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RULE 130
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

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) The 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. (9a)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 198240

July 3, 2013

LUISA NAVARRO MARCOS*, Petitioner,
vs.
THE HEIRS OFTHE LATE DR. ANDRES NAVARRO, JR., namely NONITA
NAVARRO, FRANCISCA NAVARRO MALAPITAN, SOLEDAD NAVARRO
BROCHLER, NONITA BARRUN NAVARRO, JR., IMELDA NAVARRO,
ANDRES NAVARRO III, MILAGROS NAVARRO YAP, PILAR NAVARRO,
TERESA NAVARRO-TABITA, and LOURDES BARRUNREJUSO, Respondents.
DECISION
VILLARAMA, JR., J.:

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
Alvarez’s 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 Alvarez’s
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 Alvarez’s 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 Alvarez’s disqualification as a witness can no longer be justified.
Hence, we reverse the CA ruling. While we agree with the CA in considering
the RTC’s 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

discretion defies exact definition, but it generally refers to capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross as to amount to an evasion of
a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.18 Grave
abuse of discretion arises when a lower court or tribunal violates the
Constitution or grossly disregards the law or existing jurisprudence. 19
In Armed Forces of the Philippines Retirement and Separation Benefits
System v. Republic of the Philippines,20we said that a witness must only
possess all the qualifications and none of the disqualifications provided in the
Rules of Court. Section 20, Rule 130 of the Rules on Evidence provides:
SEC. 20. Witnesses; their qualifications.–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.
Religious or political belief, interest in the outcome of the case, or conviction
of a crime unless otherwise provided by law, shall not be a ground for
disqualification.
Specific rules of witness disqualification are provided under Sections 21 to
24, Rule 130 of the Rules on Evidence. Section 21 disqualifies a witness by
reason of mental incapacity or immaturity. Section 22 disqualifies a witness
by reason of marriage. Section 23 disqualifies a witness by reason of death
or insanity of the adverse party. Section 24 disqualifies a witness by reason
of privileged communication.
In Cavili v. Judge Florendo,21 we have held that the specific enumeration of
disqualified witnesses excludes the operation of causes of disability other
than those mentioned in the Rules. The Rules should not be interpreted to
include an exception not embodied therein. We said:
The generosity with which the Rule allows people to testify is apparent.
Interest in the outcome of a case, conviction of a crime unless otherwise
provided by law, and religious belief are not grounds for disqualification.
Sections 19 and 20 of Rule 130 provide for specific disqualifications. Section
19 disqualifies those who are mentally incapacitated and children whose
tender age or immaturity renders them incapable of being witnesses. Section
20 provides for disqualification based on conflicts of interest or on
relationship. Section 21 provides for disqualification based on privileged
communications. Section 15 of Rule 132 may not be a rule on

disqualification of witnesses but it states the grounds when a witness may be
impeached by the party against whom he was called.
There is no provision of the Rules disqualifying parties declared in default
from taking the witness stand for non-disqualified parties. The law does not
provide default as an exception. The specific enumeration of disqualified
witnesses excludes the operation of causes of disability other than those
mentioned in the Rules. It is a maxim of recognized utility and merit in the
construction of statutes that an express exception, exemption, or saving
clause excludes other exceptions. x x x As a general rule, where there are
express exceptions these comprise the only limitations on the operation of a
statute and no other exception will be implied. x x x The Rules should not be
interpreted to include an exception not embodied therein. (Emphasis
supplied; citations omitted.)
As a handwriting expert of the PNP, PO2 Alvarez can surely perceive and
make known her perception to others.1âwphi1We have no doubt that she is
qualified as a witness. She cannot be disqualified as a witness since she
possesses none of the disqualifications specified under the Rules.
Respondents’ motion to disqualify her should have been denied by the RTC
for it was not based on any of these grounds for disqualification. The RTC
rather confused the qualification of the witness with the credibility and
weight of her testimony.
Moreover, Section 49, Rule 130 of the Rules of Evidence is clear that the
opinion of an expert witness may be received in evidence, to wit:
SEC. 49. Opinion of expert witness.–The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he is shown
to possess, may be received in evidence.
For instance, in Tamani v. Salvador,22 we were inclined to believe that
Tamani’s signature was forged after considering the testimony of the PNP
document examiner that the case involved simulated or copied forgery, such
that the similarities will be superficial. We said that the value of the opinion
of a handwriting expert depends not upon his mere statements of whether a
writing is genuine or false, but upon the assistance he may afford in pointing
out distinguishing marks, characteristics and discrepancies in and between
genuine and false specimens of writing which would ordinarily escape notice
or detection from an unpracticed observer.
Thus, we disagree with the RTC that PO2 Alvarez’s testimony would be
hearsay. Under Section 49, Rule 130 of the Rules on Evidence, PO2 Alvarez
is allowed to render an expert opinion, as the PNP document examiner was

allowed in Tamani. But the RTC already ruled at the outset that PO2
Alvarez’s 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

G.R. No. 86743 August 30, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO RIZO y RABINO, defendant-appellant.

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

found her to be pregnant. He then issued a medical certificate relative to his
findings. 5 He also stated that Felicidad is a mongoloid whose intellectual
capacity is below normal and comparably that of a 5-year old child and could
not distinguish between what is moral and immoral. 6
His observation was confirmed by Camila Ponferada, who conducts a school
for children of pre-school age, and had Felicidad for a pupil in the summer of
1986. 7
Felicidad Valencia, the victim, declared that she knows the accused, Rodolfo
Rizo, whose nickname is "Ompoy" and pointed to him in court. She related
the manner the accused had sexual intercourse with her. She said:
Q Did Ompoy do anything to you?
A (Witness nodded her head signifying yes).
Q What did Ompoy do to you?
A In the warehouse.
Q What did Ompoy do to you in the warehouse?
A (Witness touching her breast and demonstrating
that she was undressed by Ompoy),
Q Now, did you have a panty with you then?
A I have a panty then.
Q Now, what happened to your panty?
A He removed my panty and my pants.
Q After Ompoy removed your pants and panty, what
did Ompoy do to you?
A (Witness demonstrating that she was told to lie
down by Ompoy and demonstrating her two hands
that Ompoy placed himself on top of her).
Q Did he make you lie down?
A (Witness nodded her head signifying yes).

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

But there is a translation of her sister, Your Honor.
COURT
You can stay on your place to give an objection.
Proceed.
ATTY. BOSA (continuing)
Q Did Ompoy make a push and pull motion after she
has inserted his organ to you?
ATTY. ANTONIO
Misleading, Your Honor, there was no showing that . .
.
ATTY. BOSA
Leading question, Your Honor . . .
COURT
Reform the question.
ATTY. BOSA (continuing)
Q Did the penis of Ompoy push into your vagina?
A (Witness nodded her head signifying yes).
Q After Ompoy was through . . . may I withdraw my
question . . . Do you know how many times did
Ompoy did that act to you?
A (Witness no answer).
ATTY.BOSA
It seems, Your Honor, that the witness could not
comprehend the question.
COURT
Make the question simpler and short.

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.

Q What did Ompoy do to you?
A He told me to go up the bodega and told me to lie
down and he placed himself on top of me.
Q When Ompoy was on top of you what happened?
A I was lying when he placed himself on top of me.
(Witness demonstrating her two hands)
Q Was Ompoy with or without pants when he lied on
top of you?
A No pants.
Q Did the penis of Ompoy entered (sic) into your
vagina when he was on top of you?
WITNESS (testifying)
A (Witness nodded her head signifying yes).

9

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

stand. Hereunder is what transpired in the court below immediately
preceding her testimony:
COURT
That's all. Do you have any other witness?
ATTY.BOSA
We have, Your Honor. But before we will present our
next witness, Your Honor, this is a crime of justity
(sic) and because of which we ask for the exclusion
of the persons from the court room not necessary to
the attendance of the Court.
COURT
Exclude including these practicum.
ATTY.BOSA
Another thing, Your Honor, that we would like to ask
from the Honorable Court that because of the
condition of the victim we prayed that we be given
the privelege (sic) to ask her leading questions. We
have established already ample evidence of her
mental capacity by the Doctor, by the sister taking
charge of her and by her teacher.
COURT
No objection, companero?
ATTY. ANTONIO
I object to that manifestation of the counsel, Your
Honor, that he has submitted ample evidence
showing that the offended victim is allegedly
retarded. There was no expert witness that he
presented before this Honorable Court that said
witness is allegedly retarded.
COURT

Objection with the privelege (sic) of asking . . . ?
ATTY. ANTONIO
Yes, Your Honor, because our position is that because
he is asking this Honorable Court that he be allowed
to profound (sic) leading question on the ground that
a victim is not a normal person. Our position is that
the victim is a normal person. 11
The appellant's failure to object to the competency of Felicidad as a
witness operated as a waiver and the trial court has no power to
disregard it. In an early recorded case, 12 the Court said:
Had the opposing party interposed an objection to this witness
on the ground of incompetency, her testimony could not have
been received. His omission to object to her operated as a
waiver. The acceptance of an incompetent witness to testify in a
civil suit, as well as the allowance of improper questions that
may be put to him while on the stand is a matter resting in the
discretion of the litigant. He may assert his right by timely
objection or he may waive it, either expressly or by silence. In
any case the option rests with him. Once admitted, the
testimony is in the case for what it is worth and the judge has no
power to disregard it for the sole reason that it could have been
excluded, if it had been objected to, nor to stake it out on his
own motion. The disqualification of witnesses found in rules of
evidence of this character, is one not founded on public policy
but for the protection and convenience of litigants, and which
consequently lies within their control.
Besides, the decision as to the competency of a person to testify rests
largely with the trial court, and in this regard, the trial court said:
The Court has observed that when Felicidad Valencia was called
to the witness stand, she was led by her sister. She is around
four (4) feet tall, with slanting eyes, short small flat head,
rounded and broad face, very shy and with her tongue
oftentimes protruding on her side lips of her mouth. Her hands
and feet are short, broad and stubby. She had high cheek bones
and small nose with a depressed bridge. When she was sworn to
tell the truth and was asked twice by the interpreter she did not
answer. However, when the sister asked her to tell the truth, she
nodded her head facing the sister. She speaks in stuttering soft

monosyllables sometimes accompanied by gestures and signs of
her hands as well as the movements of her head to indicate
affirmative and negative response to a question. Questions she
does not know, she would not answer. She does not know her
age, nor where she lives. She has not gone Grade one nor
beyond. She does not know the date, the time, and the number
of times she was abused. During the trial, her actuations and
mannerism were too childish and innocent. She showed
constantly opened mouth with her tongue protruding on her side
lips. Fely during the trial would untie her shoes on the witness
stand and lean on the shoulders of her sister. She would shake
her head sidewise left to right or nod her head and point her
finger to her vagina (tsn, p. 241, Records). She would even
yawn in the witness stand resting her head on her two hands.
She would be scratching her head with her tongue protruding on
the side lips of her mouth (tsn, p. 245, Records). These
actuations in open court indicate mental abnormality and
innocent childish deficiency which are common forms of mental
retardation considering that Fely is a mongoloid of 22 years old.
Yet, she is a credible and competent witness. 13
As to the reliability of her testimony, we quote hereunder the disquisition of
the trial court which we find to be in accord with human conduct and the
natural course of events:
Why should Fely single out and point to the accused to have led
her to the warehouse; that the accused touched her breast and
undressed her; that the accused removed her pants and panty;
that the accused made her lay down and lay on top of her; and
that the accused placed his organ inside her vagina? The victim
is a mongoloid and mentally retarded who does not even know
her age nor where she lives. How could she fabricate and
concoct this heinous crime if this incident were not true? It would
be incomprehensible to assume that Fely, a mongoloid whose
mental age is comparable to a five (5) years old, an innocent
and mentally retarded girl, could invent a crime of rape against
the accused. Neither could her sister do so knowing that the
accused had been their loyal worker for more than six (6) years
and the wife being the yaya of the victim and their laundry
woman. It is against their own personal interest to concoct a
crime against the accused if the crime is not true. Considering
the integrity of the brothers and sisters who were mostly
topnotcher professionals, they would not so easily advertise to
the whole world that their sister Fely had been raped, (sic) it was

not true. There is nothing to gain in inventing a rape case if it
was not true; but the stigma of a lingering eternal dishonor of
being raped.
xxx xxx xxx
As a matter of fact, Fely, the victim was candid and honest
enough to say that those in the jeep to deliver, did not touch her.
Berto was in the jeep did not touch her. Other persons did not
touch her. She does not have male friends and that nobody has
violated her except the accused (tsn, pp. 235-236, Records). So
by the simple process of elimination, the victim has excluded all
others not to have touched her nor abused her except the
accused. 14
It results that the trial court did not commit an error in finding the
defendant-appellant guilty of the crime for which he is charged.
We note, however, that the trial court has ordered the defendant-appellant
to recognize the offspring John Paul Valencia as his legitimate son despite
the fact that said accused is a married man. The rule is that if the rapist is a
married man, he cannot be compelled to recognize the offspring of the
crime, should there be any, as his child, whether legitimate or
illegitimate. 15 That portion of the judgment appealed from, ordering the
accused to recognize the child John Paul Valencia as his legitimate son,
should, therefore, be eliminated.
WHEREFORE, the judgment appealed from is hereby AFFIRMED with the only
modification above-stated. With costs.
SO ORDERED.
Melencio-Herrera (Chairman), Paras and Regalado, JJ., concur.
Sarmiento, J., is on leave.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 181539

July 24, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
EDWIN ALEMAN y LONGHAS, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
Accused-appellant Edwin Aleman appeals from the Decision 1 dated
September 28, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02100
affirming the Decision2 dated November 16, 2005 of the Regional Trial Court
(RTC) of Quezon City, Branch 76 in Criminal Case No. Q-03-118348 which
found him guilty of the crime of robbery with homicide.
Accused-appellant was charged under the following Information:
That on or about the 10th day of February 2003, in Quezon City, Philippines,
the said accused, conspiring and confederating with another person whose
true name, identity and other personal circumstances have not as yet been
ascertained and mutually helping each other, did then and there willfully,
unlawfully and feloniously rob one RAMON JAIME BIROSEL y VILLA in the
following manner, to wit: on the date and place aforementioned while said
victim was inside his car having a conversation over his cellphone, the said
accused suddenly appeared and with intent to gain and by means of violence
approached the said vehicle and ordered said victim to open it and once
opened thereafter stabbed the said victim with a bladed weapon hitting him
on the thorax thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his untimely death, and thereupon
took, stole and carried away the following, to wit:
a) Two (2) NOKIA cellular phones
b) One (1) brown leather wallet
c) Undetermined amount of cash money
d) One (1) necklace
e) One (1) men’s ring all with undetermined value, belonging to said
RAMON JAIME BIROSEL y VILLA, to the damage and prejudice of the
heirs of said RAMON JAIME BIROSEL y VILLA.3

Accused-appellant pleaded not guilty to the charge when arraigned. 4 After
pre-trial was conducted, trial ensued.
The prosecution established that, as shown in the medico-legal report
prepared by Police Senior Inspector (P/S Insp.) Elizardo Daileg of the
Philippine National Police (PNP) Crime Laboratory who autopsied the victim’s
cadaver, the cause of death was "hemorrhagic shock secondary to multiple
stab wounds in the thorax." In particular, three penetrating stab wounds
were inflicted on the upper left portion of the victim’s chest, "piercing the
upper lobe of the left lung and perforating the heart." He also suffered stab
wounds in the right eye, stomach and left forearm and incised wounds in the
left upper eyelid and left palm.5
The victim, Ramon Jaime Birosel, was a 55-year old real estate broker at the
time of his death. He was survived by his widow, Maria Filomena Birosel,
with whom he had no child. Filomena spent a total of P477,054.30 in funeral
expenses in connection with the burial of her deceased husband. Filomena
stated that the Nokia 3315 and Siemens S-45 cellular phones taken away
from Ramon were valued at P3,500.00 each, while the necklace snatched
from him was worth P20,000.00.6
The prosecution’s case against accused-appellant hinges on the following
eyewitness account of Mark Almodovar:
On February 10, 2003, at about 7:00 o’clock in the evening, Mark went out
of his house to play ball in the basketball court. He walked to the basketball
court, played there, and at about 9:00 o’clock, he stopped playing as he
then felt like urinating. He went to a place near the basketball court where
there were five cars parked. While urinating, he saw a fat man walking
towards a car. The fat man was talking on his cellular phone. He then noticed
two men following the fat man, who entered a parked car. The two male
persons who were then following the fat man then separated: one went to
the left side of the fat man’s car and stood by the door at the driver’s side of
the vehicle. While the other positioned himself by the door at the opposite
side of the car. Mark made a diagram, rectangular shape and two circles on
both sides, (Exhibit "L") depicting the car and the positions of the two men.
The man who stood by the door at the driver’s side had a knife while his
companion was armed with a gun. He then witnessed the man with the knife
in his hand stabbing the fat man repeatedly on different parts of his body,
while the man with the gun fired once. After taking the fat man’s personal
belongings, including his ring, watch, wallet and cellular phone, the two men
left. He followed them to a place which he described as far and there, he saw
them buried the knife and covered it with soil. He made a drawing
representing the place where he followed them (Exh. "M"). After burying the

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 o’clock in the
evening when he arrived home. After waking up at 8:00 o’clock 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 o’clock in the evening, he already ate his evening meal at 6:00
o’clock. 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 o’clock, 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 o’clock 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 o’clock, 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 o’clock 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-appellant’s 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 station’s
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-appellant’s 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-appellant’s sister, also corroborated
accused-appellant’s 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 prosecution’s 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 Mark’s 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 Mark’s 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

First, accused-appellant questioned the qualification of Mark to be a witness.
Accused-appellant argued that, being a deaf-mute who cannot make known
his perception to others as he has no formal education on sign language,
Mark is unqualified to be a witness. In fact, he was unable to give a
responsive answer to some questions propounded to him through the
interpreter such as when he could not answer why he preferred to play in a
basketball far from his house than in a nearer one.16
Second, accused-appellant asserted that Mark’s testimony was not
corroborated by his alleged playmates or by the "chubby girl" he mentioned
in his testimony. Such lack of corroboration weakened Mark’s testimony.17
Third, accused-appellant contended that Mark admitted receiving money,
new clothes and shoes from the private complainant before he took the
witness stand. This made his testimony highly suspicious. 18
Fourth, accused-appellant highlighted Mark’s failure to identify him as the
perpetrator of the crime in the two instances that he was presented to Mark
in a line-up. This made Mark’s alleged positive identification of accusedappellant doubtful.19
In its Decision dated September 28, 2007, the Court of Appeals held that the
contentions of accused-appellant lacked merit.20
The Court of Appeals declared that the capacity of a deaf-mute to testify has
long been recognized. The witness may communicate his perceptions to the
court through an interpreter. In this case, Mark’s testimony was facilitated by
Catinguil, a licensed sign language interpreter who has been teaching in the
Philippine School for the Deaf since 1990. With the help of Catinguil, the trial
court determined that Mark is not mentally deficient and that he was able to
tell time, space and distance. He was able to draw and make sketches in
open court to show the relative position of things and persons as he
perceived like a normal person. By using signs and signals, he was able to
recount clearly what he witnessed in the evening of February 10, 2003.
According to the appellate court, the above established Mark’s competence
as a witness.21
The Court of Appeals also found that Mark’s testimony was corroborated by
the findings of the medico-legal officer who autopsied the victim’s corpse
that the cause of death was hemorrhagic shock secondary to multiple stab
wounds in the thorax. This physical evidence is an eloquent manifestation of
truth and its evidentiary weight is far more than that of corroborative
testimonies.22

The Court of Appeals rejected as groundless accused-appellant’s imputation
to Mark of improper motive or bias. It also pointed out the irrelevance of
non-identification of an accused in a police line-up. What is important is the
positive identification of the accused as the perpetrator of the crime by the
witness in open court.23
Thus, the Court of Appeals agreed with the trial court that the prosecution
was able to establish beyond reasonable doubt all the elements of robbery
with homicide. It upheld the conviction of accused-appellant for the said
felony. The decretal portion of the Decision dated September 28, 2007
reads:
WHEREFORE, premises considered, the decision dated November 16, 2005
of the Regional Trial Court [(RTC)], National Capital Judicial Region, Branch
76, Quezon City, in Criminal Case No. Q-03-118348 is AFFIRMED.24
Accused-appellant is now before this Court insisting on the failure of the
prosecution to prove his guilt beyond reasonable doubt on the very same
grounds he raised in the Court of Appeals.
This Court is not persuaded.
Both the RTC and the Court of Appeals found that accused-appellant stabbed
the victim several times, causing the latter’s death, for the purpose of
depriving the victim of his personal properties, which personalties accusedappellant took away with him before leaving the scene of the crime. The
killing of the victim was by reason of the robbery. It therefore constitutes the
special complex crime of robbery with homicide. This finding of the trial
court as affirmed by the appellate court is conclusive to this Court. Also, a
review of the records show that both the trial and the appellate courts did
not miss, misapply or misinterpret any relevant fact that would warrant an
alteration of their identical conclusions as to the criminal responsibility of
accused-appellant.25
The Court of Appeals has sufficiently addressed the concerns of accusedappellant. Accused-appellant has presented no compelling reason that would
justify the reversal of his conviction.
The mere fact that Mark is a deaf-mute does not render him unqualified to
be a witness. The rule is that "all persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses."26 A deafmute may not be able to hear and speak but his/her other senses, such as
his/her sense of sight, remain functional and allow him/her to make
observations about his/her environment and experiences. The inability to

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-à-vis the victim; accused-appellant’s knock on the
window of the victim’s car and the sudden series of stabs accused-appellant
inflicted upon the victim; the taking of the victim’s various personal
properties; accused-appellant’s walk away from the crime scene; and, the
revelation of accused-appellant’s identity when he finally removed the
bonnet that covered his face, unaware that someone was secretly and

silently watching. In this connection, the Court of Appeals correctly observed
that "despite intense and grueling cross-examinations, the eyewitness
responded with consistency upon material details that could only come from
a firsthand knowledge of the shocking events which unfolded before his
eyes."29 The imperfections or inconsistencies cited by accused-appellant were
due to the fact that there is some difficulty in eliciting testimony where the
witness is a deaf-mute.30 Besides they concerned material details which are
neither material nor relevant to the case. As such, those discrepancies do
not detract from the credibility of Mark’s testimony, much less justify the
total rejection of the same. What is material is that he positively identified
accused-appellant and personally saw what accused-appellant did to the
victim on the fateful night when the incident happened. The trial court’s
assessment of the credibility of Mark, which was affirmed by the appellate
court, deserves the highest respect of this Court.
Moreover, the Court of Appeals correctly observed that Mark’s testimony was
corroborated by the findings of the medico-legal officer who autopsied the
victim’s corpse that the cause of death was "hemorrhagic shock secondary to
multiple stab wounds in the thorax."31 The multiple mortal wounds inflicted
on the victim constitute physical evidence which further establish the truth
of Mark’s testimony. Its evidentiary value far outweighs any corroborative
testimony which accused-appellant requires of the prosecution. Moreover,
the settled rule is that the positive and credible testimony of a single witness
is sufficient to secure the conviction of an accused. 32
The RTC and the Court of Appeals saw no improper motive which would
impel Mark to testify falsely against accused-appellant. As the determination
of bad faith, malice or ill motive is a question of fact, this Court respects the
unanimous finding of the trial and the appellate courts on the matter.
Accused-appellant’s attempt to render doubtful Mark’s identification of him
fails.1âwphi1 Indeed, the law requires not simply an eyewitness account of
the act of committing the crime but the positive identification of the accused
as the perpetrator of the crime.33 Here, Mark has positively pointed to
accused-appellant as the perpetrator of the crime. The Court of Appeals
correctly ruled that Mark’s failure to identify accused-appellant in a police
line-up on February 13, 2003 was of no moment. There is no law stating that
a police line-up is essential to proper identification. What matters is that the
positive identification of the accused as the perpetrator of the crime be made
by the witness in open court.34 Nevertheless, the records show that Mark
identified accused-appellant as the robber-killer of the victim in a police lineup on February 18, 200335 and, more importantly, in open court in the
course of Mark’s testimony.

In sum, the trial and the appellate courts correctly convicted accusedappellant for the special complex crime of robbery with homicide. Accusedappellant’s 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, ½ inch long, below lateral end, eye, left.
3. Wound, lacerated, 1-½ 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, 2½ inches long, diagonally above lateral
end, eyebrow left.
Posterior:
6. Wound, incised, 4-3/4 inches long, ½ inch deep, horizontally,
inferior portion, occipital region.
7. Wound, lacerated, 4 inches long, ½ 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@itç 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.

Equally untenable is appellant's attempt to repudiate his confession on
ground of force and intimidation. He claimed that he was mauled and
tortured by his investigators, but he failed to Identify his alleged torturers.
Neither did he file charges against them. He admittedly affixed his signature
in the two affidavits and voluntarily swore to the truth of the recitals therein
before Judge Nemesio Molina of the Bacnotan Municipal Court, but never for
a moment did he complain of any alleged maltreatment. At the preliminary
investigation, Judge Molina propounded questions to appellant, and it
appears that his answers thereto were confirmatory of the facts set forth in
his affidavits. ALL these circumstances strongly belie appellant's allegation of
coercion and duress.
As to the claim that appellant had not been informed of his right to silence
and to counsel at the time of the custodial investigation, it suffices to state
that such constitutional objection is unavailing for the reason that the
confession in question was obtained before the effectivity of the 1973
Constitution. 2
WHEREFORE, the judgment appealed from is hereby affirmed, with the
modification in Criminal Case No. 72, that the amount of indemnity awarded
to the heirs of the deceased Amadeo Orejudos is increased to P30,000.00.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 142848

June 30, 2006

EUGENE C. YU, Petitioner,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF
TAGAYTAY CITY, BRANCH 18, THE HONORABLE SECRETARY OF THE
DEPARTMENT OF JUSTICE, ASSISTANT PROVINCIAL PROSECUTOR
JOSE M. VELASCO, SEC. TEOFISTO T. GUINGONA, RODOLFO OCHOA
and REYNALDO DE LOS SANTOS A.K.A. "Engine," Respondents.
DECISION
CHICO-NAZARIO, J.:

In the evening of 14 November 1994, Atty. Eugene Tan, former President of
the Integrated Bar of the Philippines (IBP) and his driver Eduardo
Constantino were abducted by several persons in Alabang, Muntinlupa, and
brought somewhere in Cavite where they were both shot to death. At about
5:00 o’clock in the afternoon of 17 November 1994, the bodies of the two
victims were dug up in a shallow grave at Barangay Malinta, Sampaloc 2,
Dasmariñas Cavite.1 Charged to investigate the abduction and killing was the
Presidential Anti-Crime Commission (PACC). After having conducted a
thorough investigation of the case, the PACC filed charges before the
Department of Justice (DOJ) entitled, "Task Force Cabakid v. Pedro Lim,
Bonifacio Roxas, Sgt. Edgar Allan Abalon, Mariano Hizon, Eugenio Hizon and
John Does." The same was docketed as I-S. No. 94-557 and was assigned to
a panel of Senior State Prosecutors of the DOJ. Later events that transpired
as narrated by herein petitioner Eugene Yu are not disputed.
On December 13, 1994, the Department of Justice (DOJ) issued a Resolution
(Annex "C", ibid.) in the preliminary investigation of the case, docketed as
I.S. No. 94-557 finding probable cause against Messrs. Pedro Lim, Bonifacio
Rojas, Capt. Alfredo Abad, Toto Mirasol, Venerando Ozores, Mariano Hizon,
Eugenio Hizon and private respondents de los Santos and Ochoa for the
kidnapping and murder of the late Atty. Eugene Tan and his driver, Eduardo
Constantino. Petitioner and his wife, Patricia Lim-Yu, were also named
respondents in I.S. No. 94-557. The charges against them however were
dropped for lack of evidence to establish probable cause. Thereafter, an
information was filed against several accused, namely private respondents
Rodolfo Ochoa and Reynaldo de los Santos among others, before the
Regional Trial Court, Branch 18, of Tagaytay City presided by respondent
judge. On December 16 and 17, 1994 after the information was filed and
while under custody of the Presidential Anti-Crime Commission (PACC),
private respondents Ochoa and de los Santos executed separate sworn
statements (Annexes "D" and "E,", ibid.) implicating petitioner in the
abduction and killing of Atty. Eugene Tan and Eduardo Constantino. The
PACC re-filed the complaint docketed as I.S. No. 94-614 for murder and
kidnapping against petitioner. During the preliminary investigation, petitioner
filed a motion to dismiss the charges, citing that the sworn statements of
private respondents were not only inadmissible in evidence but also failed to
establish probable cause against him. On January 30, 1995, the DOJ
investigating panel composed of Senior State Prosecutors Henrick Guingoyon
and Ferdinand Abesamis denied petitioner’s motion to dismiss (Annex "F",
ibid.). Thereafter, three (3) separate informations were filed against
petitioner before the Regional Trial Court, Branch 18, of Tagaytay City.
Simultaneously, petitioner filed with the aforesaid court an omnibus motion
to determine probable cause, to deny issuance of warrant of arrest and to
quash information (Annex "G", ibid.).

On December 8, 1995, respondent judge issued a resolution (Annex "H,"
ibid.), the dispositive portion reads:
xxxx
"WHEREFORE, in the light of the foregoing, this Court finds that probable
cause exists against accused Eugene Yu as an accomplice in the instant
cases, and the prosecution is accordingly directed to amend the informations
filed in these cases for the inclusion of the same accused as an accomplice
within ten (10) days upon receipt of a copy hereof. As a consequence, let a
warrant for the arrest of Eugene Yu be issued in these cases and bail for his
provisional liberty is hereby fixed at P60,000.00 each in theses cases.
"x x x x
"SO ORDERED." (Rollo, pp. 6; 118-119)
Both the prosecution and the petitioner filed their respective motions for
reconsideration of the aforequoted resolution. The prosecution sought to
maintain the original informations charging petitioner as principal, while the
latter sought the dismissal of the cases against him for lack of probable
cause. Both motions were denied in an order of the court a quo dated
February 6, 1996 (Annex "I", ibid.).
In a petition for certiorari, docketed before the Supreme Court as G.R. No.
124380 entitled "People of the Philippines v. Hon. Eleuterio F. Guerrero, et
al.," the prosecution impugned the Resolution dated December 8, 1995 and
the Order dated February 6, 1996. The petition was dismissed by the
Supreme Court in its Resolution dated May 14, 1996. The prosecution refiled
the same titled petition before the Court of Appeals, docketed as CA-G.R. SP
No. 42208, "where it is currently pending, entitled: People of the Philippines
vs. Hon. Eleuterio F. Guerrero, et al."
In the meantime, the prosecution filed a "Petition to Discharge as State
Witnesses and Exclude from the Information accused Ochoa and de los
Santos" on April 17, 1996 (Annex "J"). Petitioner opposed the motion. On
March 6, 1997, respondent judge issued the impugned order, thus:
"WHEREFORE, in the light of the foregoing premises and considerations, this
Court hereby resolves to GRANT the Petition (to Discharge as State
Witnesses & Exclude from the Information Accused Ochoa & de los Santos)
filed by the prosecution for being impressed with merit, and, accordingly, the
same accused are hereby ordered discharged and excluded from the
information filed in these cases as State Witnesses.

"SO ORDERED." (Annex "A", p. 31)
Petitioner, who is one of the accused in the aforementioned criminal cases,
claims that the orders were issued by public respondent judge with grave
abuse of discretion amounting to lack or in excess of jurisdiction, claiming
that there is no legal basis or justification to discharge as state witnesses
accused Rodolfo Ochoa and Reynaldo de los Santos (hereinafter referred to
as private respondents).2
From the Order of the Regional Trial Court (RTC) of Tagaytay City, Branch 18
dated 6 March 1997, petitioner filed a Petition for Certiorari and prohibition
before the Court of Appeals.3 In a decision4 dated 30 September 1999, the
Court of Appeals dismissed the petition for lack of merit. The Motion for
Reconsideration filed by petitioner was denied in a resolution dated 4 April
2000.5
Essentially, the Court of Appeals concluded that there was no necessity for a
hearing to determine a person’s qualification as a state witness after the DOJ
had attested to his qualification. Republic Act No. 6981,6 Witness Protection
and Security Benefit Program (WPSBP), conferred upon the DOJ the sole
authority to determine whether or not an accused is qualified for admission
into the program. The appellate court held that under Section 12 of Republic
Act No. 6981, upon the filing by the prosecution of a petition to discharge an
accused from the information, it is mandatory for the court to order the
discharge and exclusion of the accused.7
From this adverse decision and resolution of the Court of Appeals, petitioner
filed the instant petition.
The following issues are raised for resolution8 :
I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT
HELD THAT THE DISCHARGE OF AN ACCUSED IS NOT A JUDICIAL
FUNCTION.
II WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT
DID NOT CONSIDER THAT THE TRIAL COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT DISCHARGED THE ACCUSED DESPITE THE FAILURE
OF THE PROSECUTION TO PRESENT EVIDENCE TO SHOW THAT THE PRIVATE
RESPONDENTS ARE ENTITLED TO BE DISCHARGED AS STATE WITNESS.
Petitioner maintains that since the private respondents were already charged
along with the other accused including him (petitioner) before they were
admitted to the WPSBP, their admission is a judicial prerogative which

requires prior determination by the trial court of their qualification as state
witnesses, in accordance with Section 17, Rule 119 of the Revised Rules on
Criminal Procedure.
Petitioner further asserts that the case of Webb v. De Leon,9 which the RTC
relied on in granting the discharge of the private respondents and their
admission to the WPSBP, does not apply. In that case, Jessica Alfaro was not
charged as a respondent before her application and admission to the WPSBP.
Thus, the issue of whether or not she can be discharged from the
information upon the filing of the petition for discharge never arose. On the
other hand, petitioner contends in this case that the private respondents
were already charged along with the other accused, including him, before
they were admitted to the WPSBP and discharged as an accused to be
utilized as a state witness. Petitioner argues that if this were to be allowed,
the same is tantamount to permitting the prosecution to supplant with its
own the court’s exercise of discretion on how a case over which it has
acquired jurisdiction, will proceed.
The argument of petitioner fails to persuade.
Pertinent provision of Republic Act No. 6981 employed by the prosecution in
the discharge of the private respondents reads:
SEC. 3. Admission into the Program. – Any person who has witnessed or has
knowledge or information on the commission of a crime and has testified or
is testifying or about to testify before any judicial or quasi-judicial body, or
before any investigating authority, may be admitted into the Program:
Provided, That:
a) the offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code, or its equivalent under special
laws;
b) his testimony can be substantially corroborated in its material
points;
c) he or any member of his family within the second civil degree of
consanguinity or affinity is subjected to threats to his life or bodily
injury or there is a likelihood that he will be killed, forced, intimidated,
harassed or corrupted to prevent him from testifying, or to testify
falsely, or evasively, because or on account of his testimony; and

d) he is not a law enforcement officer, even if he would be testifying
against other law enforcement officers. In such a case, only the
immediate members of his family may avail themselves of the
protection provided for under this Act.
If the Department, after examination of said applicant and other relevant
facts, is convinced that the requirements of this Act and its implementing
rules and regulations have been complied with, it shall admit said applicant
to the Program, require said witness to execute a sworn statement detailing
his knowledge or information on the commission of the crime, and thereafter
issue the proper certification. For purposes of this Act, any such person
admitted to the Program shall be known as the Witness.
xxxx
SEC. 10. State Witness. – Any person who has participated in the
commission of a crime and desires to be a witness for the State, can apply
and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following circumstances are
present:
a) the offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code or its equivalent under special
laws;
b) there is absolute necessity for his testimony;
c) there is no other direct evidence available for the proper prosecution
of the offense committed;
d) his testimony can be substantially corroborated on its material
points;
e) he does not appear to be most guilty; and
f) he has not at any time been convicted of any crime involving moral
turpitude.
An accused discharged from an information or criminal complaint by the
court in order that he may be a State Witness pursuant to Sections 9 and 10
of Rule 119 of the Revised Rules of Court may upon his petition be admitted
to the Program if he complies with the other requirements of this Act.
Nothing in this Act shall prevent the discharge of an accused, so that he can
be used as a State Witness under Rule 119 of the Revised Rules of Court.

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.
Petitioner’s 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

prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully
executed. A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion – the discretion of whether, what and whom
to charge, the exercise of which depends on a smorgasbord of factors which
are best appreciated by prosecutors. We thus hold that it is not
constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in
the Department of Justice the power to determine who can qualify as a
witness in the program and who shall be granted immunity from
prosecution. Section 9 of Rule 119 does not support the proposition that the
power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court is given the power to discharge a
state witness only because it has already acquired jurisdiction over the crime
and the accused. The discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent judicial function. Moreover,
the Rules of Court have never been interpreted to be beyond change by
legislation designed to improve the administration of our justice system. R.A.
No. 6981 is one of the much sought penal reform laws to help government in
its uphill fight against crime, one certain cause of which is the reticence of
witnesses to testify. The rationale for the law is well put by the Department
of Justice, viz: "Witnesses, for fear of reprisal and economic disclocation,
usually refuse to appear and testify in the investigation/prosecution of
criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of criminal justice, there was a
necessity to pass a law protecting witnesses and granting them certain rights
and benefits to ensure their appearance in investigative bodies/courts.
Petitioner Webb’s challenge to the validity of R.A. No. 6981 cannot therefore
succeed.
Anent the second issue, petitioner argues that the petition to discharge is
not supported by any proof or evidence. He claims that the prosecution did
not establish that the private respondents have complied with the requisites
of Republic Act No. 6981 because the certificate of admission from the DOJ
showing that the private respondents were qualified, and the memorandum
of agreement between the DOJ and private respondents, as required by
Section 516 of Republic Act No. 6981, were not presented before the trial
court.
We reject the argument for being vacuous.
As found by the DOJ, based on the extrajudicial statements executed by the
private respondents regarding their participation in the abduction and killing

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

G.R. No. 96848 January 21, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEJANDRO SALOMON Y OLPANGO @ "ALE", @ "BOYET" and
FELICIANO CONGE @ PEPING, accused-appellants.
The Solicitor General for plaintiff-appellee.
Anecio R. Guades for accused-appellants.

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

have been caused by penetration of a blunt instrument such as an averagesized penis. 8
The two accused flatly denied the charge against them. Conge swore that on
the night in question, Sylvia arrived at the highway and loudly demanded a
lamp from the people in Epifanio de Guzman's house. He approached her
and said there was no lamp to spare, whereupon, as he turned his back to
leave, she hit him in the neck with a piece of wood, causing him to stagger.
In swift reaction, he caught Sylvia by the waist and pushed her to the
ground and as she lay there exposed (she was not wearing any underwear),
he angrily shoved his five fingers into her vagina. Sylvia cried out at the top
of her voice. Fearing that her relatives might come, he withdrew his hands
and immediately left the place. 9
Salomon corroborated his co-accused. He testified that he saw the whole
incident, being then about three-arms length away from the highway. 10 De
Guzman agreed, saying that he was also in the yard of his house at the time,
and playing his guitar, when the encounter occurred. 11
Both Salomon and Conge also protested that they had not gone to Masbate
in order to escape as the trial court held. They pointed out that they were in
fact investigated by the police the day following the alleged incident but no
action was taken against them. 12 The truth, they said, was that they had
gone to Masbate to buy two horses on instructions from Salomon's father,
Epifanio, who had given them P3,000.00 for this purpose. 13
Judge Ricardo A. Navidad disbelieved the accused and found them guilty as
charged. As conspirators, they were each sentenced to reclusion
perpetua and held solidarily liable to the complainant for P30,000.00 as civil
indemnity, P22,000.00 as moral damages, P5,000.00 as exemplary
damages, and P5,000.00 as attorney's fees. They were also ordered to pay
the costs. 14
In the appellants' brief (incorrectly denominated as a Petition for Review),
the defense suggests that the testimony of Sylvia Soria is flawed because
she is an insane person who was confined at the National Mental Hospital a
few months before the alleged incident. 15 It is also argued that her
testimony was fabricated at the instance of her father, who had a bone to
pick with Salomon's father. The appellants insist that their own version of the
incident is more plausible and should not have been rejected by the trial
court in view of the constitutional presumption of innocence in their favor.
A mental retardate is not for this reason alone disqualified from being a
witness. As in the case of other witnesses, acceptance of his testimony

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.

The lack of a finding of spermatozoa during Sylvia's medical examination did
not conclusively establish an absence thereof because the examining doctor
simply did not have the necessary equipment to make a more thorough
report. 19 In fact, she suggested another examination at the Calbayog
General Hospital. 20 At any rate, we have held that the absence of
spermatozoa in the complainant's vagina does not negate the commission of
rape; there may be a valid explanation for such absence, as when the semen
may have been washed away or when the rapist failed to ejaculate.21
The appellants decry the trial judge's conclusion that they had gone to
Masbate to escape, but it appears that this was really their intention. In the
first place, it is not true that they were investigated before they left, for the
fact is Salomon's father stopped the investigation on the ground that there
was no lawyer to represent them. 22 It is also noted that Salomon used
another name in Masbate and called himself Boyet instead of Ale, his real
nickname. 23 Salomon and Conge traveled from place to place in that
province but were not able to buy a single horse during the four months that
they were there. Instead, they used the P3,000.00 Salomon's father had
given them not only for their daily needs but also "in dancing and drinking,"
as Conge put it. 24 Well indeed has it been said that "wicked flee when no
man pursueth but the innocent are as bold as a lion." The appellants' trip to
Masbate was unmistakably a flight from justice.
And now let us consider the interesting defense of what we may call Sylvia's
"manual rape" for lack of a more descriptive term. Admitting the laceration
in Sylvia's vagina, Salomon nevertheless maintains that it was caused not by
his penis but by Conge's fingers. Conge's purpose was to punish her and to
disable her and thus prevent her from hitting him again.
The trouble with this defense is that it is too comical for words. It looks like
a bawdy-house skit featuring a mad avenger and his naughty fingers.
Besides, the two accused and De Guzman have a confused recollection of
how this remarkable incident happened, the first perhaps in the annals of
Philippine jurisprudence.
Conge declared in his affidavit that Sylvia hit him only once and then swore
on direct examination that he was hit twice, whereas both Salomon De
Guzman swore he was hit only once. 25 Salomon and Conge said that Sylvia
was wearing pants but De Guzman insisted with equal certainty that it was a
skirt. 26 Salomon said Sylvia's pants were pulled down to her knees, but
Conge declared that she was completely disrobed, then said the pants came
down only to her ankles. 27 Conge first said his fingers were spread when
they thrust them inside Sylvia's vagina but, sensing the trial court's disbelief,

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.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 113791

February 22, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO MENDOZA, accused-appellant.

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

morning, relatives of the accused-appellant went to the house of Jhun Avila
(the victim's brother) in Wawa, Balagtas, Bulacan, and informed him that his
sister Gina "got burned." Two hours later, Jhun and his father Teofisto Avila
went to the house of Gina and her husband, only to discover that the latter
were not there. They found the things inside the house in disarray; saw a
Coke bottle which smelled of kerosene, hair strands and burned human flesh
in the comfort room; and the burned clothes of Gina outside the house. They
also noticed that the branches and leaves of the atienza tree in front of the
house were likewise somewhat burned. They proceeded to a neighbor's
house where Paul Michael, John-John, and Paula were temporarily sheltered.
Paul Michael was sitting in a corner and somewhat "tulala," while Paula was
sleeping. Jhun then brought the children to his house. 6
As Erlinda Porciuncula informed the Avila family that Gina had been brought
to the Manila Sanitarium Hospital in Pasay City, Teofisto, Jhun, and Rodora
proceeded there.7 According to Jhun, however, they were not able to talk to
Gina that day as she was inside the operating room. It was only after two
days that Jhun was able to see Gina, who lay "naked with all the hospital
gadget[s] in the mouth and at the head and she was completely bald and
her body was burned."8 Jhun likewise testified that Gina was unable to talk
to her sister Rodora nor her father Teofisto.9
Gina died on 30 November 1989. Dr. Noel Minay, Medico-Legal Officer of the
NBI, conducted the autopsy and determined the cause of death to be
"hypostatic pneumonia; infected 4th degree burns"; 10 and in his Autopsy
Report, 11 he entered the following post-mortem findings:
Burns, extensive, second to fourth degree, with skin grafts, excepting
the back of the neck and head, pelvic area, buttocks, whole of the
back, posterior aspect of the right leg, and lower anterior third of the
leg aid foot, left side.
Lungs, with foci of consolidations at the bases; transections shows
(sic) yellowish mucoid material in the lower part of the tracheobronchial tree.
Brain and other visceral organs, marked congestion.
Stomach contains small amount of yellowish fluid material.
This report also indicated that the cause of death was "HYPOSTATIC
PNEUMONIA; INFECTED FOURTH DEGREE BURNS."

Dr. Nieto M. Salvador testified on the certification and autopsy report, in
view of Dr. Minay's resignation from the NBI sometime after he examined
the cadaver of the victim. 12
In the evening of 30 November 1989, Jhun told Paul Michael that his mother
Gina had died. Paul Michael then narrated to him what actually happened to
his mother that fateful evening. Because of these revelations and the
findings of the doctor, Jhun reported the matter to the police authorities in
Sta. Maria, Bulacan. 13
Jhun Avila had gone five times to the residence of Gina and the accusedappellant from 23 November 1989 to 30 November 1989, yet he did not see
the accused-appellant; in fact, the latter never showed up during the wake
nor burial of Gina. It was only when the accused-appellant was arrested in
the house of a woman in Longos, Balagtas, Bulacan, 14 that Jhun saw him for
the first time after the incident.
The medical expenses incurred for the hospitalization of Gina amounted to
P88,750.00, of which, her parents were able to pay only P18,000.00. For the
balance, Teofisto had to sign a promissory note to be paid on installments. 15
As to how Gina was burned, only five-year old Paul Michael could testify
thereon.
In his testimony during the presentation of the evidence in chief on 18
February 1991, Paul Michael declared that one evening inside their house,
his father boxed his mother on her mouth and then tied her up. However,
the witness did not answer succeeding questions which sought to elicit what
happened thereafter, although he kept on looking at his father throughout
this period. He later revealed that he saw matches and kerosene in their
house. He likewise declared that his mother was now in heaven because she
was dead. 16 During his rebuttal testimony on 12 October 1992, Paul Michael
categorically declared that it was his father who "burned" his mother. The
accused-appellant, who was drunk at that time, first tied the victim's hands
behind her back, then "poured kerosene" on the front of her body and set
her aflame. Paul Michael further declared that his father tied-up his mother
because they quarreled when his mother wanted him (Paul Michael) to go
with the accused-appellant to the street corner, but his father refused.
Finally, many times before, his parents quarreled because his father was
always drunk. 17 Pertinent portions of Paul Michael's testimony on rebuttal
are as follows:
Q
When your father Rolando Mendoza testified on direct
examination, he stated that when he returned to your house in

Balasing, Sta. Maria, Bulacan on November 22, 1989, he saw your
mother was jumping up and down while her dress was already
burning. What can you say about that?
A

It is not true, Sir.

Q

Why do you say that it is not true?

A

Because it was he who burned my mother, Sir.

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

What was tied, the hands or the feet of your mother?

A

The hands, Your Honor.

Q

How was it tied?

A

At the back, Your Honor.

Q

Do you know the reason why she was tied up?

A
Yes Your Honor. They were quarreling because my mother
wanted me to go with my father to [sic] street corner.
Q

Then what happened next?

A

Because of that they quarreled already.

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

What would you do at the street corner with your father?

A

She just wanted me to accompany my father.

Q
And because of that quarrel, your father tied the hands of your
mother?
A

Yes, Your Honor.

Q
Then he put kerosene [sic] at the front body [sic] of your
mother?
A

Yes, Your Honor.

Q

And after putting kerosene [sic], what did he do next?

A

He lighted it, Your Honor.

Q
Was that the first time that you[r] mother and your father
quarreled?
A

Many times, Your Honor.

Q

What was the cause of their quarrel?

A

Because my father was always drunk, Your Honor.

Q
At the time when your mother was tied and then kerosene [sic]
was poured upon her dress, was your father drunk?
A

Yes, Your Honor.

Q
Your father always went out and when he returned he was
always drunk?
A

Yes, Your Honor. 18

The defense, of course, had a different story to tell.
Erlinda Porciuncula, who grew up with the accused-appellant and was like a
sister to him, testified that at around 8:30 p.m. of 22 November 1989,
Rolando Mendoza came to her house asking for help because his wife burned
herself. Together with the accused-appellant, she borrowed the owner-type
jeep of her neighbor so they could bring his wife to the hospital. They
proceeded to St. Mary's Hospital, but the attending physician advised them
to bring the victim to the Philippine General Hospital (PGH). At the hospital,
the staff could not admit the victim due to the unavailability of rooms. On
the way to the PGH, the victim, who was lying in the front seat of the jeep,
told Porciuncula that she was fed up with her life and was entrusting her

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

As provided by Section 20, Rule 130 of the Rules of Court, a person
who can perceive, and perceiving, can make known his perception to
others, may be a witness. A four-year old boy can already speak
clearly, can understand things happening around him, and ready to
study, to read and to write. For families who can afford, a four-year old
child is already sent to the nursery to begin his/her studies. An

intelligent boy is undoubtedly the best observer to be found. He is little
influenced by the suggestion of others and describes objects and
occurrences as he has really seen them (Pp. vs. Bustos, 45 Phil. 9).
Paul Michael was five months over four years when the incident
happened. He could perceive things happening around him. This was
the reason why when his grandfather and an uncle found him in the
house of a neighbor, he was in a state of shock, or at least
dumbfounded (tulala). Because he knew the implication of what had
happened to his mother. He knew that the burning of his mother might
cause her death. If, indeed, he could not yet perceive things, such
happening would pass unnoticed and without impact on him. Unless a
child's testimony is punctured with serious inconsistencies as to lead
one to believe that he was coached, if he can perceive and make
known his perception, he is considered a competent witness (Pp. vs.
Cidro, et al., 56 O.G. 3547).
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. 24
The trial court rejected the version of the accused-appellant, stating that:
Accused Rolando Mendoza made the defense that his wife Maria Gina
Avila-Mendoza burned herself. He, however, lost courage when Gina
died. After Gina's death, he left the hospital and never returned. He
failed to visit her during the wake and even during the burial. He was
forced to come out only when arrested in a house of a woman in
Longos, Balagtas, Bulacan. Against such behaviour of his may be
applied an interpretation of flight in criminal law - that flight of the
accused is an evidence of guilt and a guilty conscience (U.S. vs.
Alegado, 25 Phil. 310). Accused gave as a reason for his failure to
attend the wake and burial of his wife the threat of his brother-in-law
to kill him if anything would happen to Gina. It is said that the wicked
flee even when no man pursueth, whereas the righteous are as brave
as a lion (U.S. vs. Sarikala, 37 Phil. 486). If, indeed, accused was not
guilty and nothing bothered his conscience, he would be brave as a

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

(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.
It is thus clear that any child, regardless of age, can be a competent witness
if he can perceive, and perceiving, can make known his perception to others
and of relating truthfully facts respecting which he is examined. In the 1913
decision in United States vs. Buncad, 29 this Court stated:
Professor Wigmore, after referring to the common-law precedents
upon this point, says: "But this much may be taken as settled, that no
rule defines any particular age as conclusive of incapacity; in each
instance the capacity of the particular child is to be investigated."
(Wigmore on Evidence, vol. I, p. 638) 30
While on the same subject, Underhill declares:

§ 257. Children on the witness stand. - Under the common law,
competency of a child under the age of fourteen years to testify must
be shown to the satisfaction of the court. He is presumptively
incompetent, but if he is shown to be competent it is immaterial how
young he may be when he testifies. He is competent if he possesses
mental capacity and memory sufficient to enable him to give a
reasonable and intelligible account of the transaction he has seen, if he
understands and has a just appreciation of the difference between
right and wrong, and comprehends the character, meaning and
obligation of an oath. If the witness fulfills these requirements, it is
immaterial as bearing upon his competency that he is unable to define
the oath or to define testimony. In the wise discretion of the court, a
child four, five, six and for such ages as seven, eight, nine, ten, eleven,
twelve, thirteen or fifteen years of age may be shown competent to
testify. It may not be said that there is any particular age at which as a
matter of law all children are competent or incompetent . . . . 31
The requirements then of a child's competency as a witness are the: (a)
capacity of observation, (b) capacity of recollection, and (c) capacity of
communication. 32 And in ascertaining whether a child is of sufficient
intelligence according to the foregoing requirements, it is settled that the
trial court is called upon to make such determination.33 As held in United
States vs. Buncad, 34 quoting from Wheeler vs. United States, 35 and
reiterated in People vs.Raptus 36 and People vs. Libungan: 37
The decision of this question rests primarily with the trial judge, who
sees the proposed witness, notices his manner, his apparent
possession or lack of intelligence, and may resort to any examination
which will tend to disclose his capacity and intelligence as well as his
understanding of the obligations of an oath. As many of these matters
cannot be photographed into the record, the decision of the trial judge
will not be disturbed on review unless from that which is preserved it is
clear that it was erroneous. 38
The trial court has adjudged Paul Michael competent to testify. We agree. A
close and careful examination of the testimony of Paul Michael shows that at
the time he testified, he could be deemed a child of above average
intelligence, i.e., capable of giving responsive answers to the questions
asked of him by the trial judge, as well as recalling events and relating them
to such recollections. The initial hesitancy of Paul Michael to name his father
as the author of the crime was sufficiently explained by the trial court as
follows:

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

Yes, Your Honor.

Q
Do you mean that hypostatic pneumonia can be acquire[d] by
merely always lying down?
A

Yes, Your Honor.

Q

Is that the only cause?

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

Analie Pansensoy (Analie for brevity), twenty-eight years old, is the
legitimate wife of appellant. She testified that she had been living-in with the
victim, Hilario Reyes (Hilario for brevity), since February 1994. On May 8,
1994, she and Hilario were in the house they were renting at Lumang Bayan,
Antipolo, Rizal. Hilario was lying down inside the house. She stood up when
she heard a knocking on the door. As she opened the door, she saw
appellant holding a gun. She embraced appellant and tried to wrest the gun
away from him but she failed. Hilario went out of the house and sat on a
bench. Appellant approached Hilario and asked him if he really loves his
wife. Hilario answered in the affirmative. Appellant next asked Hilario if he
was still single. Hilario answered yes. Appellant counted one to three and at
the count of three shot Hilario. Hilario was hit on the forehead and sprawled
on the ground.4cräläwvirtualibräry
Dr. Emmanuel Aranas, physician, conducted the autopsy on the victim at the
St. James Funeral Parlor at past midnight on May 9, 1994. He found a single
gunshot wound on the forehead which was the cause of death. He opined
that the entry shows the area of smudging which indicates that Hilario was
shot at close range. The distance of the muzzle of the gun from the forehead
could be less than three inches. He also opined that the person who fired the
shot and Hilario were facing each other.5cräläwvirtualibräry
SPO1 Reynaldo Anclote, member of the Philippine National Police, conducted
the investigation on the shooting of Hilario. He took the statements of
Gregoria Reyes and Analie in the police station a day after the incident. He
did not conduct an ocular inspection at the scene of the
crime.6cräläwvirtualibräry
Gregoria Reyes (Gregoria for brevity), mother of Hilario, testified that she
came to know about the death of her son through a neighbor, Roger. She
found out that her son was dead upon arrival at the hospital and was taken
to the funeral parlor. She saw the gunshot wound on the forehead of her
son. On the same night of May 8, 1994, she went to the police station where
she saw Analie give her statement to the police. She also gave her
statement to the police. As a result of the death of her son, she incurred
expenses in the amounts of P10,000.00 and P30,000.00 for the funeral and
the burial, respectively. At the time of his death, her son was managing two
passenger jeepneys, one of which he was also driving. He was earning
P800.00 a day.7cräläwvirtualibräry
Rogelio Fullente (Rogelio for brevity), fifty-six years old, is a co-driver of
Hilario in the Antipolo-Marikina route. He was the neighbor referred to by
Gregoria in her testimony as Roger, who reported to her the shooting
incident. He has known Hilario for ten to fifteen years. In the evening of May

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

death indemnity and P40,000.00 and P20,000.00 as actual or compensatory
and moral damages, respectively.
Costs against the accused.
SO ORDERED.10cräläwvirtualibräry
Hence, the instant appeal.
The Issues
Appellant is before this Court raising the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE
CRIME OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE ANY
OF THE QUALIFYING CIRCUMSTANCES.
The Courts Ruling
The appeal is partly meritorious.
First Issue: Self-Defense
Appellant insists that he acted in self-defense. Self-defense as a justifying
circumstance may exempt an accused from criminal liability when the
following requisites are met, namely: (1) there has been an unlawful
aggression on the part of the victim; (2) the means employed to prevent or
repel such aggression are reasonably necessary; and (3) the person
defending himself has not provoked the victim into committing the act of
aggression.11 The burden of proving by clear and convincing evidence that
the killing was justified is on the accused.12 In doing so, he must rely on the
strength of his own evidence and not on the weakness of that of the
prosecution.13cräläwvirtualibräry
Appellant asserts that the unlawful aggressor was the victim and his death
could be attributed to himself alone. By his own testimony, appellant tried to
prove unlawful aggression on the part of Hilario. According to him, he kicked

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.16cräläwvirtualibräry
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: Where was he killed?
A: At Lumang Bayan.
Q: In what municipality?
A: Lumang Bayan, Antipolo, Rizal.
Q: How did you know that he was killed?
A: He was shot by Roberto Pansensoy.
Q: How did you know that he was shot by Roberto Pansensoy?
A: Because Roberto went there and he was holding a gun.
Q: On May 8, 1994 that you said Hilario Reyes was shot by Roberto
Pansensoy, where were you?
A: Inside the house, sir.
Q: Whose is that house you are referring to?
A: We are renting that house.
Q: With whom?
A: Hilario Reyes.
Q: Before this Hilario Reyes was shot, what was he doing?
A: He was already lying down.
Q: Lying down where?
A: Inside the house, sir.
Q: How long was he lying down?
A: Around fifteen minutes.
Q: After lying down for fifteen minutes, what did you do next?
A: I stood up because Roberto knocked on the door.

Q: What happened next after this Roberto knocked on the door?
A: I opened the door and I saw Roberto holding a gun.
Q: After you opened the door and you saw Roberto holding a gun, what
happened next?
A: I embraced Roberto and tried to wrestle the gun away from him but I did
not succeed.
Q: When you were not able to succeed in taking the gun away from him,
what happened next?
A: Hilario went out, sat on the bench and Roberto approached him.
Q: And after Hilario went out and sat on the bench and Roberto approached
him, what happened next?
A: Roberto asked Hilario; do you really love my wife? And Hilario said, Yes.
Q: Who was this wife Roberto was referring to when he asked Hilario?
A: Thats me.
Q: After Hilario answered that he really loved his wife which is you that is
being referred to, what happened next?
A: Roberto asked Hilario; are you still single, are you not married?
Q: What was the response of Hilario if there was any?
A: He answered yes.
Q: What happened next?
A: Roberto counted one to three and at the count of 3 he shot Hilario.
Q: Was Hilario hit by the shot that was made by Roberto?
A: Hilario was hit on the forehead and he sprawled on the
ground.17cräläwvirtualibräry
Analie remained straightforward and consistent all throughout her crossexamination:

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.18cräläwvirtualibräry
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.24cräläwvirtualibräry
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

Appellant argues for the appreciation of the mitigating circumstance of
passion and obfuscation in his favor. According to appellant, when he
confirmed with his own two eyes that his wife was cheating on him, he lost
his self-control and that his actuation arose from a natural instinct that
impels a husband to protect his wounded feelings. There is basis for this
claim.
In order to be entitled to the mitigating circumstance of passion and
obfuscation, the following elements should concur: (1) there should be an
act both unlawful and sufficient to produce such condition of mind; (2) the
act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity.25cräläwvirtualibräry
Appellant was on his way home from his duty as a security guard when he
met Bisaya who told him that he saw his wife and youngest child board a
jeepney with the victim, Hilario. Appellant and Bisaya followed them.
Appellant claims that he saw his wife and the victim lying beside each other,
clad only in their underwear. Analie claims that they were just resting inside
the house at the time appellant arrived. Under any of these two
circumstances, it is easy to see how appellant acted with obfuscation
because of jealousy upon discovering his legitimate wife in the company of
another man and the brazen admission by this man that he loved his wife.
The situation was aggravated by the fact that Analie brought their child
along to her trysting place with Hilario. Extreme emotional pain could result
from such a situation and produce such passion and anguish in the mind of a
betrayed husband as to deprive him of self-control. To be blinded by passion
and obfuscation is to lose self-control.26 In this case, there is a clear showing
that there were causes naturally tending to produce such powerful passion
as to deprive the accused of reason and self-control.27cräläwvirtualibräry
Furthermore, the act producing the obfuscation was not far removed from
the commission of the crime by a considerable length of time, during which
the appellant might have regained his equanimity. It appears that only a few
minutes elapsed between the time appellant discovered the two in the room
and the killing. Thus, appellant can be given the benefit of this mitigating
circumstance.
Third Issue: Qualifying Circumstances
The Information alleges two qualifying circumstances: treachery and evident
premeditation. If appreciated, any one of these will qualify the killing to
murder. However, the trial court convicted appellant of murder without
stating the circumstance which qualified the killing to murder.

In view of our earlier pronouncement crediting in favor of appellant the
mitigating circumstance of passion and obfuscation, we have to rule out
treachery and evident premeditation as qualifying circumstances. Treachery
cannot co-exist with passion and obfuscation.28 The reason for this is that in
passion, the offender loses his control while in treachery the means
employed are consciously adopted. One who loses reason and self-control
cannot deliberately employ a particular means, method or form of attack in
the execution of the crime.29cräläwvirtualibräry
Similarly, the aggravating circumstance of evident premeditation cannot coexist with the circumstance of passion and obfuscation. 30 The essence of
premeditation is that the execution of the criminal act must be preceded by
calm thought and reflection upon the resolution to carry out the criminal
intent during the space of time sufficient to arrive at a composed
judgment.31cräläwvirtualibräry
In its Brief, the Office of the Solicitor General (OSG for brevity) submits that
evident premeditation is present to qualify the killing to murder. According to
the OSG, premeditation is apparent from the fact that appellant went to the
scene of the crime already carrying the gun which he used to shoot the
victim. The OSG argues that while appellant may have been a security
guard, he had no legal justification for bringing the gun to the victims
residence. His act of bringing the gun to the crime scene is a clear indication
of his preconceived plan to kill his wifes lover. The elements of evident
premeditation as a qualifying circumstance are: (1) the time when the
offender determined to commit the crime; (2) an act manifestly indicating
that the culprit has clung to his determination; and (3) a sufficient lapse of
time between the determination and execution, to allow him to reflect upon
the consequences of his act and to allow his conscience to overcome the
resolution of his will.32cräläwvirtualibräry
Verily, a finding that there was a preconceived plan to kill would negate
passion and obfuscation.
However, nothing in the records shows how and when appellant hatched his
plan to kill, or how much time had elapsed before appellant carried out his
plan. On the contrary, appellant was on his way home from his duty as a
security guard when he chanced upon Bisaya who told him that he saw his
wife and child with Hilario. The mere fact that he brought his gun along or
happened to have it in his person does not, by itself, necessarily indicate a
preconceived plan to kill. The carrying of arms, if customary, does not
indicate the existence of the second requisite. In People vs. Diokno,33 the
Court held that the accused being from the province of Laguna and it being
customary on the part of the people of Laguna to carry knives, it cannot be

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.35cräläwvirtualibräry
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.40cräläwvirtualibräry

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: 45cräläwvirtualibräry
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,

as minimum, to Fourteen (14) years and Eight (8) months of reclusion
temporal minimum, as maximum. The award of actual damages of
P40,000.00 is DELETED, but appellant is ordered to pay the heirs of the
victim moral damages in the amount of P50,000.00 and loss of earning
capacity in the amount of P3,379,200.00.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-39012 January 31, 1975
AVELINO ORDOÑO, petitioner,
vs.
HON. ANGEL DAQUIGAN, presiding Judge of the Court of First
Instance of La Union, Branch I and CONRADO V. POSADAS, First
Assistant Provincial Fiscal of La Union and the PEOPLE OF THE
PHILIPPINES, respondents.
Pedro G. Peralta for petitioner.
Conrado V. Posadas for and in behalf of other respondents.

AQUINO, J.:
Avelino Ordoño 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 Ordoño, 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 Ordoño threatened to kill Leonora
and Catalina (his daughter and wife, respectively) if they reported the crime
to the police.

Catalina Ordoño 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 Ordoño said that the rape committed by Avelino Ordoño against
Leonora was mentioned during the investigation and trial of Avelino Ordoño
for the rape committed against Rosa Ordoño. 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 Ordoño?
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 Ordoño but then my daughter Leonora Ordoño
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
Ordoño because he was already in jail for having raped Rosa Ordoño.
The case against Avelino Ordoño, where Leonora Ordoño 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 Ordoño 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

Counsel claimed that Avelino Ordoño had not consented expressly or
impliedly to his wife's testifying against him.
The trial court overruled the objection. After the denial of Avelino Ordoño's
motion for the reconsideration of the adverse ruling, he filed the instant
action for certiorari and prohibition. He was allowed to sue in forma
pauperis.
The issue is whether the rape committed by the husband against his
daughter is a crime committed by him against his wife within the meaning of
the exception found in the marital disqualification rule.
Should the phrase "in a criminal case for a crime committed by one against
the other" be restricted to crimes committed by one spouse against the
other, such as physical injuries, bigamy, adultery or concubinage, or should it
be given a latitudinarian interpretation as referring to any offense causing
marital discord?
There is a dictum that "where the marital and domestic relations are so
strained that there is no more harmony to be preserved nor peace and
tranquility which may be disturbed, the reason based upon such harmony
and tranquility fails. In such a case identity of interests disappears and the
consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences 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" (People vs.
Francisco, 78 Phil. 694, 704).
In the Francisco case, the wife, as a rebuttal witness, was allowed to testify
against the husband who was charged with having killed his son and who
testified that it was the wife who killed their son.
We think that the correct rule, which may be adopted in this jurisdiction, is
that laid down in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314,
wherein the court said:
The rule that the injury must amount to a physical wrong upon
the person is too narrow; and the rule that any offense remotely
or indirectly affecting domestic harmony comes within the
exception is too broad. The better rule is that, when an offense
directly attack 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.

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 Ordoño, 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 Ordoño could testify
against her husband, Avelino Ordoño, 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 Muñoz 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. CASTAÑEDA, 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.

Castaneda Jr., with the crime of Falsification of Public Document committed,
according to the Information, as follows:
That on or about the 19th day of May, 1975, in the
Municipality of San Fernando, province of Pampanga,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named a BENJAMIN F. MANALOTO, with
deliberate intent to commit falsification, did then and there
willfully, unlawfully and feloniously counterfeit, imitate and
forge the signature of his spouse Victoria M. Manaloto in a
deed of sale executed by said accused wherein he sold a
house and lot belonging to the conjugal partnership of said
spouse in favor of Ponciano Lacsamana under Doc. No.
1957, Page No. 72, Book No. LVII, Series of 1975,
notarized by Notary Public Abraham Pa. Gorospe, thereby
making it appear that his spouse Victoria M. Manaloto gave
her marital consent to said sale when in fact and in truth
she did not. 2
At the trial, the prosecution called the complaint-wife to the witness stand
but the defense moved to disqualify her as a witness, invoking Sec. 20, Rule
130 of the Revised 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 can not be examined for or at 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.
The prosecution opposed said motion to disquality on the ground that the
case falls under the exception to the rule, contending that it is a "criminal
case for a crime committed by one against the other." Notwithstanding such
opposition, respondent Judge granted the motion, disqualifying Victoria
Manaloto from testifying for or against her husband, in an order dated March
31, 1977. A motion for reconsideration petition was filed but was denied by
respondent Judge in an order dated May 19, 1977.

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 Ordoño 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 Ordoño 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 Esperanza’s 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

This prompted respondent Susan Ramirez, the complaining witness in
Criminal Case No. 19933-MN, to file with the Court of Appeals a petition
for certiorari9 with application for preliminary injunction and temporary
restraining order.10
On May 31, 2000, the Appellate Court rendered a Decision nullifying and
setting aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify against
her husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
"Sec. 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."
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent danger
of perjury;
3. The policy of the law is to guard the security and confidences of private
life, even at the risk of an occasional failure of justice, and to prevent
domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of punishing
one spouse through the hostile testimony of the other.11
But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases
for offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the
marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed,
the reason based upon such harmony and tranquility fails. In such a case,
identity of interests disappears and the consequent danger of perjury based

on that identity is non-existent. Likewise, in such a situation, the security
and confidences 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.12
In Ordoño vs. Daquigan,13 this Court held:
"We think that the correct rule, which may be adopted in this jurisdiction, is
that laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314,
wherein the court said:
‘The rule that the injury must amount to a physical wrong upon the person is
too narrow; and the rule that any offense remotely or indirectly affecting
domestic harmony comes 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 committee (by) one against the other.’"
Obviously, the offense of arson attributed to petitioner, directly impairs the
conjugal relation between him and his wife Esperanza. His act, as embodied
in the Information for arson filed against him, eradicates all the major
aspects of marital life such as trust, confidence, respect and love by which
virtues the conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to the house of his sister-in-law
Susan Ramirez, knowing fully well that his wife was there, and in fact with
the alleged intent of injuring the latter, is an act totally alien to the harmony
and confidences of marital relation which the disqualification primarily seeks
to protect. The criminal act complained of had the effect of directly and
vitally impairing the conjugal relation. It underscored the fact that the
marital and domestic relations between her and the accused-husband have
become so strained that there is no more harmony, peace or tranquility to be
preserved. The Supreme Court has held that in such a case, identity is nonexistent. In such a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which through their
absence, merely leave a void in the unhappy home. (People v. Castañeda,
271 SCRA 504). Thus, there is no longer any reason to apply the Marital
Disqualification Rule."
It should be stressed that as shown by the records, prior to the commission
of the offense, the relationship between petitioner and his wife was already

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.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25643

June 27, 1968

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,
vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of
Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT
and COLD STORAGE CO., INC., and THE HON. COURT OF
APPEALS, respondents.
Efrain B. Trenas and Sergio D. Mabunay for petitioners.
Ricardo J. Gerochi for respondents.
CASTRO, J.:
The issue tendered for resolution in this case is whether a wife, who is a codefendant of her husband in an action, may be examined as a hostile
witness by the adverse party under section 6 of Rule 132 of the Rules of

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.1ªvvphi1.nêt
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

a crime committed by one against the other, or in a criminal case for a
crime committed by one against the other.4
This provision deals with two different matters which rest on different
grounds of policy: the disqualification of husband and wife to testify in each
other's behalf, as well as their privilege not to testify against each
other.5 The fundamental theory of the common law is said to be that
relationship of the spouses, not their pecuniary interest, is the basis of the
disqualification.6 Indeed section 20 of Rule 130 is entitled "Disqualification by
reason of ... relationship."
On the other hand, while a shelter of emotional reasons has been
offered7 for the privilege, the "true explanation [which] is after all the
simplest"8 and which constitutes "the real and sole strength of the opposition
to abolishing the privilege," is the natural repugnance in every fair-minded
person to compelling a wife or husband to be the means of the other's
condemnation and to subjecting the culprit to the humiliation of being
condemned by the words of his intimate life partner.9
Here the request for subpoena indicated that Paquita Lezama was to do no
more than testify as an adverse party in the case and, indeed, in the light of
the allegations both in the complaint and in the answer, the request was
apparently one that could reasonably be expected to be made. Thus, the
complaint charged
13. — That in obtaining the judgment by default in Civil Case No.
39827 of the Court of First Instance of Manila against the La Paz Ice
Plant & Cold Storage Co., Inc. defendants, in gross and evident bad
faith, and in fraudulent conspiracy, made it appear that the La Paz Ice
Plant & Cold Storage Co., Inc. had obtained a loan of P150,000.00
from defendant Marciano C. Roque thru defendant Jose Manuel
Lezama allegedly upon an authority vested upon defendant Jose
Manuel Lezama by the alleged Board of Directors of the La Paz Ice
Plant & Cold Storage Co., Inc. allegedly evidenced by the minutes of
the meetings of the Board of Directors of the said corporation signed
by defendant Jose Manuel Lezama and attested to by Benjamin Luis
Borja and Paquita B. Lezama and that defendants spouses Jose Manuel
Lezama and Paquita B. Lezama had manipulated the books of the
corporation by making it appear that such fictitious loan was then in
existence.
On the other hand, the answer claimed

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

Even if such view were generally acceptable as an exception to the rule, or
even as a separate doctrine, it would be inapplicable in this case where the
main charge is collusive fraud between the spouses and a third person, and
the evident purpose of examination of the wife is to prove that charge.
Indeed, in those jurisdictions which allow one spouse to be subjected to
examination by the adverse party as a hostile witness when both spouses
are parties to the action, either the interests of the spouses are separate or
separable, or the spouse offered as a witness is merely a formal or nominal
party.13
The final point urged upon us is that to prevent one spouse from testifying
would encourage alliance of husband and wife as an instrument of fraud; for
then what better way would there be to prevent discovery than to make a
co-conspirator in fraud immune to the most convenient mode of discovery
available to the opposite party? This argument overlooks the fact that
section 6 of Rule 132 is a mere concession, for the sake of discovery, from
the rule which precludes the husband or the wife from becoming the means
of the other's condemnation. The said rule of discovery should therefore not
be expanded in meaning or scope as to allow examination of one's spouse in
a situation where this natural repugnance obtains.
It may not be amiss to state in passing that the respondent Dineros has not
demonstrated that there is no evidence available to him other than the
Lezamas' testimony to prove the charge recited in the
complaint.1äwphï1.ñët
ACCORDINGLY, the resolutions appealed from are versed, and this case is
ordered remanded to the court of origin for further proceedings in
accordance with law. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Angeles, and Fernando, JJ.,
concur.
Makalintal and Zaldivar, JJ., took no part.
Footnotes
Section 23. Disqualification by reason of death or insanity of adverse party.
— Parties or assignor 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. (20a)
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 143340

August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,
vs.
LAMBERTO T. CHUA, respondent.
GONZAGA-REYES, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of
Court of the Decision1 of the Court of Appeals dated January 31, 2000 in the
case entitled "Lamberto T. Chua vs. Lilibeth Sunga Chan and Cecilia Sunga"
and of the Resolution dated May 23, 2000 denying the motion for
reconsideration of herein petitioners Lilibeth Sunga and Cecilia Sunga
(hereafter collectively referred to as petitioners).
The pertinent facts of this case are as follows:
On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a
complaint against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and
Cecilia Sunga (hereafter petitioner Cecilia), daughter and wife, respectively
of the deceased Jacinto L. Sunga (hereafter Jacinto), for "Winding Up of
Partnership Affairs, Accounting, Appraisal and Recovery of Shares and
Damages with Writ of Preliminary Attachment" with the Regional Trial Court,
Branch 11, Sindangan, Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a partnership with
Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in
Manila. For business convenience, respondent and Jacinto allegedly agreed
to register the business name of their partnership, SHELLITE GAS
APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a sole
proprietorship. Respondent allegedly delivered his initial capital contribution
of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as
his counterpart contribution, with the intention that the profits would be
equally divided between them. The partnership allegedly had Jacinto as
manager, assisted by Josephine Sy (hereafter Josephine), a sister of the wife

respondent, Erlinda Sy. As compensation, Jacinto would receive a manager's
fee or remuneration of 10% of the gross profit and Josephine would receive
10% of the net profits, in addition to her wages and other remuneration
from the business.
Allegedly, from the time that Shellite opened for business on July 8, 1977, its
business operation went quite and was profitable. Respondent claimed that
he could attest to success of their business because of the volume of orders
and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell
Petroleum Corporation. While Jacinto furnished respondent with the
merchandise inventories, balance sheets and net worth of Shellite from 1977
to 1989, respondent however suspected that the amount indicated in these
documents were understated and undervalued by Jacinto and Josephine for
their own selfish reasons and for tax avoidance.
Upon Jacinto's death in the later part of 1989, his surviving wife, petitioner
Cecilia and particularly his daughter, petitioner Lilibeth, took over the
operations, control, custody, disposition and management of Shellite without
respondent's consent. Despite respondent's repeated demands upon
petitioners for accounting, inventory, appraisal, winding up and restitution of
his net shares in the partnership, petitioners failed to comply. Petitioner
Lilibeth allegedly continued the operations of Shellite, converting to her own
use and advantage its properties.
On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out
the alibis and reasons to evade respondent's demands, she disbursed out of
the partnership funds the amount of P200,000.00 and partially paid the
same to respondent. Petitioner Lilibeth allegedly informed respondent that
the P200,000.00 represented partial payment of the latter's share in the
partnership, with a promise that the former would make the complete
inventory and winding up of the properties of the business establishment.
Despite such commitment, petitioners allegedly failed to comply with their
duty to account, and continued to benefit from the assets and income of
Shellite to the damage and prejudice of respondent.
On December 19, 1992, petitioners filed a Motion to Dismiss on the ground
that the Securities and Exchange Commission (SEC) in Manila, not the
Regional Trial Court in Zamboanga del Norte had jurisdiction over the action.
Respondent opposed the motion to dismiss.
On January 12, 1993, the trial court finding the complaint sufficient in from
and substance denied the motion to dismiss.

On January 30, 1993, petitioners filed their Answer with Compulsory
Counter-claims, contending that they are not liable for partnership shares,
unreceived income/profits, interests, damages and attorney's fees, that
respondent does not have a cause of action against them, and that the trial
court has no jurisdiction over the nature of the action, the SEC being the
agency that has original and exclusive jurisdiction over the case. As
counterclaim, petitioner sought attorney's fees and expenses of litigation.
On August 2, 1993, petitioner filed a second Motion to Dismiss this time on
the ground that the claim for winding up of partnership affairs, accounting
and recovery of shares in partnership affairs, accounting and recovery of
shares in partnership assets/properties should be dismissed and prosecuted
against the estate of deceased Jacinto in a probate or intestate proceeding.
On August 16, 1993, the trial denied the second motion to dismiss for lack of
merit.
On November 26, 1993, petitioners filed their Petition for Certiorari,
Prohibition and Mandamus with the Court of Appeals docketed as CA-G.R. SP
No. 32499 questioning the denial of the motion to dismiss.
On November 29, 1993, petitioners filed with the trial court a Motion to
Suspend Pre-trial Conference.
On December 13, 1993, the trial court granted the motion to suspend pretrial conference.
On November 15, 1994, the Court of Appeals denied the petition for lack of
merit.
On January 16, 1995, this Court denied the petition for review on certiorari
filed by petitioner, "as petitioners failed to show that a reversible error was
committed by the appellate court."2
On February 20, 1995, entry of judgment was made by the Clerk of Court
and the case was remanded to the trial court on April 26, 1995.
On September 25, 1995, the trial court terminated the pre-trial conference
and set the hearing of the case of January 17, 1996. Respondent presented
his evidence while petitioners were considered to have waived their right to
present evidence for their failure to attend the scheduled date for reception
of evidence despite notice.

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 ½
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 ½ 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,

(7) DIRECTING them to reimburse and pay the sum of
P25,000.00 as attorney's (sic) and P25,000.00 as litigation
expenses.
NO special pronouncements as to COSTS.
SO ORDERED."3
On October 28, 1997, petitioners filed a Notice of Appeal with the trial court,
appealing the case to the Court of Appeals.
On January 31, 2000, the Court of Appeals dismissed the appeal. The
dispositive portion of the Decision reads:
"WHEREFORE, the instant appeal is dismissed. The appealed decision
is AFFIRMED in all respects."4
On May 23, 2000, the Court of Appeals denied the motion for
reconsideration filed by petitioner.
Hence, this petition wherein petitioner relies upon following grounds:
"1. The Court of Appeals erred in making a legal conclusion that there
existed a partnership between respondent Lamberto T. Chua and the
late Jacinto L. Sunga upon the latter'' invitation and offer and that
upon his death the partnership assets and business were taken over by
petitioners.
2. The Court of Appeals erred in making the legal conclusion that
laches and/or prescription did not apply in the instant case.
3. The Court of Appeals erred in making the legal conclusion that there
was competent and credible evidence to warrant the finding of a
partnership, and assuming arguendo that indeed there was a
partnership, the finding of highly exaggerated amounts or values in
the partnership assets and profits."5
Petitioners question the correctness of the finding of the trial court and the
Court of Appeals that a partnership existed between respondent and Jacinto
from 1977 until Jacinto's death. In the absence of any written document to
show such partnership between respondent and Jacinto, petitioners argues
that these courts were proscribes from hearing the testimonies of
respondent and his witness, Josephine, to prove the alleged partnership
three years after Jacinto's death. To support this argument, petitioners

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;

3. The subject-matter of the action is a claim or demand against the
estate of such deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact of which occurred before
the death of such deceased person or before such person became of
unsound mind."10
Two reasons forestall the application of the "Dead Man's Statute" to this
case.
First, petitioners filed a compulsory counterclaim11 against respondents in
their answer before the trial court, and with the filing of their counterclaim,
petitioners themselves effectively removed this case from the ambit of the
"Dead Man's Statute".12 Well entrenched is the rule that when it is the
executor or administrator or representatives of the estates that sets up the
counterclaim, the plaintiff, herein respondent, may testify to occurrences
before the death of the deceased to defeat the counterclaim.13 Moreover, as
defendant in the counterclaim, respondent is not disqualified from testifying
as to matters of facts occurring before the death of the deceased, said action
not having been brought against but by the estate or representatives of the
deceased.14
Second, the testimony of Josephine is not covered by the "Dead Man's
Statute" for the simple reason that she is not "a party or assignor of a party
to a case or persons in whose behalf a case is prosecuted." Records show
that respondent offered the testimony of Josephine to establish the
existence of the partnership between respondent and Jacinto. Petitioners'
insistence that Josephine is the alter ego of respondent does not make her
an assignor because the term "assignor" of a party means "assignor of a
cause of action which has arisen, and not the assignor of a right assigned
before any cause of action has arisen."15 Plainly then, Josephine is merely a
witness of respondent, the latter being the party plaintiff.
We are not convinced by petitioners' allegation that Josephine's testimony
lacks probative value because she was allegedly coerced coerced by
respondent, her brother-in-law, to testify in his favor, Josephine merely
declared in court that she was requested by respondent to testify and that if
she were not requested to do so she would not have testified. We fail to see
how we can conclude from this candid admission that Josephine's testimony
is involuntary when she did not in any way categorically say that she was
forced to be a witness of respondent.

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.1âwphi1.nêt
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. CLARE’S
REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA GUERRERO,
assisted by ANGELO CARDEÑO, 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. Clare’s Realty Co., Ltd.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; INCOMPETENCY UNDER
SEC. 20(a), RULE 130, RULES OF COURT, CONSTRUED. — 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. It may be said that competency to testify
established in Sec. 20(a), Rule 130, Rules of Court, 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.
2. ID.; ID.; ID.; DEAD MAN’S RULE; INAPPLICABLE IN THE CASE AT
BAR. — The present case is not a claim or
2. 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 dead man’s 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)
3. ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM
PRESENTING FURTHER PROOF; CASE AT BAR. — Prior to the issuance
of the court’s 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
attorney’s 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

September 3, 1981 which denied the petitioners’ motion for reconsideration
thereof. Our resolution of May 25, 1981 gave due course to the petition.
The action initiated by the petitioners in the Court of First Instance of Rizal
prayed for a judgment:jgc:chanrobles.com.ph
"1. Declaring the in existence of the ‘Deed of Sale of Lands, Annex ‘A’ hereof,
and ‘Deeds of Absolute Sale’, Annexes ‘B’ and ‘C’, as well as the Original
Certificate of Title No. 4591 and Transfer Certificates of Title Nos. 339629
and 340842 of the Registry of Deeds, null and void;
2. Declaring the plaintiffs (now petitioners) the owners in fee simple of the
aforedescribed property, pro-indiviso;
3. Ordering the private defendants (now private respondents) to reconvey to
the plaintiffs the aforedescribed lot;
4. Declaring the ‘Joint Venture Agreement’ executed by the defendant
partnership and the defendant corporation null and void and ineffective
insofar as the plaintiffs are concerned;
5. Ordering the defendant Register of Deeds of Rizal to issue a new transfer
certificate of title in favor of the plaintiffs over the said lot;
6. Condemning the defendants, except the defendant Register of Deeds, to
pay the plaintiffs, actual and exemplary damages, the amounts of which
they will prove during the hearing of the instant case on the merit;
7. Condemning the defendants, except the defendant Register of Deeds, to
pay to the plaintiffs attorney’s fees in the amount of P5,000.00; plus costs of
suit." (Printed Record on Appeal, pp. 116-118.)
Petitioners’ original and amended complaints alleged that during their
lifetime the spouses Isidoro Guerrero and Panay Ramos were the absolute
owners of the disputed property, which is a parcel of land located at San
Dionisio, Parañaque, Rizal, with an area of 42,299 square meters, more or
less. The spouses had six children, named Andres, Juliana, Aurelio, Leona,
Jose and Cristina, and all surnamed Guerrero. Panay Ramos predeceased
Isidoro Guerrero. Before his demise, Isidoro Guerrero verbally willed and
ordained that the questioned lot be assigned and adjudicated to Andres
Guerrero as his share in the inheritance, the other children having been
assigned other lots. Accordingly, upon the death of Isidoro Guerrero, Andres
Guerrero physically possessed the lot and cultivated it through his tenant
Dominador Ramirez, who earned a 50% share in the net produce, the other

50% being retained by Andres Guerrero who defrayed the cultivation
expenses and real estate taxes on the property. Shortly after the beginning
of the Japanese occupation, Andres Guerrero entrusted the land to his sister,
Cristina Guerrero, and allowed her to have the property cultivated and to
retain the owner’s share in the harvests. The arrangement between brother
and sister was that Cristina Guerrero could continue in the cultivation of the
land and enjoyment of the owner’s share in the produce for as long as she
needed the property. Dominador Ramirez continued his tenancy until shortly
before the death of Andres Guerrero. Sometime in July 1943, Andres
Guerrero died survived by his widow, Segunda Laquindanum, and their
children, who are the petitioners in this case. Cristina Guerrero continued as
trustee of the deceased Andres Guerrero.chanrobles virtual lawlibrary
The complaints further alleged that as early as December 10, 1957, the land
was surveyed by the Bureau of Lands for and in the name of Andres
Guerrero as Lot No. 4752, Case No. 4, Cadastre No. 229 of the Parañaque
Cadastre. Sometime during the latter part of 1971 certain people who
introduced themselves as agents or buyers of the land approached some of
the plaintiffs in order to secure their consent to the sale of the property. Said
plaintiffs were informed that the land was titled in the name of their cousin,
Manuel Guerrero. Plaintiffs made inquiries and discovered the following: that
Manuel Guerrero was able to have the lot titled in his name on the basis of a
‘Deed of Sale of Land’ dated April 24, 1948 purportedly executed by Cristina
Guerrero; that he caused the lot to be surveyed in his name as Lot No. 4752
and he was issued advance Plan No. AP-10008 on February 28, 1962; that in
the advance plan issued to him, it was duly noted that Lot No. 4752 had
been previously surveyed for Andres Guerrero; that in 1963, Manuel
Guerrero, assisted by Felicisimo Guerrero, father of the defendants
Guerreros, filed an application for registration of land with the Court of First
Instance of Rizal; that notwithstanding the opposition of the heirs of Cristina
Guerrero, the court ruled that Manuel Guerrero owned the lot; that despite
oppositors’ appeal to a higher court, the Register of Deeds issued Original
Certificate of Title No. 4591 to the applicant; that on September 14, 1971,
there was filed with the Register of Deeds of Rizal a "Deed of Absolute Sale"
purportedly executed by Manuel Guerrero in favor of the defendants
Guerreros; that the Register of Deeds gave due course to the registration of
that deed, cancelled OCT No. 4591 and was issued Transfer Certificate No.
339629 in its stead; that on the same day that the deed of sale was
registered, the defendants Guerreros caused to be notarized an "Articles of
Partnership" of St. Clare’s Realty Company, Ltd., constituting themselves as
partners; that on September 28, 1971, the defendants Guerreros sold the
disputed lot in a "Deed of Absolute Sale" to the St. Clare’s Realty Company,
Ltd.; that by virtue thereof, the Register of Deeds issued TCT No. 340842 in
the name of said realty company.

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. Clare’s 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. Clare’s 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. Clare’s 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, Parañaque, 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 Parañaque; 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 Bureau’s Lot Data Computation Book showing the list of
claimants for Lot 4752, Case 4, Cadastre 299, Parañaque, 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,
Parañaque, 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
Parañaque; 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
today’s 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 attorney’s fees;
3. Ordering the plaintiffs to pay the defendant St. Clare’s Realty Co. Ltd., the
amount of P1,923,000.00 as actual damages, P50,000.00 as exemplary
damages and P5,000.00 as attorney’s 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 lawyer’s 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. Clare’s 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.

On August 21, 1974, plaintiffs filed a motion for reconsideration of the
decision which they received on July 23, 1974.
Early in 1975, Judge Arsenio Alcantara who rendered the decision was
replaced by Judge Floreliana Castro-Bartolome. In her order of February 13,
1975, Judge Castro-Bartolome resolved that:jgc:chanrobles.com.ph
"1) The plaintiffs’ ‘Motion Ex-Abundantia Cautela’ dated July 18, 1974,
having been passed upon by Judge Arsenio B. Alcantara by the rendition of
the Decision dated July 17, 1974, is deemed to have been clearly denied by
the Honorable Judge who penned the said decision;
2) The plaintiffs’ ‘Motion for Reconsideration’ dated August 21, 1974 and
‘Supplemental Motion for Reconsideration’ dated August 22, 1974, have to
be as they are hereby, denied;
x

x

x

5) The plaintiffs’ ‘Motion for Reconsideration’ and ‘Supplemental Motion for
Reconsideration’ are not pro-forma and have suspended the running of the
period of appeal."cralaw virtua1aw library
On February 21, 1975, plaintiffs perfected their appeal to the Court of
Appeals where the case was docketed as CA-G.R. No. 57597-R. On April 20,
1981, the Court of Appeals rendered its decision as
follows:jgc:chanrobles.com.ph
"WHEREFORE, all the foregoing considered, the decision appealed from is
hereby affirmed, with modification in regard to damages as follows: (a) for
the defendants Guerreros, P50,000.00 moral damages, and P10,000.00
exemplary damages; (b) for the defendant St. Clare’s Realty Co., Ltd.,
P10,000.00 exemplary damages; (c) for the defendant United Housing
Corporation, P40,000.00 for loss of goodwill and business reputation and
P10,000.00 exemplary damages. The actual damages and attorney’s fees
are hereby maintained."cralaw virtua1aw library
On May 27, 1981, the Court of Appeals denied plaintiffs’ motion for
reconsideration.
Hence, the present petition for review by certiorari.
In their instant petition for review, petitioners have raised substantive and
procedural points on which the lower tribunals have allegedly erred. The

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 man’s 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 court’s 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 1930’s
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 owner’s 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 Parañaque, 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 Parañaque 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 Parañaque, 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 attorney’s 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

January 31, 1962

FLORENCIA Q. DE ABRAHAM, ALFONSO ABRAHAM, and JESUS
ABRAHAM, petitioners,
vs.
INTESTATE ESTATE OF JUAN C. YSMAEL, PRISCILLA RECTO-KASTEN,
respondent.
Menandro Quiogue for petitioners.
Jose Ma. Recto and Paterno R. Canlas for respondent.
DE LEON, J.:
This is a petition to review on certiorari the decision of the Court of Appeals
in CA-G.R. No. 21222-R.
The facts as shown by the record are as follows: On September 3, 1943,
Juan C. Ysmael, obtained a loan from Alfonso Abraham, Sr. in the amount of
P12,500.00 in Japanese currency notes, and executed a promissory note in
favor of the latter promising to pay the loan within 90 days with interest at
the rate of 10% per annum. The note was executed in the presence of
Florencia Q. Abraham, the creditor's wife, who affixed her signature at the
bottom thereof as a witness thereto. Upon the maturity of the note, a
demand was made for its payment, but the debtor failed to pay.
On February 9, 1945, Alfonso Abraham, Sr. died. On the other hand, Juan C.
Ysmael died intestate on April 23, 1952 leaving the note still unpaid.
On November 13, 1954, in Special Proceedings No. Q-285 for the settlement
of the intestate estate of Juan Ysmael, pending before the Court of First
Instance of Quezon City, Florencia Q. Vda. de Abraham, together with her
sons, Alfonso and Jesus, all surnamed Abraham, filed a pleading entitled
"Reclamation" demanding payment of the amount represented by the note.
Because no regular administrator of the estate had yet been appointed by
the court, the "Reclamation" was not acted upon. However, as soon as
Priscilla Recto-Kasten was appointed administratrix, the claimants
reproduced their "Reclamation" before the lower court and the same was
finally set for hearing. As agreed upon by the parties, the reception of
evidence was delegated to a commissioner. During the hearing before the
commissioner, the counsel for the administratrix interposed a general and
continuing objection to the testimony of Florencia Vda. de Abraham invoking
the provisions of Section 26(c), Rule 123 of the Rules of Court. However,
after the claimant had testified, he lengthily cross-examined her on the very
matters against which he interposed a general objection.1äwphï1.ñët

On October 4, 1956, the lower court issued in Order-Decree allowing the
claim against the intestate estate of Juan C. Ysmael, the dispositive portion
of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court rules
that the claimants established a just and valid claim against the
estate of Juan C. Ysmael, and therefore the "reclamation" under
consideration is hereby APPROVED.
The administratrix is hereby ordered to pay the claimants herein
the amount of P5,000.00 with interest thereon at 10% per
annum, in accordance with the Ballantyne Scale of Value for the
year December, 1943, out of the funds of the estate in the
course of her administration.
SO ORDERED.
From the above Order-Decree, Priscilla Recto-Kasten, the administratrix,
appealed to the Court of Appeals. The appellate court concluding that "the
lower court erred in finding that the claimants have established a just and
valid claim, and in allowing the claim — supposing it was a claim with
consideration — when the same had been barred by prescription, estoppel
and laches," reversed the Order-Decree appealed from. Hence, this petition
for review brought by the claimants.
The main issue in this petition is whether or not petitioners have established
a just and valid claim. And if the answer is in the affirmative, whether the
same is already barred by prescription and laches.
The record shows that petitioners have established the due execution and
genuineness of the promissory note and that respondents failed to present
any evidence to destroy the same. Thus in the Order-Decree appealed from,
the lower court observed:.
It is interesting to note that the promissory note executed by the
deceased was produced before the Court and marked as Exhibit
B-1, and the circumstances under which the same was executed
was extensively described by Florencia Q. de Abraham during the
hearing, who, strikingly is one of the witnesses to the said
instrument. Much to the surprise of the Court this description
was more vividly given by the said witness not in answer to the
questions propounded by her lawyer but on cross-examination of
counsel for the administratrix, who feebly attempted to destroy
the due execution and genuineness of the said document. It is

indeed unfortunate that counsel for the administratrix did not
choose to present evidence to destroy the alleged genuineness
of the promissory note (Exhibit B-1) in support of his theory,
despite his insinuation during the course of the trial that he
might try to secure the services of an expert to determine the
genuineness of the signature of the late Juan C. Ysmael
mentioned therein. (t.s.n., p. 83), Again counsel manifested that
if Exhibit B-1 is a genuine document the same has been fully
paid already, (t.s.n., p. 83), however, counsel did not present
any proof to support this contention.
It is true that Section 26(c), Rule 123 of the Rules of Court provides:.
(c) Parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor administrator or
other representative of a 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;
However, there was a waiver of the prohibition when the counsel for the
administratrix extensively cross-examined the witness on the very matters
subject of the prohibition. (Wright v. Tinio, G.R. No. L-4004, May 29, 1952;
see also Tongco v. Vianzon, 50 Phil. 698; Macfarlane v. Green, 54 Phil. 551)
It was for this reason that the trial judge eventually overruled the counsel's
previous general and continuing objection and admitted the testimony of the
witness. Furthermore, it is difficult to believe that the counsel's lengthy
cross-examination on the prohibited matter was merely for the purpose of
establishing the "motive, prejudices and predilection" of the witness. In this
connection, it has been said: .
... . The reason for the rule apparently is that a litigant cannot
be permitted to speculate as to what his examination of a
witness may bring forth. Having made his selection of one of two
courses which he may pursue, he has no right, after he discovers
that the course selected is not to his advantage, and after he has
put the opposite party to the expense, and has consumed the
time of the courts in a trial of the case in accordance with the
course selected, to change his position and make another and
different selection. Such course would be unfair both to the
opposite party and to the court and should not be countenanced
in any court of justice. (IV Francisco, RULES OF COURT, 876,
877, citing the case of Comstock's Adm'r vs. Jacob, 89 VT. 133,
94 A. 497, Ann. Cas. 1918A, 465)

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.

When there are no changes of conditions detrimental to the defendant, the
defense of laches may not prosper.
IN VIEW OF THE FOREGOING, the decision of the Court of Appeals in CAG.R. No. 21222-R is hereby reversed and the Order-Decree dated October 4,
1956 of the Court of First Instance of Quezon City in Special Proceedings No.
Q-285 is hereby affirmed in all respects. Without cost.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27434 September 23, 1986
GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P.
VILLANUEVA, OSCAR P. VILLANUEVA, MARINA P. VILLANUEVA,
VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P.
VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA,
MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.
Ambrosio Padilla Law Office for petitioners-appellants.
San Juan, Africa, Gonzales & San Agustin Law Office for respondentsappellees.

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

of petitioners, negotiated with TABACALERA for the purchase of said
haciendas. However, as he did not have sufficient funds to pay the price,
Villanueva with the consent of TABACALERA, offered to sell Hacienda Sarria
to one Santiago Villegas, who was later substituted by Joaquin Villegas.
Allegedly because TABACALERA did not agree to the transaction between
Villanueva and Villegas, without a guaranty private respondent Gaspar
Vicente stood as guarantor, for Villegas in favor of TABACALERA. The
guarantee was embodied in a document denominated as "Escritura de
Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva
and Villegas still fell short of the purchase price of the three haciendas, or in
consideration of the guaranty undertaken by private respondent Vicente,
Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13
of Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This
agreement was reduced to writing and signed by petitioner Genaro Goni as
attorney-in-fact of Villanueva, thus:
En consideracion a la garantia que Don Gaspar Vicente
assume con la Cia. Gral. de Tabacos de Filipinas por el
saldo de Don Santiago Villegas de P43,539.75 asumido por
Don Joaquin Villegas el que Subscribe Praxedes T.
Villanueva se compromete ceder es venta a Don Gaspar
Vicente los campos nos. 3, 4 y 13 del plano de porcelario
de la Hacienda Dulce Nombre de Maria, en compra
projectada de la Cia. Gral. de Tabacos de Filipinas. Estas
campos representan 6-90-35 hectares por valor de
P13,807.00 que Don Gasper Vicente pagara directamente
a Praxedes T. Villanueva
Bais Central, Octubre 24, 1949.
Fdo. Praxedes T. Villanueva
Por: Fdo Genaro Goñi Apoderado 2
Private respondent Vicente thereafter advised TABACALERA to debit from his
account the amount of P13,807.00 as payment for the balance of the
purchase price. However, as only the amount of P12,460.24 was actually
needed to complete the purchase price, only the latter amount was debited
from private respondent's account. The difference was supposedly paid by
private respondent to Villanueva, but as no receipt evidencing such payment
was presented in court, this fact was disputed by petitioners.

It is alleged by petitioners that subsequent to the execution of the
contract/promise to sell, Villanueva was able to raise funds by selling a
property in Ayungon, Negros Oriental. He thus went to private respondent
Vicente for the purpose of rescinding the contract/promise to sell However,
as the amount of P12,460.24 had already been debited from private
respondent's account, it was agreed that lots 4 and 13 of the Hacienda Dulce
Nombre de Maria would merely be leased to private respondent Vicente for a
period of five (5) years starting with crop-year 1950-51 at an annual rental
of 15% of the gross income, said rent to be deducted from the money
advanced by private respondent and any balance owing to Villanueva would
be delivered by Vicente together with the lots at the end of the stipulated
period of lease.
On December 10, 1949, TABACALERA executed a formal deed of sale
covering the three haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13
of the Hacienda Dulce Nombre de Maria were thereafter registered in the
name of Villanueva under TCT No. T-4780 of the Register of Deeds of Negros
Oriental. The fields were likewise mortgaged by Villanueva to the
Rehabilitation Finance Corporation (RFC), later transferred to the Philippine
National Bank on December 16, 1955, for a total indebtedness of
P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent
Vicente after the 1949-1950 milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive"
in favor of Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of
Bais with an area of 468,627 square meters, more or less. (Hacienda
Sarria). A supplemental instrument was later executed by Villanueva in favor
of Villegas to include in the sale of June 17, 1950 the sugar quota of the
land.
On November 12, 1951, Villanueva died. Intestate proceedings were
instituted on November 24, 1951 before the then Court of First Instance of
Negros Oriental, docketed as Special Case No. 777. Among the properties
included in the inventory submitted to the court were fields nos. 3, 4 and 13
of Hacienda Dulce Nombre de Maria. Field no. 13 with an area of 1 hectare,
44 ares and 95 centares was listed as Lot no. 723 of the inventory while
fields nos. 3 and 4, with areas of 3 hectares, 75 ares and 60 centares, and 1
hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257
of the inventory.
On October 7, 1954, the day before the intestate proceedings were ordered
closed and the estate of the late Praxedes Villanueva delivered to his heirs,

private respondent Vicente instituted an action for recovery of property and
damages before the then Court of First Instance of Negros Oriental against
petitioner Goñi in his capacity as administrator of the intestate estate of
Praxedes Villanueva. In his complaint docketed as Civil Case No. 2990,
private respondent Vicente sought to recover field no. 3 of the Hacienda
Dulce Nombre de Maria, basing his entitlement thereto on the
contract/promise to sell executed by the late Praxedes Villanueva in his favor
on October 24, 1949. He likewise prayed by way of attorney's fees and other
costs the sum of P2,000.00 and for such other further relief which the court
may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990,
filed an answer with counterclaim for accounting of the produce of fields nos.
4 and 13, as well as the surrerder thereof on June 20, 1955, the end of the
fifth crop-year, plus moral damages in the sum of P30,000.00 and P3,000.00
as attorney's fees. After an answer to the counter-claim had been filed,
private respondent Vicente amended his complaint on September 1, 1955, to
include a prayer for damages representing the produce of field no. 3 from
1949-50 until delivery thereof to him. An answer with counterclaim to the
amended complaint was duly filed, and on April 25, 1956, private respondent
Vicente amended his complaint anew to include as parties-defendants the
heirs of the late Praxedes Villanueva.
On July 13, 1957, the parties entered into a stipulation of facts, agreeing,
among others, on the costs of production and produce of the three fields in
question. The case thereafter proceeded to trial. Plaintiff presented two (2)
witnesses: then party-plaintiff Gaspar Vicente, himself, who over the
objection of therein defendants testified on facts occurring before the death
of Praxedes Villanueva, and Epifanio Equio a clerk of TABACALERA Agency in
the Bais Sugar Central. Defendants presented Genaro Goni, who testified on
the alleged verbal lease agreement.
On December 18, 1959, the trial court rendered a decision ordering therein
defendants-heirs to deliver to Gaspar Vicente field no 3, to execute a formal
deed of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the
latter actual or compensatory damages in the amount of P 81,204.48,
representing 15% of the total gross income of field no. 3 for crop-years
1950-51 to 1958-59, and such other amounts as may be due from said field
for the crop years subsequent to crop-year 1958-59, until the field is
delivered to Vicente, and to pay the sum of P2,000.00 as attorney's fees plus
costs. Therein defendant Goñi was relieved of any civil liability for damages,
either personally or as administrator of the estate. 5

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

by reason of interest from testifying as to any matter of fact occurring before
the death of Praxedes T. Villanueva, such disqualification being anchored on
Section 20(a) of Rule 130, commonly known as the Survivorship
Disqualification Rule or Dead Man Statute, which provides as follows:
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:
(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 person became of unsound
mind.
The object and purpose of the rule is to guard against the temptation to give
false testimony in regard to the transaction in question on the part of the
surviving party and further to put the two parties to a suit upon terms of
equality in regard to the opportunity of giving testimony. 9 It is designed to
close the lips of the party plaintiff when death has closed the lips of the
party defendant, in order to remove from the surviving party the temptation
to falsehood and the possibility of fictitious claims against the deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva
after the estate of the latter had been distributed to them, remains within
the ambit of the protection. The reason is that the defendants-heirs are
properly the "representatives" of the deceased, not only because they
succeeded to the decedent's right by descent or operation of law, but more
importantly because they are so placed in litigation that they are called on to
defend which they have obtained from the deceased and make the defense
which the deceased might have made if living, or to establish a claim which
deceased might have been interested to establish, if living. 11
Such protection, however, was effectively waived when counsel for
petitioners cross-examined private respondent Vicente. "A waiver occurs
when plaintiff's deposition is taken by the representative of the estate or
when counsel for the representative cross-examined the plaintiff as to
matters occurring during deceased's lifetime. 12 It must further be observed
that petitioners presented a counterclaim against private respondent

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 Goñi 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 Goñi 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 Goñi 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 Goñi, 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

likewise executed a deed of sale covering Hacienda Sarria in favor of Joaquin
Villegas. All these were known to private respondent Vicente, yet he did not
take any steps toward asserting and/or protecting his claim over fields nos.
3, 4 and 13 either by demanding during the lifetime of Villanueva that the
latter execute a similar document in his favor, or causing notice of his
adverse claim to be annotated on the certificate of title of said lots. If it were
true that he made demands on Villanueva for the surrender of field no. 3 as
well as the execution of the corresponding deed of sale, he should have,
upon refusal of the latter to do so, immediately or within a reasonable time
thereafter, instituted an action for recovery, or as previously observed,
caused his adverse claim to be annotated on the certificate of title.
Considering that field no. 3, containing an area of three (3) hectares, 75
ares and 60 centares, is the biggest among the three lots, an ordinary
prudent man would have taken these steps if he honestly believed he had
any right thereto. Yet, private respondent Vicente did neither. In fact such
inaction persisted even during the pendency of the intestate proceedings
wherein he could have readily intervened to seek exclusion of fields nos. 3, 4
and 13 from the inventory of properties of the late Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not
delivered to him together with fields nos. 4 and 13 because there were small
sugar cane growing on said field at that time belonging to TABACALERA,
might be taken as a plausible explanation why he could not take immediate
possession of lot no. 3, but it certainly could not explain why it took him four
years before instituting an action in court, and very conveniently, as
petitioners noted, after Villanueva had died and at the time when the verbal
contract of lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise
to sell rather than the lease agreement, simply because the former had been
reduced to writing, while the latter was merely verbal. It must be observed,
though, that the contract/promise to sell was signed by petitioner Goñi as
attorney-in-fact of the late Praxedes Villanueva, an indication, to our mind,
that final arrangements were made by petitioner Goñi in the absence of
Villanueva. It was therefore natural for private respondent Vicente to have
demanded that the agreement be in writing to erase any doubt of its binding
effect upon Villanueva. On the other hand, the verbal lease agreement was
negotiated by and between Villanueva and private respondent Vicente
themselves. Being close friends and relatives 17 it can be safely assumed
that they did not find it necessary to reduce the same into writing.
In rejecting petitioners' contention respecting the verbal lease agreement,
the appellate court put much weight on the failure of petitioners to demand
an accounting of the produce of fields nos. 4 and 13 from 1950 to 1954,

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 Goñi 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

have been surrendered to petitioners, deducting from the amount due
petitioners the sum of P12,460.24 advanced by private respondent Gaspar
Vicente.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 27498

September 20, 1927

Inestate estate of Marcelino Tongco, represented by JOSEFA
TONGCO, administratrix, plaintiff-appellant,
vs.
ANASTACIA VIANZON, defendant-appellee.
M. H. de Joya and Enrique Tiangco for appellant.
Vicente J. Francisco for appelle.
MALCOLM, J.:
The fundamental question which is being litigated in this case and its
companion case, R. G. No. 27499,1 is whether the property in dispute should
be assigned to the estate of Marcelino Tongco, or whether it should be set
aside as belonging exclusively to the widow.
Marcelino Tongco and Anastacia Vianzon contracted marriage on July 5,
1894. The first named died on July 8, 1925, leaving the second named as his
widow. The niece of the deceased, Josefa Tongco, was named administratrix
of the estate. It appears that shortly before the death of Marcelino Tongco,
he had presented claims in a cadastral case in which he had asked for titles
to certain properties in the name of the conjugal partnership consisting of
himself and his wife, and that corresponding decrees for these lots were
issued in the name of the conjugal partnership not long after his death.
In the cadastral case, the widow began action on April 28, 1926, when she
presented a motion for a revision of certain decrees within the one-year
period provided by the Land Registration Law. Issue was joined by the
administratrix of the estate. A decision was rendered by Judge of First
Instance Rovira concluding with this pronouncement of a judgment:
"Therefore, and by virtue of the provisions of section 38 of Act. No. 496,

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

figures, at least in round figures." This witness further testified on direct
examination as follows:
Q. You said that Mr. Fitzsimmons is one of those office whose
personal account with the Atlantic, Gulf & Pacific Co. used to be
on the debit side in the years previous to 1941. Can you tell the
Honorable Court what would happen at the end of each year to
the personal account, and to the status of the personal account
of Mr. Fitzsimmons? — A. At the each year, after the declaration
of dividends on paid shares, bonuses and directors' fees, the
account will balance to a credit balance. In other words, at the
start of the following years, the account will be on the credit
side.
Q. So that I gather from you, Mr. Inacay, that the personal
account of Mr. Fitzsimmons, as well as the other officers of the
Atlantic, Gulf & Co., at the end of each year, and at the beginning
of the incoming year, generally, would be in the credit balance;
because of the application of dividends on paid shares, bonuses
and the directors' fees? — A. Yes, sir. (Page 80, t. s. n.)
On cross-examination the witness admitted that he could not recollect the
amount of the balance, either debit or credit, of each of the Americans and
other employees who maintained a current account with the company; and
on redirect examination he explained that he remembered the balance of the
account of Mr. Fitzsimmons "because as account I should be — I should have
knowledge more or less, of the status of the account of the president, the
treasurer, and the rest of the directors."
Modesto Flores testified in substance as follows: He was assistant accountant
of the Atlantic, Gulf & Pacific Company from October 1, 1935, to December,
1941, and from March 8, 1945, to the present. In 1941, Mr. Fitzsimmons,
president of the company, had a personal account with the latter consisting
of cash advances which he withdrew from the company and of payments for
his account of groceries, automobile, salary of his chauffeur, gasoline and oil,
and purchases of furniture for his house and other articles for his personal
use. On the credit side of his account were entered his monthly salaries, the
dividends declared, if any, the bonuses, and the director's fees. Witness was
the one who as accountant made the entries in the books of the company.
When Mr. Fitzsimmons withdrew funds by way of cash advances from the
company, he signed receipts therefor which were delivered to the cashier,
who in turn delivered them to him. When creditors of Mr. Fitzsimmons
presented bills to the accounting department for payments, those bills were
approved by Mr. Fitzsimmons and the company paid them and charged them

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 November—sometime during the last days of
November, or the first days of December, 1941—he 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

occasion to find out that the account of the deceased
Fitzsimmons with the Atlantic, Gulf and Pacific Co. was a debit
account in the amount of around sixty-three thousand pesos,
while the personal account of Mr. Garmezy, the witness now
testifying, showed a credit account in the sum of around sixtythree thousand pesos. This witness will also testify that this
account of sixty-three thousand pesos owed by Mr. Fitzsimmons
appeared in that trial balance, which he had occasion to read in
the first days of December, 1941, was not paid by Mr.
Fitzsimmons until the present date. (Pages 35-36, t. s. n.)
That offer of proof was likewise ratified by the witness Garmezy and made of
record by the trial court.
The evidence for the administrator against this claim of P63,000 consisted of
Exhibit 1 and the testimony of Mr. Marcial P. Lichauco explaining the
circumstances under which said document was prepared and signed by the
deceased Fitzsimmons. It appears that on December 15, 1942, Richard
Thomas Fitzsimmons sued his wife Miguela Malayto for divorce in the Court
of First Instance of Manila. On August 9, 1943, after due trial, the court
rendered judgment granting plaintiff's petition for divorce and ordering the
dissolution of the marriage between the parties. Attorney Lichauco
represented the plaintiff in that divorce case. After the decree of divorce had
become final the plaintiff Fitzsimmons, pursuant to the provisions of the
divorce law then in force, submitted to the court an inventory of the assets
and liabilities of the conjugal partnership, with a proposed adjudication or
division of the net assets among the ex-pouses and their children. A carbon
copy of said inventory, which was signed by Richard Thomas Fitzsimmons on
November 9, 1943, and filed in the Court of First Instance of Manila on the
same date in civil case No. 296, was presented by the administrator as
Exhibit 1 in this case and admitted by the trial court over the objection of
the claimant. The administrator Mr. Lichauco testified herein that as attorney
for Mr. Fitzsimmons in the divorce case he prepared the said inventory from
the data furnished him by Mr. Fitzsimmons after he had conferred with and
explained to the latter why it was necessary to prepare said inventory, telling
him that under the divorce law the conjugal properties had to be liquidated;
that since he (Fitzsimmons) was married to Miguela Malayto in the year
1939, he had to include in said inventory all the properties acquired by him
between the date of his marriage and the date of his divorce, and that all the
obligations incurred by him and not yet paid during the same period should
be included because they had to be deducted from the assets in order to
determine the net value of the conjugal properties; that he made it very
clear to Mr. Fitzsimmons that he should not forget the obligations he had
because they would diminish the amount his wife was going to receive, and

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 items—one
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

difference, for interest no longer disqualifies under our law, Civ.
Code Proc. sec. 1879. Appellant cites section 14, Civ. Code, to
the effect that the word "person" includes a corporation; and
claims that, as the corporation can only speak through its
officers, the section must be held to apply to all who are officially
related to section must be held to apply to all who are officially
related to the corporation. A corporation may be conceded to be
a person, but the concession does not help appellant. To hold
that the statute disqualifies all persons from testifying who are
officers or stockholders of a corporation would be equivalent to
materially amending the statute by judicial interpretation. Plainly
the law disqualifies only "parties or assignors of parties," and
does not apply to persons who are merely employed by such
parties or assignors of parties.
In a later case, Merriman vs. Wickersman, 141 Cal., 567; 75 Pac., 180, 181182, the same tribunal, in passing upon the competency of a vice-president
and principal stockholder of a corporation to testify, reaffirmed its ruling in
City Savings Bank vs. Enos, supra, after examining decisions of other state
supreme courts in relation to their respective statutes on the same subject.
The court said:
The Burnham and Marsh Company is a corporation. Mr. Marsh,
vice-president and one of its principal stockholders, was allowed
to testify to matters and facts in issue. It is contended that the
evidence was improperly admitted, in violation of section 1880 of
the Code of Civil Procedure, which provides that "the following
persons cannot be witnesses: . . . 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, upon a claim or demand against the estate of a
deceased person, as to any matter of fact occurring before the
death of such deceased person." At common law interest
disqualified any person from being a witness. That rule has been
modified by statute. In this state interest is no longer a
disqualification, and the disqualifications are only such as the law
imposes. Code Civ. Proc., sec. 1879. An examination of the
authorities from other states will disclose that their decisions rest
upon the wordings of their statutes, but that generally, where
interest in the litigation or its outcome has ceased to disqualify,
officers and directors of corporations are not considered to be
parties within the meaning of the law. In example, the statute of
Maryland (Pub. Gen. Laws, art. 35, sec. 2) limits the disability to
the "party" to a cause of action or contract, and it is held that a

salesman of a corporation, who is also a director and
stockholder, is not a party, within the meaning of the law, so as
to be incompetent to testify in an action by the company agaisnt
the other party, who is insane or dead. Flach vs. Cottschalk Co.,
88 Md., 368; 41 Atl., 908; 42 L. R. A., 745; 71 Am. St. Rep., 418
To the contrary, the Michigan law expressly forbids "any officer
or agent of a corporation" to testify at all in relation to matters
which, if true, must have been equally within the knowledge of
such deceased person. Howell's Ann. St. Mich. sec. 7545. The
Supreme Court of Michigan, in refusing to extend the rule to
agents of partnership, said: "It is conceded that this testimony
does not come directly within the wording of the statute, but it is
said there is the same reason for holding the agent of a
partnership disqualified from testifying that there is in holding
the agent of a corporation. This is an argument which should be
directed to the legislative rather than to the judicial department
of government. . . . The inhibition has been put upon agents of
corporations, and has not been put upon agents of partnerships.
We cannot, by construction, put into the statute what the
Legislature has not seen fit to put into it." Demary vs.
Burtenshaws" Estate (Mich.), 91 N. W., 649. In New York the
statute provides that against the executor, administrator, etc.,
"no party or person interested in the event, or person from,
through, or under whom such party or interested person derives
his interest or title shall be examined as a witness in his own
behalf or interest." This is followed by the exception that a
person shall not be deemed interested by reason of being a
stockholder or officer of any banking corporation which is a party
to the action or proceeding or interested in the event thereof.
Ann. Code Civ. Proc. N. Y., sec. 829. Here it is apparent that the
interest of the witness is made a disqualification, and it is of
course held that stockholder and officers of corporations other
than banking corporations are under disqualification. Keller vs.
West Bradley Mfg. Co., 39 Hun, 348.
To like effect is the statute of Illinois, which declares that no
party to any civil action, suit or proceedings, or person directly
interested in the event thereof shall be allowed to testify under
the given circumstances. Under this statute it is held that
stockholders are interested, within the meaning of the section,
and are incompetent to testify against the representatives of the
deceased party. Albers Commission Co. vs. Sessel, 193 Ill., 153,
61 N. E., 1075. The law of Missouri disqualifies "parties to the
contract or cause of action," and it is held that a stockholder,

even though an officer of the bank, is not disqualified by reason
of his relation to the corporation when he is not actually one of
the parties to the making of the contract in the interest of the
bank.
Our own statute, it will be observed, is broader than any of
these. It neither disqualifies parties to a contract nor persons in
interest, but only parties to the action (Code Civil Procedure,
sections 1879, 1880); and thus it is that in City Savings Bank vs.
Enos, 135 Cal., 167, 67 Pac., 52, it has been held that one who
is cashier and at the same time a stockholder of a bank was not
disqualified, it being said: "to hold that the statute disqualifies all
persons from testifying who are officers or stockholders of a
corporation would be equivalent to materially amending the
statute by judicial interpretation." It is concluded, therefore, that
our statute does not exclude from testifying a stockholder of a
corporation, whether he be but a stockholder, or whether, in
addition thereto, he be a director or officer thereof.
The same view is sustained in Fletcher Cyclopedia Corporations, Vol. 9,
pages 535-538; in Jones on Evidence, 1938 Ed. Vol. 3, page 1448; and in
Moran on the Law of Evidence in the Philippines, 1939 Ed. pages 141-142.
The appellee admits in his brief in those states where the "dead man's
statute" disqualifies only parties to an action, officers and stockholders of the
corporation, have been allowed to testify in favor of the corporation, while in
those states where "parties and persons interested in the outcome of the
litigation" are disqualified under the statute, officers and stockholders of the
corporation have been held to be incompetent to testify against the estate of
a deceased person.
The weight of authority sustains appellant's first assignment of error.
Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors
of parties, we are constrained to hold that the officers and/or stockholders of
a corporation are not disqualified from testifying, for or against the
corporation which is a party to an action upon a claim or demand against the
estate of a deceased person, as to any matter of fact occurring before the
death of such deceased person.
It results that the trial court erred in not admitting the testimony of Messrs.
Belden and Garmezy. It is not necessary, however, to remand the case for
the purpose of taking the testimony of said witnesses because it would be
merely corroborative, if at all, and in any event what said witnesses would
have testified, if permitted, already appears in the record as hereinabove set

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.

There is a possible explanation of this seemingly irreconcilable conflict, which
in the absence of other proofs we consider satisfactory but which both
parties seem to have overlooked. We find it in the testimony on direct
examination of appellant's witness Santiago Inacay, page 80 of the
transcript, hereinabove quoted. According to Inacay, at the end of each year,
after the declaration of dividends, bonuses, and director's fees, the account
of Fitzsimmons was brought up to a direct balance. "In other words," he
said, "at the start of the following year the account will be on the credit
side." Not satisfied with that categorical statement, counsel for the appellant
asked his own witness the following question and the witness gave the
following answer:
Q. So that I gather from you, Mr. Inacay, that the personal
account of Mr. Fitzsimmons, as well as the officers of the
Atlantic, Gulf and Pacific Co., at the end of each year, and at the
beginning of the incoming year, generally, would be in the credit
balance; because of the application of dividends on paid shares,
bonuses, and director's fees? — A. Yes, sir.
Q. In the year, 1941, therefore, no declaration of dividends for
the last six months-there were no declarations of director's fees .
. . I withdraw the question, and that is all.
It is to be regretted that neither counsel for the appellant nor counsel for the
appellee pursued the examination of the witness to determine, if possible,
the approximate amount of the dividends, bonuses, and director's fees that
would have been credited to Fitzsimmons as of the end of the year 1941.
But enough appears in the testimony to warrant the deduction that had the
war not forced the corporation to close office on December 29, 1941,
dividends, bonuses, and director's fees for the year 1941 would, as of the
and of that year, have been declared and credited to the account of
Fitzsimmons, which as in previous years would or might have brought that
account on the credit side. President Garmezy reported to the meeting of the
stockholders that the volume of work performed by the company in 1941
"exceed that of 1940." (Exhibit 2.) We cannot assume that the company
earned less profits in 1941 than in 1940. Probably the reason why
Fitzsimmons did not include or mention any obligation in favor of his own
corporation in his inventory Exhibit 1 was that he believed he was entitled to
be credited by said corporation with dividends, bonuses, and director's fees
corresponding to the year 1941, which as in previous years would bring his
account on the credit side. If that was the case, the company was technically
correct in asserting that at the outbreak of the Pacific war in December,
1941, its books showed a debit balance against Fitzsimmons—no dividends,
bonuses, and director's fees having been actually declared and credited to

Fitzsimmons at that time. But we think Fitzsimmons was justified in
considering his account was having to all intends and purposes been brought
on the credit side; because if such dividends, bonuses, and director's fees
had been earned, the fact that they were not actually declared and credited
to him, should not prejudice him the subsequent loss of the company's
properties and assets as a result of the war should be borne by the company
and not by its officers.
Leaving the foregoing reflections aside, we are confronted only, on the one
hand, by the oral testimony of the witnesses for the claimant based entirely
on their memory as to the status of Fitzsimmons' account, and not on the
other by Exhibit 1, which contradicts said testimony. Realizing the frailty and
unreability of human memory, especially with regard to figures, after the
lapse of more than five years, we find no sufficient basis upon which to
reverse the trial court's finding that this claim had not been satisfactorily
proven.
With reference to the item of P868.67, we find it to have been sufficiently
proven by the testimony of Santiago Inacay and Modesto Flores, supported
by the documents Exhibit A, B, C, and D, which establish the fact that in
November and December, 1941, the San Fracisco agent of the company
deposited in the Crocker First National Bank of San Francisco the total sum
of $500 to the account of Fitzsimmons, which said agent debited against the
company. Debit notices of the deposits were not received by the company
until after the liberation. The administrator admitted in his testimony that
after the death of Fitzsimmons' account in the sum of P1,788.75. Aside from
that debit of P1,000, against also paid $1 or P2 for Fitzsimmons' subscription
to the San Fracisco Chronicle, making a total of P1,002. From this was
deducted a credit of P133.33, consisting of a payment made on June 30,
1946, by a creditor of Fitzsimmons named J. H. Chew as testified to by Mr.
Flores and supported by Exhibit E, leaving a balance of P868.67.
The trial court therefore erred in not allowing said claim.
II. We shall now pass upon appellant's fourth assignment of error, which
assails the trial court's granting of appellee's counterclaim of P90,000 for
salaries allegedly due to the deceased Fitzsimmons as president of the
appellant corporation for the years 1942, 1943, and the first six months of
1944.
The undisputed facts are: Fitzsimmons was the president of the appellant
corporation in 1941 with a salary of P36,000 a year. The corporation was
forced to suspend its business operations from December 29, 1941, to March
8, 1945, on account of the war, its office and all its properties having been

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.

There was no resolution either of the stockholders of the board of directors
of the company authorizing the payment of the salaries of the president or
any other officer or employee of the corporation for the period of the war
when the corporation was forced completely to suspend its business
operations and when its officers were interned or virtually held prisoners by
the enemy.
The theory of the appellee, which was sustained by the trial court, is that as
long as a corporation officer with a fixed salary retains the office he is
entitled to that salary notwithstanding his inability to perform his duties. The
main case cited by the appellee in support of his theory is Brown vs.
Galvenston Wharf Co., 50 S. W., 126, 128; 92 Tex., 520. In that case the
president of the defendants corporation claimed his salary for a period of
almost eleven months, during which he was on an indefinite leave of
absence, and the court allowed it, holding that "so long as he remained the
president of the company, the salary was an incident to the office, and ran
with it for the whole time, although he may have failed to perform the duties
of president for any given part of such time."
If such a sweeping pronouncement is to be applied regardless of whether or
not the corporation was in operation during the period covered by the claim
for the salary, as seems to be contended by the appellee, we must say that
we cannot subscribe to it.
We know of no principle of law that would authorize the court to compel a
corporation, which for a long period was not in operation and did not receive
any income, to pay the salaries of its officers during such period, even
though they were incapacitated and did not perform any service. To do so
would be tantamount to depriving the corporation or its stockholders of their
property without due process of law.
The resolutions of the stockholders hereinabove quoted are invoked by the
appellee to support the proposition that Fitzsimmons, during his internment,
performed certain acts as president of the corporation, which were ratified
and confirmed by the stockholders in their annual meeting on January 21,
1946. But those acts consisted merely of borrowing money for himself and
the other officers of the corporation and their respective families to enable
them to eke out an existence during their internment. The ratification of
those acts by the stockholders had for its purpose to relieve Fitzsimmons of
personal liability for the obligations thus contracted by him in the name of
the company. To say that by thus ratifying those acts of Fitzsimmons the
corporation became obligated to pay his salaries during his internment
aggregating P90,000, would be the height of absurdity.

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;

(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to or
any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest
belongs;
(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)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22948

March 17, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FAUSTO V. CARLOS, defendant-appellant.
M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant.
Attorney-General Villa-Real and City Fiscal Guevara for appellee.
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of the City of
Manila finding the defendant Fausto V. Carlos guilty of the crime of murder
and sentencing him to suffer life imprisonment, with the accessory penalties
prescribed by law and with the costs.
It appears from the evidence that the victim of the alleged murder, Dr. Pablo
G. Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a surgical
operation upon the defendant's wife for appendicitis and certain other
ailments. She remained in the hospital until the 18th of the same month, but
after her release therefrom she was required to go several times to the clinic
of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the wounds
caused by the operation. On these occasions she was accompanied by her
husband, the defendant. The defendant states that on one of the visits, that
of March 20, 1924, Doctor Sityar sent him out on an errand to buy some
medicine, and that while defendant was absent on this errand Doctor Sityar
outraged the wife. The defendant further states that his wife informed him of

the outrage shortly after leaving the clinic. Notwithstanding this it
nevertheless appears that he again went there on March 28th to consult the
deceased about some lung trouble from which he, the defendant, was
suffering.. He was given some medical treatment and appears to have made
at least one more visit to the clinic without revealing any special resentment.
On May 12, 1924, the defendant, suffering from some stomach trouble,
entered the Philippine General Hospital where he remained until May 18,
1924, and where he was under the care of two other physicians. While in the
hospital her received a letter (Exhibit 5) from Doctor Sityar asking the
immediate settlement of the account for the professional services rendered
his wife. Shortly after his release from the hospital the defendant sought an
interview with Doctor Sityar and went to the latter's office several times
without finding him in. On one of these occasions he was asked by an
employee of the office, the nurse Cabañera, if he had come to settle his
account, to which the defendant answered that he did not believe he owed
the doctor anything.
In the afternoon of May 26th the defendant again went to the office of the
deceased and found him there alone. According to the evidence of the
prosecution, the defendant then, without any preliminary quarrel between
the two, attacked the deceased with a fan-knife and stabbed him twice. The
deceased made an effort to escape but the defendant pursued him and
overtaking him in the hall outside the office, inflicted another wound upon
him and as a consequence if the three wounds he died within a few minutes.
The defendants made his escape but surrendered himself to the
Constabulary at Malolos, Bulacan, in the evening of the following day.
The defendant admits that he killed the deceased but maintains that he did
so in self-defense. He explains that he went to Doctor Sityar's office to
protest against the amount of the fee charged by the doctor and, in any
event, to ask for an extension of the time of payment; that during the
conversation upon that subject the deceased insulted him by telling him that
inasmuch as he could not pay the amount demanded he could send his wife
to the office as she was the one treated, and that she could then talk the
matter over with the decease; that this statement was made in such an
insolent and contemptuous manner that the defendant became greatly
incensed and remembering the outrage committed upon his wife, he
assumed a threatening attitude and challenged the deceased to go
downstairs with him and there settle the matter; that the deceased
thereupon took a pocket-knife from the center drawer of his desk and
attacked the defendant, endeavoring to force him out of the office; that the
defendant, making use of his knowledge of fencing, succeeded in taking the
knife away from the deceased and blinded by fury stabbed him first in the

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

THE UNITED STATES, plaintiff-appellee,
vs.
DALMACEO ANTIPOLO, defendant-appellant.
Irureta Goyena and Recto for appellant.
Acting Attorney-General Paredes for appellee.
FISHER, J.:
The appellant was prosecuted in the Court of First Instance of the Province
of Batangas, charged with the murder of one Fortunato Dinal. The trial court
convicted him of homicide and from that decision he was appealed. One of
the errors assigned is based upon the refusal of the trial judge to permit
Susana Ezpeleta, the widow of the man whom the appellant is accused of
having murdered, to testify as a witness on behalf of the defense concerning
certain alleged dying declarations. The witness was called to the stand and
having stated that she is the widow of Fortunato Dinal was asked: "On what
occasion did your husband die?" To this question the fiscal objected upon the
following ground:
I object to the testimony of this witness. She has just testified that she
is the widow of the deceased, Fortunato Dinal, and that being so I
believe that she is not competent to testify under the rules and

procedure in either civil or criminal cases, unless it be with the consent
of her husband, and as he is dead and cannot grant that permission, it
follows that this witness is disqualified from testifying in this case in
which her husband is the injured party.
Counsel for defendant insisted that the witness was competent, arguing that
the disqualification which the fiscal evidently had in mind relates only to
cases in which a husband or wife of one of the parties to a proceeding is
called to testify; that the parties to the prosecution of a criminal case are the
Government and the accused; that, furthermore the marriage of Dinal to the
witness having been dissolved by the death of her husband, she is no longer
his wife, and therefore not subject to any disqualification arising from the
status of marriage.
These propositions were rejected by the trial judge, and the objection of the
fiscal as to the testimony of the woman Ezpeleta was sustained. To this
objection counsel took exception and made an offer to prove by the excluded
witness the facts which he expected to establish by her testimony.
Concerning these facts it is sufficient at this time to say that some of them
would be both material and relevant, to such a degree that if proven to the
satisfaction of the court, they might have lead to the acquittal of the
accused, as they purported to relate to the dying declarations of the
deceased, concerning the cause of his death, the general purport being that
his injuries were due to fall and not to the acts imputed to the accused.
Section 58 of General Orders No. 58 (1900) reads as follows:
Except with the consent of both, or except in cases of crime committed
by one against the other, neither husband nor wife shall be a
competent witness for or against the other in a criminal action or
proceeding to which one or both shall be parties.
The reasons for this rule are thus stated in Underhill's work on Criminal
Evidence (second edition) on page 346:
At common law, neither a husband nor a wife was a competent witness
for or against the other in any judicial proceedings, civil or criminal, to
which the other was a party. . . . If either were recognized as a
competent witness against the other who was accused of crime, . . . a
very serious injury would be done to the harmony and happiness of
husband and wife and the confidence which should exist between
them.

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.

The declarations of a deceased person while in anticipation of certain
impending death, concerning the circumstances leading up to the death, are
admissible in a prosecution of the person charged with killing the declarant.
(U. S. vs. Gil, 13 Phil., Rep., 530.) Such dying declarations are admissible in
favor of the defendant as well as against him. (Mattox vs. U. S., 146 U. S.,
140.) It has been expressly held in several jurisdictions in the United States
that the widow of the deceased may testify regarding his dying declarations.
In the case of the State vs. Ryan (30 La. Ann., 1176), cited by appellant in
his brief, the court said:
The next bill is as to the competency of the widow of the deceased to
prove his dying declarations. We see no possible reason for excluding
her . . . after the husband's death she is no longer his wife, and the
rules of evidence, as between husbands and wives, are no longer
applicable.
In the case of Arnett vs. Commonwealth (114 Ky., 593, 596), the testimony
of the widow of the deceased as to his dying declarations made to her was
objected to upon the express ground that under the terms of the Kentucky
Code, "the wife was incompetent to testify even after the cessation of the
marriage relation, to any communication made by her by her husband
during the marriage."
This contention was rejected, the court saying:
On grounds of public policy the wife can not testify against her
husband as to what came to her from him confidentially or by reason
of the marriage relation, but this rule does not apply to a dying
communication made by the husband to the wife on the trial of the
one who killed him. The declaration of the deceased made in extremes
in such cases is a thing to be proven, and this proof may be made by
any competent witness who heard the statement. The wife may testify
for the state in cases of this character as to any other fact known to
her. . . . It can not be contended that the dying declaration testified to
by the witness was a confidential communication made to her; on the
contrary, it was evidently made in the furtherance of justice for the
express purpose that it should be testified to in the prosecution of the
defendant.
We are therefore of the opinion that the court below erred in excluding the
testimony of the witness Susana Ezpeleta, and that by reason of such
exclusion, the accused was deprived of one of his essential rights. That being
the case, a new trial must be granted.

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.)

It is manifest that the objection to the testimony of the plaintiff's attorney as
to his authority to compromise was properly overruled. The testimony was to
the effect that when the attorney delivered the policies to the administrator,
he understood that there was a compromise to be effected, and that when
he informed the plaintiff of the surrender of the policies for that purpose the
plaintiff made no objection whatever. The evidence is sufficient to show that
the plaintiff acquiesced in the compromise settlement of the policies. Having
agreed to the compromise, he cannot now disavow it and maintain an action
for the recovery of their face value.
For the foregoing reasons the judgment appealed from is affirmed, with
costs. So ordered.
Regala v Sandiganbayan

GR. No. 105938 9.20.96

F: Corporation clients of petitioner consulted them regarding corporate
structure and financial matters upon which legal advice were given by
petitioners. Said corporation is subject to investigation by the PCGG
involving ill gotten wealth. Petitioner refuses to provide information on fear
that it may implicate them in the very activity from which legal advice was
sought from them and it may breach the fiduciary relationship of the
petitioner with their client.
I: WON fiduciary duty may be asserted by petitioner on refusal to disclose
names of their clients (privilege information)
R: SC upheld the right of petitioners to refuse disclosure of names of their
clients under the pain of breach of fiduciary relationship with their client.
As a general rule, a lawyer MAY NOT INVOKE THE PRIVILEGE
BECAUSE:

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 client’s name would
implicate the client in the very activity for which he sought the
lawyer’s advice.
2. Disclosure would open to civil liability of client. (present in this case)
3. Government lawyers have no case against the lawyer’s client unless by
revealing the client’s 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 father’s
participation in an alleged kidnapping of a woman. The daughter’s counsel
made a motion to quash, and so did the father’s 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.

Issue. Should a parent-child privilege be recognized?
Held. Circuit Judge Garth issued the opinion for the Third Circuit Court in
declining
to
recognize
a
parent
child
privilege.
Dissent. Circuit Judge Mansmann issued an opinion concurring in part and
dissenting in part which is omitted from the text.
Discussion. In its holding the Third Court noted that an overwhelming
majority of federal and state courts have declined to recognize the privilege,
F.R.E. Rule 501 does not support creating the privilege, and Congress would
be better suited to recognize such a privilege instead of the courts. Further,
such a privilege could hurt the parent-child relationship if a parent is allowed
to waive the privilege because the child’s assurances of confidence only exist
as long as the parent chooses.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21237

March 22, 1924

JAMES D. BARTON, plaintiff-appellee,
vs.
LEYTE ASPHALT & MINERAL OIL CO., LTD., defendant-appellant.
Block, Johnston & Greenbaum and Ross, Lawrence & Selph for appellant.
Frank B. Ingersoll for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of the City of Manila
by James D. Barton, to recover of the Leyte Asphalt & Mineral Oil Co., Ltd.,
as damages for breach of contract, the sum of $318,563.30, United States
currency, and further to secure a judicial pronouncement to the effect that
the plaintiff is entitled to an extension of the terms of the sales agencies
specified in the contract Exhibit A. The defendant answered with a general
denial, and the cause was heard upon the proof, both documentary and oral,
after which the trial judge entered a judgment absolving the defendant
corporation from four of the six causes of action set forth in the complaint

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

1,000 ton lots ...........................................
2,000 ton lots ...........................................
5,000 ton lots ...........................................
10,000 ton lots ..........................................

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

contracts subject to draft attached to bill of lading in full payment of such
shipment.
It is understood that the purchasers of the products of the Lucio mine are to
pay freight from the mine carriers to destination and are to be responsible
for all freight, insurance and other charges, providing said shipment has
been accepted by their inspectors.
All contracts taken with responsible firms are to be under the same
conditions as with municipal governments.
All contracts will be subject to delays caused by the acts of God, over which
the parties hereto have no control.
It is understood and agreed that we agree to load all ships, steamers, boats
or other carriers prompty and without delay and load not less than 1,000
tons each twenty-four hours after March 1, 1921, unless we so notify you
specifically prior to that date we are prepared to load at that rate, and it is
also stipulated that we shall not be required to ship orders of 5,000 tons
except on 30 days notice and 10,000 tons except on 60 days notice.
If your sales in the United States reach five thousand tons on or before May
1, 1921, you are to have sole rights for this territory also for one year
additional and should your sales in the second year reach or exceed ten
thousand tons you are to have the option to renew the agreement for this
territory on the same terms for an additional two years.
Should your sales equal exceed ten thousand (10,000) tons in the year
ending October 1, 1921, or twenty thousand (20,000) tons by May 1, 1922,
then this contract is to be continued automatically for an additional three
years ending April 30, 1925, under the same terms and conditions as above
stipulated.
The products of the other mines can be sold by you in the aforesaid
territories under the same terms and conditions as the products of
the Lucio mine; scale of prices to be mutually agreed upon between us.
LEYTE ASPHALT & MINERAL OIL CO., LTD.
By (Sgd.) WM. ANDERSON
President
(Sgd.) W. C. A. PALMER
Secretary

Approved by Board of Directors,
October 1, 1920.
(Sgd.) WM. ANDERSON
President
Accepted.
(Sgd.) JAMES D. BARTON
Witness D. G. MCVEAN
Upon careful perusal of the fourth paragraph from the end of this letter it is
apparent that some negative word has been inadvertently omitted before
"prepared," so that the full expression should be "unless we should notify
you specifically prior to that date that we are unprepared to load at that
rate," or "not prepared to load at that rate."
Very soon after the aforesaid contract became effective, the plaintiff
requested the defendant company to give him a similar selling agency for
Japan. To this request the defendant company, through its president, Wm.
Anderson, replied, under date of November 27, 1920, as follows:
In re your request for Japanese agency, will say, that we are willing to
give you, the same commission on all sales made by you in Japan, on
the same basis as your Australian sales, but we do not feel like giving
you a regular agency for Japan until you can make some large sized
sales there, because some other people have given us assurances that
they can handle our Japanese sales, therefore we have decided to
leave this agency open for a time.
Meanwhile the plaintiff had embarked for San Francisco and upon arriving at
that port he entered into an agreement with Ludvigsen & McCurdy, of that
city, whereby said firm was constituted a subagent and given the sole selling
rights for the bituminous limestone products of the defendant company for
the period of one year from November 11, 1920, on terms stated in the
letter Exhibit K. The territory assigned to Ludvigsen & McCurdy included San
Francisco and all territory in California north of said city. Upon an earlier
voyage during the same year to Australia, the plaintiff had already made an
agreement with Frank B. Smith, of Sydney, whereby the latter was to act as
the plaintiff's sales agent for bituminous limestone mined at the defendant's
quarry in Leyte, until February 12, 1921. Later the same agreement was
extended for the period of one year from January 1, 1921. (Exhibit Q.)
On February 5, 1921, Ludvigsen & McCurdy, of San Francisco, addressed a
letter to the plaintiff, then in San Francisco, advising hi that he might enter
an order for six thousand tons of bituminous limestone to be loaded at Leyte

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

fact appointed to be such at the time he signed to order Exhibit W at the
request of the plaintiff. It may be assumed, therefore, that he was at that
time a stranger to the contract of agency. It clearly appears, however, that
he did not expect to purchase the thousand tons of bituminous limestone
referred to in his order without banking assistance; and although the
submanager of the Bank of Taiwan had said something encouraging in
respect to the matter, nevertheless that official had refrained from giving his
approval to the order Exhibit W. It is therefore not shown affirmatively that
this order proceeds from a responsible source.
The first assignment of error in the appellant's brief is directed to the action
of the trial judge in refusing to admit Exhibit 2, 7, 8, 9 and 10, offered by
the defendant, and in admitting Exhibit E, offered by the plaintiff. The Exhibit
2 is a letter dated June 25, 1921, or more than three weeks after the action
was instituted, in which the defendant's assistant general manager
undertakes to reply to the plaintiff's letter of March 29 proceeding. It was
evidently intended as an argumentative presentation of the plaintiff's point
of view in the litigation then pending, and its probative value is so slight,
even if admissible at all, that there was no error on the part of the trial court
in excluding it.
Exhibit 7, 8, 9 and 10 comprise correspondence which passed between the
parties by mail or telegraph during the first part of the year 1921. The
subject-matter of this correspondence relates to efforts that were being
made by Anderson to dispose of the controlling in the defendant corporation,
and Exhibit 9 in particular contains an offer from the plaintiff, representing
certain associates, to but out Anderson's interest for a fixed sum. While
these exhibits perhaps shed some light upon the relations of the parties
during the time this controversy was brewing, the bearing of the matter
upon the litigation before us is too remote to exert any definitive influence
on the case. The trial court was not in error in our opinion in excluding these
documents.
Exhibit E is a letter from Anderson to the plaintiff, dated April 21, 1920, in
which information is given concerning the property of the defendant
company. It is stated in this letter that the output of the Lucio (quarry)
during the coming year would probably be at the rate of about five tons for
twenty-four hours, with the equipment then on hand, but that with the
installation of a model cableway which was under contemplation, the
company would be able to handle two thousand tons in twenty-four hours.
We see no legitimate reason for rejecting this document, although of slight
probative value; and her error imputed to the court in admitting the same
was not committed.

Exhibit 14, which was offered in evidence by the defendant, consists of a
carbon copy of a letter dated June 13, 1921, written by the plaintiff to his
attorney, Frank B. Ingersoll, Esq., of Manila, and in which plaintiff states,
among other things, that his profit from the San Francisco contract would
have been at the rate of eigthy-five cents (gold) per ton. The authenticity of
this city document is admitted, and when it was offered in evidence by the
attorney for the defendant the counsel for the plaintiff announced that he
had no objection to the introduction of this carbon copy in evidence if
counsel for the defendant would explain where this copy was secured. Upon
this the attorney for the defendant informed the court that he received the
letter from the former attorneys of the defendant without explanation of the
manner in which the document had come into their possession. Upon this
the attorney for the plaintiff made this announcement: "We hereby give
notice at this time that unless such an explanation is made, explaining fully
how this carbon copy came into the possession of the defendant company, or
any one representing it, we propose to object to its admission on the ground
that it is a confidential communication between client and lawyer." No further
information was then given by the attorney for the defendant as to the
manner in which the letter had come to his hands and the trial judge
thereupon excluded the document, on the ground that it was a privileged
communication between client and attorney.
We are of the opinion that this ruling was erroneous; for even supposing that
the letter was within the privilege which protects communications between
attorney and client, this privilege was lost when the letter came to the hands
of the adverse party. And it makes no difference how the adversary acquired
possession. The law protects the client from the effect of disclosures made
by him to his attorney in the confidence of the legal relation, but when such
a document, containing admissions of the client, comes to the hand of a
third party, and reaches the adversary, it is admissible in evidence. In this
connection Mr. Wigmore says:
The law provides subjective freedom for the client by assuring him of
exemption from its processes of disclosure against himself or the
attorney or their agents of communication. This much, but not a whit
more, is necessary for the maintenance of the privilege. Since the
means of preserving secrecy of communication are entirely in the
client's hands, and since the privilege is a derogation from the general
testimonial duty and should be strictly construed, it would be improper
to extend its prohibition to third persons who obtain knowledge of the
communications. One who overhears the communication, whether with
or without the client's knowledge, is not within the protection of the
privilege. The same rule ought to apply to one who surreptitiously

reads or obtains possession of a document in original or copy. (5
Wigmore on Evidence, 2d ed., sec. 2326.)
Although the precedents are somewhat confusing, the better doctrine is to
the effect that when papers are offered in evidence a court will take no
notice of how they were obtained, whether legally or illegally, properly or
improperly; nor will it form a collateral issue to try that question. (10 R. C.
L., 931; 1 Greenl. Evid., sec. 254a; State vs. Mathers, 15 L. R. A., 268;
Gross vs. State, 33 L. R. A., [N. S.], 477, note.)
Our conclusion upon the entire record is that the judgment appealed from
must be reversed; and the defendant will be absolved from the complaint. It
is so ordered, without special pronouncement as to costs of either instance.
Araullo, C.J., Johnson, Avanceña, Ostrand, Johns and Romualdez, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 34098

September 17, 1930

ORIENT INSURANCE COMPANY, petitioner,
vs.
E. P. REVILLA, Judge of First Instance of Manila, and TEAL MOTOR
CO., INC., respondents.
Gibbs and McDonough for petitioner.
Guevara, Francisco and Recto for respondents.
STREET, J.:
This is an original petition for writs of certiorari and mandamus filed in this
court by the Orient Insurance Company against the respondent judge of the
Court of First Instance of Manila and the Teal Motor Co., Inc. The object of
the petition is to obtain an order requiring the respondent judge to permit
the attorney for the petitioner to examine a letter (Exhibits 49 and 49-Act)
part of which has been read into the record in the course of the examination
of one of the witnesses testifying for the plaintiff in the case of Teal Motor
Co., Inc. vs. Orient Insurance Company, now pending in the Court of First
Instance of the City of Manila, civil case No. 35825, with which, for purposes

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

privileged. Irrelevant it might, under certain circumstances, certainly be, but
not privileged. Of course contracts between attorneys and clients are
inherently personal and private matters, but they are a constant subject of
litigation, and contracts relating to fees are essentially not of privileged
nature. Privilege primarily refers to communications from client to attorney,
an idea which of course includes communications from attorney to client
relative to privileged matters.
But, even supposing that the matter contained in the letter and withheld
from the inspection of the adversary was originally of a privileged nature,
the privilege was waived by the introduction in evidence of part of the letter.
The provision in section 283 of the Code of Civil Procedure making the whole
of a declaration, conversation, or writing admissible when part has been
given in evidence by one party, makes no exception as to privileged matter;
and the jurisprudence on the subject does not recognize any exception.
Practically every feature of the question now under consideration was
involved in the case of Western Union Tel. Co. vs. Baltimore & Ohio Tel. Co.
(26 Fed., 55), which in 1885 came before Wallace, J., a distinguished jurist
presiding in the Federal Circuit Court of the Southern District of New York.
The substance of the case is well stated in the note to Kelly vs. Cummens
(20 Am. & Eng. Ann. Cases, 1283, 1287), from which we quote as follows:
In Western Union Tel. Co. vs. Baltimore, etc., Tel. Co. (26 Fed., 55), it
appeared that upon a motion in the cause, which was in equity for a
preliminary injunction, one of the questions involved was whether a
reissued patent upon which the suit was founded was obtained for the
legitimate purpose of correcting mistake or inadvertence in the
specification and claims of the original, or whether it was obtained
merely for the purpose of expanding the claims of the original in order
to subordinate to the reissue certain improvements or inventions made
by others after the grant of the original patent and before the
application for the reissue. To fortify its theory of the true reasons for
obtaining the reissue, the complainant upon that motion embodied in
affidavits extracts from communications made by a patent expert and
attorney in the office of the solicitor general of the complainant, to the
president and the vice-president of the complainant, when the subject
of applying for a reissue was under consideration by the officers of the
complainant, and while the proceedings for a reissue were pending.
After the cause had proceeded to the taking of proofs for final hearing
the defendant sought to introduce in evidence the original
communications, extracts from which were used by the complainant
upon the motion for an injunction, on the ground that the parts of the
communication which were not disclosed had an important bearing
upon the history of the application for a reissue, and indicated that it

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.
Avanceña, 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
party’s 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 party’s 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 Jackson’s 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 crew’s
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 Plaintiff’s 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 Plaintiff’s access
to the statements.

United States Supreme Court
UNITED STATES v. NOBLES, (1975)
No. 74-634
Argued: April 23, 1975 Decided: June 23, 1975
During respondent's federal criminal trial, which resulted in a conviction, defense counsel sought to
impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding
statements previously obtained from the witnesses by the investigator. When the investigator was

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.
- See more at: http://caselaw.findlaw.com/us-supremecourt/422/225.html#sthash.O8EkuKQf.dpuf
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

to foreign officials in exchange for business. Petitioner volunteered notice of
such actions to the Internal Revenue Service (IRS), who issued a summons
for information collected by Petitioner, including internal questionnaires sent
to managerial employees. Petitioner maintained those documents were
protected by the attorney-client privilege and attorney work product.
Synopsis of Rule of Law. In the corporate context, attorney-client
privilege extends to lower level employees, not just to those in control of the
corporation. The work-product doctrine protects oral statements made to
attorneys, which necessitates a showing of undue hardship on the part of the
party-opponent who seeks that information.
Facts. Petitioner, an international pharmaceutical company discovered
through an independent audit that one of its foreign subsidiaries might have
made payments to foreign government officials in order to secure
government business. Gerard Thomas, Petitioner’s General Counsel, was
notified and he consulted with outside counsel as well as Petitioner’s
Chairman, all of whom decided an internal investigation as to “questionable
payments” was necessary. As a result, questionnaires were sent to all
foreign and area managers inquiring as to information regarding any such
payments. This procedure of collecting information had been deemed “highly
confidential.” Petitioner voluntarily sent a preliminary report to the Securities
and Exchange Commission (SEC) and the IRS. The IRS began an
investigation and was given lists by Petitioner of all those who were
interviewed and all whom had responded to the questionnaire. The IRS then
sought production of all files relative to the investigation conducted under
Gerard Thomas’ supervision. The requested production included, but was not
limited to the written questionnaires and memoranda or notes of interviews
conducted in the US and abroad of officers and employees of Petitioner and
its subsidiaries. Petitioner refused, citing attorney-client privilege and
attorney work product in anticipation of trial. The Respondent, the United
States (Respondent), filed a petition seeking enforcement of the summons in
the United States District Court for the Western District of Michigan, which
was granted. Petitioner then appealed to the Court of Appeals for the Sixth
Circuit which rejected the District Court’s finding of waiver of the attorneyclient privilege, but agreed that the privilege did not apply to the
communications made by officers and agents not responsible for directing

Upjohn’s actions in response to legal advice. The Appellate Court remanded
to the District Court to determine who was within the control group.
Issue. Whether the attorney-client privilege in the corporate context
extends to employees not within the “control group” of the corporation.
Whether the IRS had shown sufficient necessity and justification to
overcome the work- product doctrine.
Held. Judgment of the Court of Appeals reversed and remanded. The
attorney-client privilege protects the communications in this case from
compelled disclosure. The work-product doctrine applies in tax summons
enforcement proceedings where a strong showing of necessity must be
shown to compel discovery of work product.

Discussion. The attorney-client privilege applies to corporations, not just to
the “control group” rather, it extends to lower level employees as well, since
their actions as well may involve the corporation in legal difficulties. The
attorney-client privilege only protects disclosure of communications. It does
not protect disclosure of the underlying facts by those who communicated
with the attorney. In this case, the Petitioner gave to the IRS a list of those
employees to whom the questionnaire was given and those who answered.
The IRS was free to question the employees who communicated with
Thomas and outside counsel. The court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation. The notes and
memoranda that the IRS sought in this case were work product based on
oral statements. This required the IRS to show necessity and undue hardship
in obtaining the information it sought, a burden that the Supreme Court of
the United States (Supreme Court) held was not met.
THIRD DIVISION
[A.C. No. 4078. July 14, 2003]
WILLIAM
ONG
GENATO, complainant,
SILAPAN, respondent.

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.

In the foreclosure case, respondent made the following allegation in his
Answer:
xxxxxxxxx
4. That complainant is a businessman who is engaged in the real estate
business, trading and buy and sell of deficiency taxed imported cars,
shark loans and other shady deals and has many cases pending in
court;
xxxxxxxxx
Complainant denied respondents charges and claimed that respondents
allegation is libelous and not privilege as it was irrelevant to the foreclosure
case. Complainant further pointed to paragraph 12 of respondents Answer,
thus:
12. That on January 29, 1993, before paying for the next installment on his
car on January 30, 1993, defendant Essex L. Silapan asked the complainant
to execute a Deed of Sale transferring ownership of the car to him but the
latter said that he will only do so after the termination of his criminal case at
Branch 138 of the Regional Trial Court of Makati, Metro Manila, x x x where
he (complainant) wanted Essex L. Silapan, his former counsel in that
case, to offer bribe money to the members of the review committee
of the Department of Justice where a petition for review of the
resolution of the Investigating Prosecutor was pending at the time, x
x x or, in the event that the said petition for review is denied, he
wanted Essex L. Silapan to offer bribe money to the prosecutor
assigned at the above-mentioned Court, and even to the presiding
Judge, for his eventual acquittal, which defendant Essex L. Silapan
all refused to do not only because such acts are immoral and illegal,
but also because the complainant confided to him that he was really
involved in the commission of the crime that was charged of in the
above-mentioned case. (emphasis supplied)
Complainant gripes that the foregoing allegations are false, immaterial to
the foreclosure case and maliciously designed to defame him. He charged
that in making such allegations, respondent is guilty of breaking their
confidential lawyer-client relationship and should be held administratively
liable therefor. Consequently, he filed this complaint for disbarment, praying
also that an administrative sanction be meted against respondent for his
issuance of a bouncing check.

When required by the Court to comment, respondent explained [1] that it
was complainant who offered him an office space in his building and retained
him as counsel as the latter was impressed with the way he handled a B.P.
22 case[2] filed against complainant. Respondent insisted that there was
nothing libelous in his imputations of dishonest business practices to
complainant and his revelation of complainants desire to bribe government
officials in relation to his pending criminal case. He claimed to have made
these statements in the course of judicial proceedings to defend his case and
discredit complainants credibility by establishing his criminal propensity to
commit fraud, tell lies and violate laws. He argued that he is not guilty of
breaking his confidential lawyer-client relationship with complainant as he
made the disclosure in defense of his honor and reputation.
Secondly, respondent asserted that he executed the real estate mortgage
in favor of complainant without consideration and only as a formal
requirement so he could obtain the P200,000.00 loan and for this reason, he
did not surrender his title over the mortgaged property to complainant.
Thirdly, respondent claimed that he issued the postdated check, not for
account or for value, but only: (a) to serve as some kind of acknowledgment
that he already received in advance a portion of his attorneys fees from the
complainant for the legal services he rendered, and (b) as a form of
assurance that he will not abandon the cases he was handling for
complainant.
Lastly, respondent denied that he received a P52,289.90 commission
from Romeros loan which he allegedly helped facilitate. He alleged that the
amount was paid to him by Romero as attorneys fees, the latter being his
client. He used this amount to pay his arrears with the car financing firm. On
January 29, 1993, before paying the next amortization on the car, he asked
complainant to execute a deed of sale transferring ownership of the car to
him. Complainant refused and insisted that he would transfer ownership of
the car only after the termination of his criminal case which respondent was
handling as his defense lawyer. Consequently, respondent stopped paying
the amortization on the car. Respondent also alleged that he filed a perjury
case against complainant who, in turn, filed a complaint for libel
against him.
In a Resolution, dated October 27, 1993, the Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
On August 3, 2002, the Board of Governors of the IBP approved the
report of the investigating commissioner finding the respondent guilty as

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

Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent, moved
for reconsideration and, because of its legal significance in this case, we
quote some of his allegations in that motion:
x x x respondent had been charged already by the complainants before the
Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on
detention in 1984 under the same set of facts and the same evidence x x x
but said case after arraignment, was ordered dismissed by the court upon
recommendation of the Department of Justice. Copy of the dismissal order,
certificate of arraignment and the recommendation of the Department of
Justice are hereto attached for ready reference; thus the filing of this case
will be a case of double jeopardy for respondent herein x x x. [9] (Italics
supplied.)
A
criminal
case
was
subsequently
filed
with
the
[10]
Sandiganbayan
charging respondent Paredes with a violation of Section
3(a) of Republic Act No. 3019, as amended. However, a motion to quash
filed by the defense was later granted in respondent courts resolution of
August 1, 1991[11] and the case was dismissed on the ground of prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated
the perjury and graft charges against respondent Paredes, sent a letter to
the Ombudsman seeking the investigation of the three respondents herein
for falsification of public documents. [12] He claimed that respondent Honrada,
in conspiracy with his herein co-respondents, simulated and certified as true
copies certain documents purporting to be a notice of arraignment, dated
July 1, 1985, and transcripts of stenographic notes supposedly taken during
the arraignment of Paredes on the perjury charge. [13] These falsified
documents were annexed to respondent Paredes motion for reconsideration
of the Tanodbayan resolution for the filing of a graft charge against him, in
order to support his contention that the same would constitute double
jeopardy.
In support of his claim, Gelacio attached to his letter a certification that
no notice of arraignment was ever received by the Office of the Provincial
Fiscal of Agusan del Sur in connection with that perjury case; and a
certification of Presiding Judge Ciriaco Ario that said perjury case in his court
did not reach the arraignment stage since action thereon was suspended
pending the review of the case by the Department of Justice.[14]
Respondents filed their respective counter-affidavits, but Sansaet
subsequently discarded and repudiated the submissions he had made in his
counter-affidavit. In a so-called Affidavit of Explanations and Rectifications,
[15]
respondent Sansaet revealed that Paredes contrived to have the graft

case under preliminary investigation dismissed on the ground of double
jeopardy by making it that the perjury case had been dismissed by the trial
court after he had been arraigned therein.
For that purpose, the documents which were later filed by respondent
Sansaet in the preliminary investigation were prepared and falsified by his
co-respondents in this case in the house of respondent Paredes. To evade
responsibility for his own participation in the scheme, he claimed that he did
so upon the instigation and inducement of respondent Paredes. This was
intended to pave the way for his discharge as a government witness in the
consolidated cases, as in fact a motion therefor was filed by the prosecution
pursuant to their agreement.
Withal, in a resolution[16] dated February 24, 1992, the Ombudsman
approved the filing of falsification charges against all the herein private
respondents. The proposal for the discharge of respondent Sansaet as a
state witness was rejected by the Ombudsman on this evaluative legal
position:
x x x Taking his explanation, it is difficult to believe that a lawyer of his
stature, in the absence of deliberate intent to conspire, would be unwittingly
induced by another to commit a crime. As counsel for the accused in those
criminal cases, Atty. Sansaet had control over the case theory and the
evidence which the defense was going to present. Moreover, the testimony
or confession of Atty. Sansaet falls under the mantle of privileged
communication between the lawyer and his client which may be objected to,
if presented in the trial.
The Ombudsman refused to reconsider that resolution [17] and, ostensibly
to forestall any further controversy, he decided to file separate informations
for falsification of public documents against each of the herein
respondents. Thus, three criminal cases,[18] each of which named one of the
three private respondents here as the accused therein, were filed in the graft
court. However, the same were consolidated for joint trial in the Second
Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27,
1993 for the discharge of respondent Sansaet as a state witness. It was
submitted that all the requisites therefor, as provided in Section 9, Rule 119
of the Rules of Court, were satisfied insofar as respondent Sansaet was
concerned. The basic postulate was that, except for the eyewitness
testimony of respondent Sansaet, there was no other direct evidence to
prove the confabulated falsification of documents by respondents Honrada
and Paredes.

Unfortunately for the prosecution, respondent Sandiganbayan, hewing to
the theory of the attorney-client privilege adverted to by the Ombudsman
and invoked by the two other private respondents in their opposition to the
prosecutions motion, resolved to deny the desired discharge on this
ratiocination:
From the evidence adduced, the opposition was able to establish that client
and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes,
Jr., before, during and after the period alleged in the information. In view of
such relationship, the facts surrounding the case, and other confidential
matter must have been disclosed by accused Paredes, as client, to accused
Sansaet, as his lawyer in his professional capacity. Therefore, the testimony
of Atty. Sansaet on the facts surrounding the offense charged in the
information is privileged.[19]
Reconsideration of said resolution having been likewise denied, [20] the
controversy was elevated to this Court by the prosecution in an original
action for the issuance of the extraordinary writ of certiorari against
respondent Sandiganbayan.
The principal issues on which the resolution of the petition at bar actually
turns are therefore (1) whether or not the projected testimony of respondent
Sansaet, as proposed state witness, is barred by the attorney-client
privilege; and (2) whether or not, as a consequence thereof, he is eligible for
discharge to testify as a particeps criminis.
I
As already stated, respondent Sandiganbayan ruled that due to the
lawyer-client relationship which existed between herein respondents Paredes
and Sansaet during the relevant periods, the facts surrounding the case and
other confidential matters must have been disclosed by respondent Paredes,
as client, to respondent Sansaet, as his lawyer. Accordingly, it found no
reason to discuss it further since Atty. Sansaet cannot be presented as a
witness against accused Ceferino S. Paredes, Jr. without the latters consent.
[21]

The Court is of a contrary persuasion. The attorney-client privilege
cannot apply in these cases, as the facts thereof and the actuations of both
respondents therein constitute an exception to the rule. For a clearer
understanding of that evidential rule, we will first sweep aside some
distracting mental cobwebs in these cases.

1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with Criminal
Cases Nos. 17791-93 for falsification before respondent court, and this may
reasonably be expected since Paredes was the accused and Sansaet his
counsel therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada was as
eloquent a communication, if not more, than verbal statements being made
to him by Paredes as to the fact and purpose of such falsification. It is
significant that the evidentiary rule on this point has always referred to any
communication, without distinction or qualification. [22]
In the American jurisdiction from which our present evidential rule was
taken, there is no particular mode by which a confidential communication
shall be made by a client to his attorney. The privilege is not confined to
verbal or written communications made by the client to his attorney but
extends as well to information communicated by the client to the attorney by
other means.[23]
Nor can it be pretended that during the entire process, considering their
past and existing relations as counsel and client and, further, in view of the
purpose for which such falsified documents were prepared, no word at all
passed between Paredes and Sansaet on the subject matter of that criminal
act. The clincher for this conclusion is the undisputed fact that said
documents were thereafter filed by Sansaet in behalf of Paredes as annexes
to the motion for reconsideration in the preliminary investigation of the graft
case before the Tanodbayan.[24] Also, the acts and words of the parties
during the period when the documents were being falsified were necessarily
confidential since Paredes would not have invited Sansaet to his house and
allowed him to witness the same except under conditions of secrecy and
confidence.
2. It is postulated that despite such complicity of Sansaet at the instance
of Paredes in the criminal act for which the latter stands charged, a
distinction must be made between confidential communications relating to
past crimes already committed, and future crimes intended to be committed,
by the client. Corollarily, it is admitted that the announced intention of a
client to commit a crime is not included within the confidences which his
attorney is bound to respect. Respondent court appears, however, to believe
that in the instant case it is dealing with a past crime, and that respondent
Sansaet is set to testify on alleged criminal acts of respondents Paredes and
Honrada that have already been committed and consummated.
The Court reprobates the last assumption which is flawed by a somewhat
inaccurate basis. It is true that by now, insofar as the falsifications to be

testified to in respondent court are concerned, those crimes were necessarily
committed in the past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the privileged
communication was made by the client to the attorney in relation to either a
crime committed in the past or with respect to a crime intended to be
committed in the future. In other words, if the client seeks his lawyers
advice with respect to a crime that the former has theretofore committed, he
is given the protection of a virtual confessional seal which the attorney-client
privilege declares cannot be broken by the attorney without the clients
consent. The same privileged confidentiality, however, does not attach with
regard to a crime which a client intends to commit thereafter or in the future
and for purposes of which he seeks the lawyers advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an attorney,
consulted as such, are privileged communications. Contrarily, the unbroken
stream of judicial dicta is to the effect that communications between
attorney and client having to do with the clients contemplated criminal acts,
or in aid or furtherance thereof, are not covered by the cloak of
privilegesordinarily existing in reference to communications between
attorney and client.[25] (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from Sansaet
as state witness are the communications made to him by physical acts
and/or accompanying words of Paredes at the time he and Honrada, either
with the active or passive participation of Sansaet, were about to falsify, or
in the process of falsifying, the documents which were later filed in the
Tanodbayan by Sansaet and culminated in the criminal charges now pending
in
respondent
Sandiganbayan. Clearly,
therefore,
the
confidential
communications thus made by Paredes to Sansaet were for purposes of and
in reference to the crime of falsification which had not yet been committed in
the past by Paredes but which he, in confederacy with his present corespondents, later committed. Having been made for purposes of
a future offense, those communications are outside the pale of the attorneyclient privilege.
4. Furthermore, Sansaet was himself a conspirator in the commission of
that crime of falsification which he, Paredes and Honrada concocted and
foisted upon the authorities. It is well settled that in order that a
communication between a lawyer and his client may be privileged, it must
be for a lawful purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching. [26] In fact, it has also
been pointed out to the Court that the prosecution of the honorable relation
of attorney and client will not be permitted under the guise of privilege, and

every communication made to an attorney by a client for a criminal purpose
is a conspiracy or attempt at a conspiracy which is not only lawful to divulge,
but which the attorney under certain circumstances may be bound to
disclose at once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent Sandiganbayan
to insist that such unlawful communications intended for an illegal purpose
contrived by conspirators are nonetheless covered by the so-called mantle of
privilege. To prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy, because of the
objection thereto of his conspiring client, would be one of the worst
travesties in the rules of evidence and practice in the noble profession of
law.
II
On the foregoing premises, we now proceed to the consequential inquiry
as to whether respondent Sansaet qualifies, as a particeps criminis, for
discharge from the criminal prosecution in order to testify for the
State.Parenthetically, respondent court, having arrived at a contrary
conclusion on the preceding issue, did not pass upon this second aspect and
the relief sought by the prosecution which are now submitted for our
resolution in the petition at bar. We shall, however, first dispose likewise of
some ancillary questions requiring preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass upon the
query as to whether or not respondent Sansaet was qualified to be a state
witness need not prevent this Court from resolving that issue as prayed for
by petitioner. Where the determinative facts and evidence have been
submitted to this Court such that it is in a position to finally resolve the
dispute, it will be in the pursuance of the ends of justice and the expeditious
administration thereof to resolve the case on the merits, instead of
remanding it to the trial court.[28]
2. A reservation is raised over the fact that the three private respondents
here stand charged in three separate informations. It will be recalled that in
its resolution of February 24, 1992, the Ombudsman recommended the filing
of criminal charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against each of the
three respondents here, resulting in three informations for the same acts of
falsification.

This technicality was, however, sufficiently explained away during the
deliberations in this case by the following discussion thereof by Mr. Justice
Davide, to wit:
Assuming no substantive impediment exists to block Sansaets discharge as
state witness, he can, nevertheless, be discharged even if indicted under a
separate information. I suppose the three cases were consolidated for joint
trial since they were all raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the Revised Rules of the
Sandiganbayan allows consolidation in only one Division of cases arising
from the same incident or series of incidents, or involving common questions
of law and fact. Accordingly, for all legal intents and purposes, Sansaet stood
as co-accused and he could be discharged as state witness. It is of no
moment that he was charged separately from his co-accused. While Section
9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly,
which was absent in the old provision, the consolidated and joint trial has
the effect of making the three accused co-accused or joint defendants,
especially considering that they are charged for the same offense. In
criminal law, persons indicted for the same offense and tried together are
called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco along the same
vein, there having been a consolidation of the three cases, the several
actions lost their separate identities and became a single action in which a
single judgment is rendered, the same as if the different causes of action
involved had originally been joined in a single action. [29]
Indeed, the former provision of the Rules referring to the situation
(w)hen two or more persons are charged with the commission of a certain
offense was too broad and indefinite; hence the word joint was added to
indicate the identity of the charge and the fact that the accused are all
together charged therewith substantially in the same manner in point of
commission and time. The word joint means common to two or more, as
involving the united activity of two or more, or done or produced by two or
more working together, or shared by or affecting two or more. [30] Had it been
intended that all the accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did not so
require in consideration of the circumstances obtaining in the present case
and the problems that may arise from amending the information. After all,
the purpose of the Rule can be achieved by consolidation of the cases as an
alternative mode.
2. We have earlier held that Sansaet was a conspirator in the crime of
falsification, and the rule is that since in a conspiracy the act of one is the

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.

We do not agree. First, there is absolute necessity for the testimony of
Bermudez. For, despite the presentation of four (4) other witnesses, none of
them could positively identify the accused except Bermudez who was one of
those who pulled the highway heist which resulted not only in the loss of
cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was
in fact the testimony of Bermudez that clinched the case for the
prosecution. Second, without his testimony, no other direct evidence was
available for the prosecution to prove the elements of the crime. Third, his
testimony could be, as indeed it was, substantially corroborated in its
material points as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As the evidence
reveals, he was only invited to a drinking party without having any prior
knowledge of the plot to stage a highway robbery. But even assuming that
he later became part of the conspiracy, he does not appear to be the most
guilty. What the law prohibits is that the most guilty will be set free while his
co-accused who are less guilty will be sent to jail. And by most guilty we
mean the highest degree of culpability in terms of participation in the
commission of the offense and not necessarily the severity of the penalty
imposed. While all the accused may be given the same penalty by reason of
conspiracy, yet one may be considered least guilty if We take into account
his degree of participation in the perpetration of the offense. Fifth, there is
no evidence that he has at any time been convicted of any offense involving
moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General that the rule
on the discharge of an accused to be utilized as state witness clearly looks at
his actual and individual participation in the commission of the crime, which
may or may not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for the killing
committed on the occasion of the robbery except by reason of conspiracy, it
cannot be said then that Bermudez appears to be the most guilty. Hence, his
discharge to be a witness for the government is clearly warranted. (Italics
ours.)
The rule of equality in the penalty to be imposed upon conspirators found
guilty of a criminal offense is based on the concurrence of criminal intent in
their minds and translated into concerted physical action although of varying
acts or degrees of depravity. Since the Revised Penal Code is based on the
classical school of thought, it is the identity of the mens rea which is
considered the predominant consideration and, therefore, warrants the
imposition of the same penalty on the consequential theory that the act of
one is thereby the act of all.

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.

In addition, complainant Mercado cited other charges against respondent
that are pending before or decided upon by other tribunals (1) libel suit
before the Office of the City Prosecutor, Pasig City; [6] (2) administrative case
for dishonesty, grave misconduct, conduct prejudicial to the best interest of
the service, pursuit of private business, vocation or profession without the
permission required by Civil Service rules and regulations, and violations of
the Anti-Graft and Corrupt Practices Act, before the then Presidential
Commission Against Graft and Corruption; [7] (3) complaint for dishonesty,
grave misconduct, and conduct prejudicial to the best interest of the service
before the Office of the Ombudsman, where he was found guilty of
misconduct and meted out the penalty of one month suspension without
pay;[8] and, (4) the Information for violation of Section 7(b)(2) of Republic
Act No. 6713, as amended, otherwise known as the Code of Conduct and
Ethical Standards for Public Officials and Employees before the
Sandiganbayan.[9]
Complainant Mercado alleged that said criminal complaint for falsification
of public document (I.S. No. PSG 99-9823) disclosed confidential facts and
information relating to the civil case for annulment, then handled by
respondent Vitriolo as her counsel. This prompted complainant Mercado to
bring this action against respondent. She claims that, in filing the criminal
case for falsification, respondent is guilty of breaching their privileged and
confidential lawyer-client relationship, and should be disbarred.
Respondent filed his Comment/Motion to Dismiss on November 3, 1999
where he alleged that the complaint for disbarment was all hearsay,
misleading and irrelevant because all the allegations leveled against him are
subject of separate fact-finding bodies. Respondent claimed that the pending
cases against him are not grounds for disbarment, and that he is presumed
to be innocent until proven otherwise.[10] He also states that the decision of
the Ombudsman finding him guilty of misconduct and imposing upon him the
penalty of suspension for one month without pay is on appeal with the Court
of Appeals. He adds that he was found guilty, only of simple misconduct,
which he committed in good faith.[11]
In addition, respondent maintains that his filing of the criminal complaint
for falsification of public documents against complainant does not violate the
rule on privileged communication between attorney and client because the
bases of the falsification case are two certificates of live birth which are
public documents and in no way connected with the confidence taken during
the engagement of respondent as counsel. According to respondent, the
complainant confided to him as then counsel only matters of facts relating to
the annulment case. Nothing was said about the alleged falsification of the

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

and confidential nature that is required by necessity and public interest.
[15]
Only by such confidentiality and protection will a person be encouraged to
repose his confidence in an attorney. The hypothesis is that abstinence from
seeking legal advice in a good cause is an evil which is fatal to the
administration of justice.[16] Thus, the preservation and protection of that
relation will encourage a client to entrust his legal problems to an attorney,
which is of paramount importance to the administration of justice. [17] One
rule adopted to serve this purpose is the attorney-client privilege: an
attorney is to keep inviolate his clients secrets or confidence and not to
abuse them.[18] Thus, the duty of a lawyer to preserve his clients secrets and
confidence outlasts the termination of the attorney-client relationship, [19] and
continues even after the clients death. [20] It is the glory of the legal
profession that its fidelity to its client can be depended on, and that a man
may safely go to a lawyer and converse with him upon his rights or
supposed rights in any litigation with absolute assurance that the lawyers
tongue is tied from ever disclosing it.[21] With full disclosure of the facts of
the case by the client to his attorney, adequate legal representation will
result in the ascertainment and enforcement of rights or the prosecution or
defense of the clients cause.
Now, we go to the rule on attorney-client privilege. Dean Wigmore cites
the factors essential to establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.[22]
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective
attorney-client relationship, and it is by reason of this relationship that the
client made the communication.
Matters disclosed by a prospective client to a lawyer are protected by the
rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment.[23]The
reason for this is to make the prospective client free to discuss whatever he
wishes with the lawyer without fear that what he tells the lawyer will be
divulged or used against him, and for the lawyer to be equally free to obtain
information from the prospective client.[24]

On the other hand, a communication from a (prospective) client to a
lawyer for some purpose other than on account of the (prospective)
attorney-client relation is not privileged. Instructive is the case of Pfleider
v. Palanca,[25] where the client and his wife leased to their attorney a
1,328-hectare agricultural land for a period of ten years. In their contract,
the parties agreed, among others, that a specified portion of the lease
rentals would be paid to the client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The client alleged that
the list of creditors which he had confidentially supplied counsel for the
purpose of carrying out the terms of payment contained in the lease contract
was disclosed by counsel, in violation of their lawyer-client relation, to
parties whose interests are adverse to those of the client. As the client
himself, however, states, in the execution of the terms of the aforesaid lease
contract between the parties, he furnished counsel with the confidential list
of his creditors. We ruled that this indicates that client delivered the list of
his creditors to counsel not because of the professional relation then existing
between them, but on account of the lease agreement. We then held that a
violation of the confidence that accompanied the delivery of that list would
partake more of a private and civil wrong than of a breach of the fidelity
owing from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of
confidentiality.[26] The client must intend the communication to be
confidential.[27]
A confidential communication refers to information transmitted by
voluntary act of disclosure between attorney and client in confidence and by
means which, so far as the client is aware, discloses the information to no
third person other than one reasonably necessary for the transmission of the
information or the accomplishment of the purpose for which it was given. [28]
Our jurisprudence on the matter rests on quiescent ground. Thus, a
compromise agreement prepared by a lawyer pursuant to the instruction of
his client and delivered to the opposing party,[29] an offer and counter-offer
for settlement,[30] or a document given by a client to his counsel not in his
professional capacity,[31] are not privileged communications, the element of
confidentiality not being present.[32]
(3) The legal advice must be sought from the attorney in his professional
capacity.[33]

The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking legal advice
from his attorney as to his rights or obligations. The communication must
have been transmitted by a client to his attorney for the purpose of seeking
legal advice.[34]
If the client seeks an accounting service, [35] or business or personal
assistance,[36] and not legal advice, the privilege does not attach to a
communication disclosed for such purpose.
Applying all these rules to the case at bar, we hold that the evidence on
record fails to substantiate complainants allegations. We note that
complainant did not even specify the alleged communication in confidence
disclosed by respondent. All her claims were couched in general terms and
lacked specificity. She contends that respondent violated the rule on
privileged communication when he instituted a criminal action against her for
falsification of public documents because the criminal complaint disclosed
facts relating to the civil case for annulment then handled by respondent.
She did not, however, spell out these facts which will determine the merit of
her complaint. The Court cannot be involved in a guessing game as to the
existence of facts which the complainant must prove.
Indeed, complainant failed to attend the hearings at the IBP. Without any
testimony from the complainant as to the specific confidential information
allegedly divulged by respondent without her consent, it is difficult, if not
impossible to determine if there was any violation of the rule on privileged
communication. Such confidential information is a crucial link in establishing
a breach of the rule on privileged communication between attorney and
client. It is not enough to merely assert the attorney-client privilege. [37] The
burden of proving that the privilege applies is placed upon the party
asserting the privilege.[38]
IN VIEW WHEREOF, the complaint against respondent Atty. Julito D.
Vitriolo is hereby DISMISSED for lack of merit.
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:
(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;
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 179786

July 24, 2013

JOSIELENE LARA CHAN, Petitioner,
vs.
JOHNNY T. CHAN, Respondent.
DECISION
ABAD, J.:
This case is about the propriety of issuing a subpoena duces tecum for the
production and submission in court of the respondent husband's hospital
record in a case for declaration of nullity of marriage where one of the issues
is his mental fitness as a husband.
The Facts and the Case
On February 6, 2006 petitioner Josielene Lara Chan (Josielene) filed before
the Regional Trial Court (RTC) of Makati City, Branch 144 a petition for the
declaration of nullity of her marriage to respondent Johnny Chan (Johnny),
the dissolution of their conjugal partnership of gains, and the award of
custody of their children to her. Josielene claimed that Johnny failed to care
for and support his family and that a psychiatrist diagnosed him as mentally
deficient due to incessant drinking and excessive use of prohibited drugs.
Indeed, she had convinced him to undergo hospital confinement for
detoxification and rehabilitation.
Johnny resisted the action, claiming that it was Josielene who failed in her
wifely duties. To save their marriage, he agreed to marriage counseling but
when he and Josielene got to the hospital, two men forcibly held him by both
arms while another gave him an injection. The marriage relations got worse
when the police temporarily detained Josielene for an unrelated crime and
released her only after the case against her ended. By then, their marriage
relationship could no longer be repaired.

During the pre-trial conference, Josielene pre-marked the Philhealth Claim
Form1 that Johnny attached to his answer as proof that he was forcibly
confined at the rehabilitation unit of a hospital. The form carried a
physician’s handwritten note that Johnny suffered from "methamphetamine
and alcohol abuse." Following up on this point, on August 22, 2006 Josielene
filed with the RTC a request for the issuance of a subpoena duces tecum
addressed to Medical City, covering Johnny’s medical records when he was
there confined. The request was accompanied by a motion to "be allowed to
submit in evidence" the records sought by subpoena duces tecum. 2
Johnny opposed the motion, arguing that the medical records were covered
by physician-patient privilege. On September 13, 2006 the RTC sustained
the opposition and denied Josielene’s motion. It also denied her motion for
reconsideration, prompting her to file a special civil action of certiorari before
the Court of Appeals (CA) in CA-G.R. SP 97913, imputing grave abuse of
discretion to the RTC.
On September 17, 2007 the CA3 denied Josielene’s petition. It ruled that, if
courts were to allow the production of medical records, then patients would
be left with no assurance that whatever relevant disclosures they may have
made to their physicians would be kept confidential. The prohibition covers
not only testimonies, but also affidavits, certificates, and pertinent hospital
records. The CA added that, although Johnny can waive the privilege, he did
not do so in this case. He attached the Philhealth form to his answer for the
limited purpose of showing his alleged forcible confinement.
Question Presented
The central question presented in this case is:
Whether or not the CA erred in ruling that the trial court correctly denied the
issuance of a subpoena duces tecum covering Johnny’s hospital records on
the ground that these are covered by the privileged character of the
physician-patient communication.
The Ruling of the Court
Josielene requested the issuance of a subpoena duces tecum covering the
hospital records of Johnny’s confinement, which records she wanted to
present in court as evidence in support of her action to have their marriage
declared a nullity. Respondent Johnny resisted her request for subpoena,
however, invoking the privileged character of those records. He cites Section
24(c), Rule 130 of the Rules of Evidence which reads:

SEC. 24. Disqualification by reason of privileged communication.— The
following persons cannot testify as to matters learned in confidence in the
following cases:
xxxx
(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 that capacity, and which
would blacken the reputation of the patient.
The physician-patient privileged communication rule essentially means that a
physician who gets information while professionally attending a patient
cannot in a civil case be examined without the patient’s consent as to any
facts which would blacken the latter’s reputation. This rule is intended to
encourage the patient to open up to the physician, relate to him the history
of his ailment, and give him access to his body, enabling the physician to
make a correct diagnosis of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the future to come to court
and narrate all that had transpired between him and the patient might
prompt the latter to clam up, thus putting his own health at great risk. 4
1. The case presents a procedural issue, given that the time to object to the
admission of evidence, such as the hospital records, would be at the time
they are offered. The offer could be made part of the physician’s testimony
or as independent evidence that he had made entries in those records that
concern the patient’s health problems.
Section 36, Rule 132, states that objections to evidence must be made after
the offer of such evidence for admission in court. Thus:
SEC. 36. Objection.— Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of
a witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days
after notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.

Since the offer of evidence is made at the trial, Josielene’s 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 Johnny’s 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 Josielene’s 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
records—the results of tests that the physician ordered, the diagnosis of the
patient’s illness, and the advice or treatment he gave him—would be to allow
access to evidence that is inadmissible without the

patient’s consent. Physician memorializes all these information in the
patient’s records. Disclosing them would be the equivalent of compelling the
physician to testify on privileged matters he gained while dealing with the
patient, without the latter’s prior consent.
3. Josielene argues that since Johnny admitted in his answer to the petition
before the RTC that he had been confined in a hospital against his will and in
fact attached to his answer a Philhealth claim form covering that
confinement, he should be deemed to have waived the privileged character
of its records. Josielene invokes Section 17, Rule 132 of the Rules of
Evidence that provides:
SEC. 17. When part of transaction, writing or record given in evidence, the
remainder admissible.— When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence.1âwphi1
But, trial in the case had not yet begun. Consequently, it cannot be said that
Johnny had already presented the Philhealth claim form in evidence, the act
contemplated above which would justify Josielene into requesting an inquiry
into the details of his hospital confinement. Johnny was not yet bound to
adduce evidence in the case when he filed his answer. Any request for
disclosure of his hospital records would again be premature.
For all of the above reasons, the CA and the RTC were justified in denying
Josielene her request for the production in court of Johnny’s hospital records.
ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Decision of
the Court of Appeals in CA-G.R. SP 97913 dated September 17, 2007.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 117740 October 30, 1998

CAROLINA ABAD GONZALES, petitioner,
vs.
COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H. ABAD,
MARIAN H. ABAD and ROSEMARIE S. ABAD, respondents.

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

with the deceased during the period they lived
together as husband and wife;
(3) Denying the petition of decedent's
collateral relatives, namely: Dolores M. Abad,
Cesar M. Tioseco and Carolina M. Abad to be
declared as heirs and excluding them from
participating in the administration and
settlement of the estate of Ricardo Abad;
(4) Appointing Honoria Empaynado as the
administratrix in this intestacy with a bond of
THIRTY THOUSAND (P30,000.00) PESOS; and
(5) Ordering Cesar Tioseco to surrender to the
new administratrix all property or properties,
monies and such papers that came into his
possession by virtue of his appointment as
administrator, which appointment is hereby
revoked. 1
The trial court, likewise, found in favor of private respondents with respect to
the latter's motion for annulment of certain documents. On November 19,
1974, it rendered the following judgment:
WHEREFORE, this Court finds oppositors' Motion for
Annulment, dated October 4, 1973 to be meritorious and
accordingly —
1. Declares that the six (6) parcels of land
described in TCT Nos. 13530, 53671 and
64021, all registered in the name of Ricardo
Abad, as replaced by 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
de Mesa Abad-Gonzales, and the residential
house situated at 2432 Opalo Street, San
Andres Subdivision, Manila, to be the
properties of the late Ricardo Abad;
2. Declares the deed of Extra Judicial
Settlement of the Estate of the Deceased Lucila
de Mesa, executed on May 2, 1972 (Doc. No.

445, Page No. 86, Book No. VII, Series of 1972
of the notarial book of Faustino S. Cruz) by
petitioners and Carolina de Mesa AbadGonzales, to be inexistent and void from the
beginning;
3. Declares as null and void the cancellation of
TCT Nos. 13530, 53671 and 64021 and
issuance in lieu thereof, of TCT Nos. 108482,
108483 and 108484;
4. Orders the Register of Deeds of Manila to
cancel TCT No. 108482 of Dolores de Mesa
Abad; TCT No. 108483 of Cesar de Mesa
Tioseco; and TCT No. 108484 of Carolina de
Mesa Abad-Gonzales and in lieu thereof,
restore and/or issue the corresponding
certificate of title in the name of Ricardo Abad;
5. Declares as inexistent and void from the
beginning the three (3) real estate mortgages
executed on July 7, 1972 executed by (a)
petitioner Dolores de Mesa Abad, identified as
Doc. No. 145, Page No. 30, Book No. XX,
Series of 1972, (b) petitioner Cesar de Mesa
Tioseco, identified as Doc. No. 146, Page 31,
Book No. XX, Series of 1972; and (c) Carolina
de Mesa Abad-Gonzales, identified as Doe. No.
144, Page No. 30, Book No. XX, Series of
1972, all of the notarial book of Ricardo P. Yap
of Manila, in favor of Mrs. Josefina C. Viola,
and orders the Register of Deeds of Manila to
cancel the registration or annotation thereof
from the back of the torrens title of Ricardo
Abad; and
6. Orders Atty. Escolastico R. Viola and his law
associate and wife, Josefina C. Viola, to
surrender to the new administratrix, Honoria
Empaynado, TCT Nos. 108482, 108483, and
108484 within five (5) days from receipt
hereof.
SO ORDERED.

2

Petitioners' motion for reconsideration of the November 2, 1973 decision was
denied by the trial court. Their notice of appeal was likewise denied on the
ground that the same had been filed out of time. Because of this ruling,
petitioners, instituted certiorari and mandamus proceedings with the Court
of Appeals, docketed there as C.A.-G.R. No. SP-03268-R. On November 2,
1974, the appellate court granted petitioners' petition and ordered the lower
court to give due course to the latter's appeal. The trial court, however,
again dismissed petitioners' appeal on the ground that their record on appeal
was filed out of time.
Likewise, on January 4, 1975, petitioners filed their notice of appeal of the
November 19, 1974 ruling of the trial court. On March 21, 1975, this appeal
was similarly denied on the ground that it had been filed out of time.
Due to the dismissal of their two appeals, petitioners again instituted
certiorari and mandamus proceedings with the Court of Appeals, docketed
therein as C.A.-G.R. No. SP-04352. The appellate court affirmed the
dismissal of the two appeals, prompting petitioners to appeal to the
Supreme Court. On July 9, 1985, this Court directed the trial court to give
due course to petitioners' appeal from the order of November 2, 1973
declaring private respondents heirs of the deceased Ricardo Abad, and the
order dated November 19, 1974, annulling certain documents pertaining to
the intestate estate of deceased.
The two appeals were accordingly elevated by the trial court to the appellate
court. On October 19, 1994, the Court of Appeals rendered judgment as
follows:
WHEREFORE, all the foregoing considered, the instant
appeal is DENIED for lack of merit. The orders of the court
a quo in SP No. 86792, to wit:
1. Order dated November 2, 1973, declaring in
substance that Cecilia, Marian and Rosemarie,
all surnamed Abad as the acknowledged
natural children and the only surviving heirs of
the deceased Ricardo Abad;
2. Order dated November 19, 1974, declaring
in substance that the six (6) parcels of land
described in TCT Nos. 13530, 53671 and
64021 are the properties of Ricardo Abad; that
the extra-judicial partition of the estate of the
deceased Lucila de Mesa executed on May 2,

1972 is inexistent and void from the beginning,
the cancellation of the aforementioned TCTs is
null and void; the Register of Deeds be ordered
to restore and/or issue the corresponding
Certificates of Title in the name of Ricardo
Abad; and
3. Order dated March 21, 1975 denying the
appeal of Dolores de Mesa Abad and Cesar de
Mesa Tioseco from the latter Order, for being
filed out of time, are all AFFIRMED in toto. With
costs against petitioner-appellants.
SO ORDERED.

3

Petitioners now seek to annul the foregoing judgment on the following
grounds:
I. THE COURT OF APPEALS AND THE TRIAL
COURT GRAVELY ERRED IN HOLDING THAT
RESPONDENTS CECILIA E. ABAD, MARIAN E.
ABAD AND ROSEMARIE S. ABAD ARE THE
ACKNOWLEDGED NATURAL CHILDREN OF THE
DECEASED RICARDO DE MESA ABAD.
II. PETITIONERS ARE ENTITLED TO THE
SUBJECT ESTATE WHETHER THE SAME IS
OWNED BY THE DECEASED RICARDO DE MESA
ABAD OR BY LUCILA DE MESA, THE MOTHER
OF PETITIONERS AND RICARDO DE MESA
ABAD.
We are not persuaded.
Petitioners, in contesting Cecilia, Marian and Rosemarie Abad's filiation,
submit the startling theory that the husband of Honoria Empaynado, Jose
Libunao, was still alive when Cecilia and Marian Abad were born in 1948 and
1954, respectively.
It is undisputed that prior to her relationship with Ricardo Abad, Honoria
Empaynado was married to Jose Libunao, their union having produced three
children, Angelita, Cesar, and Maria Nina, prior to the birth of Cecilia and
Marian. But while private respondents claim that Jose Libunao died in 1943,
petitioners claim that the latter died sometime in 1971.

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

In December 1959, Ricardo Abad insured his daughters
Cecilia, then eleven (11) years old, and Marian, then (5)
years old, on [a] twenty (20) year-endowment plan with
the Insular Life Assurance Co., Ltd. and paid for their
premiums (Exh. 34 and 34-A; 34-B to C; 35, 35-A to D;
TSN, February 27, 1973, pp. 7-20).
In 1966, he and his daughter Cecilia Abad opened a trust
fund account of P100,000,00 with the People's Bank and
Trust Company which was renewed until (sic) 1971,
payable to either of them in the event of death (Exhs. 36A; 36-E). On January 5, 1971, Ricardo Abad opened a
trust fund of P100,000.00 with the same bank, payable to
his daughter Marian (Exh. 37-A). On January 4, 1971,
Ricardo Abad and his sister Dolores Abad had (sic) agreed
to stipulate in their PBTC Trust Agreement that the 9%
income of their P100,000.00 trust fund shall (sic) be paid
monthly to the account reserved for Cecilia, under PBTC
Savings Account No. 49053 in the name of Ricardo Abad
and/or Cecilia Abad (Exh. 38) where the income of the
trust fund intended for Cecilia was also deposited monthly
(TSN, February 27, 1973, pp. 21-36). Ricardo Abad had
also deposited (money) with the Monte de Piedad and
Savings Bank in the name of his daughter Marian,
represented by him, as father, under Savings Account
17348 which has (sic) a balance of P34,812.28 as of June
30, 1972. (Exh. 60-B). . .
With the finding that private respondents are the illegitimate children of
Ricardo Abad, petitioners are precluded from inheriting the estate of their
brother. The applicable provisions are:
Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the
entire estate of the deceased.
Art. 1003. If there are no . . . illegitimate children, or a
surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the
following articles. (Emphasis supplied).
As to petitioners' claim that the properties m the name of Ricardo Abad
actually belong to their mother Lucila de Mesa, both the trial court and the
appellate court ruled that the evidence presented by private respondents

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

G.R. No. 108854 June 14, 1994
MA. PAZ FERNANDEZ KROHN, petitioner,
vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.
Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.
Oscar F. Martinez for private respondent.

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

Manifestation expressing her "continuing objection" to any evidence, oral or
documentary, "that would thwart the physician-patient privileged
communication rule," 5 and thereafter submitted a Statement for the Record
asserting among others that "there is no factual or legal basis whatsoever
for petitioner (Edgar) to claim 'psychological incapacity' to annul their
marriage, such ground being completely false, fabricated and merely an
afterthought." 6 Before leaving for Spain where she has since resided after
their separation, Ma. Paz also authorized and instructed her counsel to
oppose the suit and pursue her counterclaim even during her absence.
On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction
of the confidential psychiatric report as evidence, 7 and afterwards moved to
strike out Ma. Paz' Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the Confidential
Psychiatric Evaluation Report in evidence and ruling that —
. . . the Court resolves to overrule the objection and to
sustain the Opposition to the respondent's Motion; first,
because the very issue in this case is whether or not the
respondent had been suffering from psychological
incapacity; and secondly, when the said psychiatric report
was referred to in the complaint, the respondent did not
object thereto on the ground of the supposed privileged
communication between patient and physician. What was
raised by the respondent was that the said psychiatric
report was irrelevant. So, the Court feels that in the
interest of justice and for the purpose of determining
whether the respondent as alleged in the petition was
suffering from psychological incapacity, the said psychiatric
report is very material and may be testified to by petitioner
(Edgar Krohn, Jr.) without prejudice on the part of the
respondent to dispute the said report or to crossexamination first the petitioner and later the psychiatrist
who prepared the same if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order
dated June 4, 1991, and directed that the Statement for the Record filed by
Ma. Paz be stricken off the record. A subsequent motion for reconsideration
filed by her counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals.
In a Decision promulgated 30 October 1992, the appellate court dismissed

the petition for certiorari. 10 On 5 February 1993, the motion to reconsider
the dismissal was likewise denied. Hence, the instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the
contents of the psychiatric report and prays for the admission of her
Statement for the Record to form part of the records of the case. She argues
that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician
from testifying on matters which he may have acquired in attending to a
patient in a professional capacity, "WITH MORE REASON should be third
person (like respondent-husband in this particular instance) be PROHIBITED
from testifying on privileged matters between a physician and patient or
from submitting any medical report, findings or evaluation prepared by a
physician which the latter has acquired as a result of his confidential and
privileged relation with a patient." 12 She says that the reason behind the
prohibition is —
. . . to facilitate and make safe, full and confidential
disclosure by a patient to his physician of all facts,
circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled
safely and efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on the contents of
the psychiatric evaluation report "will set a very bad and dangerous
precedent because it abets circumvention of the rule's intent in preserving
the sanctity, security and confidence to the relation of physician and his
patient." 14 Her thesis is that what cannot be done directly should not be
allowed to be done indirectly.
Petitioner submits that her Statement for the Record simply reiterates under
oath what she asserted in her Answer, which she failed to verify as she had
already left for Spain when her Answer was filed. She maintains that her
"Statement for the Record is a plain and simple pleading and is not as it has
never been intended to take the place of her testimony;" 15 hence, there is
no factual and legal basis whatsoever to expunge it from the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are
very explicit: the prohibition applies only to a physician. Thus . . . the legal
prohibition to testify is not applicable to the case at bar where the person
sought to be barred from testifying on the privileged communication is the
husband and not the physician of the petitioner." 16 In fact, according to him,

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

person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics; (c) such person acquired the
information while he was attending to the patient in his professional
capacity; (d) the information was necessary to enable him to act in that
capacity; and, (e) the information was confidential and, if disclosed, would
blacken the reputation (formerly character) of the patient.
In the instant case, the person against whom the privilege is claimed is not
one duly authorized to practice medicine, surgery or obstetrics. He is simply
the patient's husband who wishes to testify on a document executed by
medical practitioners. Plainly and clearly, this does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the
prohibition because his testimony cannot have the force and effect of the
testimony of the physician who examined the patient and executed the
report.
Counsel for petitioner indulged heavily in objecting to the testimony of
private respondent on the ground that it was privileged. In his Manifestation
before the trial court dated 10 May 1991, he invoked the rule on privileged
communications but never questioned the testimony as hearsay. It was a
fatal mistake. For, in failing to object to the testimony on the ground that it
was hearsay, counsel waived his right to make such objection and,
consequently, the evidence offered may be admitted.
The other issue raised by petitioner is too trivial to merit the full attention of
this Court. The allegations contained in the Statement for the Records are
but refutations of private respondent's declarations which may be denied or
disproved during the trial.
The instant appeal has taken its toll on the petition for annulment. Three
years have already lapsed and private respondent herein, as petitioner
before the trial court, has yet to conclude his testimony thereat. We thus
enjoin the trial judge and the parties' respective counsel to act with
deliberate speed in resolving the main action, and avoid any and all
stratagems that may further delay this case. If all lawyers are allowed to
appeal every perceived indiscretion of a judge in the course of trial and
include in their appeals depthless issues, there will be no end to litigations,
and the docket of appellate courts will forever be clogged with
inconsequential cases. Hence, counsel should exercise prudence in appealing
lower court rulings and raise only legitimate issues so as not to retard the
resolution of cases. Indeed, there is no point in unreasonably delaying the
resolution of the petition and prolonging the agony of the wedded couple
who after coming out from a storm still have the right to a renewed blissful
life either alone or in the company of each other. 23

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

the executive privilege. The doctrine of executive privilege is premised on
the fact that certain information must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this
case to Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds
such information on the ground that it is privileged, it must so assert it and
state
the
reason
therefor
and
why
it
must
be
respected.
The infirm provisions of E.O. 464, however, allow the executive branch to
evade congressional requests for information without need of clearly
asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct
inquiries in aid of legislation is frustrated.
Senate vs. Ermita (G.R. No. 169777) - Digest
Facts:
This case is regarding the railway project of the North Luzon
Railways Corporation with the China National Machinery and
Equipment Group as well as the Wiretapping activity of the ISAFP,
and the Fertilizer scam.
The Senate Committees sent invitations to various officials of the
Executive Department and AFP officials for them to appear before
Senate on Sept. 29, 2005. Before said date arrived, Executive Sec.
Ermita sent a letter to Senate President Drilon, requesting for a
postponement of the hearing on Sept. 29 in order to “afford said
officials ample time and opportunity to study and prepare for the
various issues so that they may better enlighten the Senate
Committee on its investigation.” Senate refused the request.
On Sept. 28, 2005, the President issued EO 464, effective
immediately, which, among others, mandated that “all heads of
departments of the Executive Branch of the government shall secure
the consent of the President prior to appearing before either House
of Congress.” Pursuant to this Order, Executive Sec. Ermita
communicated to the Senate that the executive and AFP officials
would not be able to attend the meeting since the President has not
yet given her consent. Despite the lack of consent, Col. Balutan and
Brig. Gen. Gudani, among all the AFP officials invited, attended the
investigation. Both faced court marshal for such attendance.
Issue:

Whether E.O. 464 contravenes the power of inquiry vested in
Congress.
Ruling:
To determine the constitutionality of E.O. 464, the Supreme Court
discussed the two different functions of the Legislature: The power
to conduct inquiries in aid of legislation and the power to conduct
inquiry during question hour.
Question Hour:
The power to conduct inquiry during question hours is recognized in
Article 6, Section 22 of the 1987 Constitution, which reads:
“The heads of departments may, upon their own initiative, with the
consent of the President, or upon the request of either House, as the
rules of each House shall provide, appear before and be heard by
such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before
their scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto. When the
security of the State or the public interest so requires and the
President so states in writing, the appearance shall be conducted in
executive session.”
The objective of conducting a question hour is to obtain information
in pursuit of Congress’ oversight function. When Congress merely
seeks to be informed on how department heads are implementing
the statutes which it had issued, the department heads’ appearance
is merely requested.
The Supreme Court construed Section 1 of E.O. 464 as those in
relation to the appearance of department heads during question
hour as it explicitly referred to Section 22, Article 6 of the 1987
Constitution.
In aid of Legislation:
The Legislature’s power to conduct inquiry in aid of legislation is
expressly recognized in Article 6, section21 of the 1987 Constitution,
which reads:

“The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of persons
appearing in, or affected by, such inquiries shall be respected.”
The power of inquiry in aid of legislation is inherent in the power to
legislate. A legislative body cannot legislate wisely or effectively in
the absence of information respecting the conditions which the
legislation is intended to affect or change. And where the legislative
body does not itself possess the requisite information, recourse
must be had to others who do possess it.
But even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which exemptions
fall under the rubric of “executive privilege”. This is the power of the
government to withhold information from the public, the courts, and
the Congress. This is recognized only to certain types of information
of a sensitive character. When Congress exercise its power of
inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one official may be
exempted from this power -- the President.
Section 2 & 3 of E.O. 464 requires that all the public officials
enumerated in Section 2(b) should secure the consent of the
President prior to appearing before either house of Congress. The
enumeration is broad. In view thereof, whenever an official invokes
E.O.464 to justify the failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head
of office authorized by the President, has determined that the
requested information is privileged.
The letter sent by the Executive Secretary to Senator Drilon does not
explicitly invoke executive privilege or that the matter on which
these officials are being requested to be resource persons falls
under the recognized grounds of the privilege to justify their
absence. Nor does it expressly state that in view of the lack of
consent from the President under E.O. 464, they cannot attend the
hearing. The letter assumes that the invited official possesses
information that is covered by the executive privilege. Certainly,
Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely
declare that the President, or an authorized head of office, has
determined that it is so.

The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an announcement
that the President has not given her consent.
When an official is being summoned by Congress on a matter which,
in his own judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege.
This is necessary to provide the President or the Executive Secretary
with fair opportunity to consider whether the matter indeed calls for
a claim of executive privilege. If, after the lapse of that reasonable
time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
Wherefore, the petitions are partly granted. Sections 2(b) and 3 of
E.O. 464 are declared void. Section 1(a) are however valid.
NERI VS. SENATE COMMITTEE
March 28, 2013 ~ vbdiaz
ROMULO L. NERI, petitioner vs. SENATE COMMITTEE ON
ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY
G.R. No. 180643, March 25, 2008
FACTS: On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of
U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be
financed by the People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the
September 18, 2007 hearing Jose de Venecia III testified that several high

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 People’s
Republic of China.” Simply put, the bases are presidential communications

privilege and executive privilege on matters relating to diplomacy or foreign
relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered by the
presidential communications privilege. First, the communications relate to a
“quintessential and non-delegable power” of the President, i.e. the power to
enter into an executive agreement with other countries. This authority of the
President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence.
Second, the communications are “received” by a close advisor of the
President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s cabinet.
And third, there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.
Respondent Committees further contend that the grant of petitioner’s claim
of executive privilege violates the constitutional provisions on the right of the
people to information on matters of public concern.50 We might have agreed
with such contention if petitioner did not appear before them at all. But
petitioner made himself available to them during the September 26 hearing,
where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with
the exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation.
Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to

government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
Diplomatic Negotiations are Privileged in Character
Petitioners filed a petition before the SC to obtain from the
government the full text of the Japan-Philippines Economic
Partnership Agreement or JPEPA “prior to its finalization between
the two States parties” as well as the Philippine and Japanese offers
submitted during the negotiation process. JPEPA, the first bilateral
free trade agreement between the Philippines and another country,
has yet to take effect since it still has to obtain Senate concurrence
as required under the Constitution. Petitioners invoked their right to
information on matters of public concern and the constitutional
provisions on transparency. From the nature of the JPEPA as an
international trade agreement, the government did not dispute that
the Philippine and Japanese offers submitted during the negotiations
towards its execution are matters of public concern. However, they
claim that the diplomatic negotiations are covered by the doctrine of
executive privilege, thus constituting an exception to the right to
information and the policy of full public disclosure. Are the
diplomatic negotiations covered under the doctrine of executive
privilege?
SUGGESTED ANSWER:
Yes. The diplomatic negotiations are covered by the doctrine of executive
privilege. It is well-established in jurisprudence that neither the right to
information nor the policy of full public disclosure is absolute, there being
matters which, albeit of public concern or public interest, are recognized as
privileged in nature. As for the Philippine and Japanese offers during JPEPA’s
negotiations, the Court ruled that the offers are privileged communications
that are confidential in character. “It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that
‘historic confidentiality’ would govern the same. Disclosing these offers could
impair the ability of the Philippines to deal not only with Japan but with other
foreign governments in future negotiations. A ruling that Philippine offers in
treaty negotiations should now be open to public scrutiny would discourage
future Philippine representatives from frankly expressing their views during
negotiations.” The Court also held that to overcome executive privilege, the
party demanding the information must show that the information sought is
vital not just for satisfaction of curiosity but for effective and reasonable
participation in social, political, and economic decision-making. The SC

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 Citizen’s 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 JPEPA’s 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

July 13, 2010

IN RE: PETITION FOR CANCELLATION AND CORRECTION OF ENTRIES
IN THE RECORD OF BIRTH,
EMMA K. LEE, Petitioner,
vs.
COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEEONG, JULIAN K. LEE, MARTIN K. LEE, ROSA LEE-VANDERLEK,

MELODY LEE-CHIN, HENRY K. LEE, NATIVIDAD LEE-MIGUEL,
VICTORIANO K. LEE, and THOMAS K. LEE, represented by RITA K.
LEE, as Attorney-in-Fact, Respondents.
DECISION
ABAD, J.:
This case is about the grounds for quashing a subpoena ad testificandum
and a parent’s right not to testify in a case against his children.
The Facts and the Case
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the
Philippines in the 1930s as immigrants from China. They had 11 children,
namely, Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin
K. Lee, Rosa Lee-Vanderlek, Melody Lee-Chin, Henry K. Lee, Natividad LeeMiguel, Victoriano K. Lee, and Thomas K. Lee (collectively, the Lee-Keh
children).
In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu),
supposedly to serve as housemaid. The respondent Lee-Keh children believe
that Tiu left the Lee-Keh household, moved into another property of Lee
nearby, and had a relation with him.
Shortly after Keh died in 1989, the Lee-Keh children learned that Tiu’s
children with Lee (collectively, the Lee’s other children) claimed that they,
too, were children of Lee and Keh. This prompted the Lee-Keh children to
request the National Bureau of Investigation (NBI) to investigate the matter.
After conducting such an investigation, the NBI concluded in its report:
[I]t is very obvious that the mother of these 8 children is certainly not KEH
SHIOK CHENG, but a much younger woman, most probably TIU CHUAN.
Upon further evaluation and analysis by these Agents, LEE TEK SHENG is in
a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with
his grand design of making his 8 children as their own legitimate children,
consequently elevating the status of his second family and secure their
future. The doctor lamented that this complaint would not have been
necessary had not the father and his second family kept on insisting that the
8 children are the legitimate children of KEH SHIOK CHENG.1
The NBI found, for example, that in the hospital records, the eldest of the
Lee’s other children, Marcelo Lee (who was recorded as the 12th child of Lee
and Keh), was born of a 17-year-old mother, when Keh was already 38 years

old at the time. Another of the Lee’s 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 Lee’s other children, Keh’s
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 Lee’s other
children, the name Keh and replace the same with the name Tiu to indicate
her true mother’s 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 Lee’s
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 Lee’s 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 Lee’s mother.
Because the RTC denied the Lee-Keh children’s 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 RTC’s 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 Tiu’s 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 Lee’s 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 Keh’s
daughter.

The Ruling of the Court
Petitioner Emma Lee claims that the RTC correctly quashed the subpoena ad
testificandum it issued against Tiu on the ground that it was unreasonable
and oppressive, given the likelihood that the latter would be badgered on
oral examination concerning the Lee-Keh children’s theory that she had illicit
relation with Lee and gave birth to the other Lee children.
But, as the CA correctly ruled, the grounds cited—unreasonable and
oppressive—are proper for subpoena ad duces tecum or for the production of
documents and things in the possession of the witness, a command that has
a tendency to infringe on the right against invasion of privacy. Section 4,
Rule 21 of the Rules of Civil Procedure, thus provides:
SECTION 4. Quashing a subpoena. — The court may quash a subpoena
duces tecum upon motion promptly made and, in any event, at or before the
time specified therein if it is unreasonable and oppressive, or the relevancy
of the books, documents or things does not appear, or if the person in whose
behalf the subpoena is issued fails to advance the reasonable cost of the
production thereof.
Notably, the Court previously decided in the related case of Lee v. Court of
Appeals6 that the Lee-Keh children have the right to file the action for
correction of entries in the certificates of birth of Lee’s other children, Emma
Lee included. The Court recognized that the ultimate object of the suit was
to establish the fact that Lee’s other children were not children of Keh. Thus:
It is precisely the province of a special proceeding such as the one outlined
under Rule 108 of the Revised Rules of Court to establish the status or right
of a party, or a particular fact. The petitions filed by private
respondents for the correction of entries in the petitioners' records
of birth were intended to establish that for physical and/or
biological reasons it was impossible for Keh Shiok Cheng to have
conceived and given birth to the petitioners as shown in their birth
records. Contrary to petitioners' contention that the petitions before
the lower courts were actually actions to impugn legitimacy, the
prayer therein is not to declare that petitioners are illegitimate
children of Keh Shiok Cheng, but to establish that the former are not
the latter's children. There is nothing to impugn as there is no blood
relation at all between Keh Shiok Cheng and petitioners. 7
(Underscoring supplied)
Taking in mind the ultimate purpose of the Lee-Keh children’s action,
obviously, they would want Tiu to testify or admit that she is the mother of

Lee’s other children, including petitioner Emma Lee. Keh had died and so
could not give testimony that Lee’s other children were not hers. The LeeKeh children have, therefore, a legitimate reason for seeking Tiu’s 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 Tiu’s 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 court’s 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

family tie connected by a common ancestry.1avvphi1 A stepdaughter has no
common ancestry by her stepmother. Article 965 thus provides:
Art. 965. The direct line is either descending or ascending. The former unites
the head of the family with those who descend from him. The latter binds a
person with those from whom he descends.
Consequently, Tiu can be compelled to testify against petitioner Emma Lee.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and
resolution of the Court of Appeals in CA-G.R. SP 92555.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 131636

March 5, 2003

PEOPLE OF THE PHILIPPINES, appellee,
vs.
ARTEMIO INVENCION Y SORIANO, appellant.
DAVIDE, JR., C.J.:
Before us for automatic review1 is the Decision2 dated 22 September 1997 of
the Regional Trial Court of Tarlac, Tarlac, Branch 65, in Criminal Case No.
9375, finding accused-appellant Artemio Invencion y Soriano guilty beyond
reasonable doubt of the crime of rape committed against his 16-year-old
daughter Cynthia P. Invencion, and sentencing him to suffer the penalty of
death and to pay Cynthia the sum of P50,000 as moral damages and
P25,000 as exemplary damages, as well as the costs of suit.
Artemio was charged before the Regional Trial Court of Tarlac with thirteen
counts of rape in separate complaints docketed as Criminal Cases Nos. 9363
to 9375, all dated 17 October 1996. The cases were consolidated and jointly
tried. At his arraignment Artemio entered a plea of not guilty in each case.
The witnesses presented by the prosecution in its evidence in chief were
Elven Invencion, Eddie Sicat, Gloria Pagala, Dr. Rosario Fider, and Atty.

Florencio Canlas. Presented as rebuttal witnesses were Gloria Pagala and
Celestino Navarro.
Elven Invencion, an 8-year-old grade two pupil of Sapang Tagalog
Elementary School in Tarlac, Tarlac, testified that he is a half-brother of
Cynthia and son of Artemio with his second common-law wife. Sometime
before the end of the school year in 1996, while he was sleeping in one room
with his father Artemio, Cynthia, and two other younger brothers, he was
awakened by Cynthia’s loud cries. Looking towards her, he saw his father on
top of Cynthia, doing a pumping motion. After about two minutes, his father
put on his short pants.3
Elven further declared that Artemio was a very strict and cruel father and a
drunkard. He angrily prohibited Cynthia from entertaining any of her suitors.
Whenever he was drunk, he would maul Elven and quarrel with his
stepfather, Celestino Navarro.4
Eddie Sicat, a 40-year-old farmer and neighbor of Artemio in Barangay
Sapang Tagalog, Tarlac, Tarlac, testified that on the second week of March
1996, between 6:00 and 7:00 a.m., while he was passing by the house of
Artemio on his way to the field to catch fish, he heard somebody crying. He
then peeped through a small opening in the destroyed portion of the sawali
wall of Artemio’s house. He saw Cynthia lying on her back and crying, while
her father was on top of her, doing a pumping motion. Eddie observed them
for about fifteen seconds, and then he left and proceeded to the field to
catch fish.5 He reported what he had witnessed to Artemio’s stepfather,
Celestino, later that morning.6
Gloria Pagala, the mother of Cynthia and former common-law wife of
Artemio, testified that she and Artemio started living together in Guimba,
Nueva Ecija, in February 1969. Out of their common-law relationship, they
had six children, one of whom was Cynthia. In March 1982, she and Artemio
parted ways permanently. Later, Gloria and her children lived in Pura, Tarlac.
When Artemio’s mother died sometime in 1996, Cynthia lived with Artemio
in a small one-room dwelling owned by Celestino and located in Barangay
Sapang Tagalog, Tarlac, Tarlac.7 On 30 August 1996, her son Novelito told
her that Cynthia was pregnant. Gloria then went to the house of Artemio and
asked Cynthia about her condition. The latter confessed that she had been
sexually abused by her father. Gloria then went to the office of the National
Bureau of Investigation (NBI) in Tarlac and reported what Artemio had done
to their daughter Cynthia.8
Dr. Rosario Fider of Tarlac Provincial Hospital testified that she examined
Cynthia on 16 September 1996. She found Cynthia to be five to six months

pregnant and to have incomplete, healed hymenal lacerations at 3, 5, 8
o’clock positions, which could have been caused by sexual intercourse or any
foreign body inserted in her private part.9
Atty. Florencio Canlas, an NBI agent, testified that on 18 September 1996,
Cynthia, accompanied by her mother, complained before him and NBI
Supervising Agent Rolando Vergara that she was raped by her father
Artemio. She then executed a written statement,10 which she subscribed and
sworn to before Atty. Canlas.11
The defense did not present Artemio as a witness. Instead, his counsel de
parte, Atty. Isabelo Salamida, took the witness stand and testified for the
defense. He declared that on 24 June 1997 (the same day when he testified
before the court), between 10:45 and 11:00 a.m., he and his secretary went
to the house of Artemio in Barangay Sapang Tagalog. The hut was made of
sawali. Its door was padlocked, and its windows were shut. When he went
around the house and tried to peep through the old sawali walls on the front
and left and right sides of the hut, he could not see anything inside the room
where Artemio and his children used to sleep. Although it was then about
noontime, it was dark inside.12 Atty. Salamida then concluded that
prosecution witness Eddie Sicat was not telling the truth when he declared
having seen what Artemio did to Cynthia when he peeped through a small
opening in the sawali wall of the house in the early morning sometime on
the second week of March 1996.
On rebuttal, Gloria Pagala testified that the house where Artemio used to live
was a small hut with some destroyed portions in its sawali walls. When she
went there to visit her children sometime in December 1995, there was a
hole in front and at the sidewall of the hut facing a vacant lot where people
passed by to fish in a nearby brook.13 When she went to the place again
sometime in September 1996 after she was informed of Cynthia’s pregnancy,
she noticed that the destroyed portions of the hut’s sawali walls were not yet
repaired.14
The second rebuttal witness Celestino Navarro, stepfather of Artemio,
testified that he is the owner of the small house where Artemio and his
children used to reside. At the time that Artemio and his children, including
Cynthia, were living in that house, the hut’s old sawali walls had some small
holes in them, thus confirming the testimony of Eddie Sicat. After Artemio
was arrested on the basis of Cynthia’s complaint before the NBI, Celestino
made some repairs in the hut by, among other things, placing galvanized
iron sheets to cover the holes at the destroyed portions of the sawali walls.
Thereafter, a person named Alvin occupied the house. 15

In its Decision of 22 September 1997, the trial court convicted Artemio in
Criminal Case No. 9375. It, however, acquitted him in all the other twelve
cases for lack of evidence.
In his Appellant’s Brief, Artemio contends that the trial court erred in
I
x x x BELIEVING THE TESTIMONIES OF THE PROSECUTION
WITNESSES;
II
x x xNOT DISMISSING THIS CASE FOR FAILURE OF THE
PROSECUTION TO PROVE [HIS] GUILT x x x BEYOND
REASONABLE DOUBT.
Artemio attacks the competency and credibility of Elven as a witness. He
argues that Elven, as his son, should have been disqualified as a witness
against him under Section 20(c), Rule 130 of the Rules of Court. 16 Besides,
Elven’s testimony appears not to be his but what the prosecution wanted
him to say, as the questions asked were mostly leading questions. Moreover,
Elven had ill-motive in testifying against him, as he (Artemio) was cruel to
him.
In another attempt to cast doubt on the credibility of the prosecution
witnesses, Artemio points to the following inconsistencies in their
testimonies: (1) as to the time of the commission of the crime, Elven
testified having seen Artemio on top of his sister one night in March 1996,
while Eddie Sicat testified having seen them in the same position between
6:00 and 7:00 a.m. in the second week of March 1996; (2) as to the
residence of Cynthia in 1996, Gloria testified that the former was living with
her in Guimba from November 1995 to September 1996, while Elven and
Eddie declared that she was in Sapang Tagalog in March 1996; and (3) as to
the residence of Artemio, Jr., Gloria stated that he was living with the
appellant, but later she declared that he was living with her in Pura.
Artemio also argues that since his house had no electricity and was dark
even at daytime, it was impossible for Elven and Eddie to see him allegedly
doing pumping motion on top of Cynthia. In his Reply Brief, he likewise
urges us to disregard the testimonies of rebuttal witnesses Celestino and
Gloria. According to him, Celestino had an ax to grind against him (Artemio)
because he had been badgering Celestino for his share of the lot where the
hut stands, which was owned by Artemio’s deceased mother. On the other

hand, Gloria wanted to get rid of Artemio because she was already
cohabiting with another man.
In the Appellee’s Brief, the Office of the Solicitor General (OSG) prays for the
affirmation of Artemio’s 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 prosecution’s 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
sister’s 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
Artemio’s 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
Cynthia’s 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

other children. Moreover, we have repeatedly held that no mother would
subject her child to the humiliation, disgrace, and trauma attendant to the
prosecution for rape if she were not motivated solely by the desire to have
the person responsible for her child’s defilement incarcerated. 28 As for
Celestino, he testified that the lot where the hut stands is owned by his
daughter Erlinda, and not by Artemio’s mother.29 At any rate, even without
Celestino’s testimony, Artemio’s conviction would stand.
The remaining issue for our resolution is the correctness of the penalty of
death imposed by the trial court. The death penalty was imposed because of
the trial court’s appreciation of the special qualifying circumstances that
Artemio is the father of the victim and the latter was less than 18 years old
at the time the crime was committed.
Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, which
is the governing law in this case, pertinently reads:
Article 335. When and how rape is committed. –
The crime of rape shall be punished by reclusion perpetua.
xxx
The death penalty shall also be imposed if the crime of rape is
committed with any of the following circumstances:
1. when the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim.
To justify the imposition of the death penalty in a rape committed by a father
on a daughter, the minority of the victim and her relationship with the
offender, which are special qualifying circumstances, must be alleged in the
complaint or information and proved by the prosecution during the trial by
the quantum of proof required for conviction. The accusatory portion of the
complaint in Criminal Case No. 9375 reads as follows:
That on or about the month of March 1996 at Sapang Tagalog,
Municipality of Tarlac, Province of Tarlac, Philippines, and within
the jurisdiction of this Honorable Court, the said accused Artemio
S. Invencion did then and there willfully, unlawfully and
feloniously by using force and intimidation have carnal

knowledge of his daughter Cynthia P. Invencion who was sixteen
(16) years old, in their house.
CONTRARY TO LAW.30
Although the relationship of Cynthia with her father Artemio was alleged in
the complaint and duly established by evidence during trial, the allegation in
the complaint regarding her age was not clearly proved.
In the very recent case of People v. Pruna,31 we set the guidelines in
appreciating age either as an element of the crime or as a qualifying
circumstance:
1. The best evidence to prove the age of the offended party is an
original or certified true copy of the certificate of live birth of
such party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records
which show the date of birth of the victim would suffice to prove
age.
3. If the certificate of live birth or authentic document is shown
to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim’s mother or a
member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below 3 years of age and
what is sought to be proved is that she is less than 7 years
old;
b. If the victim is alleged to be below 7 years of age and
what is sought to be proved is that she is less than 12
years old;
c. If the victim is alleged to be below 12 years of age and
what is sought to be proved is that she is less than 18
years old.

4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim’s mother or relatives
concerning the victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly admitted by the
accused.
5. It is the prosecution that has the burden of proving the age of
the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against
him.
6. The trial court should always make a categorical finding as to
the age of the victim.
In the present case, no birth certificate or any similar authentic document
was presented and offered in evidence to prove Cynthia’s age. The
statement in the medical certificate showing Cynthia’s age is not proof
thereof, since a medical certificate does not authenticate the date of birth of
the victim. Moreover, pursuant to Pruna, Gloria’s testimony regarding
Cynthia’s age was insufficient, since Cynthia was alleged to be 16 years old
already at the time of the rape and what is sought to be proved is that she
was then 18 years old. Moreover, the trial court did not even make a
categorical finding on Cynthia’s minority. Finally, the silence of Artemio or his
failure to object to the testimonial evidence regarding Cynthia’s age could
not be taken against him.
It must be stressed that the severity of death penalty, especially its
irreversible and final nature once carried out, makes the decision-making
process in capital offenses aptly subject to the most exacting rules of
procedure and evidence.32 Accordingly, in the absence of sufficient proof of
Cynthia’s minority, Artemio cannot be convicted of qualified rape and
sentenced to suffer the death penalty. He should only be convicted of simple
rape and meted the penalty of reclusion perpetua.
As regards the civil liability of Artemio, the awards of moral damages in the
amount of P50,000 and exemplary damages in the amount of P25,000 are
insufficient. Civil indemnity, which is mandatory upon the finding of the fact
of rape,33 should also be awarded. In simple rape, the civil indemnity for the
victim shall not be less than P50,000.
WHEREFORE, the decision of the Regional Trial Court, Branch 65, Tarlac,
Tarlac, in Criminal Case No. 9375 is hereby AFFIRMED with the modification
that that accused Artemio Invencion y Soriano is held guilty beyond
reasonable doubt as principal of the crime of simple rape, and is sentenced

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

constitute a breach of confidentiality. Any disclosure in violation of this
provisions shall constitute indirect contempt of court.
Chavez v PEA and AMARI G.R. No. 133250. July 9, 2002.
7/7/2010
0 Comments
Facts: On February 4, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA "to
reclaim land, including foreshore and submerged areas," and "to develop,
improve, acquire, lease and sell any and all kinds of lands." On the same
date, then President Marcos issued Presidential Decree No. 1085 transferring
to PEA the "lands reclaimed in the foreshore and offshore of the Manila Bay"
under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).
On January 19, 1988, then President Corazon C. Aquino issued Special
Patent No. 3517, granting and transferring to PEA "the parcels of land so
reclaimed under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP) containing a total area of one million nine hundred fifteen
thousand eight hundred ninety four (1,915,894) square meters."
Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of
Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in
the name of PEA, covering the three reclaimed islands known as the
"Freedom Islands" located at the southern portion of the Manila-Cavite
Coastal
Road,
Parañaque
City.
PEA and AMARI entered into the JVA through negotiation without public
bidding. On April 28, 1995, the Board of Directors of PEA, in its Resolution
No. 1245, confirmed the JVA. On June 8, 1995, then President Fidel V.
Ramos, through then Executive Secretary Ruben Torres, approved the JVA.
The Senate Committees reported the results of their investigation in
Senate Committee Report No. 560 dated September 16, 1997. Among the
conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer
to AMARI under the JVA are lands of the public domain which the
government has not classified as alienable lands and therefore PEA cannot
alienate these lands; (2) the certificates of title covering the Freedom
Islands
are
thus
void,
and
(3)
the
JVA
itself
is
illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential
Administrative Order No. 365 creating a Legal Task Force to conduct a study
on the legality of the JVA in view of Senate Committee Report No. 560. The
members of the Legal Task Force were the Secretary of Justice, the Chief
Presidential Legal Counsel, and the Government Corporate Counsel. The
Legal Task Force upheld the legality of the JVA, contrary to the conclusions

reached

by

the

Senate

Committees.

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as
a taxpayer, filed the instant Petition for Mandamus with Prayer for the
Issuance of a Writ of Preliminary Injunction and Temporary Restraining
Order. Petitioner contends the government stands to lose billions of pesos in
the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA
publicly disclose the terms of any renegotiation of the JVA, invoking Section
28, Article II, and Section 7, Article III, of the 1987 Constitution on the right
of the people to information on matters of public concern.
Due to the approval of the Amended JVA by the Office of the President,
petitioner now prays that on "constitutional and statutory grounds the
renegotiated
contract
be
declared
null
and
void."
Issue: The issues raised by petitioner, PEA and AMARI are as follows:
1. Whether the reliefs prayed for are moot and academic because of
subsequent
events;
2. Whether the petition should be dismissed for failing to observe the
principle
of
governing
the
heirarchy
of
courts;
3. Whether the petition should be dismissed for non-exhaustion of
administrative
remedies;
4.
Whether
petitioner
has
locus
standi;
5. Whether the constitutional right to information includes information on
on-going
neogtiations
BEFORE
a
final
agreement;
6. Whether the stipulations in the amended joint venture agreement for
the transfer to AMARI of certain lands, reclaimed and still to be reclaimed
violate
the
1987
Constitution;
and
7. Whether the Court has jurisdiction over the issue whether the
amended
JVA
is
grossly
disadvantageous
to
the
government
Held: 1. We rule that the signing and of the Amended JVA by PEA and
AMARI and its approval by the President cannot operate to moot the petition
and
divest
the
Court
of
its
jurisdiction.
PEA and AMARI have still to implement the Amended JVA. The prayer to
enjoin the signing of the Amended JVA on constitutional grounds necessarily
includes preventing its implementation if in the meantime PEA and AMARI
have signed one in violation of the Constitution. Petitioner's principal basis in
assailing the renegotiation of the JVA is its violation of the Section 3, Article
XII of the Constitution, which prohibits the government from alienating lands
of the public domain to private corporations. The Amended JVA is not an
ordinary commercial contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and submerged areas of

Manila

Bay

to

a

single

private

corporation.

Also, the instant petition is a case of first impression being a wholly
government owned corporation performing public as well as proprietary
functions. All previous decisions of the Court involving Section 3, Article XII
of the 1987 Constitution, or its counterpart provision in the 1973
Constitution, covered agricultural lands sold to private corporations which
acquired
the
lands
from
private
parties.
Lastly, there is a need to resolve immediately the constitutional issue
raised in this petition because of the possible transfer at any time by PEA to
AMARI of title and ownership to portions of the reclaimed lands. Under the
Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy
percent proportionate share in the reclaimed areas as the reclamation
progresses, The Amended JVA even allows AMARI to mortgage at any time
the entire reclaimed area to raise financing for the reclamation project.
2. The instant case, however, raises constitutional issues of
transcendental importance to the public. The Court can resolve this case
without determining any factual issue related to the case. Also, the instant
case is a petition for mandamus which falls under the original jurisdiction of
the Court under Section 5, Article VIII of the Constitution. We resolve to
exercise
primary
jurisdiction
over
the
instant
case.
3. PEA was under a positive legal duty to disclose to the public the terms
and conditions for the sale of its lands. The law obligated PEA make this
public disclosure even without demand from petitioner or from anyone. PEA
failed to make this public disclosure because the original JVA, like the
Amended JVA, was the result of a negotiated contract, not of a public
bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had
the
right
to
seek
direct
judicial
intervention.
The principle of exhaustion of administrative remedies does not apply
when the issue involved is a purely legal or constitutional question. The
principal issue in the instant case is the capacity of AMARI to acquire lands
held by PEA in view of the constitutional ban prohibiting the alienation of
lands of the public domain to private corporations. We rule that the principle
of exhaustion of administrative remedies does not apply in the instant case.
The petitioner has standing to bring this taxpayer's suit because the
petition seeks to compel PEA to comply with its constitutional duties. There
are two constitutional issues involved here. First is the right of citizens to
information on matters of public concern. Second is the application of a

constitutional provision intended to insure the equitable distribution of
alienable lands of the public domain among Filipino Citizens.
The thrust of the second issue is to prevent PEA from alienating hundreds of
hectares of alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a constitutional duty to the
nation.
4. Ordinary taxpayers have a right to initiate and prosecute actions
questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are of 'paramount public interest,' and
if they 'immediately affect the social, economic and moral well being of the
people.'
We rule that since the instant petition, brought by a citizen, involves the
enforcement of constitutional rights — to information and to the equitable
diffusion of natural resources — matters of transcendental public
importance,
the
petitioner
has
the
requisite
locus
standi.
5. The State policy of full transparency in all transactions involving public
interest reinforces the people's right to information on matters of public
concern. This State policy is expressed in Section 28, Article II of the
Constitution, thus: “Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions
involving
public
interest."
Contrary to AMARI's contention, the commissioners of the 1986
Constitutional Commission understood that the right to information
"contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until
the contract, which may be grossly disadvantageous to the government or
even
illegal,
becomes
a
fait
accompli.
However, the right to information does not compel PEA to prepare lists,
abstracts, summaries and the like relating to the renegotiation of the JVA. 34
The right only affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One who exercises the
right must copy the records, documents and papers at his expense. The
exercise of the right is also subject to reasonable regulations to protect the
integrity of the public records and to minimize disruption to government

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

the public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands
can become private or patrimonial lands. Otherwise, the constitutional ban
will become illusory if Congress can declare lands of the public domain as
private or patrimonial lands in the hands of a government agency tasked to
dispose
of
public
lands.
To allow vast areas of reclaimed lands of the public domain to be
transferred to PEA as private lands will sanction a gross violation of the
constitutional ban on private corporations from acquiring any kind of
alienable land of the public domain. This scheme can even be applied to
alienable agricultural lands of the public domain since PEA can "acquire . . .
any
and
all
kinds
of
lands."
The 157.84 hectares of reclaimed lands comprising the Freedom Islands,
now covered by certificates of title in the name of PEA, are alienable lands of
the public domain. PEA may lease these lands to private corporations but
may not sell or transfer ownership of these lands to private corporations.
7. Considering that the Amended JVA is null and void ab initio, there is
no necessity to rule on this last issue. Besides, the Court is not the trier of
facts, and this last issue involves a determination of factual matters.
WHEREFORE, the petition is GRANTED. The Public Estates
Authority and Amari Coastal Bay Development Corporation are
PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab
initio.
AIR PHILIPPINES CORP V PENNSWELL INC
Facts:
1. Petitioner Air Philippines Corporation is a domestic corporation
engaged in the business of air transportation services. On the other
hand, respondent Pennswell, Inc. was organized to engage in the
business of manufacturing and selling industrial chemicals, solvents,
and special lubricants.
2. Respondent delivered and sold to petitioner sundry goods in trade.
Under the contracts, petitioner’s total outstanding obligation amounted
to P449,864.98 with interest at 14% per annum until the amount
would be fully paid. For failure of the petitioner to comply with its
obligation under said contracts, respondent filed a Complaint for a
Sum of Money on 28 April 2000 with the RTC.

3. In its Answer, petitioner alleged that it was defrauded in the amount of
P592,000.00 by respondent for its previous sale of four items.
Petitioner asserted that it was deceived by respondent which merely
altered the names and labels of such goods. Petitioner asseverated
that had respondent been forthright about the identical character of
the products, it would not have purchased the items complained of.
4. Moreover, petitioner alleged that when the purported fraud was
discovered, a conference was held between petitioner and respondent
on 13 January 2000, whereby the parties agreed that respondent
would return to petitioner the amount it previously paid. However,
petitioner was surprised when it received a letter from the respondent,
demanding payment of the amount of P449,864.94, which later
became the subject of respondent’s Complaint for Collection of a Sum
of Money against petitioner.
5. During the pendency of the trial, petitioner filed a Motion to Compel
respondent to give a detailed list of the ingredients and chemical
components of the following products. The RTC rendered an Order
granting the petitioner’s motion.
6. Respondent sought reconsideration of the foregoing Order, contending
that it cannot be compelled to disclose the chemical components
sought because the matter is confidential. It argued that what
petitioner endeavored to inquire upon constituted a trade secret which
respondent cannot be forced to divulge.
7. The RTC gave credence to respondent’s reasoning, and reversed itself.
Alleging grave abuse of discretion on the part of the RTC, petitioner
filed a Petition for Certiorari under Rule 65 of the Rules of Court with
the Court of Appeals, which denied the Petition and affirmed the Order
dated 30 June 2004 of the RTC. Petitioner’s Motion for Reconsideration
was denied. Unyielding, petitioner brought the instant Petition before
SC.
Issue:
W/N CA erred in upholding RTC decision denying petitioner’s motion to
subject respondent’s products to compulsory disclosure.
Held:
No. The products are covered by the exception of trade secrets being
divulged in compulsory disclosure. The Court affirms the ruling of the Court

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 employer’s
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 party’s 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.
Respondent’s 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 respondent’s 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 respondent’s 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
respondent’s 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

Public Estates Authority and AMARI.
Petitioner wanted to be clarified first as to how she would comply with the
orders without her breaking any law, particularly RA. No. 1405.
ISSUE:
Whether the order of the Ombudsman to have an in camera inspection of the
questioned account is allowed as an exception to the law on secrecy of bank
deposits (R.A. No.1405).
HELD: No.
We rule that before an in camera inspection may be allowed, there must be
a pending case before a court of competent jurisdiction. Further, the account
must be clearly identified, the inspection limited to the subject matter of the
pending case before the court of competent jurisdiction. The bank personnel
and the account holder must be notified to be present during the inspection,
and such inspection may cover only the account identified in the pending
case
Ejercito vs. Sandiganbayan G.R. Nos. 157294-95, 30 November 2006
MARCH 16, 2014MARCH 16, 2014LEXMERCATORIAPHILIPPINES LEAVE A
COMMENT
RA 1405 does not provide for the application of this rule. At all
events, the Ombudsman is not barred from requiring the production
of documents based solely on information obtained by it from
sources independentof its previous inquiry.
Facts: Joseph Victor G. Ejercito is the owner of Trust Account No. 858 which
was originally opened at Urban Bank but which is now maintained at Export
and Industry Bank, which is the purchaser and owner now of the former
Urban Bank and Urbancorp Investment, Inc. He is also the owner of Savings
Account No. 0116-17345-9 which was originally opened at Urban Bank but
which is now maintained at Export and Industry Bank, the purchaser and
owner of the former Urban Bank and Urbancorp Investment, Inc.
Estrada was subsequently charged with Plunder. The Sandiganbayan a
Request for Issuance of Subpoena Duces Tecum for the issuance of a
subpoena directing the President of Export and Industry Bank (EIB, formerly
Urban Bank) or his/her authorized representative to produce various
document related to the investigation.
The Special Prosecution Panel also filed a Request for Issuance of Subpoena
Duces Tecum/Ad Testificandum directed to the authorized representative of
Equitable-PCI Bank to produce statements of account pertaining to certain
accounts in the name of “Jose Velarde” and to testify thereon.

The Sandiganbayan granted both requests by Resolution and subpoenas
were accordingly issued. The Special Prosecution Panel filed still another
Request for Issuance of Subpoena Duces Tecum/Ad Testificandum for the
President of EIB or his/her authorized representative to produce the same
documents subject of the first Subpoena Duces Tecum and to testify thereon
on the hearings scheduled and subsequent dates until completion of the
testimony. The request was likewise granted by the Sandiganbayan. A
Subpoena Duces Tecum/Ad Testificandum was accordingly issued. Ejercito
filed various motions to quash the various Subpoenas Duces Tecum/Ad
Testificandum previously issued. In his Motion to Quash, he claimed that his
bank accounts are covered by R.A. No. 1405 (The Secrecy of Bank Deposits
Law) and do not fall under any of the exceptions stated therein. He further
claimed that the specific identification of documents in the questioned
subpoenas, including details on dates and amounts, could only have been
made possible by an earlier illegal disclosure thereof by the EIB and the
Philippine Deposit Insurance Corporation (PDIC) in its capacity as receiver of
the then Urban Bank. The disclosure being illegal, he concluded, the
prosecution in the case may not be allowed to make use of the information.
Before the motion was resolved by the Sandiganbayan, the prosecution filed
another
Issue: Whether or not a Trust Account is covered by the term “deposit” as
used in R.A. 1405;
Held: R.A. 1405 is broad enough to cover Trust Account No. 858. However,
the protection afforded by the law is not absolute. There being recognized
exceptions thereto, as above-quoted Section 2 provides. In the present
case, two exceptions apply, to wit: (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. Ejercito contends that since plunder is neither
bribery nor dereliction of duty, his accounts are not excepted from the
protection of R.A. 1405.
Cases of unexplained wealth are similar to cases of bribery or dereliction of
duty and no reason is seen why these two classes of cases cannot be
excepted from the rule making bank deposits confidential. The policy as to
one cannot be different from the policy as to the other. This policy expresses
the notion that a public office is a public trust and any person who enters
upon its discharge does so with the full knowledge that his life, so far as
relevant to his duty, is open to public scrutiny. Undoubtedly, cases for
plunder involve unexplained wealth. The crime of bribery and the overt acts
constitutive of plunder are crimes committed by public officers, noble idea
that “a public office is a public trust and any person who enters upon its

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 Ejercito’s 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

investigation conducted on September 18, 1948, and he made a report
thereof to the Court in banc, resulting in the issuance of the resolution of
this Court dated October 7, 1948, which reads as follows:
In relation with the news item that appeared in the front page of the Star
Reporter, issue of September 14, 1948, regarding alleged leakage in some
bar examination questions, which examinations were held in August 1948,
Mr. Jose de la Cruz, as Commissioner, and Mr. E. Soriano, as Clerk of Court,
were authorized by Mr. Justice Sabino Padilla then chairman of the
committee of bar examiners to conduct an investigation thereof, particularly
to receive the testimony of Mr. Angel J. Parazo, the reporter responsible for
and author of said news item. An investigation was conducted on September
18, 1948; stenographic notes were taken of the testimony of Mr. Parazo, and
Mr. Justice Marcelino R. Montemayor, the new chairman of the committee of
bar examiners, has submitted the transcript of said notes for the
consideration of this Court.
From the record of said investigation, it is clear that Mr. Parazo has
deliberately and consistently declined and refused to reveal the identity of
the persons supposed to have given him the data and information on which
his news item was based, despite the repeated appeals made to his civic
spirit, and for his cooperations, in order to enable this Court to conduct a
thorough investigation of the alleged bar examination anomaly, Resolved, to
authorize Mr. Justice Montemayor to cite Mr. Parazo before him, explain to
him that the interests of the State demand and so this Court requires that
he reveal the source or sources of his information and of his news item, and
to warn him that his refusal to make the revelation demanded will be
regarded as contempt of court and penalized accordingly. Mr. Justice
Montemayor will advise the Court of the result.
Acting upon this resolution, the writer of this opinion cited Mr. Parazo to
appear before him on October 13, 1948. He appeared on the date set and it
was clearly explained to him that the interest of the State demands and this
court requires that he reveal the source of sources of his information and of
his news item; that this was a very serious matter involving the confidence
of the people in general and the law practitioners and bar examinees in
particular, in the regularity and cleanliness of the bar examinations; that it
also involves the good name and reputation of the bar examiners who are
appointed by this Court to prepare the bar examinations questions and later
pass upon and correct the examinations questions and last but not least, it
also involves and is bound to affect the confidence of the whole country in
the very Supreme Court which is conducting the bar examinations. It was
further explained to him that the Supreme Court is keenly interested in
investigating the alleged anomaly and leakage of the examination questions
and is determined to punish the party or parties responsible therefor but

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

compelled to reveal the sources of his information.
The phrase "interest of the state" is quite broad and extensive. It is of
course more general and broader than "security of the state." Although not
as broad and comprehensive as "public interest" which may include most
anything though of minor importance, but affecting the public, such as for
instance, the establishment and maintenance of barrio roads, electric light
and ice plants, parks, markets, etc., the phrase "interest of the estate" even
under a conservative interpretation, may and does include cases and
matters of national importance in which the whole state and nations, not
only a branch or instrumentality thereof such as a province, city or town, or
a part of the public, is interested or would be affected, such as the principal
functions of Government like administration of justice, public school system,
and such matters like social justice, scientific research, practice of law or of
medicine, impeachment of high Government officials, treaties with other
nations, integrity of the three coordinate branches of the Government, their
relations to each other, and the discharge of their functions, etc.
We are satisfied that the present case easily comes under the phrase
"interest of the state." Under constitutional provision, article VIII, section
13, Constitution of the Philippines, the Supreme Court takes charge of the
admission of members to the Philippine Bar. By its Rules of Court, it has
prescribed the qualifications of the candidates to the Bar Examinations, and
it has equally prescribed the subject of the said Bar Examinations. Every
year, the Supreme Court appoints the Bar examiners who prepare the
questions, then correct the examination papers submitted by the examinees,
and later make their report to the Supreme Court. Only those Bar
Examination candidates who are found to have obtained to passing grade
are admitted to the Bar and licensed to practice law. There are now
thousands of members of the Philippine Bar, scattered all over the
Philippines, practicing law or occupying important Government posts
requiring membership in the Bar as a prerequisite, and every year, quite a
number, sometimes several hundreds, are added to the legal fold. The
Supreme Court and the Philippine Bar have always tried to maintain a high
standard for the legal profession, both in academic preparation and legal
training, as well as in honesty and fair dealing. The Court and the licensed
lawyers themselves are vitally interested in keeping this high standard; and
one of the ways of achieving this end is to admit to the practice of this noble
profession only those persons who are known to be honest, possess good
moral character, and show proficiency in and knowledge of the law by the
standard set by this Court by passing the Bar Examinations honestly and in
the regular and usual manner. It is of public knowledge that perhaps by
general inclination or the conditions obtaining in this country, or the great
demand for the services of licensed lawyers, law as compared to other
professions, is the most popular in these islands. The predominantly greater

number of members of the Bar, schools and colleges of law as compared to
those of other learned professions, attest to this fact. And one important
thing to bear in mind is that the Judiciary, from the Supreme Court down to
the Justice of the Peace Courts, provincial fiscalships and other prosecuting
attorneys, and the legal departments of the Government, draw exclusively
from the Bar to fill their positions. Consequently, any charge or insinuation
of anomaly in the conduct of Bar Examinations, of necessity is imbued with
wide and general interest and national importance.
If it is true that Bar Examination questions, for some reason or another, find
their way out and get into the hands of Bar examinees before the
examinations are actually given, and as a result thereof some examinees
succeed in illegally and improperly obtaining passing grades and are later
admitted to the Bar and to the practice of law, when otherwise they should
not be, then the present members of the legal profession would have reason
to resent and be alarmed; and if this is continued it would not be long
before the legal profession will have fallen into disrepute. The public would
naturally lose confidence in the lawyers, specially in the new ones, because
a person contemplating to go to court to seek redress or to defend himself
before it would not know whether a particular lawyer to whom he is
entrusting his case has legally passed the Bar Examinations because of
sufficient and adequate preparation and training, and that he is honest, or
whether he was one of those who had succeeded in getting hold of Bar
Examination questions in advance, passed the Bar Examinations illegally,
and then started his legal career with this act of dishonesty. Particularly, the
Bar examinees who, by intense study and conscientious preparations, have
honestly passed the Bar Examinations and are admitted to practice law,
would be affected by this anomaly, because they would ever be under a
cloud of suspicion, since from the point of view of the public, they might be
among those who had made use of Bar Examination questions obtained
before hand. And, incidentally, the morale of the hundreds of students and
graduates of the different law schools, studying law and later preparing for
the Bar Examinations, would be affected, even disastrously, for in them may
be born the idea that there is no need of much law study and preparation
inasmuch as it is possible and not difficult to obtain copies of questions
before the examinations and pass them and be admitted to the Bar.
The cloud of suspicion would, equally, hang over the Bar examiners
themselves, eight eminent lawyers who in a spirit of public service and civic
spirit, have consented to serve on the Committee of Examiners at the
request and designation of this Court. They would be suspected, — one or
two or more of them — that through negligence, or connivance, or
downright corruption, they have made possible the release if they have not
themselves actually released, before examination day, the questions they
had prepared. The employees of the Supreme Court in charge of the Bar

Examinations, specially those who copy or mimeograph the original copies
furnished by the Bar examiners, would all be under suspicion. And, lastly,
and more important still, the Supreme Court itself which has to overall
supervision and control over the examinations, would share the suspicion, as
a result of which the confidence of the people in this High Tribunal, which
public confidence, the members of this Court like to think and believe, it still
enjoys, might be affected and shaken. All these considerations of vital
importance, in our opinion, can and will sufficiently cause the present case
to fall and be included within the meaning of the phrase "interest of the
state," involving as it does, not only the interests of students and graduates
of the law schools and colleges, and of the entire legal profession of this
country as well as the good name and reputation of the members of the
Committee of Bar Examiners, including the employees of the Supreme Court
having charge of and connections with said examinations, but also the
highest Tribunal of the land itself which represents one of the three
coordinate and independent branches or departments of the Philippine
Government.
In support of if not in addition to the power granted by section 1 of Republic
Act. No. 53 to this Court, we have the inherent power of courts in general,
specially of the Supreme Court as representative of the Judicial Department,
to adopt proper and adequate measures to preserve their integrity, and
render possible and facilitate the exercise of their functions, including, as in
the present case, the investigation of charges of error, abuse or misconduct
of their officials and subordinates, including lawyers, who are officers of the
Court. (Province of Tarlac vs. Gale, 26 Phil., 350; 21 C.J.S. 41, 138.) As we
have previously stated, the revelation demanded of the respondent, of the
identity of his informants, is essential and necessary to the investigation of
the charge contained in the publication already mentioned.
It will be noticed from Parazo's news item as quoted in the first part of this
decision, that, informants, law graduates and bar examinees, were
denouncing the supposed anomaly — consisting of the alleged leakage of
the Bar Examination questions — to the Supreme Court for due
investigation. If those persons really meant and intended to make a bona
fide and effective denunciation, with expectation of results, the right place to
air their grievance was the Supreme Court itself, not a newspaper; and if
they truly wanted an investigation, they should have come forward and
furnished or stood ready to furnish the facts on which to base and from
which to start an investigation, instead of concealing themselves behind the
curtain of press immunity.
Examining the news item in question, it is therein claimed and assured that
Bar Examination questions in at least one subject had been obtained and
used by bar examinees coming from a certain university, one week before

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)

MOUNTAIN, J. In these consolidated appeals The New York Times Company
and Myron Farber, a reporter employed by the newspaper, challenge
judgments entered against them in two related matters--one a proceeding in
aid of a litigant (civil contempt), the other for criminal contempt of court.
The proceedings were instituted in an ongoing murder trial now in its
seventh month, as a result of the appellants' failure to comply with two
subpoenas duces tecum, directing them to produce certain documents and
materials compiled by one or both of these appellants in the course of
Farber's investigative reporting of certain allegedly criminal activities.
Farber's investigations and reporting are said to have contributed largely to
the indictment and prosecution of Dr. Mario E. Jascalevich for murder.
Appellants moved unsuccessfully before Judge William J. Arnold, the trial
judge in State v. Jascalevich, to quash the two subpoenas; an order was
entered directing that the subpoenaed material be produced for in camera
inspection by the court....
Impelled by appellants' persistent refusal to produce the subpoenaed

materials for in camera inspection, Judge Arnold issued an order returnable
before Judge Theodore W. Trautwein, directing appellants to show cause why
they should not be deemed in contempt of court....
Judge Trautwein determined that both appellants had wilfully contemned
Judge Arnold's order directing that materials be produced for in camera
inspection and found them guilty as charged. A fine of $100,000 was
imposed on The New York Times and Farber was ordered to serve six
months in the Bergen County jail and to pay a fine of $1,000. Additionally, in
order to compel production of the materials subpoenaed on behalf of
Jascalevich, a fine of $5,000 per day for every day that elapsed until
compliance with Judge Arnold's order was imposed upon The Times; Farber
was fined $1,000 and sentenced to confinement in the county jail until he
complied with the order....
I. THE FIRST AMENDMENT
Appellants claim a privilege to refrain from revealing information sought by
the subpoenas duces tecum essentially for the reason that were they to
divulge this material, confidential sources of such information would be
made public. Were this to occur, they argue, newsgathering and the
dissemination of news would be seriously impaired, because much
information would never be forthcoming to the news media unless the
persons who were the sources of such information could be entirely certain
that their identities would remain secret. The final result, appellants claim,
would be a substantial lessening in the supply of available news on a variety
of important and sensitive issues, all to the detriment of the public interest.
They contend further that this privilege to remain silent with respect to
confidential information and the sources of such information emanates from
the "free speech" and "free press" clauses of the First Amendment.
In our view the Supreme Court of the United States has clearly rejected this
claim and has squarely held that no such First Amendment right exists. In
Branzburg v. Hayes, 408 U.S. 665 (1972), three news media representatives
argued that, for the same reason here advanced, they should not be
required to appear and testify before grand juries, and that this privilege to
refrain from divulging information, asserted to have been received from
confidential sources, derived from the First Amendment. Justice White,
noting that there was no common law privilege, stated the issue and gave
the Court's answer in the first paragraph of his opinion:
"The issue in these cases is whether requiring newsmen to appear and
testify before state or federal grand juries abridges the freedom of speech
and press guaranteed by the First Amendment. We hold that it does not."
Branzburg v. Hayes, supra, 408 U.S. at 667 (1972).

In that case one reporter, from Frankfort, Kentucky, had witnessed
individuals making hashish from marijuana and had made a rather
comprehensive survey of the drug scene in Frankfort. He had written an
article in the Louisville Courier-Journal describing this illegal activity.
Another, a newsman-photographer employed by a New Bedford,
Massachusetts television station, had met with members of the Black
Panther movement at the time that certain riots and disorders occurred in
New Bedford. The material he assembled formed the basis for a television
program that followed. The third investigative reporter had met with
members of the Black Panthers in northern California and had written an
article about the nature and activities of the movement. In each instance
there had been a commitment on the part of the media representative that
he would not divulge the source of his article or story.
By a vote of 5 to 4 the Supreme Court held that newspaper reporters or
other media representatives have no privilege deriving from the First
Amendment to refrain from divulging confidential information and the
sources of such information when properly subpoenaed to appear before a
grand jury. The three media representatives were directed to appear and
testify. The holding was later underscored and applied directly to this case
by Justice White in a brief opinion filed in this cause upon the occasion of his
denial of a stay sought by these appellants. He said,
"There is no present authority in this Court either that newsmen are
constitutionally privileged to withhold duly subpoenaed documents material
to the prosecution or defense of a criminal case or that a defendant seeking
the subpoena must show extraordinary circumstances before enforcement
against newsmen will be had." New York Times and Farber v. Jascalevich,
439 U.S. 1317, 1322 (1978)....
[A]mong the many First Amendment protections that may be invoked by the
press, there is not to be found the privilege of refusing to reveal relevant
confidential information and its sources to a grand jury which is engaged in
the fundamental governmental function of "[f]air and effective law
enforcement aimed at providing security for the person and property of the
individual...." 408 U.S. at 690. The reason this is so is that a majority of the
members of the United States Supreme Court have so determined....
Thus we do no weighing or balancing of societal interests in reaching our
determination that the First Amendment does not afford appellants the
privilege they claim. The weighing and balancing has been done by a higher
court. Our conclusion that appellants cannot derive the protection they seek
from the First Amendment rests upon the fact that the ruling in Branzburg is
binding upon us and we interpret it as applicable to, and clearly including,
the particular issue framed here. It follows that the obligation to appear at a
criminal trial on behalf of a defendant who is enforcing his Sixth Amendment

rights is at least as compelling as the duty to appear before a grand jury.
II. THE SHIELD LAW(1)2
In Branzburg v. Hayes, supra, the Court dealt with a newsman's claim of
privilege based solely upon the First Amendment. As we have seen, this
claim of privilege failed. In Branzburg no shield law was involved. Here we
have a shield law, said to be as strongly worded as any in the country.
We read the legislative intent in adopting this statute in its present form as
seeking to protect the confidential sources of the press as well as
information so obtained by reporters and other news media representatives
to the greatest extent permitted by the Constitution of the United States and
that of the State of New Jersey. It is abundantly clear that appellants come
fully within the literal language of the enactment....
III. THE SIXTH AMENDMENT AND ITS NEW JERSEY COUNTERPART
Viewed on its face, considered solely as a reflection of legislative intent to
bestow upon the press as broad a shield as possible to protect against
forced revelation of confidential source materials, this legislation is entirely
constitutional. Indeed, no one appears to have attacked its facial
constitutionality.
It is, however, argued, and argued very strenuously, that if enforced under
the facts of this case, the Shield Law violates the Sixth Amendment of the
Federal Constitution as well as Article 1, ¶10 of the New Jersey
Constitution.... Essentially the argument is this: The Federal and State
Constitutions each provide that in all criminal prosecutions the accused shall
have the right "to have compulsory process for obtaining witnesses in his
favor." Dr. Jascalevich seeks to obtain evidence to use in preparing and
presenting his defense in the ongoing criminal trial in which he has been
accused of multiple murders. He claims to come within the favor of these
constitutional provisions--which he surely does. Finally, when faced with the
Shield Law, he invokes the rather elementary but entirely sound proposition
that where Constitution and statute collide, the latter must yield. Subject to
what is said below, we find this argument unassailable.
The compulsory process clause of the Sixth Amendment has never been
elaborately explicated by the Supreme Court. Not until 1967, when it
decided Washington v. Texas, 388 U.S. 14, had the clause been directly
construed. Westen, Confrontation and Compulsory Process: A Unified Theory
of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586 (1978). In
Washington the petitioner sought the reversal of his conviction for murder. A
Texas statute at the time provided that persons charged or convicted as coparticipants in the same crime could not testify for one another. One Fuller,
who had already been convicted of the murder, was prevented from

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

statute, which allow witnesses to withhold evidence seem to conflict with
this provision. This conflict may arise in a variety of factual contexts with
respect to different privileges. We confine our consideration here to the
single privilege before us--that set forth in the Shield Law. We hold that
Article 1, ¶10 of our Constitution prevails over this statute....
IV. PROCEDURAL MECHANISM
Appellants insist that they are entitled to a full hearing on the issues of
relevance, materiality and overbreadth of the subpoena. We agree. The trial
court recognized its obligation to conduct such a hearing, but the appellants
have aborted that hearing by refusing to submit the material subpoenaed for
an in camera inspection by the court to assist it in determining the motion to
quash. That inspection is no more than a procedural tool, a device to be
used to ascertain the relevancy and materiality of that material. Such an in
camera inspection is not in itself an invasion of the statutory privilege.
Rather it is a preliminary step to determine whether, and if so to what
extent, the statutory privilege must yield to the defendant's constitutional
rights.
Appellants' position is that there must be a full showing and definitive
judicial determination of relevance, materiality, absence of less intrusive
access, and need, prior to any in camera inspection. The obvious objection
to such a rule, however, is that it would, in many cases, effectively stultify
the judicial criminal process. It might well do so here. The defendant
properly recognizes Myron Farber as a unique repository of pertinent
information. But he does not know the extent of this information nor is it
possible for him to specify all of it with particularity, nor to tailor his
subpoena to precise materials of which he is ignorant. Well aware of this,
Judge Arnold refused to give ultimate rulings with respect to relevance and
other preliminary matters until he had examined the material. We think he
had no other course. It is not rational to ask a judge to ponder the relevance
of the unknown.
The same objection applies with equal force to the contention that the
subpoena is overbroad. Appellants do not assert that the subpoena is vague
and uncertain, but that the data requested may not be relevant and
material. To deal effectively with this assertion it is not only appropriate but
absolutely necessary for the trial court to inspect in camera the subpoenaed
items so that it can make its determinations on the basis of concrete
materials rather than in a vacuum....
While we agree, then, that appellants should be afforded the hearing they
are seeking, one procedural aspect of which calls for their compliance with
the order for in camera inspection, we are also of the view that they, and
those who in the future may be similarly situated, are entitled to a

preliminary determination before being compelled to submit the subpoenaed
materials to a trial judge for such inspection. Our decision in this regard is
not, contrary to the suggestion in some of the briefs filed with us, mandated
by the First Amendment; for in addition to ruling generally against the
representatives of the press in Branzburg, the Court particularly and rather
vigorously, rejected the claims there asserted that before going before the
grand jury, each of the reporters, at the very least, was entitled to a
preliminary hearing to establish a number of threshold issues. Branzburg v.
Hayes, supra, 408 U.S. at 701-07. Rather, our insistence upon such a
threshold determination springs from our obligation to give as much effect
as possible, within ever-present constitutional limitations, to the very
positively expressed legislative intent to protect the confidentiality and
secrecy of sources from which the media derive information. To this end
such a determination would seem a necessity.

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