered it in writing,
formally offered the letter in evidence. The attorney for the plaintiff again
objected, on the ground that the letter was of a privileged nature and that it
was the personal property of the witness. Thereupon the court, receiving the
letter in hand from the witness, observed that he had already ruled upon it,
and after further discussion, the court sustained the objection of the
attorney for the plaintiff and refused to admit in evidence so much of the
letter as had not already been read into the record. The attorney for the
defendant again excepted.
At a later stage of the trial the attorney interposed a formal motion for
reconsideration of the ruling of the court in refusing to admit the letter in
evidence, or the part of it not already incorporated in the record. The court,
however, adhered to its original ruling, and the attorney for the defendant
excepted. Another incident that might be noted, though not alleged as a
ground of relief in the petition before us, but set forth in the answer of the
respondents, is that the attorney for the defendant procured a
subpoena duces tecum to be issued by the clerk of court requiring the
attorneys for the plaintiff to produce in court certain papers including the
letter which gave rise to the present controversy. The court, on motion of
the attorneys for the plaintiff, quashed said subpoena.
The essential character of this incident, which we have perhaps narrated
with unnecessary prolixity, is readily discernible. A witness for the plaintiff
made an oral statement as to the substance of part of a letter which had
been received by the plaintiff from its attorney, and when the fact was
revealed that the communication had been made by letter, the attorney for
the defendant requested that the witness be required to produce the letter in
court, and if not, that his answer should be stricken out. This in legal effect
was a demand for the production of "the best evidence," it being a wellknown rule of law that a witness cannot be permitted to give oral testimony
as to the contents of a paper writing which can be produced in court. In
response to this request that portion of the letter to which the witness had
supposedly referred was read into the record.
The respondent judge appears to have considered that the excerpt from the
letter thus incorporated in the record was either proof of the defendant, its
production having been demanded by defendant's counsel, or that at least
the legal responsibility for the incorporation of said excerpt into the record
was attributable to the defendant. We are unable to accept this view. The
incorporation of this excerpt from the letter was a necessary support of the
oral statement which the witness had made, and if this basis for such
statement had not been laid by the incorporation of the excerpt into the
record, the oral statement of the witness concerning the tenor of the letter
should properly have been stricken out. But instead of withdrawing the oral
statement of the witness concerning the nature of the written
communication, the witness produced the letter and the part of it already
quoted was read into the record. The excerpt in question must therefore be
considered as proof submitted by the plaintiff; and there can be no question
that, part of the letter having been introduced in behalf of the plaintiff, the
whole of the letter could properly be examined by the other party, in
accordance with the express provision of section 283 of the Code of Civil
Procedure.
It was stated in the court by the attorney for the plaintiff, in opposing the
introduction of other portions of the letter in proof, that the other parts were
privileged, because they related to the terms of employment between
attorney and client, or to the fee to be paid to the attorney. With respect to
this point it is difficult to see how a contract for fees could be considered
was not made for any legitimate purpose. The complainant resisted
the efforts of the defendant to have the original communications
admitted, on the ground that they were privileged as made to its
officers by its attorney, but it was held that the defendant was entitled
to introduce them in evidence, the court saying: "The question, then,
is whether the complainant can shelter itself behind its privilege to
insist upon the privacy of the communications between its attorney
and its other officers as confidential communications, when it has itself
produced fragmentary part of them, and sought to use them as a
weapon against the defendant to obtain the stringent remedy of a
preliminary injunction. Assuming that the communications addressed
to the president and vice-president of the complainant by Mr.
Buckingham were communications made to the complainant by its
attorney, and as such privileged at the option of the complainant, it
was competent for the complainant to waive its privilege. It would
hardly be contended that the complainant could introduce extracts
from these communications as evidence in its own behalf for the
purpose of a final hearing, and yet withhold the other parts if their
production were required by the defendant. A party cannot waive such
a privilege partially. He cannot remove the seal of secrecy from so
much of the privileged communications as makes for his advantage,
and insist that it shall not be removed as to so much as makes to the
advantage of his adversary, or may neutralize the effect of such as has
been introduced. Upon the principle it would seem that it cannot be
material at what stage of the proceedings in a suit a party waives his
right to maintain the secrecy of privileged communication. All the
proceedings in the cause are constituent parts of the controversy, and
it is not obvious how any distinction can obtain as to the effect of
waiver when made by a party for the purpose of obtaining temporary
relief and when made by him to obtain final relief."
From the foregoing decision and other cases contained in the note referred
to, we are led to the conclusion that the attorney for the defendant in the
court below was entitled to examine the whole of the letter (Exhibit 49 and
49-A), with a view to the introduction in evidence of such parts thereof as
may be relevant to the case on trial, and the respondent judge was in error
in refusing to permit the inspection of the letter by said attorney.
It is suggested in the argument for the respondents that the question of the
admissibility in evidence of the parts of the letter not already read into the
record was prematurely raised, and that the attorney for the defendant
should have waited until it became his turn to present evidence in chief,
when, as is supposed, the question could have been properly raised. We are
of the opinion, however, that if the attorney for the defendant had a right to
examine the letter, it should have been produced when he asked for it on the
cross-examination of the witness who had the letter in his possession.
Besides, in the lengthy discussions between court and attorneys, occuring at
different times, there was not the slightest suggestion from the court that
the parts of the letter which were held inadmissible would be admitted at
any time. Furthermore, the action of the court in quashing the subpoena
duces tecum for the production of the letter shows that the court meant to
rule that the letter could not be inspected at all by the attorney for the
defendant.
Objection is also here made by the attorney for the respondents to the use
of the writ of mandamus for the purpose of correcting the error which is
supposed to have been committed. The situation presented is, however, one
where the herein petitioner has no other remedy. The letter which the
petitioner seeks to examine has been ruled inadmissible, as to the parts not
introduced in evidence by the defendant in the court below, and the
respondent judge had not permitted the document to become a part of the
record in such a way that the petitioner could take advantage of the error
upon appeal to this court. It is idle to discuss whether other remedy would
be speedy or adequate when there is no remedy at all. This court is loath, of
course, to interfere in course of the trial of a case in a Court of First
Instance, as such interference might frequently prolong unduly the litigation
in that court. But this case has been pending before the respondent judge
for a considerable period of time, and undoubtedly the probatory period will
be necessarily extended much longer. Under these circumstances, the action
of this court in entertaining the present application will either be conductive
to the speedy determination of case, or at least will not appreciably extend
the proceedings.
It goes without saying that the subject matter of the contention is of a
nature which makes the use of the writ ofmandamus appropriate, since the
right from the exercise of which the petitioner is excluded is one to which it
is entitled under the law and the duty to be performed is one pertaining to
the respondent judge in his official capacity.
From what has been said it follows that the writ of mandamus prayed for will
be granted, and the respondent judge is directed to permit the attorney for
the defendant (petitioner here) to inspect the letter (Exhibit 49 and 49-A)
with a view to the introduction in evidence of such parts thereof as may be
relevant to the issues made by the pleadings in civil case No. 35825 and
other cases which have been consolidated with it for trial. So ordered, with
costs against the respondent Teal Motor Co., Inc.
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.
Hickman v. Taylor
Brief Fact Summary. Following an accident involving one of their tug
boats, two tug owners (Defendants) fearing litigation, hired an attorney who
interviewed several of the surviving crew members of the tug accident. A
year later, after filing suit against the tug owner, a representative of one of
the victims of the accident filed an interrogatory requesting the content of
the interviews conducted by the tug owners attorney with the survivors.
Synopsis of Rule of Law. While the protective cloak of attorney-client
privilege does not extend to information that an attorney secures from a
witness while acting for his client in anticipation of litigation, an attempt,
without necessity or justification, to secure written statements, private
memoranda and personal recollections prepared or formed by an adverse
partys counsel, falls outside the arena of discovery.
Facts. In 1943 a tug, the J.M. Taylor sank while engaged in helping to tow
a car float of the Baltimore and Ohio Railroad across the Delaware River at
Philadelphia. The accident, in which five of the nine crew members drowned
was unusual in nature and the cause was unknown. Three days later
Defendants employed a law firm to defend them against potential suits by
representatives of the deceased crew members and to sue the railroad for
damages to the tug. The following month, the attorney for Defendants
privately interviewed the four survivors and took statements from them with
an eye toward anticipated litigation. Hickman (Plaintiff), a representative of
one of the five victims, brought suit in federal court naming as defendants
the two tug owners. One year later, Plaintiff filed 39 interrogatories directed
to the tug owners. The 38th interrogatory requested that the tug owners
disclose whether any statements of the surviving crew members were taken
following the accident, and if so, to include copies of such statements in
writing, and if oral, to set forth in detail the exact provisions of such
statements. The tug owners answered all of the interrogatories in full, except
number 38. They admitted that statements were taken, but declined to
summarize them or provide their contents. They based their refusal on the
ground that such requests called for privileged matter obtained in
preparation for litigation. The district court held that the requested matters
were not privileged. Upon their refusal, the tug owners were held in
contempt. The Third Circuit Court of Appeals reversed the judgment of the
district court. The Supreme Court of the United States then granted
certiorari.
Issue. Whether, without a showing of prejudice by the moving party,
statements made to discoverable, if they were taken in anticipation of
litigation and contained among them the personal recollections and thoughts
of opposing counsel.
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Held. No. The Supreme Court affirmed the judgment of the Circuit Court of
Appeals overturning the order for discovery. Discovery has ultimate and
necessary boundaries. Limitations come into existence when the inquiry
encroaches upon the recognized domains of privilege. The protective cloak of
this privilege does not extend to information that an attorney secures from a
witness while acting for his client in anticipation of litigation. However, an
attempt, without necessity or justification, to secure written statements,
private memoranda and personal recollections prepared or formed by an
adverse partys counsel, falls outside the arena of discovery. The policy
underlying the work product immunity is the necessity for the lawyer to
investigate all facets of the case and develop his theories without fear of
having to disclose his strategies or information that is unfavorable to his
client. A lawyer is protected against disclosure in discovery of information
generated by the litigation process itself but not against disclosure of
underlying historical facts. Concurrence. Justice Robert H. Jackson
concurred. Justice Jacksons concurrence focused on the demoralizing effect
on law practice if lawyers were required to write out and deliver to their
adversaries an account of what witnesses have told them.
Discussion. Ultimately, the Supreme Court held that the crews
conversations with Fortenbaugh did not come under the attorney-client
privilege. Materials prepared for litigation are protected from discovery by a
qualified immunity. This case holds that to compel documents that may be
privileged by containing attorney work product, the moving party must show
that it has no other method of obtaining the information, and that denial of
his motion to compel will really harm his case. Moreover, the court, before it
was codified in the Federal Rules, recognized the strong policy interest in
allowing lawyers to work with a degree of privacy, finding that if such
materials were open to opposing counsel, much of what is now written down
would remain unwritten. Thus, because Plaintiffs attorney could have
interviewed the survivors on his own, their identity being well known, the
court saw that there was no significant harm in not allowing Plaintiffs access
to the statements.
called as a witness, the District Court stated that a copy of the investigator's report, inspected and
edited by the court in camera so as to excise references to matters not relevant to such statements,
would have to be submitted to the prosecution for inspection at the completion of the investigator's
testimony. When defense counsel said he did not intend to produce the report, the court ruled that
the investigator could not testify about his interviews with the witnesses. The Court of Appeals,
considering such ruling to be reversible error, held that both the Fifth Amendment and Fed. Rule
Crim. Proc. 16 prohibited the disclosure condition imposed.
Held:
1. In a proper case, the prosecution, as well as the defense, can invoke the federal
judiciary's inherent power to require production of previously recorded witness
statements that facilitate full disclosure of all the relevant facts. Here the investigator's
report might provide critical insight into the issues of credibility that the investigator's
testimony would raise and hence was highly relevant to such issues. Pp. 230-232.
2. The Fifth Amendment privilege against compulsory self-incrimination, being personal
to the defendant, does not extend to the testimony or statements of third parties called as
witnesses at trial. In this instance the fact that the statements of third parties were elicited
by a defense investigator on respondent's behalf does not convert them into respondent's
personal communications, and requiring their production would in no sense compel
respondent to be a witness against himself or extort communications from him. Pp. 233234.
3. Rule 16, whose language and history both indicate that it addresses only pretrial
discovery, imposes no constraint on the [422 U.S. 225, 226] District Court's power to
condition the impeachment testimony of respondent's witness on the production of the
relevant portions of his report. The fact that the Rule incorporates the Jencks Act
limitation shows no contrary intent and does not convert the Rule into a general limitation
on the trial court's broad discretion as to evidentiary questions at trial. Pp. 234-236.
4. The qualified privilege derived from the attorney work-product doctrine is not
available to prevent disclosure of the investigative report, since respondent, by electing to
present the investigator as a witness, waived the privilege with respect to matters covered
in his testimony. Pp. 236-240.
5. It was within the District Court's discretion to assure that the jury would hear the
investigator's full testimony rather than a truncated portion favorable to respondent, and
the court's ruling, contrary to respondent's contention, did not deprive him of the Sixth
Amendment rights to compulsory process and cross-examination. That Amendment does
not confer the right to present testimony free from the legitimate demands of the
adversarial system and cannot be invoked as a justification for presenting what might
have been a half-truth. Pp. 240-241.
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Upjohn Co. v. United States
Brief Fact Summary. The Petitioner, Upjohn Co. (Petitioner), conducted an
internal audit and investigation that revealed alleged illegal payments made
vs. ATTY.
ESSEX
L.
DECISION
PUNO, J.:
In this complaint for disbarment filed by William Ong Genato against
respondent Atty. Essex L. Silapan, complainant alleged that in July 1992,
respondent asked if he could rent a small office space in complainants
building in Quezon City for his law practice. Complainant acceded and
introduced respondent to Atty. Benjamin Dacanay, complainants retained
lawyer, who accommodated respondent in the building and made him handle
some of complainants cases. Hence, the start of the legal relationship
between complainant and respondent.
The conflict between the parties started when respondent borrowed two
hundred thousand pesos (P200,000.00) from complainant which he intended
to use as downpayment for the purchase of a new car. In return, respondent
issued to complainant a postdated check in the amount of P176,528.00 to
answer for the six (6) months interest on the loan. He likewise mortgaged to
complainant his house and lot in Quezon City but did not surrender its title
claiming that it was the subject of reconstitution proceedings before the
Quezon City Register of Deeds.
With the money borrowed from complainant, respondent purchased a
new car. However, the document of sale of the car was issued in
complainants name and financed through City Trust Company.
In January 1993, respondent introduced to complainant a certain
Emmanuel Romero. Romero likewise wanted to borrow money from
complainant. Complainant lent Romero the money and, from this
transaction,
respondent
earned
commission
in
the
amount
of P52,289.90. Complainant used the commission to pay respondents
arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization on the car and
the financing firm sent demand letters to complainant. Complainant tried to
encash respondents postdated check with the drawee bank but it was
dishonored as respondents account therein was already closed.
Respondent failed to heed complainants repeated demands for
payment. Complainant then filed a criminal case against respondent
for violation of Batas Pambansa Blg. 22 and a civil case for judicial
foreclosure of real estate mortgage.
charged and recommending his suspension from the practice of law for one
(1) year.
We affirm the findings and recommendation of the IBP.
Prefatorily, we stress that we shall not delve into the merits of the
various criminal and civil cases pending between the parties. It is for the trial
courts handling these cases to ascertain the truth or falsity of the allegations
made therein. For this reason, it is not for us to sanction respondent for his
issuance of a bouncing check. His liability has yet to be determined by the
trial court where his case is pending.
The only issue in this administrative case is whether respondent
committed a breach of trust and confidence by imputing to complainant
illegal practices and disclosing complainants alleged intention to bribe
government officials in connection with a pending case.
Canon 17 of the Code of Professional Responsibility provides that a
lawyer owes fidelity to the cause of his client and shall be mindful of the
trust and confidence reposed on him. The long-established rule is that an
attorney is not permitted to disclose communications made to him in his
professional character by a client, unless the latter consents. This obligation
to preserve the confidences and secrets of a client arises at the inception of
their relationship.[3] The protection given to the client is perpetual and does
not cease with the termination of the litigation, nor is it affected by the
partys ceasing to employ the attorney and retaining another, or by any other
change of relation between them. It even survives the death of the client.[4]
It must be stressed, however, that the privilege against disclosure of
confidential
communications
or
information
is
limited
only
to
communications which are legitimately and properly within the scope of a
lawful employment of a lawyer. It does not extend to those made in
contemplation of a crime or perpetration of a fraud. [5] If the unlawful
purpose is avowed, as in this case, the complainants alleged intention to
bribe government officials in relation to his case, the communication is not
covered by the privilege as the client does not consult the lawyer
professionally. It is not within the profession of a lawyer to advise a client as
to how he may commit a crime as a lawyer is not a gun for hire. Thus, the
attorney-client privilege does not attach, there being no professional
employment in the strict sense.
Be that as it may, respondents explanation that it was necessary for him
to make the disclosures in his pleadings fails to satisfy us. The disclosures
were not indispensable to protect his rights as they were not pertinent to the
foreclosure case. It was improper for the respondent to use it against the
complainant in the foreclosure case as it was not the subject matter of
litigation therein and respondents professional competence and legal advice
were not being attacked in said case. A lawyer must conduct himself,
especially in his dealings with his clients, with integrity in a manner that is
beyond reproach. His relationship with his clients should be characterized by
the highest degree of good faith and fairness.
Thus, the Court agrees with the evaluation of the IBP and finds that
respondents allegations and disclosures in the foreclosure case amount to a
breach of fidelity sufficient to warrant the imposition of disciplinary sanction
against him. However, the recommended penalty of one (1) year suspension
of respondent from the practice of law seems to be disproportionate to his
breach of duty considering that a review of the records of this Court reveals
that this is the first administrative complaint against him.
IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered
suspended from the practice of law for a period of six (6) months effective
upon receipt of this Decision. Let a copy of this Decision be furnished the
Office of the Bar Confidant and the Integrated Bar of the Philippines. The
Court Administrator is directed to circulate this order of suspension to all
courts in the country.
SO ORDERED.
EN BANC
[G.R. Nos. 115439-41. July 16, 1997]
PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HONORABLE
SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S.
PAREDES, JR. and GENEROSO S. SANSAET,respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar, petitioner seeks the
annulment of the resolution of respondent Sandiganbayan, promulgated on
December 22, 1993, which denied petitioners motion for the discharge of
respondent Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for reconsideration of its
preceding disposition.[1]
The records show that during the dates material to this case, respondent
Honrada was the Clerk of Court and Acting Stenographer of the First
Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del
Sur. Respondent Paredes was successively the Provincial Attorney of Agusan
del Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney who served as
counsel for Paredes in several instances pertinent to the criminal charges
involved in the present recourse.
The same records also represent that sometime in 1976, respondent
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario
Public Land Subdivision Survey. His application was approved and, pursuant
to a free patent granted to him, an original certificate of title was issued in
his favor for that lot which is situated in the poblacion of San Francisco,
Agusan del Sur.
However, in 1985, the Director of Lands filed an action [2] for the
cancellation of respondent Paredes patent and certificate of title since the
land had been designated and reserved as a school site in the
aforementioned
subdivision
survey. The
trial
court
rendered
judgment[3] nullifying said patent and title after finding that respondent
Paredes had obtained the same through fraudulent misrepresentations in his
application. Pertinently, respondent Sansaet served as counsel of Paredes in
that civil case.[4]
Consequent to the foregoing judgment of the trial court, upon the
subsequent complaint of the Sangguniang Bayan and the preliminary
investigation conducted thereon, an information for perjury [5] was filed
against respondent Paredes in the Municipal Circuit Trial Court. [6] On
November 27, 1985, the Provincial Fiscal was, however, directed by the
Deputy Minister of Justice to move for the dismissal of the case on the
ground inter aliaof prescription, hence the proceedings were terminated. [7] In
this criminal case, respondent Paredes was likewise represented by
respondent Sansaet as counsel.
Nonetheless, respondent* Paredes was thereafter haled before the
Tanodbayan for preliminary investigation on the charge that, by using his
former position as Provincial Attorney to influence and induce the Bureau of
Lands officials to favorably act on his application for free patent, he had
violated Section 3(a) of Republic Act No. 3019, as amended. For the third
time, respondent Sansaet was Paredes counsel of record therein.
On
August
29,
[8]
resolution recommending
1988,
the
the criminal
Tanodbayan,
prosecution of
issued
a
respondent
act of all, the same penalty shall be imposed on all members of the
conspiracy. Now, one of the requirements for a state witness is that he does
not appear to be the most guilty.[31] not that he must be the least guilty [32] as
is so often erroneously framed or submitted. The query would then be
whether an accused who was held guilty by reason of membership in a
conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this obiter:
It appears that Apolonio Bagispas was the real mastermind. It is believable
that he persuaded the others to rob Paterno, not to kill him for a promised
fee. Although he did not actually commit any of the stabbings, it was a
mistake to discharge Bagispas as a state witness. All the perpetrators of the
offense, including him, were bound in a conspiracy that made them equally
guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two conspirators
charged with five others in three separate informations for multiple murder
were
discharged
and
used
as
state
witnesses
against
their
confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et
al.,[35] one of the co-conspirators was discharged from the information
charging him and two others with the crime of estafa. The trial court found
that he was not the most guilty as, being a poor and ignorant man, he was
easily convinced by his two co-accused to open the account with the bank
and which led to the commission of the crime.
On appeal, this Court held that the finding of respondent appellate court
that Lugtu was just as guilty as his co-accused, and should not be
discharged as he did not appear to be not the most guilty, is untenable. In
other words, the Court took into account the gravity or nature of the acts
committed by the accused to be discharged compared to those of his coaccused, and not merely the fact that in law the same or equal penalty is
imposable on all of them.
Eventually, what was just somehow assumed but not explicitly articulated
found expression in People vs. Ocimar, et al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not satisfy the
conditions for the discharge of a co-accused to become a state witness. He
argues that no accused in a conspiracy can lawfully be discharged and
utilized as a state witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant asserts that since accused
Bermudez was part of the conspiracy, he is equally guilty as the others.
Also, this is an affair of substantive law which should not be equated with
the procedural rule on the discharge of particeps criminis. This adjective
device is based on other considerations, such as the need for giving
immunity to one of them in order that not all shall escape, and the judicial
experience that the candid admission of an accused regarding his
participation is a guaranty that he will testify truthfully. For those reasons,
the Rules provide for certain qualifying criteria which, again, are based on
judicial experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other
requisites for the discharge of respondent Sansaet as a state witness are
present and should have been favorably appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending before
respondent court, and the prosecution is faced with the formidable task of
establishing the guilt of the two other co-respondents who steadfastly deny
the charge and stoutly protest their innocence. There is thus no other direct
evidence available for the prosecution of the case, hence there is absolute
necessity for the testimony of Sansaet whose discharge is sought precisely
for that purpose. Said respondent has indicated his conformity thereto and
has, for the purposes required by the Rules, detailed the substance of his
projected testimony in his Affidavit of Explanations and Rectifications.
His testimony can be substantially corroborated on its material points by
reputable witnesses, identified in the basic petition with a digest of their
prospective testimonies, as follows: Judge Ciriaco C. Ario, Municipal Circuit
Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and
Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private
complainant who initiated the criminal cases through his letter-complaint;
Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur,
who participated in the resolution asking their Provincial Governor to file the
appropriate case against respondent Paredes, and Francisco Macalit, who
obtained the certification of non-arraignment from Judge Ario.
On the final requirement of the Rules, it does not appear that respondent
Sansaet has at any time been convicted of any offense involving moral
turpitude. Thus, with the confluence of all the requirements for the discharge
of this respondent, both the Special Prosecutor and the Solicitor General
strongly urge and propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this procedural
aspect, the prosecution may propose but it is for the trial court, in the
exercise of its sound discretion, to determine the merits of the proposal and
make the corresponding disposition. It must be emphasized, however, that
such discretion should have been exercised, and the disposition taken on a
holistic view of all the facts and issues herein discussed, and not merely on
the sole issue of the applicability of the attorney-client privilege.
This change of heart and direction respondent Sandiganbayan eventually
assumed, after the retirement of two members of its Second Division [37]and
the reconstitution thereof. In an inversely anticlimactic Manifestation and
Comment [38] dated June 14, 1995, as required by this Court in its resolution
on December 5, 1994, the chairman and new members thereof [39] declared:
4) That the questioned Resolutions of December 22, 1993 and March 7,
1994 upon which the Petition for Certiorari filed by the prosecution are
based, was penned by Associate Justice Narciso T. Atienza and concurred in
by the undersigned and Associate Justice Augusto M. Amores;
5) That while the legal issues involved had been already discussed and
passed upon by the Second Division in the aforesaid Resolution, however,
after going over the arguments submitted by the Solicitor-General and reassessing Our position on the matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that We are amenable to setting aside
the questioned Resolutions and to grant the prosecutions motion to
discharge accused Generoso Sansaet as state witness, upon authority of the
Honorable Supreme Court for the issuance of the proper Resolution to that
effect within fifteen (15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby granted
SETTING ASIDE the impugned resolutions and ORDERING that the present
reliefs sought in these cases by petitioner be allowed and given due course
by respondent Sandiganbayan.
SO ORDERED.
SECOND DIVISION
[A.C. No. 5108. May 26, 2005]
ROSA
F.
MERCADO, complainant,
VITRIOLO, respondent.
vs.
DECISION
ATTY.
JULITO
D.
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint against Atty.
Julito D. Vitriolo, seeking his disbarment from the practice of law. The
complainant alleged that respondent maliciously instituted a criminal case
for falsification of public document against her, a former client, based on
confidential information gained from their attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of the Standards
Development Division, Office of Programs and Standards while respondent is
a Deputy Executive Director IV of the Commission on Higher Education
(CHED).[1]
Complainants husband filed Civil Case No. 40537 entitled Ruben G.
Mercado v. Rosa C. Francisco, for annulment of their marriage with the
Regional Trial Court (RTC) of Pasig City. This annulment case had been
dismissed by the trial court, and the dismissal became final and executory
on July 15, 1992.[2]
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died.
On February 7, 1994, respondent entered his appearance before the trial
court as collaborating counsel for complainant.[3]
On March 16, 1994, respondent filed his Notice of Substitution of
Counsel,[4] informing the RTC of Pasig City that he has been appointed as
counsel for the complainant, in substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a criminal action
against complainant before the Office of the City Prosecutor, Pasig City,
entitled Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado, and docketed
as I.S. No. PSG 99-9823, for violation of Articles 171 and 172 (falsification of
public document) of the Revised Penal Code. [5] Respondent alleged that
complainant made false entries in the Certificates of Live Birth of her
children, Angelica and Katelyn Anne. More specifically, complainant allegedly
indicated in said Certificates of Live Birth that she is married to a certain
Ferdinand Fernandez, and that their marriage was solemnized on April 11,
1979, when in truth, she is legally married to Ruben G. Mercado and their
marriage took place on April 11, 1978.
Complainant denied the accusations of respondent against her. She
denied using any other name than Rosa F. Mercado. She also insisted that
she has gotten married only once, on April 11, 1978, to Ruben G. Mercado.
entries in the birth certificates of her two daughters. The birth certificates
are filed in the Records Division of CHED and are accessible to anyone. [12]
In a Resolution dated February 9, 2000, this Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[13]
The IBP Commission on Bar Discipline set two dates for hearing but
complainant failed to appear in both. Investigating Commissioner Rosalina R.
Datiles thus granted respondents motion to file his memorandum, and the
case was submitted for resolution based on the pleadings submitted by the
parties.[14]
On June 21, 2003, the IBP Board of Governors approved the report of
investigating commissioner Datiles, finding the respondent guilty of violating
the rule on privileged communication between attorney and client, and
recommending his suspension from the practice of law for one (1) year.
On August 6, 2003, complainant, upon receiving a copy of the IBP report
and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of
desistance. She stated that after the passage of so many years, she has now
found forgiveness for those who have wronged her.
At the outset, we stress that we shall not inquire into the merits of the
various criminal and administrative cases filed against respondent. It is the
duty of the tribunals where these cases are pending to determine the guilt or
innocence of the respondent.
We also emphasize that the Court is not bound by any withdrawal of the
complaint or desistance by the complainant. The letter of complainant to the
Chief Justice imparting forgiveness upon respondent is inconsequential in
disbarment proceedings.
We now resolve whether respondent violated the rule on privileged
communication between attorney and client when he filed a criminal case for
falsification of public document against his former client.
A brief discussion of the nature of the relationship between attorney and
client and the rule on attorney-client privilege that is designed to protect
such relation is in order.
In engaging the services of an attorney, the client reposes on him special
powers of trust and confidence. Their relationship is strictly personal and
highly confidential and fiduciary. The relation is of such delicate, exacting
Since the offer of evidence is made at the trial, Josielenes request for
subpoena duces tecum is premature. She will have to wait for trial to begin
before making a request for the issuance of a subpoena duces tecum
covering Johnnys hospital records. It is when those records are produced for
examination at the trial, that Johnny may opt to object, not just to their
admission in evidence, but more so to their disclosure. Section 24(c), Rule
130 of the Rules of Evidence quoted above is about non-disclosure of
privileged matters.
2. It is of course possible to treat Josielenes motion for the issuance of a
subpoena duces tecum covering the hospital records as a motion for
production of documents, a discovery procedure available to a litigant prior
to trial. Section 1, Rule 27 of the Rules of Civil Procedure provides:
SEC. 1. Motion for production or inspection; order. Upon motion of any
party showing good cause therefor, the court in which an action is pending
may (a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material
to any matter involved in the action and which are in his possession, custody
or control; or (b) order any party to permit entry upon designated land or
other property in his possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any designated
relevant object or operation thereon. The order shall specify the time, place
and manner of making the inspection and taking copies and photographs,
and may prescribe such terms and conditions as are just. (Emphasis
supplied)
But the above right to compel the production of documents has a limitation:
the documents to be disclosed are "not privileged."
Josielene of course claims that the hospital records subject of this case are
not privileged since it is the "testimonial" evidence of the physician that may
be regarded as privileged. Section 24(c) of Rule 130 states that the
physician "cannot in a civil case, without the consent of the patient, be
examined" regarding their professional conversation. The privilege, says
Josielene, does not cover the hospital records, but only the examination of
the physician at the trial.
To allow, however, the disclosure during discovery procedure of the hospital
recordsthe results of tests that the physician ordered, the diagnosis of the
patients illness, and the advice or treatment he gave himwould be to allow
access to evidence that is inadmissible without the
ROMERO, J.:
Before us is a petition for certiorari to annul the decision of the Court of
Appeals dated October 19, 1994, finding private respondents as the heirs of
Ricardo de Mesa Abad as well as annulling petitioners' extra-judicial partition
of the decedent's estate.
The facts are as follows:
On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de Mesa
Abad and Cesar de Mesa Tioseco sought the settlement of the intestate
estate of their brother, Ricardo de Mesa Abad, before the then Court of First
Instance of Manila. In their petition, docketed as Special Proceedings No.
86792, petitioners claimed that they were the only heirs of Ricardo de Mesa
Abad, as the latter allegedly died a bachelor, leaving no descendants or
ascendants, whether legitimate or illegitimate. On May 9, 1972, petitioners
amended their petition by alleging that the real properties covered by TCT
Nos. 13530, 53671, and 64021, listed therein as belonging to the decedent,
were actually only administered by the latter, the true owner being their late
mother, Lucila de Mesa. On June 16, 1972, the trial court appointed Cesar de
Mesa Tioseco as administrator of the intestate estate of Ricardo de Mesa
Abad.
Meanwhile, on May 2, 1972, petitioners executed an extrajudicial settlement
of the estate of their late mother Lucila de Mesa, copying therein the
technical descriptions of the lots covered by TCT Nos. 13530, 53671, and
64021. By virtue thereof, the Register of Deeds cancelled the abovementioned TCTs in the name of Ricardo Abad and issued, in lieu thereof, TCT
No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the
name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina
Abad Gonzales. The three promptly executed real estate mortgages over the
real properties in favor of Mrs. Josefina Viola, the wife of their counsel,
Escolastico Viola.
On July 7, 1972, private respondents Honoria Empaynado, Cecilia Abad
Empaynado, and Marian Abad Empaynado filed a motion to set aside
proceedings and for leave to file opposition in Special Proceedings No.
86792. In their motion, they alleged that Honoria Empaynado had been the
common-law wife of Ricardo Abad for twenty-seven years before his death,
or from 1943 to 1971, and that during this period, their union had produced
two children, Cecilia Abad Empaynado and Marian Abad Empaynado. Private
respondents also disclosed the existence of Rosemarie Abad, a child
allegedly fathered by Ricardo Abad with another woman, Dolores Saracho.
As the law awards the entire estate to the surviving children to the exclusion
of collateral relatives, private respondents charged petitioners with
deliberately concealing the existence of said three children in other to
deprive the latter of their rights to the estate of Ricardo Abad.
On July 24, 1972, private respondents filed a motion to withdraw their first
motion and, in lieu thereof, filed a motion for reconsideration praying that
Cecilia Abad be appointed administrator instead of Cesar Tioseco. The trial
court denied private respondents' motion to remove Cesar Tioseco as
administrator, but allowed them to appear in the proceedings to establish
their right as alleged heirs of Ricardo Abad.
Private respondents later discovered that petitioners had managed to cancel
TCT Nos. 13530, 53671, and 64021 through the stratagem of extra-judicially
partitioning their mother's estate. Accordingly, on October 4, 1973, private
respondents filed a motion to annul the extra-judicial partition executed by
petitioners, as well as TCT Nos. 108482, 108483, and 108484, the Torrens
titles issued in substitution of TCT Nos. 13530, 53671, and 64021 and the
real estate mortgages constituted by the latter on said properties.
After due trial, the lower court, on November 2, 1973, rendered the
following judgment:
WHEREFORE, judgment is hereby rendered as follows:
(1) Declaring Cecilia E. Abad, Marian E. Abad
and Rosemarie S. Abad acknowledged natural
children of the deceased Ricardo M. Abad;
(2) Declaring said acknowledged natural
children, namely: Cecilia E. Abad, Marian E.
Abad, and Rosemarie S. Abad the only
surviving legal heirs of the deceased Ricardo
M. Abad and as such entitled to succeed to the
entire estate of said deceased, subject to the
rights of Honoria Empaynado, if any, as coowner of any of the property of said estate that
may have been acquired thru her joint efforts
The date of Jose Libunao's death is important, for if he was still alive in
1971, and given that he was legally married to Honoria Empaynado, the
presumption would be that Cecilia and Marian are not Ricardo Abad's
children with the latter, but of Jose Libunao and Honoria Empaynado. Article
256, the applicable provision of the Civil Code, provides:
Art. 256. The child shall be presumed legitimate, although
the mother may have declared against its legitimacy or
may have been sentenced as an adulteress. 4
To bolster their theory, petitioners presented in evidence the application for
enrolment at Mapua Institute of Technology of Angelita Libunao,
accomplished in 1956, which states:
Father's Name: Jose Libunao
Occupation: engineer (mining)
Mother's Name: Honoria Empaynado 5
as well as Cesar Libunao's 1958 application for enrolment at the
Mapua Institute of Technology, which states:
Father's Name: Jose Libunao
Occupation: none
Mother's Name: Honoria Empaynado 6
Petitioners claim that had Jose Libunao been dead during the time when said
applications were accomplished, the enrolment forms of his children would
have stated so. These not being the case, they conclude that Jose Libunao
must have still been alive in 1956 and 1958.
Additionally, petitioners presented the joint affidavit of Juan Quiambao and
Alejandro Ramos 7 stating that to their knowledge Jose Libunao had died in
1971, leaving as his widow, Honoria Empaynado, and that the former had
been interred at the Loyola Memorial Park.
Lastly, petitioners presented the affidavit of Dr. Pedro Arenas, 8 Ricardo
Abad's physician, declaring that in 1935, he had examined Ricardo Abad and
found him to be infected with gonorrhea, and that the latter had become
sterile as a consequence thereof.
With these pieces of evidence, petitioners claim that Cecilia and Marian Abad
are not the illegitimate children of Ricardo Abad, but rather the legitimate
children of the spouses Jose Libunao and Honoria Empaynado.
At the outset, it must be noted that petitioners are disputing the veracity of
the trial court's finding of facts. It is a fundamental and settled rule that
factual findings of the trial court, adopted and confirmed by the Court of
Appeals, are final and conclusive and may not be reviewed on appeal. 9
Petitioners, however, argue that factual findings of the Court of Appeals are
not binding on this Court when there appears in the record of the case some
fact or circumstance of weight and influence which has been overlooked, or
the significance of which has been misinterpreted, that if considered, would
affect the result of the case. 10
This Court finds no justifiable reason to apply this exception to the case at
bar.
First, the evidence presented by petitioners to prove that Jose Libunao died
in 1971 are, to say the least, far from conclusive. Failure to indicate on an
enrolment form that one's parent is "deceased" is not necessarily proof that
said parent was still living during the time said form was being
accomplished. Furthermore, the joint affidavit of Juan Quiambao and
Alejandro Ramos as to the supposed death of Jose Libunao in 1971 is not
competent evidence to prove the latter's death at that time, being merely
secondary evidence thereof. Jose Libunao's death certificate would have
been the best evidence as to when the latter died. Petitioners have, however,
inexplicably failed to present the same, although there is no showing that
said death certificate has been lost or destroyed as to be unavailable as
proof of Jose Libunao's death. More telling, while the records of Loyola
Memorial Park show that a certain Jose Bautista Libunao was indeed buried
there in 1971, this person appears to be different from Honoria Empaynado's
first husband, the latter's name being Jose Santos Libunao. Even the name
of the wife is different. Jose Bautista Libunao's wife is listed as Josefa Reyes
while the wife of Jose Santos Libunao was Honoria Empaynado.
As to Dr. Arenas' affidavit, the same was objected to by private respondents
as being privileged communication under Section 24 (c), Rule 130 of the
Rules of Court. 11 The rule on confidential communications between physician
and patient requires that: a) the action in which the advice or treatment
given or any information is to be used is a civil case; b) the relation of
physician and patient existed between the person claiming the privilege or
his legal representative and the physician; c) the advice or treatment given
by him or any information was acquired by the physician while professionally
attending the patient; d) the information was necessary for the performance
of his professional duty; and e) the disclosure of the information would tend
to blacken the reputation of the patient. 12
Petitioners do not dispute that the affidavit meets the first four requisites.
They assert, however, that the finding as to Ricardo Abad's "sterility" does
not blacken the character of the deceased. Petitioners conveniently forget
that Ricardo Abad's "sterility" arose when the latter contracted gonorrhea, a
fact which most assuredly blackens his reputation. In fact, given that society
holds virility at a premium, sterility alone, without the attendant
embarrassment of contracting a sexually-transmitted disease, would be
sufficient to blacken the reputation of any patient. We thus hold the affidavit
inadmissible in evidence. And the same remains inadmissible in evidence,
notwithstanding the death of Ricardo Abad. As stated by the trial court:
In the case of Westover vs. Aetna Life Insurance Company,
99 N.Y. 59, it was pointed out that: "The privilege of
secrecy is not abolished or terminated because of death as
stated in established precedents. It is an established rule
that the purpose of the law would be thwarted and the
policy intended to be promoted thereby would be defeated,
if death removed the seal of secrecy, from the
communications and disclosures which a patient should
make to his physician. After one has gone to his grave, the
living are not permitted to impair his name and disgrace
his memory by dragging to light communications and
disclosures made under the seal of the statute.
Given the above disquisition, it is clearly apparent that petitioners have
failed to establish their claim by the quantum of evidence required by law.
On the other hand, the evidence presented by private respondents
overwhelmingly prove that they are the acknowledged natural children of
Ricardo Abad. We quote with approval the trial court's decision, thus:
In his individual statements of income and assets for the
calendar years 1958 and 1970, and in all his individual
income tax returns for the years 1964, 1965, 1967, 1968,
1969 and 1970, he has declared therein as his legitimate
wife, Honoria Empaynado; and as his legitimate dependent
children, Cecilia, Marian (except in Exh. 12) and Rosemarie
Abad (Exhs. 12 to 19; TSN, February 26, 1973, pp. 3344).
xxx xxx xxx
proved that said properties in truth belong to Ricardo Abad. As stated earlier,
the findings of fact by the trial court are entitled to great weight and should
not be disturbed on appeal, it being in a better position to examine the real
evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. 13 In fact, petitioners seem to accept this conclusion,
their contention being that they are entitled to the subject estate whether
the same is owned by Ricardo Abad or by Lucila de Mesa.
Digressing from the main issue, in its decision dated October 19, 1994, the
Court of Appeals affirmed the trial court's order dated March 21, 1975
denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco on
the ground that the same was filed out of time. This affirmance is erroneous,
for on July 9, 1985, this Court had already ruled that the same was not filed
out of time. Well-settled is the dictum that the rulings of the Supreme Court
are binding upon and may not be reversed by a lower court.
WHEREFORE, premises considered, the instant petition is hereby DENIED.
The decision of the Court of Appeals in CA-G.R. CV No. 30184 dated October
19, 1994 is AFFIRMED with the MODIFICATION that the affirmance of the
Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad
and Cesar de Mesa Tioseco for being filed out of time is SET ASIDE. Costs
against petitioners.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in evidence
before the trial court in a petition for annulment of marriage grounded on
psychological incapacity. The witness testifying on the report is the husband
who initiated the annulment proceedings, not the physician who prepared
the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the
rule on privileged communication between physician and patient, seeks to
enjoin her husband from disclosing the contents of the report. After failing to
convince the trial court and the appellate court, she is now before us on a
petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at
the Saint Vincent de Paul Church in San Marcelino, Manila. The union
produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their
blessings notwithstanding, the relationship between the couple developed
into a stormy one. In 1971, Ma. Paz underwent psychological testing
purportedly in an effort to ease the marital strain. The effort however proved
futile. In 1973, they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric
report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and
Baltazar Reyes. On 2 November 1978, presenting the report among others,
he obtained a decree ("Conclusion") from the Tribunal Metropolitanum
Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the
ground of "incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and thereafter." 1 On 10 July
1979, the decree was confirmed and pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional
Trial Court) of Pasig, Br. II, issued an order granting the voluntary dissolution
of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage
with Ma. Paz before the trial court. 3 In his petition, he cited the Confidential
Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as
"either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried to
testify on the contents of the Confidential Psychiatric Evaluation Report. This
was objected to on the ground that it violated the rule on privileged
communication between physician and patient. Subsequently, Ma. Paz filed a
the Rules sanction his testimony considering that a husband may testify
against his wife in a civil case filed by one against the other.
Besides, private respondent submits that privileged communication may be
waived by the person entitled thereto, and this petitioner expressly did when
she gave her unconditional consent to the use of the psychiatric evaluation
report when it was presented to the Tribunal Metropolitanum Matrimoniale
which took it into account among others in deciding the case and declaring
their marriage null and void. Private respondent further argues that
petitioner also gave her implied consent when she failed to specifically object
to the admissibility of the report in her Answer where she merely described
the evaluation report as "either unfounded or irrelevant." At any rate, failure
to interpose a timely objection at the earliest opportunity to the evidence
presented on privileged matters may be construed as an implied waiver.
With regard to the Statement for the Record filed by petitioner, private
respondent posits that this in reality is an amendment of her Answer and
thus should comply with pertinent provisions of the Rules of Court, hence, its
exclusion from the records for failure to comply with the Rules is proper.
The treatise presented by petitioner on the privileged nature of the
communication between physician and patient, as well as the reasons
therefor, is not doubted. Indeed, statutes making communications between
physician and patient privileged are intended to inspire confidence in the
patient and encourage him to make a full disclosure to his physician of his
symptoms and condition. 17 Consequently, this prevents the physician from
making public information that will result in humiliation, embarrassment, or
disgrace to the patient. 18 For, the patient should rest assured with the
knowledge that the law recognizes the communication as confidential, and
guards against the possibility of his feelings being shocked or his reputation
tarnished by their subsequent disclosure. 19 The physician-patient privilege
creates a zone of privacy, intended to preclude the humiliation of the patient
that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient
relationship fall within the constitutionally protected zone of privacy, 20
including a patient's interest in keeping his mental health records
confidential. 21 Thus, it has been observed that the psychotherapist-patient
privilege is founded upon the notion that certain forms of antisocial behavior
may be prevented by encouraging those in need of treatment for emotional
problems to secure the services of a psychotherapist.
Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of
Appeals 22 clearly lays down the requisites in order that the privilege may be
successfully invoked: (a) the privilege is claimed in a civil case; (b) the
WHEREFORE, the instant petition for review is DENIED for lack of merit. The
assailed Decision of respondent Court of Appeals promulgated on 30 October
1992 is AFFIRMED.
SO ORDERED.
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure. (21a)
Senate vs. Ermita , GR 169777, April 20, 2006
Senate
vs.
Ermita
,
GR
169777,
April
20,
2006
FACTS:
This is a petition for certiorari and prohibition proffer that the President has
abused power by issuing E.O. 464 Ensuring Observance of the Principles of
Separation of Powers, Adherence to the Rule on Executive Privilege and
Respect for the Rights of Public Officials Appearing in Legislative Inquiries in
Aid of Legislation Under the Constitution, and for Other Purposes.
Petitioners pray for its declaration as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees
of the executive department, bureaus, and offices including those employed
in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines
(AFP),
and
the
Philippine
National
Police
(PNP).
The Committee of the Senate issued invitations to various officials of the
Executive Department for them to appear as resource speakers in a public
hearing on the railway project, others on the issues of massive election fraud
in the Philippine elections, wire tapping, and the role of military in the socalled
Gloriagate
Scandal.
Said officials were not able to attend due to lack of consent from the
President as provided by E.O. 464, Section 3 which requires all the public
officials enumerated in Section 2(b) to secure the consent of the President
prior
to
appearing
before
either
house
of
Congress.
ISSUE:
Is Section 3 of E.O. 464, which requires all the public officials, enumerated in
Section 2(b) to secure the consent of the President prior to appearing before
either
house
of
Congress,
valid
and
constitutional?
RULING:
No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by
executive officials and power brokers were using their influence to push the
approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue
Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs
and during which he admitted that Abalos of COMELEC tried to bribe him
with P200M in exchange for his approval of the NBN project. He further
narrated that he informed President Arroyo about the bribery attempt and
that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN
Project, petitioner refused to answer, invoking executive privilege. In
particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the
senate averring that the communications between GMA and Neri are
privileged and that the jurisprudence laid down in Senate vs Ermita be
applied. He was cited in contempt of respondent committees and an order
for his arrest and detention until such time that he would appear and give
his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered
by executive privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to
follow and abide by the Constitution, existing laws and jurisprudence,
including, among others, the case of Senate v. Ermita when they are invited
to legislative inquiries in aid of legislation.), does not in any way diminish the
concept of executive privilege. This is because this concept has
Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the
subject of inquiry relates to a power textually committed by the Constitution
to the President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-chief,
appointing, pardoning, and diplomatic powers. Consistent with the doctrine
of separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential
communications privilege:
1) The protected communication must relate to a quintessential and nondelegable presidential power.
2) The communication must be authored or solicited and received by a
close advisor of the President or the President himself. The judicial test is
that an advisor must be in operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege
that may be overcome by a showing of adequate need, such that the
information sought likely contains important evidence and by the
unavailability of the information elsewhere by an appropriate investigating
authority.
In the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited by the
three (3) questions fall under conversation and correspondence between
the President and public officials necessary in her executive and policy
decision-making process and, that the information sought to be disclosed
might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Simply put, the bases are presidential communications
concluded that Diplomatic negotiations have, since the Court promulgated its
Resolution in PMPF v. Manglapus on September 13, 1988, been recognized
as privileged in this jurisdiction and the reasons proffered by petitioners
against the application of the ruling therein to the present case have not
persuaded the Court. Moreover, petitioners both private citizens and
members of the House of Representatives have failed to present a
sufficient showing of need to overcome the claim of privilege in this case.
(GR No. 170516, Akbayan Citizens Action Party v. Aquino, July 16, 2008)
Note: The Court noted that the petition has been largely rendered moot and
academic by the public disclosure of JPEPAs text after its signing by
President Arroyo during the pendency of the petition. The court also
explained that the said Decision shall not be interpreted as departing from
the ruling in Senate v. Ermita that executive privilege should be invoked by
the President or through the Executive Secretary by order of the President.
(visit fellester.blogspot.com)
2. Testimonial Privilege
Section 25. Parental and filial privilege. No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants. (20a)
Family code
Art. 215. No descendant shall be compelled, in a criminal case, to testify
against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against the
other. (315a)
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 177861
old at the time. Another of the Lees other children, Mariano Lee, was born of
a 23-year-old mother, when Keh was then already 40 years old, and so forth.
In other words, by the hospital records of the Lees other children, Kehs
declared age did not coincide with her actual age when she supposedly gave
birth to such other children, numbering eight.
On the basis of this report, the respondent Lee-Keh children filed two
separate petitions, one of them before the Regional Trial Court (RTC) of
Caloocan City2 in Special Proceeding C-1674 for the deletion from the
certificate of live birth of the petitioner Emma Lee, one of Lees other
children, the name Keh and replace the same with the name Tiu to indicate
her true mothers name.
In April 2005 the Lee-Keh children filed with the RTC an ex parte request for
the issuance of a subpoena ad testificandum to compel Tiu, Emma Lees
presumed mother, to testify in the case. The RTC granted the motion but Tiu
moved to quash the subpoena, claiming that it was oppressive and violated
Section 25, Rule 130 of the Rules of Court, the rule on parental privilege,
she being Emma Lees stepmother.3 On August 5, 2005 the RTC quashed the
subpoena it issued for being unreasonable and oppressive considering that
Tiu was already very old and that the obvious object of the subpoena was to
badger her into admitting that she was Emma Lees mother.
Because the RTC denied the Lee-Keh childrens motion for reconsideration,
they filed a special civil action of certiorari before the Court of Appeals (CA)
in CA-G.R. SP 92555. On December 29, 2006 the CA rendered a decision,4
setting aside the RTCs August 5, 2005 Order. The CA ruled that only a
subpoena duces tecum, not a subpoena ad testificandum, may be quashed
for being oppressive or unreasonable under Section 4, Rule 21 of the Rules
of Civil Procedure. The CA also held that Tius advanced age alone does not
render her incapable of testifying. The party seeking to quash the subpoena
for that reason must prove that she would be unable to withstand the rigors
of trial, something that petitioner Emma Lee failed to do.
Since the CA denied Emma Lees motion for reconsideration by resolution of
May 8, 2007,5 she filed the present petition with this Court.
The Question Presented
The only question presented in this case is whether or not the CA erred in
ruling that the trial court may compel Tiu to testify in the correction of entry
case that respondent Lee-Keh children filed for the correction of the
certificate of birth of petitioner Emma Lee to show that she is not Kehs
daughter.
Lees other children, including petitioner Emma Lee. Keh had died and so
could not give testimony that Lees other children were not hers. The LeeKeh children have, therefore, a legitimate reason for seeking Tius testimony
and, normally, the RTC cannot deprive them of their right to compel the
attendance of such a material witness.
But petitioner Emma Lee raises two other objections to requiring Tiu to come
to court and testify: a) considering her advance age, testifying in court
would subject her to harsh physical and emotional stresses; and b) it would
violate her parental right not to be compelled to testify against her
stepdaughter.
1. Regarding the physical and emotional punishment that would be
inflicted on Tiu if she were compelled at her age and condition to come
to court to testify, petitioner Emma Lee must establish this claim to the
satisfaction of the trial court. About five years have passed from the
time the Lee-Keh children sought the issuance of a subpoena for Tiu to
appear before the trial court. The RTC would have to update itself and
determine if Tius current physical condition makes her fit to undergo
the ordeal of coming to court and being questioned. If she is fit, she
must obey the subpoena issued to her.
Tiu has no need to worry that the oral examination might subject her
to badgering by adverse counsel. The trial courts duty is to protect
every witness against oppressive behavior of an examiner and this is
especially true where the witness is of advanced age.8
2. Tiu claimed before the trial court the right not to testify against her
stepdaughter, petitioner Emma Lee, invoking Section 25, Rule 130 of
the Rules of Evidence, which reads:
SECTION 25. Parental and filial privilege.- No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants.
The above is an adaptation from a similar provision in Article 315 of the Civil
Code that applies only in criminal cases. But those who revised the Rules of
Civil Procedure chose to extend the prohibition to all kinds of actions,
whether civil, criminal, or administrative, filed against parents and other
direct ascendants or descendants.
But here Tiu, who invokes the filial privilege, claims that she is the
stepmother of petitioner Emma Lee. The privilege cannot apply to them
because the rule applies only to "direct" ascendants and descendants, a
March 5, 2003
hand, Gloria wanted to get rid of Artemio because she was already
cohabiting with another man.
In the Appellees Brief, the Office of the Solicitor General (OSG) prays for the
affirmation of Artemios conviction and sentence, but recommends that a
civil indemnity in the amount of P75,000 be awarded in addition to the
awards of moral and exemplary damages.
We find no cogent reason to overturn the findings of the trial court on the
culpability of Artemio.
It is doctrinally settled that the factual findings of the trial court, especially
on the credibility of the witnesses, are accorded great weight and respect
and will not be disturbed on appeal. This is so because the trial court has the
advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion,
the sudden pallor of a discovered lie, the tremulous mutter of a reluctant
answer, the forthright tone of a ready reply, the furtive glance, the blush of
conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it,
the scant or full realization of the solemnity of an oath, or the carriage and
mien.17 This rule, however, admits of exceptions, as where there exists a fact
or circumstance of weight and influence that has been ignored or
misconstrued by the court, or where the trial court has acted arbitrarily in its
appreciation of the facts.18 We do not find any of these exceptions in the
case at bar.
As to the competency of Elven to testify, we rule that such is not affected by
Section 25, Rule 130 of the Rules of Court,19 otherwise known as the rule on
"filial privilege." This rule is not strictly a rule on disqualification because a
descendant is not incompetent or disqualified to testify against an
ascendant.20 The rule refers to a privilege not to testify, which can be
invoked or waived like other privileges. As correctly observed by the lower
court, Elven was not compelled to testify against his father; he chose to
waive that filial privilege when he voluntarily testified against Artemio. Elven
declared that he was testifying as a witness against his father of his own
accord and only "to tell the truth."21
Neither can Artemio challenge the prosecutions act of propounding leading
questions on Elven. Section 10(c) of Rule 132 of the Rules of Court 22
expressly allows leading questions when the witness is a child of tender
years like Elven.
The alleged ulterior motive of Elven in testifying against his father also
deserves scant consideration. Such insinuation of ill-motive is too lame and
flimsy. As observed by the OSG, Elven, who was of tender age, could not
have subjected himself to the ordeal of a public trial had he not been
compelled by a motive other than to bring to justice the despoiler of his
sisters virtue. There is no indication that Elven testified because of anger or
any ill-motive against his father, nor is there any showing that he was unduly
pressured or influenced by his mother or by anyone to testify against his
father. The rule is that where there is no evidence that the principal witness
for the prosecution was actuated by improper motive, the presumption is
that he was not so actuated and his testimony is entitled to full credence. 23
We find as inconsequential the alleged variance or difference in the time that
the rape was committed, i.e., during the night as testified to by Elven, or
between 6:00 and 7:00 a.m. per the testimony of Eddie. The exact time or
date of the commission of rape is not an element of the crime. What is
decisive in a rape charge is that the commission of the rape by the accused
has been sufficiently proved. Inconsistencies and discrepancies as to minor
matters irrelevant to the elements of the crime cannot be considered
grounds for acquittal.24 In this case, we believe that the crime of rape was,
indeed, committed as testified to by Elven and Eddie.
The alleged inconsistencies in the testimonies of both Elven and Gloria do
not impair the credibility of these witnesses. We agree with the trial court
that they are minor inconsistencies, which do not affect the credibility of the
witnesses. We have held in a number of cases that inconsistencies in the
testimonies of witnesses that refer to minor and insignificant details do not
destroy the witnesses credibility.25 On the contrary, they may even be
considered badges of veracity or manifestations of truthfulness on the
material points in the testimonies. What is important is that the testimonies
agree on essential facts and substantially corroborate a consistent and
coherent whole.26
Artemios allegation that it was impossible for both Elven and Eddie to have
seen and witnessed the crime because the room was dark even at daytime
was convincingly disputed by rebuttal witnesses Gloria Pagala and Celestino
Navarro. Furthermore, as observed by the OSG, even if the hut was without
electricity, Elven could not have been mistaken in his identification of
Artemio because he had known the latter for a long time. Moreover, Elven
was at the time only two meters away from Cynthia and Artemio. Even
without sufficient illumination, Elven, who was jostled out of his sleep by
Cynthias loud cry, could observe the pumping motion made by his father.27
The alleged ill-motives on the part of Gloria and Celestino were not
sufficiently proved. Nothing in the records suggests any reason that would
motivate Gloria to testify falsely against Artemio, who is the father of her
to suffer the penalty of reclusion perpetua and to pay the victim Cynthia
Invencion the sums of P50,000 as indemnity; P50,000 as moral damages;
and P25,000 as exemplary damages.
Costs de oficio.
SO ORDERED.
Basic Principles on the Independence of the Judiciary
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their
deliberations and to confidential information acquired in the course of their
duties other than in public proceedings, and shall not be compelled to testify
on such matters.
CODE OF JUDICIAL CONDUCT
CANON 4 PROPRIETY
SEC. 9. Confidential information acquired by judges in their judicial capacity
shall not be used or disclosed for any other purpose related to their judicial
duties.
CODE OF CONDUCT FOR COURT PERSONNEL
CANON II CONFIDENTIALITY SECTION 1. Court personnel shall not disclose
to any unauthorized person any confidential information acquired by them
while employed in the judiciary, whether such information came from
authorized or unauthorized sources. Confidential information means
information not yet made a matter of public record relating to pending
cases, as well as information not yet made public concerning the work of any
justice or judge relating to pending cases, including notes, drafts, research
papers, internal discussions, internal memoranda, records of internal
deliberations and similar papers. The notes, drafts, research papers, internal
discussions, internal memoranda, records of internal deliberations and
similar papers that a justice or judge uses in preparing a decision, resolution
or order shall remain confidential even after the decision, resolution or order
is made public. SECTION 2. Confidential information available to specific
individuals by reason of statute, court rule or administrative policy shall be
disclosed only by persons authorized to do so.
SECTION 3. Unless expressly authorized by the designated authority, court
personnel shall not disclosed confidential information given by litigants,
witnesses or attorneys to justices, judges or any other person.
SECTION 4. Former court personnel shall not disclose confidential
information acquired by them during their employment in the Judiciary when
disclosed by current court personnel of the same information would
reached
by
the
Senate
Committees.
Manila
Bay
to
single
private
corporation.
operations, like rules specifying when and how to conduct the inspection and
copying.
6. Article 339 of the Civil Code of 1889 defined property of public
dominion
as
follows:
"Art.
339.
Property
of
public
dominion
is
1.
That devoted to public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, riverbanks, shores, roadsteads,
and
that
of
a
similar
character;
2.
That belonging exclusively to the State which, without being of
general public use, is employed in some public service, or in the
development of the national wealth, such as walls, fortresses, and other
works for the defense of the territory, and mines, until granted to private
individuals.
Property devoted to public use referred to property open for use by the
public. In contrast, property devoted to public service referred to property
used for some specific public service and open only to those authorized to
use the property.Property of public dominion referred not only to property
devoted to public use, but also to property not so used but employed to
develop the national wealth. This class of property constituted property of
public dominion although employed for some economic or commercial
activity
to
increase
the
national
wealth.
"Art. 341.
Property of public dominion, when no longer devoted to
public use or to the defense of the territory, shall become a part of the
private property of the State." This provision, however, was not selfexecuting. The legislature, or the executive department pursuant to law,
must declare the property no longer needed for public use or territorial
defense before the government could lease or alienate the property to
private
parties.
Act
No.
2874
of
the
Philippine
Legislature
Sec. 55.
Any tract of land of the public domain which, being neither
timber nor mineral land, shall be classified as suitable for residential
purposes or for commercial, industrial, or other productive purposes other
than agricultural purposes, and shall be open to disposition or concession,
shall be disposed of under the provisions of this chapter, and not otherwise.
The rationale behind this State policy is obvious. Government reclaimed,
foreshore and marshy public lands for non-agricultural purposes retain their
inherent potential as areas for public service. This is the reason the
government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public
service.
However, government reclaimed and marshy lands, although subject to
classification as disposable public agricultural lands, could only be leased and
not
sold
to
private
parties
because
of
Act
No.
2874.
The 1987 Constitution continues the State policy in the 1973 Constitution
banning private corporations from acquiring any kind of alienable land of the
public domain. Like the 1973 Constitution, the 1987 Constitution allows
private corporations to hold alienable lands of the public domain only
through lease. As in the 1935 and 1973 Constitutions, the general law
governing the lease to private corporations of reclaimed, foreshore and
marshy alienable lands of the public domain is still CA No. 141.
Without the constitutional ban, individuals who already acquired the
maximum area of alienable lands of the public domain could easily set up
corporations to acquire more alienable public lands. An individual could own
as many corporations as his means would allow him. An individual could
even hide his ownership of a corporation by putting his nominees as
stockholders of the corporation. The corporation is a convenient vehicle to
circumvent the constitutional limitation on acquisition by individuals of
alienable
lands
of
the
public
domain.
PD No. 1085, coupled with President Aquino's actual issuance of a special
patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public
domain. Being neither timber, mineral, nor national park lands, the
reclaimed Freedom Islands necessarily fall under the classification of
agricultural lands of the public domain. Under the 1987 Constitution,
agricultural lands of the public domain are the only natural resources that
the State may alienate to qualified private parties. All other natural
resources, such as the seas or bays, are "waters . . . owned by the State"
forming part of the public domain, and are inalienable pursuant to Section 2,
Article
XII
of
the
1987
Constitution.
In short, DENR is vested with the power to authorize the reclamation of
areas under water, while PEA is vested with the power to undertake the
physical reclamation of areas under water whether directly or through
private contractors. DENR is also empowered to classify lands of the public
domain into alienable or disposable lands subject to the approval of the
President. On the other hand, PEA is tasked to develop, sell or lease the
reclaimed
alienable
lands
of
the
public
domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or
submerged areas does not make the reclaimed lands alienable or disposable
lands of the public domain, much less patrimonial lands of PEA. Likewise, the
mere transfer by the National Government of lands of the public domain to
PEA does not make the lands alienable or disposable lands of the public
domain,
much
less
patrimonial
lands
of
PEA.
There is no express authority under either PD No. 1085 or EO No. 525 for
PEA to sell its reclaimed lands. PD No. 1085 merely transferred "ownership
and administration" of lands reclaimed from Manila Bay to PEA, while EO No.
525 declared that lands reclaimed by PEA "shall belong to or be owned by
PEA." PEA's charter, however, expressly tasks PEA "to develop, improve,
acquire, administer, deal in, subdivide, dispose, lease and sell any and all
kinds of lands . . . owned, managed, controlled and/or operated by the
government." 87 (Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable
lands of the public domain. PEA may sell to private parties its patrimonial
properties in accordance with the PEA charter free from constitutional
limitations. The constitutional ban on private corporations from acquiring
alienable lands of the public domain does not apply to the sale of PEA's
patrimonial
lands.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell valuable
government property through public bidding. Section 79 of PD No. 1445
mandates that:... "In the event that the public auction fails, the property
may be sold at a private sale at such price as may be fixed by the same
committee or body concerned and approved by the Commission."
However, the original JVA dated April 25, 1995 covered not only the
Freedom Islands and the additional 250 hectares still to be reclaimed, it also
granted an option to AMARI to reclaim another 350 hectares. The original
JVA, a negotiated contract, enlarged the reclamation area to 750 hectares.
The failure of public bidding on December 10, 1991, involving only 407.84
hectares, is not a valid justification for a negotiated sale of 750 hectares,
almost
double
the
area
publicly
auctioned.
Jurisprudence holding that upon the grant of the patent or issuance of the
certificate of title the alienable land of the public domain automatically
becomes private land cannot apply to government units and entities like
PEA.
The grant of legislative authority to sell public lands in accordance with
Section 60 of CA No. 141 does not automatically convert alienable lands of
the public domain into private or patrimonial lands. The alienable lands of
of Appeals which upheld the finding of the RTC that there is substantial basis
for respondent to seek protection of the law for its proprietary rights over
the detailed chemical composition of its products.
The Supreme Court has declared that trade secrets and banking
transactions are among the recognized restrictions to the right of
the people to information as embodied in the Constitution. SC said
that the drafters of the Constitution also unequivocally affirmed that, aside
from national security matters and intelligence information, trade or
industrial secrets (pursuant to the Intellectual Property Code and other
related laws) as well as banking transactions (pursuant to the Secrecy of
Bank Deposits Act), are also exempted from compulsory disclosure.
A trade secret is defined as a plan or process, tool, mechanism or
compound known only to its owner and those of his employees to whom it is
necessary to confide it. The definition also extends to a secret formula or
process not patented, but known only to certain individuals using it in
compounding some article of trade having a commercial value. American
jurisprudence has utilized the following factors to determine if an information
is a trade secret, to wit:
(1) the extent to which the information is known outside of the employers
business;
(2) the extent to which the information is known by employees and others
involved in the business;
(3) the extent of measures taken by the employer to guard the secrecy of
the information;
(4) the value of the information to the employer and to competitors;
(5) the amount of effort or money expended by the company in developing
the information; and
(6) the extent to which the information could be easily or readily obtained
through an independent source.
Rule 27 sets an unequivocal proviso that the documents, papers, books,
accounts, letters, photographs, objects or tangible things that may be
produced and inspected should not be privileged. The documents must not
be privileged against disclosure. On the ground of public policy, the rules
providing for production and inspection of books and papers do not authorize
the production or inspection of privileged matter; that is, books and
papers which, because of their confidential and privileged character,
could not be received in evidence. Such a condition is in addition to the
requisite that the items be specifically described, and must constitute or
contain evidence material to any matter involved in the action and which are
in the partys possession, custody or control.
In the case at bar, petitioner cannot rely on Section 77of Republic Act 7394,
or the Consumer Act of the Philippines, in order to compel respondent to
reveal the chemical components of its products. While it is true that all
consumer products domestically sold, whether manufactured locally or
imported, shall indicate their general make or active ingredients in their
respective labels of packaging, the law does not apply to respondent.
Respondents specialized lubricants namely, Contact Grease, Connector
Grease, Thixohtropic Grease, Di-Electric Strength Protective Coating, Dry
Lubricant and Anti-Seize Compound are not consumer products.
What is clear from the factual findings of the RTC and the Court of Appeals is
that the chemical formulation of respondents products is not known to the
general public and is unique only to it. Both courts uniformly ruled that
these ingredients are not within the knowledge of the public. Since such
factual findings are generally not reviewable by this Court, it is not dutybound to analyze and weigh all over again the evidence already considered
in the proceedings below.
The revelation of respondents trade secrets serves no better purpose to the
disposition of the main case pending with the RTC, which is on the collection
of a sum of money. As can be gleaned from the facts, petitioner received
respondents goods in trade in the normal course of business. To be sure,
there are defenses under the laws of contracts and sales available to
petitioner. On the other hand, the greater interest of justice ought to favor
respondent as the holder of trade secrets. Weighing the conflicting interests
between the parties, SC rules in favor of the greater interest of respondent.
Trade secrets should receive greater protection from discovery,
because they derive economic value from being generally unknown
and not readily ascertainable by the public.
BANK DEPOSITS
CASE DIGEST (Commercial Law): Marquez vs. Disierto
G.R. No. 135882 June 27, 2001
FACTS: Respondent Ombudsman Desierto ordered petitioner Marquez to
produce several bank documents for purposes of inspection in camera
relative to various accounts maintained at Union Bank of the Philippines,
Julia Vargas Branch, where petitioner is the branch manager.
The order is based on a pending investigation at the Office of the
Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No. 3019,
Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the
discharge does so with the full knowledge that his life, so far as relevant to
his duty, is open to public scrutiny applies with equal force.
Also, the plunder case now pending with the Sandiganbayan necessarily
involves an inquiry into the whereabouts of the amount purportedly acquired
illegally by former President Joseph Estrada. Republic Act No. 1405 allows
the disclosure of bank deposits in cases where the money deposited is the
subject matter of the litigation. Hence, these accounts are no longer
protected by the Secrecy of Bank Deposits Law, there being two exceptions
to the said law applicable in this case, namely: (1)the examination of bank
accounts is upon order of a competent court in cases of bribery or dereliction
of duty of public officials, and (2)the money deposited or invested is the
subject matter of the litigation. Exception (1) applies since the plunder case
pending against former President Estrada is analogous to bribery or
dereliction of duty, while exception (2) applies because the money deposited
in Ejercitos bank accounts is said to form part of the subject matter of the
same plunder case. The fruit of the poisonous tree doctrine or the
exclusionary rule is inapplicable in cases of unlawful examination of bank
accounts.
REPUBLIC ACT NO. 1477
REPUBLIC ACT NO. 1477 - AN ACT AMENDING SECTION ONE OF
REPUBLIC ACT NUMBERED FIFTY-THREE, ENTITLED "AN ACT TO
EXEMPT THE PUBLISHER, EDITOR, COLUMNIST OR REPORTER OF
ANY PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED
NEWS OR INFORMATION OBTAINED IN CONFIDENCE"
Section 1.
Section one of Republic Act Numbered Fifty- three is amended
to read as follows:
"Section 1.
Without prejudice to his liability under the civil and criminal
laws, the publisher, editor, columnist or duly accredited reporter of any
newspaper, magazine or periodical of general circulation cannot be
compelled to reveal the source of any news-report or information appearing
in said publication which was related in confidence to such publisher, editor
or reporter unless the court or a House or committee of Congress finds that
such revelation is demanded by the security of the State."
Sec. 2. This Act shall take effect upon its approval.cralaw
Republic
of
the
SUPREME
Philippines
COURT
Manila
EN BANC
December 3, 1948
In re Investigation of ANGEL J. PARAZO for alleged leakage of questions in
some subjects in the 1948 Bar Examinations.
Felixberto
M.
Serrano
for
respondent.
Enrique M. Fernando and Francisco A. Rodrigo, Abelardo Subido, and Arturo
A. Alafriz (for the Philippine Lawyers' Association) as amici curiae.
MONTEMAYOR, J.:
The present case had its origin in a story or news item prepared and written
by the defendant, Angel J. Parazo, a duly accredited reporter of the Star
Reporter, a local daily of general circulation, that appeared on the front page
of the issue of September 14, 1948. The story was preceded by the headline
in large letters "CLAIM 'LEAK' IN LAST BAR TESTS," followed by another
in slightly smaller letters "Applicants In Uproar, Want Anomaly Probed;
One School Favored," under the name "By Angel J. Parazo of the Star
Reporter Staff." For purposes of reference we quote the news item in full:
Leakage in some subjects in the recent bar examinations were denounced
by some of the law graduates who took part in the tests, to the Star
Reporter this morning.
These examinees claim to have seen mimeograph copies of the questions in
one subject, days before the tests were given, in the Philippine Normal
School.
Only students of one private university in Sampaloc had those
mimeographed questions on said subject fully one week before the tests.
The students who made the denunciation to the Star Reporter claim that the
tests actually given were similar in every respect to those they had seen
students of this private university holding proudly around the city.
The students who claim to have seen the tests which leaked are demanding
that the Supreme Court institute an immediate probe into the matter, to find
out the source of the leakage, and annul the test papers of the students of
the particular university possessed of those tests before the examinations.
The discovery of the alleged leakage in the tests of the bar examinations
came close on the heels of the revelations in the Philippine Collegian, official
organ of the student body of the University of the Philippines, on recent
government tests wherein the questions had come into the possession of
nearly all the graduates of some private technical schools.
To the publication, evidently, the attention of the Supreme Court must have
been called, and Mr. Justice Padilla, who had previously been designated
Chairman of the Committee of Bar Examiners for this year, by authority of
the Court, instructed Mr. Jose de la Cruz as Commissioner with the
assistance of Mr. E. Soriano, Clerk of Court to cite Mr. Parazo for questioning
and investigation. In this connection, and for purposes of showing the
interest of the Supreme Court in the news item and its implications, it may
here be stated that this Court is and for many years has been, in charge of
the Bar Examinations held every year, including that of this year, held in
August, 1948. Section 13, Article VIII of the Constitution of the Philippines
authorizes this Court to promulgate rules concerning admission to the
practice of law, and pursuant to that authority, Rule 127 of the Rules of
Court was promulgated, under which rule, this Court conducts the Bar
Examinations yearly, appoints a Committee of Bar Examiners to be presided
by one of the Justices, to serve for one year, acts on the report of the
committee and finally, admits to the Bar and to the practice of law, the
candidates and examinees who have passed the examinations.
The investigation of Mr. Parazo was conducted on September 18, 1948, on
which occasion he testified under oath and, answering questions directed to
him by Messrs. Cruz and Soriano admitted that he was the author of the
news item; that he wrote up the story and had it published, in good faith
and in a spirit of public service; and that he knew the persons who gave him
the information which formed the basis of his publication but that he
declined to reveal their names because the information was given to him in
confidence and his informants did not wish to have their identities revealed.
The investigators informed Parazo that this was a serious matter involving
the confidence of the public in the regularity and cleanliness of the Bar
Examinations and also in the Supreme Court which conducted said
examinations, and repeatedly appealed to his civic spirit and sense of public
service, pleading with and urging him to reveal the names of his informants
so that the Supreme Court may be in a position to start and conduct the
necessary investigation in order to verify their charge and complaint and
take action against the party or parties responsible for the alleged
irregularity and anomaly, if found true, but Parazo consistently refused to
make the revelation.
In the meantime, the writer of this opinion who was appointed to the
Supreme Court as associate Justice in the latter part of August, 1948, was
designated to succeed Mr. Justice Padilla as Chairman of the Committee of
Bar Examiners when the said Justice was appointed Secretary of Justice. The
writer of this opinion was furnished a copy of the transcript of the
that without his help, specially the identities of the persons who furnished
him the information and who could give the court the necessary data and
evidence, the Court could not even begin the investigation because there
would be no basis from which to start, not even a clue from which to
formulate a theory. Lastly, Parazo was told that under the law he could be
punished if he refused to make the revelation, punishment which may even
involve imprisonment.
Because of the seriousness of the matter, Parazo was advised to think it over
and consider the consequences, and if he need time within which to do this
and so that he might even consult the editor and publisher of his paper, the
Star Reporter, he could be given an extension of time, and at his request,
the investigation was postponed to October 15, 1948. On that date he
appeared, accompanied by his counsel, Atty. Felixberto M. Serrano. The
writer of this opinion in the presence of his counsel, several newspapermen,
Clerk of Court Soriano, Deputy Clerk of Court Cruz, and Mr. Chanliongco
made a formal demand on Mr. Parazo to reveal the identities of his
informants, under oath, but he declined and refused to make the revelation.
At the request of his counsel, that before this Court take action upon his
refusal to reveal, he be accorded a hearing, with the consent of the Court
first obtained, a public hearing was held on the same day, October 15, 1948
in the course of which, Attorney Serrano extensively and ably argued the
case of his client, invoking the benefits of Republic Act No. 53, the first
section of which reads as follows:
SECTION 1. The publisher, editor or duly accredited reporter of any
newspaper, magazine or periodical of general circulation cannot be
compelled to reveal the source of any news-report or information appearing
in said publication which was related in confidence to such publisher, editor
or reporter, unless the court or a House or committee of Congress finds that
such revelation is demanded by the interest of the state.
This Court has given this case prolonged, careful and mature consideration,
involving as it does interesting and important points of law as well as
questions of national importance. Counsel contends that the phrase "interest
of the state" found at the end of section 1 of Republic Act No. 53 means and
refers only to the security of the state, that is to say that only when
National Security or public safety is involved, may this Court compel the
defendant to reveal the source or sources of his news report or information.
We confess that it was not easy to decide this legal question on which the
conviction or acquittal of Parazo hinges. As a matter of facts, the vote of the
Justice is not unanimous.
In an effort to determine the intent of the Legislature that passed Republic
Act No. 53, particularly the Senate were it originated, we examined the
record of the proceedings in said legislative body when this Act, then Senate
Bill No. 6 was being discussed. We gathered from the said record that the
original bill prepared by Senator Sotto provided that the immunity to be
accorded a publisher, editor, or reporter of any newspaper was absolute and
that under no circumstance could he be compelled to reveal the source of
his information or news report. The committee, however, under the
chairmanship of Senator Cuenco inserted an amendment or change, by
adding to the end of section 1 of the clause "unless the court finds that such
revelation is demanded by the public interest."
When the bill as amended was recommended for approval on second
reading, Senator Sotto, the author of the original bill proposed an
amendment by eliminating the clause added by the committee "unless
the court finds that such revelation is demanded by the public interest,"
claiming that said clause would kill the purposed of the bill. This amendment
of Senator Sotto was discussed. Various Senators objected to the elimination
of the clause already referred to on the ground that without such exception
and by giving complete immunity to editors, reporters, etc., many abuses
may be committed. Senator Cuenco, Committee chairman, in advocating the
disapproval of the Sotto amendment, and in defending the exception
embodied in the amendment introduced by the Committee, consisting in the
clause: "unless the court finds that such revelation is demanded by the
public interest," said that the Committee could not accept the Sotto
amendment because there may be cases, perhaps few, in which the interest
of the public or the interest of the state required that the names of the
informants be published or known. He gave as one example a case of a
newspaperman publishing information referring to a theft of the plans of
forts or fortifications. He argued that if the immunity accorded a
newspaperman should be absolute, as sought by the Sotto amendment, the
author of the theft might go scott-free. When the Sotto amendment was put
to a vote, it was disapproved. Finally, Senator Sotto proposed another
amendment by changing the phrase "public interest" at the end of section 1
as amended by the Committee be changed to and substituted by the phrase
"interest of the state," claiming that the phrase public interest was too
elastic. Without much discussion this last amendment was approved, and
this phrase is now found in the Act as finally approved.
In view of the contention now advanced, that the phrase "interest of the
state" is confined to cases involving the "security of the state" or "public
safety," one might wonder or speculate on why the last amendment
proposed by Senator Sotto, changing the phrase "public interest" to "interest
of the state," was approved without much discussion. But we notice from the
records of the deliberations on and discussion of the bill in the Senate that
the phrase "public interest" was used interchangeably by some Senators
with the phrase "interest of the state." For instance, although the bill, as
amended by the Committee presided by Senator Cuenco, used the words
"public interest, "when Senator Cuenco sponsored the bill before the Senate
he used in his speech or remarks the phrase "interest of the State" (interes
del Estado). Again, although the bill, as sponsored by the Cuenco Committee
and discussed by the Senate, used the words "public interest, "Senator
Sebastian referred to the exception by using the phrase "interest of the
state." This understanding of at least two of the Senators, who took part in
the discussion, about the similarity or interchangeability of the two phrases
"public interest" and "interest of the estate," may account for the readiness
or lack of objection on the part of the Senate, after it had rejected the first
Sotto amendment, to accept the second Sotto amendment, changing the
phrase "public interest" to "interest of the state."
In referring to a case wherein the security of the state or public safety was
involved, such as the theft of the plans of fortifications, Senator Cuenco was
obviously giving it only as an example of what he meant by "interest of the
state;" it was not meant to be the only case or example. We do not propose
to define or fix the limits or scope of the phrase "interest of the state;" but
we can say that the phrase "interest of the state" can not be confined and
limited to the "security of the state" or to "public safety" alone. These
synonymous phrases, "security of the state" and "public safety," are
not uncommon terms and we can well presume that the legislators were
familiar with them. The phrase "public safety," is used in Article III, section
1(5) of the Constitution of the Philippines, where it says that "the privacy of
communications and correspondence shall be inviolable except upon lawful
order of the court or when public safety and order require otherwise;" and
Article VII, section 10(2) of the same Constitution provided that the
President may suspend the privileges of the writ of habeas corpus, in case of
invasion, insurrection, etc., when the public safety requires it.
The phrase "National Security" is used at the beginning of Book II of the
Revised Penal Code, thus: Title I, Crimes against National Security and
the law of Nations, Chapter I, Crimes against National Security. Then,
more recently, the phrase "National Security" was used in section 2, and the
phrase "public security" was equally used in section 19, of Commonwealth
Act No. 682 creating the People's Court, promulgated on September 25,
1945. If, as contended, the Philippine Congress, particularly the Philippine
Senate, had meant to limit the exception to the immunity of newspapermen
only to cases where the "security of the state," i.e., "National Security" is
involved, it could easily and readily have used such phrase or any one of
similar phrases like "public safety," "National Security," or "public security"
of which it must have been familiar. Since it did not do so, there is valid
reason to believe that that was not in the mind and intent of the legislators,
and that, in using the phrase "interest of the state," it extended the scope
and the limits of the exception when a newspaperman or reporter may be
the examinations were actually held. Parazo in his statements and answers
during the investigation said that examination questions in several subjects
were involved in the anomaly. But no copy or copies of said examination
questions were furnished us. No one is willing to testify that he actually saw
said alleged copies of examination questions; that they were actually and
carefully compared with the legitimate examination questions given out on
the day of the examination and found to be identical; no one is ready and
willing to reveal the identity of the persons or bar examinees said to have
been seen with the said Bar Examination questions, although they as well as
the university where they came from, was known; and even the law subjects
to which the questions pertained are not disclosed; and, lastly, we are not
allowed to know even the identity of respondent Parazo's informants who
claim to have seen all these things.
In this connection it may be stated that in the las Bar Examinations held in
August, 1948, approximately nine hundred candidates took them, each
candidate writing his answers in a book for each subject. There were eight
subjects, each belonging to and corresponding to each one of the eight bar
examiners. There were therefore eight sets of bar examination questions,
and multiplying these eight sets of questions by nine hundred candidates,
gives a total of seven thousand two hundred (7,200) examination papers
involved, in the hand of eight different examiners. The examination books or
papers bear no names or identifications of their writers or owners and said
ownership and identification will not be known until the books or papers are
all corrected and graded. Without definite assurance based on reliable
witnesses under oath that the alleged anomaly had actually been
committed, evidence on the identity of the persons in possession of the
alleged copies of questions prematurely released or illegally obtained and
made use of, the law subjects or subjects involved, the university from
which said persons come, this Court does not feel capable of or warranted in
taking any step, such as blindly and desperately revising each and every one
of the 7,200 examination books with the fond but forlorn hope of finding any
similarity or identity in the answers of any group of examinees and basing
thereon any definite finding or conclusion. Apart from the enormity of the
task and its hopelessness, this Court may not and cannot base its findings
and conclusions, especially in any serious and delicate matter as is the
present, on that kind of evidence. Under these circumstances, this Court, for
lack of basis, data and information, is unable to conduct, nay, even start, an
investigation; and, unless and until the respondent herein reveals the
identities of his informants, and those informants and or others with facts
and reliable evidence, aid and cooperate with the Court in its endeavor to
further examine and probe into the charges contained in the news items,
said charges are considered and held to be without basis, proof or
foundation.
When the Supreme Court decided to demand of the respondent herein that
he reveal the names of his informants, it was not impelled or motivated by
mere idle curiosity. It truly wanted information on which to start an
investigation because it is vitally interested in keeping the Bar Examinations
clean and above board and specially, not only to protect the members of the
Bar and those aspiring for membership therein and the public dealing with
the members thereof and the Bar Examiners who cooperate with and act as
agents of this Court in preparing the examination questions and correcting
the examination papers, but also, as already stated, to keep the confidence
of the people in this High Tribunal as regards the discharge of its function
relative to the admission to the practice of law. These, it can only do by
investigating any Bar Examination anomaly, fixing responsibility and
punishing those found guilty, even annulling examinations already held, or
else declaring the charges as not proven, if, as a result of the investigation,
it is found that there is insufficiency or lack of evidence. In demanding from
the respondent that he reveal the sources of his information, this Court did
not intend to punish those informants or hold them liable. It merely wanted
their help and cooperation. In this Court's endeavor to probe thoroughly the
anomaly, or irregularity allegedly committed, it was its intention not only to
adopt the necessary measures to punish the guilty parties, if the charges are
found to be true, but also even to annul the examinations themselves, in
justice to the innocent parties who had taken but did not pass the
examinations. We say this because in every examination, whether conducted
by the Government or by a private institution, certain standards are
unconsciously adopted on which to base the passing grade. For instance, if,
as a result of the correction of many or all of the examination papers, it is
found that only very few have passed it, the examiner might reasonably
think that the questions he gave were unduly difficult or hard to understand,
or too long, as a result of which he may be more liberal and be more lenient
and make allowances. On the hand, if too many obtain passing grade, the
examiner may think that the examination questions were too easy and
constitute an inadequate measure of the legal knowledge and training
required to be a lawyer, and so he may raise his standard and become more
strict in his correction of the papers and his appreciation of the answers. So,
in a case where examinees, especially if many, succeed in getting hold of
questions long before examinations day, and study and prepare the answers
to those questions, it may result that when the examiner finds that many of
the examinees have easily and correctly answered the questions, he may
think that said questions were too easy, raise the standard by being strict in
his correction of the papers, thereby giving a grade below passing to a
number of examinees who otherwise would have validly passed the
examinations.
In conclusion, we find that the interest of the state in the present case
demands that the respondent Angel J. Parazo reveal the source or sources of
his information which formed the basis of his news items or story in the
September 14, 1948 issue of the Star Reporter, quoted at the beginning of
his decision, and that, in refusing to make the revelation which this Court
required of him, he committed contempt of Court. The respondent
repeatedly stated during the investigation that he knew the names and
identities of the persons who furnished him the information. In other words,
he omitted and still refuses to do an act commanded by this Court which is
yet in his power to perform. (Rule 64, section 7, Rules of Court.)Ordinarily,
in such cases, he can and should be imprisoned indefinitely until he
complied with the demand. However, considering that case like the present
are not common or frequent, in this jurisdiction, and that there is no reason
and immediate necessity for imposing a heavy penalty, as may be done in
other cases where it is advisable or necessary to mete out severe penalties
to meet a situation of an alarming number of cases of a certain offense or a
crime wave, and, considering further the youthful age of the respondent, the
majority of the members of this Court have decided to order, as it hereby
orders, his immediate arrest and confinement in jail for a period of one (1)
month, unless, before the expiration of that period he makes to this Court
the revelation demanded of him. So ordered
In Re Farber (State v. Jascalevich)
78 N.J. 259, 394 A.2d 330, cert. denied, 439 U.S. 997 (1978)
testifying by virtue of the statute. The record indicated that had he testified
his testimony would have been favorable to petitioner. The Court reversed
the conviction on the ground that petitioner's Sixth Amendment right to
compulsory process had been denied. At the same time it determined that
the compulsory process clause in the Sixth Amendment was binding on state
courts by virtue of the due process clause of the Fourteenth Amendment. It
will be seen that Washington is like the present case in a significant respect.
The Texas statute and the Sixth Amendment could not both stand. The latter
of course prevailed. So must it be here.
Quite recently, in United States v. Nixon, 418 U.S. 683 (1974), the Court
dealt with another compulsory process issue. There the Special Prosecutor,
Leon Jaworski, subpoenaed various tape recordings and documents in the
possession of President Nixon. The latter claimed an executive privilege and
refused to deliver the tapes. The Supreme Court conceded that indeed there
was an executive privilege and that although "[n]owhere in the
Constitution ... is there any explicit reference to a privilege of confidentiality,
yet to the extent this interest relates to the effective discharge of a
President's powers, it is constitutionally based." 418 U.S. at 711. Despite
this conclusion that at least to some extent a president's executive privilege
derives from the Constitution, the Court nonetheless concluded that the
demands of our criminal justice system required that the privilege must
yield....
It is important to note that the Supreme Court in this case compelled the
production of privileged material--the privilege acknowledged to rest in part
upon the Constitution--even though there was no Sixth Amendment
compulsion to do so. The Sixth Amendment affords rights to an accused but
not to a prosecutor. The compulsion to require the production of the
privileged material derived from the necessities of our system of
administering criminal justice.
Article I, 10 of the Constitution of the State of New Jersey contains, as we
have seen, exactly the same language with respect to compulsory process
as that found in the Sixth Amendment. There exists no authoritative
explication of this constitutional provision. Indeed it has rarely been
mentioned in our reported decisions. We interpret it as affording a defendant
in a criminal prosecution the right to compel the attendance of witnesses
and the production of documents and other material for which he may have,
or may believe he has, a legitimate need in preparing or undertaking his
defense. It also means that witnesses properly summoned will be required
to testify and that material demanded by a properly phrased subpoena
duces tecum will be forthcoming and available for appropriate examination
and use.
Testimonial privileges, whether they derive from common law or from