RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, On July 3, 1975, counsel for the GROUP moved that
e GROUP moved that the trial court
MAXIMO, PACITA and SEVERO all surnamed FULGADO v. CA,
RUFINO CUSTODIA, SIMPLICIA CUSTODIO, ARSENIO PIGUING,
ISMAEL PORCIUNCULA and DOMINGA MACARULAY
G.R. No. L-61570 February 12, 1990
DOCTRINE The principle requiring a testing of testimonial
statements by cross-examination is understood as requiring, not
necessarily an actual cross-examination, but merely an opportunity
to exercise the right to cross-examine if desired. There was no
opportunity in this case. However, the right to cross-examination is
an essential part of due process but it may be waived.
FACTS
On Sept. 9, 1967, Fulgado (89 years old) filed an action in the CFI
Rizal against Rufino Custodia, Simplicia Custodia, Arsenio Piguing,
Ismael Porciuncula and Dominga Macarulay (GROUP) for the
annulment of certain contracts of sale and partition with accounting.
A pre-trial conference was set for Feb. 1, 1968 in the morning. Since
the GROUP with their counsel failed to attend, they were
subsequently declared in default. The Deputy Clerk of Court allowed
Fulgado to present his evidence ex parte.
Upon learning of the default, the GROUP filed a motion to lift the
order on the same day it was issued. This was denied, together with
their MR. They also filed a petition for relief but this was also denied.
On April 24, 1972, the TC rendered a decision in favour of Fulgado.
The CA, however, set aside the TC order and stated that the
GROUP was deprived of their day in court by the unjust denial of
their motion to lift the order of default.
Upon finality of the CA decision on June 27, 1974, the records were
remanded to the TC.
"include th(e) case in any date of the August and September
calendar of the Court, at the usual hour in the morning.
The case was set for hearing on September 16,1975. Unfortunately,
the presiding judge went on official leave and the hearing was
postponed anew to January 15 and February 15, 1976. In the
meantime, plaintiff Ruperto Fulgado died on November 25,1975 and
was substituted by his children as party plaintiffs.
During the hearing the counsel for the GROUP said that they were
granted by the CA the right to cross-examine the witnesses.
However, the witness Fulgado has died and the second witness,
Jose Fulgado, has migrated to the United States and was only able
to testify before because he went on a visit to the country.
The counsel for the GROUP then moved to strike out the testimonies
of the witnesses who testified on the ground that there was no
opportunity to cross-examine them. The counsel for Fulgado
objected stating that the GROUP was guilty of laches. The counsel
for Fulgado said:
“There were several opportunities for them to cross-examine
especially the witness Ruperto Fulgado, Your Honor. They are with
full knowledge of the age of this witness. They could have taken
steps to assert their right granted by the Court of Appeals.
Notwithstanding their knowledge about the age, the advanced age
and health condition of this witness Ruperto Fulgado, then we
maintain, Your Honor, that defendants, in a way, have committed
laches in the assertion of their right to cross-examine.”
The TC sided with the GROUP and struck off the record the
testimony of Ruperto and Jose Fulgado.
Without the witnesses, the case was dismissed.
On appeal, the CA affirmed. The counsel filed the instant petition for
review.
ISSUE: Whether the testimonies of Jose Fulgado and Ruperto
Fulgado are wholly inadmissible for being hearsay, because
respondents were not able to cross-examine the witnesses
HELD: NO. The case is remanded to the TC for the reinstatement of
the case. The testimonies shall remain on record.
RATIO:
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino,
Justice Muñoz Palm provided a concise overview of the right to
cross-examination as a vital element of due process. Thus:
The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasijudicial
powers, is a fundamental right which is part of due process.
However, the right is a personal one which may be waived expressly
or impliedly by conduct amounting to a renunciation of the right of
cross-examination. Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed
to remain in the record.
The conduct of a party which may be construed as an implied waiver
of the right to cross-examine may take various forms. But the
common basic principle underlying the application of the rule on
implied waiver is that the party was given the opportunity to confr ont
and cross-examine an opposing witness but failed to take advantage
of it for reasons attributable to himself alone.
If it is obvious that there was no opportunity (to cross examine) and
the reason was caused by the party offering such testimony, the
testimony should be stricken out. However, where the failure to
obtain cross-examination was imputable to the cross examiner's
fault, the lack of cross-examination is no longer a ground for
exclusion according to the general principle that an opportunity,
though waived, will suffice.
From the records presented, the GROUP had enough opportunity to
cross-examine Ruperto Fulgado before his death, and Jose Fulgado
before his migration to the United States. Conceding that the
GROUP lost their standing in court during the time they were in
default, they were no longer in that situation when the CA set aside
the default judgment in and remanded the case to the court of origin
for trial on the merits. This was a signal for them to proceed with the
cross-examination of the two Fulgados, a right previously withheld
from them when they were considered in default. But despite
knowledge of Ruperto's failing health and Jose's imminent travel to
the United States, the GROUP did not move swiftly and decisively.
They tarried for more than one year from the finality of the Appellate
Court's decision on June 27, 1974 to ask the trial court on July 3,
1975 to set the already much delayed case for hearing "in any date
of August and September ... ."
Such inaction on the part of the GROUP cannot be easily dismissed
by the argument that it is the duty of the plaintiff to always take the
initiative in keeping the proceedings "alive." At best, the argument is
fatuous.
The task of recalling a witness for cross examination is, in law,
imposed on the party who wishes to exercise said right. This is so
because the right, being personal and waivable, the intention to
utilize it must be expressed. Silence or failure to assert it on time
amounts to a renunciation thereof. Thus, it should be the counsel for
the opposing party who should move to cross-examine plaintiffs
witnesses. It is absurd for the plaintiff himself to ask the court to
schedule the cross-examination of his own witnesses because it is
not his obligation to ensure that his deponents are cross-examined.
Having presented his witnesses, the burden shifts to his opponent having failed to make use of this right, the consequences should
who must now make the appropriate move. Indeed, the rule of rightfully fall on them and not on their adversary.
placing the burden of the case on plaintiffs shoulders can be
construed to extremes as what happened in the instant proceedings.

Having had the liberty to cross-examine and having opted not to

exercise it, the case is then the same in effect as if counsel for the
GROUP had actually cross-examined the witnesses.

It was gross error for both the trial court and the Appellate Court to
dismiss the complaint on the ultimate ground that there was an
alleged failure of cross-examination. The wholesale exclusion of
testimonies was too inflexible a solution to the procedural impasse
because it prejudiced the party whose only fault during the entire
proceedings was to die before he could be cross-examined. The
prudent alternative should have been to admit the direct examination
so far as the loss of cross-examination could have been shown to be
not in that instance a material loss. More compellingly so in the
instant case where it has become evident that the adverse party was
afforded a reasonable chance for cross-examination but through his
own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances

that no responsibility of any sort can be ascribed to the plaintiff or his
witness, it seems a harsh measure to strike out all that has been
obtained in the direct examination.

As to the witness Jose Fulgado who is reportedly abroad, the

GROUP could have resorted to the various modes of discovery
under the Rules of Court to cross-examine Jose. During the hearing
of May 4, 1976, counsel for the GROUP even disclosed that they
knew that Jose was in the country "for a visit" but they did not exert
any effort to have him subpoenaed.

Altogether, the acts of the GROUP constitute a waiver, and

consequently, a forfeiture of their right to cross-examination. And
Capitol Subdivisions vs. Province of Negros Oriental
7 SCRA 60 (1963)
FACTS: Lot 378, which is the subject matter of this case, is part of
Hacienda Madalagan, registered under the name of Agustin
Amenabar and Pilar Amenabar, covered by Original Certificate of
Title No. 1776 issued in the name of the aforementioned in 1916.
Sometime in 1920, the Amenabars sold the aforementioned
Hacienda to Jose Benares for the purchase price of P300,000,
payable in instalments. In 1924, the Original Certificate of Title
issued in the name of the Amenabars was cancelled, and in lieu
thereof, Benares obtained a Transfer Certificate of Title under his
name.
Meanwhile, in 1921, Benares mortgaged the Hacienda including Lot
378 to Bacolod-Murcia Milling Co. And then later in 1926, he again
mortgaged the Hacienda, including said Lot 378, on the Philippine
National Bank, subject to the first mortgage held by the Bacolod-
Murcia Milling Co.
These transactions were duly recorded in the office of the Register of
Deeds of Negros Occidental.
The mortgage in favor of the Bank was subsequently foreclosed and
the Bank acquired the Hacienda, including Lot 378, as purchaser at
the foreclosure sale.
Accordingly, the TCT in the name of Benares was cancelled and
another TCT was issued in the name of the Bank.
In 1935, the Bank agreed to sell the Hacienda to the son of Jose
Benares, Carlos Benares, for the sum of P400,000, payable in
annual installments, subject to the condition that the title will remain
with the Bank until full payment. Thereafter, Carlos Benares
transferred his rights, under his contract with the Bank, to plaintiff
herein, which completed the payment of the installments due to the
Bank in 1949.
Hence, the Bank executed the corresponding deed of absolute sale
to the plaintiff and a transfer certificate of title covering Lot 378 was
issued.
It should be noted that, despite the acquisition of the Hacienda in
1934 by the Bank, the latter did not take possession of the property
for Jose Benares claimed to be entitled to retain it under an alleged
right of lease.
For this reason, the deed of promise to sell, executed by the Bank in
favour of Carlos P. Benares, contained a caveat emptor stipulation.
When, upon the execution of the deed of absolute sale 1949, plaintiff
took steps to take possession the Hacienda and it was discovered
that Lot 378 was the land occupied by the Provincial Hospital of
Negros Occidental. Immediately thereafter, plaintiff made
representations with or on October 4, 1949, plaintiff made
representations with the proper officials to clarify the status of said
occupation. Not being satisfied with the explanations given by said
officials, it brought the present action on June 10, 1950.
In its answer, defendant maintained that it had acquired the lot in
question in the year 1924-1925 through expropriation proceedings
and that it took possession of the lost and began the construction of
the provincial hospital thereon. They further claimed that for some
reason beyond their comprehension, title was never transferred in its
name and it was placed in its name only for assessment purposes.
And that defendant acted in bad faith in purchasing the lot knowing
that the provincial hospital was situated there and that he did not
declare such property for assessment purposes only until 1950.
ISSUE: Whether or not defendant herein had acquired the lot in
question in the aforementioned expropriation proceedings.
HELD: The Court held that defendant was not able to sufficiently
prove that they have acquired the legal title over Lot 378. Several
circumstances indicate that the expropriation had not been
consummated.
First, there, the entries in the docket pertaining to the expropriation
case refer only to its filing and the publication in the newspaper of
the notices. Second, there was an absence of a deed of assignment
and of a TCT in favour of the Province as regards Lot 378. Third, the
property was mortgaged to Bacolod-Murcia Milling Co. Lot 378 could
not have been expropriated without the intervention of the Milling Co.
And yet, the latter was not made a party in the expropriation
proceedings. And fourth, a second mortgage was constituted in
favour of the Back, which would not have accepted the mortgage
had Lot 378 not belonged to the mortgagor. Neither could said lot
have been expropriated without the Bank’s knowledge and
participation.
Furthermore, in the deed executed by the Bank promising to sell the
Hacienda Mandalagan to Carlos Benares, it was explicitly stated that
some particular lots had been expropriated by the Provincial
Government of Negros Occidental, thus indicating, by necessary
implication, that Lot 378 had not been expropriated.
US VS MERCADO
FACTS: A complaint against the accused was filed stating that the
accused “willfully and criminally, without legitimate authority
therefore, and by means of violence or force employed upon the
person of Claro Mercado, prevent the latter from rendering aid to
Maria R. Mateo in order that Santiago Mercado might at his pleasure
maltreat the said Maria R. Mateo in a violation of law.” During the
trial, Atty. Lloret, attorney for the private prosecutor, asked the
witness for the defense (Santiago Mercado), the
Following question: “How many times have you been convicted of
assault upon other persons?” To this question, the defendant Tomas
Mercado objected on the ground that the question was impertinent.
Atty. Lloret explained the purpose of his question by saying, “I wish
to demonstrate that he has a pugnacious disposition. I have had
occasion to defend him in various causes for assault.”
Upon the question and the objection, Judge Barretto ruled that "the
character of the witness has an intimate relation or may have a
strong relation with the facts being investigated in the present cause.
The objection is overruled." (In other words, since the objection of
the defense was overruled, the Judge allowed the accused, Santiago
Mercado, to answer the prosecution’s question on how many times
he has convicted of assault upon other persons “)
The only argument which the accused presents is that the question
had no relation to the question which was being discussed by the
court and it did not tend to show that the defendants were either
guilty or not guilty of the crime charged that questions tending to
disclose the character of a witness are immaterial. In reply to the
argument of the accused, the prosecution contends that the question
was a proper question, because it tended to impugn the credibility of
the witness and that such questions were for that purpose material
and pertinent.
ISSUE:
1. Whether or not the lower court erred in overruling the objection?
YES.
RATIO: It will be remembered that the complaint charged that on the
occasion when the alleged crime was committed Santiago Mercado
was attempting to and did assault and ill-treat one Maria Mateo. In
answer to said question, the witness (Santiago Mercado) admitted
that complaint had been presented against him for the offense of
assault and battery.
The prosecution, in order to show the circumstances under which the
crime charged here was actually committed, showed that this
witness, Santiago Mercado, had assaulted and ill-treated Maria
Mateo, under the circumstances described in the complaint. That
was an important fact. If the said assault did not actually take place,
then the theory of the prosecution must fail. If there was no assault
or attempted assault, there was no occasion for the alleged
interference on the part of the said Claro Mercado to prevent it, and
the probability of the guilt of the defendants is greatly lessened. If the
witness who had committed the alleged assault, had assaulted other
persons and had been prosecuted therefor, may that fact be
considered by the court in weighing the proof and in testing the
credibility of the witness? It was an important fact to prove that
Santiago Mercado, at the time and place mentioned in the complaint,
had assaulted or attempted to assault or illtreat Maria R. Mateo, in
order to show that there was occasion for the inference of Claro
Mercado.
Generally speaking, a witness cannot be impeached by the party
against whom he has been called, except by showing (a) that he has
made contradictory statements: or (b) by showing that his general
reputation for the truth, honesty, or integrity is bad. The question to
which the defendant objected neither attempted to show that the
witness had made contradictory statements nor that his general
reputation for truth, honesty, or integrity was bad. While you cannot
impeach the credibility of a witness, except by showing that he has
made contradictory statements or that his general reputation for
truth, honesty, or integrity is bad, yet, nevertheless, you may show
by an examination of the witness himself or from the record of the
judgment, that he has been convicted of a high crime. (Sec. 342, Act
No. 190.) In the present case, the other offense to which the
question above related was not a high crime, as that term is
generally used, and we assume that the phrase "high crime," as
used in section 342, is used in its ordinary signification. High crimes
are generally defined as such immoral and unlawful acts as are
nearly allied and equal in guilt to felonies. We believe that the
objection to the above question was properly interposed and should
have been sustained. [In other words, the SC is saying that in order
for a claim that “the accused has been convicted of a previous crime”
to prosper, such crime must be classified as a “high crime.” But in
this case, the previous offenses of the accused are not high crimes,
then the claim of the prosecution would not prosper. Hence, the
objection earlier made should have been sustained and the accused
should have been told not to answer the prosecution’s question on
“how many times the accused has been convicted of assault upon
other persons.”
OCA VS MORANTE
Facts:
1 The parties involved are: (1) Tetsuo Momma: a Japanese citizen
who is engaged in a business in the Philippines; (2) Jose Olavere:
Momma's executive secretary; (3) Atty Roberto Garay: Momma's
counsel; (4) Edgar Allan Morante: Clerk of Court of the RTC Branch
hearing the libel case; (5) Judge Maceda: the RTC judge hearing
the case (note that Judge Maceda only replaced the Judge who
initially worked on the case because the latter retired);
2 A complaint for libel against Momma was filed by his former
employee with the prosecutor's office which favorably found for the
complainant; the city prosecutor filed the corresponding Information
in court; this was appealed to the Secretary of Justice which
reversed the prosecutor's decision and ordered the latter to
withdraw the information; city prosecutor complied;
3 Since the criminal case was already ongoing when the SOJ
decision was given, the RTC had at that time already issued a hold
departure order against Momma; the city prosecutor, in conformity
with the SOJ decision, also asked to have the HDO lifted;
4 Atty. Garay followed up the case status with Morante several
times; it was alleged that Morante gave the following message: "if
Olavere wanted a favorable decision in the libel case against
Momma, he, Olavere, would have to talk with the respondent to
make “arrangements” with the Judge. Olavere forthwith saw the
respondent in the latter’s office at the Justice Hall in Las Piñas City.
The respondent told Olavere that he, the respondent, could have
the case against Momma dismissed by Judge Maceda if Momma
was willing to come across with P250,000."
5 In coordination with NBI officers, Momma and Olavere indulged
the requests of Morante. Php 50,000 was to be given as advance, in
exchange for an unsigned copy of the order of dismissal and HDO
lift order; the remaining PhP 200,000 would be handed in in
exchange of the signed orders.
6 The NBI entrapment operation where Olavere would hand
Morante the the remaining PhP 200,000 in his office, was
"technically" foiled because the money dusted with tracing powder
was placed inside a larger brown envelope which was undusted.
Morante didn't hold the money inside, only the brown envelope. And
when the NBI officers came into his office, the envelope was
already on his table (so it's not clear who put it there). The hands of
Morante also tested negative for the fluorescent tracing powder.
7 Upon receipt of the Office of the Chief Justice of an anonymous
letter with attached news clippings of a clerk of court being nabbed
by the NBI for extortion, a complaint for grave and serious
misconduct was commenced against Morante; the investigating
judge to whom the case was referred and the OCA both found
Morante guilty and recommended his dismissal from service.
8 Morante's argument (relevant to the issue): Olavere should be
impeached because he made inconsistent statements, to wit:
"Olavere’s claim, as contained in his affidavit, that he had an
agreement with the respondent to give P50,000 in consideration of
an unsigned order, is belied by Olavere’s testimony during the
investigation, that the agreement was for the delivery of a signed
copy of the Order to Olavere. "
Issue: WON Olavere's contradicting testimony was sufficient to
impeach him.
NO. 2 reasons.
Ruling: Morante is GUILTY of grave and serious misconduct and is
dismissed from service with forfeiture of all retirement benefits.
Ratio:
FIRST REASON: The records in its entirety show that the
"contradicting" statement was actually explained by Olavere’s
subsequent answers to other questions during cross-examination
1. It is true that in response to one of the questions of the
respondent’s counsel on cross examination on whether
Olavere had intended to secure an unsigned order from the
respondent on August 28, 2001, Olavere declared that he
was expecting a signed order from the respondent. Indeed,
the answer of Olavere contradicts his sworn statement to
the NBI in which he stated that he went to the office of the
respondent on August 28, 2001 to get an unsigned order. It
bears stressing, however, that in answer to the
subsequent questions on cross examination, Olavere
testified that he intended to secure an “unsigned
decision” from the respondent on August 28, 2001,
thereby corroborating his sworn statement.
2. To determine the credibility and probative weight of the
testimony of a witness, such testimony must be considered
in its entirety and not in truncated parts. To determine
which contradicting statements of a witness is to prevail as
the truth, the other evidence received must be considered.
In People v. Ubiña, the Court held that contradicting
testimony given subsequently does not necessarily discredit
the previous testimony if the contradiction is satisfactorily
explained.
There is no rule which states that a previous testimony is
presumed to be false merely because a witness now says
that the same is not true. A testimony solemnly given in
court should not be lightly set aside. Before this can be
done, both the previous testimony and the subsequent one
should be carefully scrutinized – in other words, all the
expedients devised by man to determine the credibility of
witnesses should be utilized to determine which of the two
contradicting testimonies represents the truth.
SECOND REASON (MORE RELEVANT): Under Rule 132, Section
13 of the Revised Rules of Court, a witness may be impeached by
showing that such two contradicting statements are under oath.
However, in order to impeach Olavere’s testimony to be
inconsistent with the sworn statement, the sworn
statement alleged to be inconsistent with the subsequent
one should have been shown and read to him and,
thereafter, he should have been asked to explain the
apparent inconsistency. This was NOT done in this case, and the
respondent cannot derive any benefit from the supposed
contradiction in Olavere’s testimony.
1. In People vs. Resabal, this Court explicitly ruled that the
mere presentation of the prior declarations of a witness
without the same having been read to the witness while he
was testifying in court is insufficient for the desired
impeachment of his testimony. As explained therein, the
apparent contradiction between the declarations of the
witness before the former justice of the peace court and
those before the then court of first instance was
insufficient to discredit him since he was not given ample
opportunity, by reading to him his declarations before the
lower court, to explain the supposed discrepancy.
The rule which requires a sufficient foundation to be first
laid before introducing evidence of inconsistent statements
of a witness is founded upon common sense and is
essential to protect the character of a witness. His memory
is refreshed by the necessary inquiries, which enables him
to explain the statements referred to, and to show that
they were made under a mistake, or that there was no
discrepancy between them and his testimony.
It would be unjust to complainant at this stage to be
declared an incredible witness as a result of the
unauthorized procedure adopted by appellant. It is
evidentiarily proscribed to discredit a witness on the bases
of purportedly prior inconsistent statements which were not
called to the attention of that witness during the trial,
although the same are supposedly contained in a document
which was merely offered and admitted in its entirety
without the requisite specifications.
Through such a somewhat underhanded recourse, a party
can expediently offer in evidence at the trial the whole
document containing allegedly variant statements and then
point out much later on appeal the supposed contradictory
statements which were not specified, intentionally or
otherwise, in the same trial. That sub silentio gambit would
necessarily deprive a witness of the chance to explain the
seeming divergencies, which is the paramount consideration
of the rule mandating the laying of the proper predicate.
Complainant is undoubtedly the person best suited and
mandated by the rule to explain the supposed differences in
her statements. Without such explanation before us,
whether plausible or not, we are left with no basis to
evaluate and assess her credibility on the rationale that it is
only when no reasonable explanation is given by a witness
in reconciling his conflicting declarations that he should be
deemed impeached. As things stand before us and the
court a quo, therefore, complainant’s credibility remains
unimpeached.
On the foregoing considerations, we confirm the validity of
the doctrine that, unless the proper predicate is laid during
the trial by calling the attention of a witness to his alleged
inconsistent statements given outside of his testimony in
court and asking him to explain the contradiction, the
supposed inconsistencies cannot be pointed out on appeal
for the purpose of destroying the credibility of the witness.
(Conclusion) In light of the other evidence on record, the entirety of
Olavere’s testimony on cross-examination the Court has arrived at
the conclusion that, indeed, Olavere intended to receive an unsigned
Order of Judge Maceda from the respondent on August 28, 2001.
The evidence on record shows that when Olavere arrived at the
respondent’s office on August 28, 2001, he received the unsigned
order from the respondent after the latter had received the P50,000.
The Court, therefore, ruled that Olavere was NOT impeached as a
witness and his sworn statement rendered of no probative weight
merely because of his erroneous answer to one of the questions of
respondent’s counsel on cross-examination.
CSC vs. BELAGAN
October 19, 2004, SANDOVAL-GUTIERREZ
Nature: petition for review on certiorari of CA decision
When the credibility of a witness is sought to be impeached by proof
of his reputation, it is necessary that the reputation shown should be
that which existed before the occurrence of the circumstances out of
which the litigation arose,[1] or at the time of the trial and prior
thereto, but not at a period remote from the commencement of the
suit.[2] This is because a person of derogatory character or
reputation can still change or reform himself.
FACTS:
-2 separate complaints for sexual harassment and various
malfeasances were filed against Dr. Belagan, the Superintendent of
DECS.
1st (MAGDALENA’s): She was applying for a permit to operate a
pre-school and during the inspection of the pre-school, Belagan
placed his arms around her shoulders and kissed her cheeks.
Magdalena kept mum about the incident but when she followed up
her application, Belagan replied, “Mag-date muna tayo.” She only
told her husband about the incident when he asked for the status of
their application. Belagan forwarded their application, with a
recommendation for the approval of the pre-school. When
Magdalena found out that some DECS employees were suing
Belagan, she decided to complain to DECS secretary Gloria.
Belagan was placed under suspension.
2nd (LIGAYA ANNAWI): She alleged in her complaint that on four
separate occasions, respondent touched her breasts, kissed her
cheek, touched her groins, embraced her from behind and pulled her
close to him, his organ pressing the lower part of her back. Ligaya
also charged respondent with: (1) delaying the payment of the
teachers’ salaries; (2) failing to release the pay differentials of
substitute teachers; (3) willfully refusing to release the teachers’
uniforms, proportionate allowances and productivity pay; and (4)
failing to constitute the Selection and Promotion Board, as required
by the DECS rules and regulations.
DECS joint investigation: Belagan denied sexual harassment
accusations. Presented evidence against admin acts.
*DECS Sec: GUILTY of 4 counts of sexual “indignities or
harassments” committed against Ligaya; and two (2) counts of
“sexual advances or indignities” against Magdalena; DISMISSED
from service. Absolved of admin malfeasance and dereliction of duty.
Appealed to CSC
*CSC: affirm DECS Sec BUT dismissed complaint of Ligaya.
Transgression against Magdalena constitutes grave misconduct. MR
(raised that he has never been charged of any offense in his 37
years of service while Magdalena was charged with 22 offenses
before MTC Baguio and 23 complaints before brgy captains of Brgy
Silang and Hillside in Baguio. (in general, these charges concern
grave threats or slander) STILL DENIED. Appealed before CA.
*CA: dismissed Magdalena’s complaint, reversed CSC Resolutions.
Why? Magdalena is an unreliable witness, her character being
questionable. “Given her aggressiveness and propensity for trouble,
“she is not one whom any male would attempt to steal a kiss.”
ISSUE
WON complaining witness, Magdalena Gapuz, is credible
HELD
Preliminary matters:
GR: Factual findings of the Court of Appeals, if supported by
substantial evidence, are conclusive and binding on the parties and
are not reviewable by this Court. This Court is, after all, not a trier of
facts.
X: when the findings of the Court of Appeals are contrary to those of
the trial court or a quasi-judicial body, like petitioner herein.
Rules on character evidence (R130.51.a.3): the provision pertains
only to criminal cases, not to administrative offenses. Even if it is
applicable to admin cases, only character evidence that would
establish the probability or improbability of the offense charged may
be proved. Character evidence must be limited to the traits and
characteristics involved in the type of offense charged.
>>>IN THIS CASE: no evidence bearing on Magdalena’s chastity.
What were presented were charges for grave oral defamation, grave
threats, unjust vexation, physical injuries, malicious mischief, etc.
filed against her.
Rules of evidence for establishing lack of credibility of the witness:
Credibility means the disposition and intention to tell the truth in the
testimony given. It refers to a person’s integrity, and to the fact that
he is worthy of belief. A witness may be discredited by evidence
attacking his general reputation for truth, honesty, or integrity.
“SEC. 11. Impeachment of adverse party’s witness. –A witness may
be impeached by the party against whom he was called, by
contradictory evidence, by evidence that his general reputation for
truth, honesty, or integrity is bad, or by evidence that he has made at
other times statements inconsistent with his present testimony, but
not by evidence of particular wrongful acts, except that it may be
shown by the examination of the witness, or the record of the
judgment, that he has been convicted of an offense.”
>>>Magdalena testified so she’s considered a witness. Her
character/reputation is a proper subject of inquiry. HOWEVER
(1) the charges and complaints happened way back in the 70s and
80s while the act complained of happened in 1994, thus, the said
charges are no longer reliable proofs of Magdalena’s character or
reputation.
*evidence of one’s character or reputation must be confined to a time
not too remote from the time in question. In other words, what is to
be determined is the character or reputation of the person at the time
of the trial and prior thereto, but not at a period remote from the
commencement of the suit.
“It is unfair to presume that a person who has wandered from the
path of moral righteousness can never retrace his steps again.
Certainly, every person is capable to change or reform.” –
ooooh…quotable quote!
(2) no evidence of conviction of the offenses charged.
The general rule prevailing in a great majority of jurisdictions is that it
is not permissible to show that a witness has been arrested or that
he has been charged with or prosecuted for a criminal offense, or
confined in jail for the purpose of impairing his credibility. This view
has usually been based upon one or more of the following grounds >>Corruption as an element of grave misconduct consists in the act
or theories: (a) that a mere unproven charge against the witness of an official or fiduciary person who unlawfully and wrongfully uses
does not logically tend to affect his credibility, (b) that innocent his station or character to procure some benefit for himself or for
persons are often arrested or accused of a crime, (c) that one another person, contrary to duty and the rights of others.
accused of a crime is presumed to be innocent until his guilt is legally
established, and (d) that a witness may not be impeached or >>> This is apparently present in respondent’s case as it concerns
discredited by evidence of particular acts of misconduct. not only a stolen kiss but also a demand for a “date,” an unlawful
Significantly, the same Section 11, Rule 132 of our Revised Rules on consideration for the issuance of a permit to operate a pre-school.
Evidence provides that a witness may not be impeached by evidence Respondent’s act clearly constitutes grave misconduct, punishable
of particular wrongful acts. Such evidence is rejected because of the by dismissal.
confusion of issues and the waste of time that would be involved,
***SC Considered length of service (37 years) + analogous cases:
and because the witness may not be prepared to expose the falsity
suspension for 1 year w/o pay
of such wrongful acts. As it happened in this case, Magdalena was
not able to explain or rebut each of the charges against her listed by
respondent.
Disposition: Granted. Affirm CSC resolution. Suspend Belagan.
(3) CSC resolution was supported by substantial evidence.
Magdalena’s testimony was given weight by CSC plus corroborated
by affidavit of Ngabit re: complaint by Magdalena.

ON ALLEGED MOTIVE (TO PRESSURE BELAGAN TO ISSUE

PERMIT): none. Permit was already issued when complaint was
filed.

ON Penalty:

*Misconduct: intentional wrongdoing or deliberate violation of a rule

of law or standard of behavior, especially by a government official.
To constitute an administrative offense, misconduct should relate to
or be connected with the performance of the official functions and
duties of a public officer.

>grave misconduct: the elements of corruption, clear intent to violate

the law or flagrant disregard of established rule, must be manifest.
ROSELLA D. CANQUE vs. THE COURT OF APPEALS and
SOCOR CONSTRUCTION CORPORATION
Facts: Petitioner Rosella D. Canque is a contractor doing business
under the name and style RDC Construction. At the time material to
this case, she had contracts with the government for (a) the
restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan
access road; and (c) the asphalting of Babag road in Lapulapu City.
In connection with these projects, petitioner entered into two
contracts with private respondent Socor Construction Corporation.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C),
containing a revised computation, for P299,717.75, representing the
balance of petitioners total account of P2,098,400.25 under the two
contracts. However, petitioner refused to pay the amount, claiming
that private respondent failed to submit the delivery receipts showing
the actual weight in metric tons of the items delivered and the
acceptance thereof by the government.
Hence, on September 22, 1986, private respondent filed a collection
suit.
In her answer, petitioner admitted the existence of the contracts with
private respondent as well as receipt of the billing (Exh. C), dated
May 28, 1986. However, she disputed the correctness of the bill:
. . . considering that the deliveries of [private respondent] were not
signed and acknowledged by the checkers of [petitioner], the
bituminous tack coat it delivered to [petitioner] consisted of 60%
water, and [petitioner] has already paid [private respondent] about
P1,400,000.00 but [private respondent] has not issued any receipt to
[petitioner] for said payments and there is no agreement that [private
respondent] will charge 3% per month interest.
Petitioner subsequently amended her answer denying she had
entered into sub-contracts with private respondent. During the trial,
private respondent, as plaintiff, presented its vice-president, Sofia O.
Sanchez, and Dolores Aday, its bookkeeper.
Petitioner’s evidence consisted of her lone testimony
RTC ruled for private respondent. On appeal, the Court of Appeals
affirmed. It upheld the trial courts reliance on private respondents
Book of Collectible Accounts (Exh. K) on the basis of Rule 130, 37 of
the Rules of Court.
Issue: WoN CA decision should be reversed as it has only
inadmissible evidence to support it.
Held: No.
First. Petitioner contends that the presentation of the delivery
receipts duly accepted by the then Ministry of Public Works and
Highways (MPWH) is required under the contracts (Exhs. A and B)
and is a condition precedent for her payment of the amount claimed
by private respondent. Petitioner argues that the entries in private
respondents Book of Collectible Accounts (Exh. K) cannot take the
place of the delivery receipts and that such entries are mere hearsay
and, thus, inadmissible in evidence.
The stipulation in the two contracts requiring the submission of
delivery receipts does not preclude proof of delivery of materials by
private respondent in some other way. The question is whether the
entries in the Book of Collectible Accounts (Exh. K) constitute
competent evidence to show such delivery. Private respondent cites
Rule 130, 37 of the Rules of Court and argues that the entries in
question constitute entries in the course of business sufficient to
prove deliveries made for the government projects. This provision
reads:
Entries in the course of business. Entries made at, or near the time
of the transactions to which they refer, by a person deceased,
outside of the Philippines or unable to testify, who was in a position
to know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular
course of business or duty.
The admission in evidence of entries in corporate books requires the
satisfaction of the following conditions:
1. The person who made the entry must be dead, outside the country
or unable to testify;
2. The entries were made at or near the time of the transactions to
which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious;
and
5. The entries were made in the ordinary or regular course of
business or duty.
As petitioner points out, the business entries in question (Exh. K) do
not meet the first and third requisites. Dolores Aday, who made the
entries, was presented by private respondent to testify on the
account of RDC Construction. It was in the course of her testimony
that the entries were presented and marked in evidence. There was,
therefore, neither justification nor necessity for the presentation of
the entries as the person who made them was available to testify in
court.
Necessity is given as a ground for admitting entries, in that they are
the best available evidence. The person who may be called to court
to testify on these entries being dead, there arises the necessity of
their admission without the one who made them being called to court
be sworn and subjected to cross-examination. And this is permissible
in order to prevent a failure of justice.
Moreover, Aday admitted that she had no personal knowledge of the
facts constituting the entry. She said she made the entries based on
the bills given to her. But she has no knowledge of the truth or falsity
of the facts stated in the bills. The deliveries of the materials stated in
the bills were supervised by an engineer. The person, therefore, who
has personal knowledge of the facts stated in the entries, i.e., that
such deliveries were made in the amounts and on the dates stated,
was the company’s project engineer. Whether or not the bills given to
Aday correctly reflected the deliveries made in the amounts and on
the dates indicated was a fact that could be established by the
project engineer alone who, however, was not presented during trial.
The rule is stated by former Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the facts entered
by him, and the person who gave him the information is individually
known and may testify as to the facts stated in the entry which is not
part of a system of entries where scores of employees have
intervened, such entry is not admissible without the testimony of the
informer.
Second. It is nonetheless argued by private respondent that although
the entries cannot be considered an exception to the hearsay rule,
they may be admitted under Rule 132, 10.
On the other hand, petitioner contends that evidence which is
inadmissible for the purpose for which it was offered cannot be
admitted for another purpose.
It should be noted, however, that Exh. K is not really being presented
for another purpose. Private respondents counsel offered it for the
purpose of showing the amount of petitioners indebtedness. This is
also the purpose for which its admission is sought as a
memorandum to refresh the memory of Dolores Aday as a witness.
In other words, it is the nature of the evidence that is changed, not FINALLY, Exhibit D-1 is material proof of plaintiffs complete
the purpose for which it is offered. fulfillment of its obligation.

Be that as it may, considered as a memorandum, Exh. K does not
itself constitute evidence. As explained in Borromeo v. Court of
Appeals:
Under the above provision (Rule 132, 10), the memorandum used to
refresh the memory of the witness does not constitute evidence, and
may not be admitted as such, for the simple reason that the witness
has just the same to testify on the basis of refreshed memory. In
other words, where the witness has testified independently of or after
his testimony has been refreshed by a memorandum of the events in
dispute, such memorandum is not admissible as corroborative
evidence. It is self-evident that a witness may not be corroborated by
any written statement prepared wholly by him.
There is no question that plaintiff supplied RDC Construction with
Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat)
and Item 310 (Bitunimous Concrete Surface Course) in all the three
projects of the latter. The Lutopan Access Road project, the Toledo
wharf project and the Babag-Lapulapu Road project.
On the other hand, no proof was ever offered by defendant to show
the presence of other contractors in those projects. We can therefore
conclude that it was Socor Construction Corp. ALONE who supplied
RDC with Bituminous Prime Coat, Bituminous Tack Coat and
Bituminous Concrete Surface Course for all the aforenamed three
projects.

As the entries in question (Exh. K) were not made based on personal

knowledge, they could only corroborate Dolores Adays testimony
that she made the entries as she received the bills.

Third. Does this, therefore, mean there is no competent evidence of

private respondents claim as petitioner argues? NO. Aside from Exh.
K, private respondent presented other documents like contract
agreements, affidavits, work accomplishment reports, bills,
certifications etc.

The entries recorded under Exhibit K were supported by Exhibits L,

M, N, O which are all Socor Billings under the account of RDC
Construction. These billings were presented and duly received by the
authorized representatives of defendant. The circumstances
obtaining in the case at bar clearly show that for a long period of time
after receipt thereof, RDC never manifested its dissatisfaction or
objection to the aforestated billings submitted by plaintiff.
PEOPLE v DELA CRUZ 384 SCRA 375 DAVIDE; July 11, 2002 - The defense filed a demurrer to evidence, which was granted. It
admitted that it could have moved to quash the information but it did
FACTS not because the complaint on which the information was based was
on its face valid, it having been signed by JONALYN as the offended
- Upon a complaint signed by JONALYN with the assistance of her
party. However, the undeniable truth is that JONALYN had no
aunt Carmelita Borja, two informations were filed by the Office of the
capacity to sign the same considering her mental deficiency or
Provincial Prosecutor before the RTC of Malolos charging
abnormality. The defense also insisted on assailing the competency
Bienvenido Dela Cruz with rape. BIENVENIDO entered a plea of not
of JONALYN as a witness. It claimed that JONALYN’s testimony,
guilty.
considering her mental state, was coached and rehearsed.
- When JONALYN was presented as its first witness, the prosecution
- The trial court denied the Demurrer to Evidence and set the dates
sought to obtain from the trial court an order for the conduct of a
for the presentation of the evidence for the defense. Trial court
psychiatric examination to determine her mental and psychological
convicted BIENVENIDO of the crime of rape in Criminal Case No.
capability to testify in court. Trial court allowed the prosecutor to
1275-M-96, but acquitted him in Criminal Case No. 1274-M-96 for
conduct direct examination on JONALYN so that if in its perception
insufficiency of evidence.
she would appear to be suffering from mental deficiency, the
prosecutor could be permitted to ask leading questions. Noticing
that JONALYN had difficulty in expressing herself, the trial court
decided to suspend the proceedings to give the prosecution ISSUES
sufficient time to confer with her.
1. WON the complaint for rape filed was valid
- Trial court allowed the prosecution to put on the witness stand a
Medical Officer of the National Center for Mental Health. Dr. Tuazon 2. WON Jonalyn was competent to testify
testified that she found that JONALYN was suffering from a
3. WON Jonalyn was credible as a witness
moderate level of mental retardation and that although
chronologically the latter was already 20 years of age, she had the 4. WON leading questions should have been allowed to be asked to
mental age of an 8½-year-old child under the Wechsler Adult Jonalyn
Intelligence Scale.

- The trial court issued an order allowing leading questions to be

propounded to JONALYN. Thus, JONALYN took the witness stand. HELD
She declared in open court that BIENVENIDO raped her twice. She
stated that BIENVENIDO placed himself on top of her and inserted 1. YES
his private part into her womanhood.
- The pertinent laws existing at the time the crimes were committed
were Article 344 of the Revised Penal Code (prior to its amendment
by R.A. No. 8353 which took effect on 22 October 1997) and Section
5 of Rule 110 of the 1985 Rules of Criminal Procedure.
- The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint filed
by the offended party or her parents, grandparents, or guardian, nor,
in any case, if the offender has been expressly pardoned by the
above-named persons, as the case may be.
- Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure
states: The offenses of seduction, abduction, rape or acts of
lasciviousness shall not be prosecuted except upon a complaint filed
by the offended party or her parents, grandparents, or guardian, nor,
in any case, if the offender has been expressly pardoned by the
above-named persons, as the case may be. In case the offended
party dies or becomes incapacitated before she could file the
complaint and has no known parents, grandparents, or guardian, the
State shall initiate the criminal action in her behalf. The offended
party, even if she were a minor, has the right to initiate the
prosecution for the above offenses, independently of her parents,
grandparents or guardian, unless she is incompetent or incapable of
doing so upon grounds other than her minority. Where the offended
party who is a minor fails to file the complaint, her parents,
grandparents or guardian may file the same.
- A complaint of the offended party or her relatives is required in
crimes against chastity out of consideration for the offended woman
and her family, who might prefer to suffer the outrage in silence
rather than go through with the scandal of a public trial. The law
deems it the wiser policy to let the aggrieved woman and her family
decide whether to expose to public view or to heated controversies in
court the vices, fault, and disgraceful acts occurring in the family.
- The complaint in the instant case has complied with the
requirement under the Revised Penal Code and the Rules of
Criminal Procedure, which vest upon JONALYN, as the offended
party, the right to institute the criminal action. As signed by
JONALYN, the complaint started the prosecutory proceeding. The
assistance of JONALYN’s aunt, or even of her mother, was a
superfluity. JONALYN’s signature alone suffices to validate the
complaint.
- If a minor under the Rules of Court can file a complaint for rape
independently of her parents, JONALYN, then 20 years of age who
was found to have the mentality of an 8-year-old girl, could likewise
file the complaint independently of her relatives. Her complaint can
be rightfully considered filed by a minor.
2. YES
- The determination of the competence of witnesses to testify rests
primarily with the trial judge who sees them in the witness stand and
observes their behavior or their possession or lack of intelligence, as
well as their understanding of the obligation of an oath.
- The prosecution has proved JONALYN’s competency by the
testimony of Dr. Tuazon. The finding of the trial court, as supported
by the testimony of Dr. Tuazon that JONALYN had the
understanding of an 8-year-old child, does not obviate the fact of her
competency. Its only effect was to consider her testimony from the
point of view of an 8-year-old minor.
3. YES
- The foregoing narrative has established not only JONALYN’s
competency but also her credibility. Considering her feeble mind,
she could not have fabricated or concocted her charge against
BIENVENIDO. Also, no improper motive was shown by the defense
as to why JONALYN would file a case or falsely testify against
BIENVENIDO.
- Complainant has made herself clear about the sexual molestation
she suffered in the hands of the accused. Plain and simple her
testimony may have been, unembellished, as it is, with details, yet, it
is in its simplicity that its credence is enhanced.
4. YES
- It is usual and proper for the court to permit leading questions in
conducting the examination of a witness who is immature; aged and
infirm; in bad physical condition; uneducated; ignorant of, or
unaccustomed to, court proceedings; inexperienced; feeble-minded;
confused and agitated; terrified; timid or embarrassed while on the
stand; lacking in comprehension of questions asked; deaf and dumb;
or unable to speak or understand the English or imperfectly familiar
therewith.
- The leading questions were neither conclusions of facts merely put
into the mouth of JONALYN nor prepared statements which she
merely confirmed as true.
DISPOSITION RTC decision finding accused-appellant
BIENVENIDO DELA CRUZ guilty of the crime of rape and
sentencing him to suffer the penalty of reclusion perpetua is
AFFIRMED, with the modification that accused-appellant is ordered
to pay the victim JONALYN YUMANG civil indemnity in the reduced
amount of P50,000 and moral damages in the amount of P50,000.
PACIFIC ASIA OVERSEAS VS NLRC
FACTS: Pacific Asia is an overseas employment agency that
provided Rances work abroad. Rances was engaged by Gulf-East
Ship Management a Radio Operator but due to insubordination he
was dismissed our months later. According to Rances he sued Gulf-
East in Dubai and the Gulf-East compromised with him that instead
of paying him $9k+ they’ll just pay him $5.5k plus his fare going
home to the Philippines plus if in case Rances’ wife does not agree
with the amount of the allowance being sent to her via Pacific Asia,
Rances is entitled to have $1.5k more from pacific Asia.
Back in the Philippines, Rances was sued by Pacific Asia for acts
unbecoming of a marine officer (due in part to his insubordination to
Pacific Asia’s client). Rances filed a counterclaim for the $1.5k as his
wife did not agree with the monthly allowance sent by Pacific Asia to
her. POEA ruled in favor of Pacific Asia but did not rule on Rances’
counterclaim. Rances then filed a separate case for his $1.5k claim.
Rances produced the original copy of the Dubai court decision
awarding him the compromised amount of $5.5k. The said court
decision was in Arabic but it came with an English translation. It also
came with a certification from a certain Mohd Bin Saleh who was
purportedly an Honorary Consul for the Philippines. This time he
won.
Pacific Asia appealed but its appeal was one day late after the
reglementary period. POEA denied the appeal. NLRC likewise
denied the appeal.
ISSUE: Whether or not Pacific Asia can be allowed to appeal.

HELD: Yes. The delay was due to an excusable mistake. Apparently,
there was a mistake in the filing of the appeal when the new
messenger honestly thought that the appeal was supposed to be
filed in NLRC Intramuros but actually it was supposed to be in POEA
Ortigas (that happened to be the last day as well, and when he was
advised to go to Ortigas, offices were already closed).
Also, on the merits; POEA has no jurisdiction to enforce foreign
judgments. It’s the regular courts that have jurisdiction. The POEA is
not a court; it is an administrative agency exercising, inter alia,
adjudicatory or quasi-judicial functions. Further, Rances is not suing
on the strength of an employer-employee relationship between him
and Gulf-East, but rather on the strength of a foreign judgment.
And, even if the POEA has jurisdiction over the matter, it cannot take
in evidence the alleged original copy o the court decision from Dubai
as it was not properly authenticated pursuant to the Rules of Court
(Sect 25, 26 Rule 132). The translation was also not duly
authenticated. And an honorary consul is not authorized to make
authentication of foreign public records.
PEOPLE VS LAZARO
FACTS: Apolinar Lazaro, while driving a yellow Toyota Tamaraw
jeep, was stopped by P/Sgt. Bonnet along Gen Luna St. Bonnet’s
attention was caught by bystanders who were shouting that said
vehicle had a bloodied passenger. Bonnet instructed Lazaro to follow
mobile patrol to Bicol Regional Hospital. Pol. Maj. Tuazon, who got a
tip by a phone call regarding the incident, was waiting for them in the
hospital.
Tuazon, knowing that driver was armed, ordered driver to step out of
jeep. He saw that the driver had a handgun tucked in his waist.
Driver pulled out handgun from its holster & dropped it at the back
Of driver’s seat. Tuazon then pulled Lazaro out of vehicle and got
hold of gun which was a .38 caliber revolver containing 6 empty
shells. Lazaro did not respond when he was asked why he had a gun
and whether he had license to possess such. Lazaro was later on
brought to police headquarters and the gun was turned over to
investigator. Supt. Antonio Sierra, Chief of Firearms & Explosives
Office (FEO) at Camp Crame issued a certification that Lazaro was
not a licensed or registered firearm holder of any kind or caliber.
Lazaro claims that on the day of incident, he had a drinking spree
with his nephew Manolo Lazaro & Ricardo Ronquillo in Camarines
Sur. They left the place at around 3 pm. While traveling, Manolo
stopped the jeep to urinate. Lazaro then saw Ricardo draw a gun
and point it at him. Lazaro and Ricardo then grappled for possession
of gun. After some time, Lazaro realized that Manolo was hit and he
was asking his uncle to bring him to hospital. He could not do
anything because he was still grappling with Ricardo. When Ricardo
weakened and stopped moving, he then brought Manolo to hospital.
He left Ricardo who later on died. He claims that he does not know if
gun found in his possession was the same gun he was grappling
with Ricardo. He further claimed that he and Ricardo fell from the
jeep and he cannot recall who was holding gun when it was fired.
Thus claiming that shooting of Ricardo was an accident. Prosecution
presented Dr. Jurado’s testimony claiming that based on the
autopsy, injuries were not inflicted accidentally since more than one
shot was inflicted on victim.
ISSUES:
1. Whether the elements of illegal possession of firearms was proven
by the prosecution? YES.
2. Whether the certification from Firearms & Explosives Section
Chief is admissible? YES
3. Whether Lazaro should only be convicted of simple illegal
possession of firearms? NO.
RATIO: The existence of firearm is beyond dispute because it is
recovered from the Tamaraw and confirmed by Tuazon’s testimony.
Further, the fact that the accused who possessed the gun does not
have corresponding permit to possess the same is confirmed by the
certification from Firearms and Explosives Section Chief.
The certification from Firearms & Explosives Section Chief is
admissible as evidence since it’s a public document procured in the
line of duty. The fiscal himself witnessed its signing. The official who
issued it is the proper custodian of records of firearms in the
Philippines. Under Rule 130, Sec. 44, Rules of Court “official records
made in performance of duty by a public officer of the Philippines or
by a person in performance of a duty specifically enjoined by law are
prima facie evidence of facts stated.” A written statement signed by
the officer having custody of official record or by his deputy that after
diligent search no record or entry of specified tenor is found to exist
in records of his office accompanied by certification is admissible as
evidence that records of office contains no such record or entry.
In the case at bar, the Certification issued by the Commanding
Officer of the PNP Firearm and Explosive Office, which is the
repository of all records regarding firearms in the Philippines is
competent and admissible evidence to prove that the accused
Lazaro was not a licensed holder or possessor of a firearm of any
kind or caliber. Indeed, the certificate of a custodian that he has
diligently searched for a document or an entry of a specified tenor
and has been unable to find it should be sufficient evidence of its
non-existence in his office as though he made such testimony on the
stand.
The Court cited the cases of People vs. Molina & People vs. Feloteo
which held that illegal possession of firearm will only be an
aggravating circumstance and no longer punishable as a separate
offense. The amendments of Republic Act 8294 took effect on July 6,
1997, while the crime in the case at bar is committed on May 5,
1991. Although penal laws generally have prospective application,
retroactivity is allowed if such would be advantageous to accused.
Hence, the amendment that the use of unlicensed firearm as an
aggravating circumstance in a murder case, should be applied to
Lazaro. In the case at bar, homicide and illegal possession of
firearms were tried separately. By virtue of retroactivity, this is no
longer possible. Lazaro is acquitted of illegal possession of firearms.