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Dying Declaration- Exception to the hearsay rule.

People vs De Joya: (Robbery with Homicide)

Accused: Pioquinto De Joya

Victim: Eulalia Diamse (Dying Declaration when asked by grandson Alvin who

asked her"Apo, Apo, what happened?". . . . [Eulalia Diamse held his hand and after

which said: "Si Paqui". After saying these words, she let go of Alvin's hand and

passed away.

It has been held that a dying declaration to be admissible must be complete in itself.

To be complete in itself does not mean that the declarant must recite everything that

constituted theres gestaeof the subject of his statement, but that his statement of

any given fact should be a full expression of all that he intended to say as conveying

his meaning in respect of such fact.3The doctrine of completeness has also been

expressed in the following terms in Prof. Wigmore's classic work:

The application of the doctrine of completeness is here peculiar.The statement

as offered must not be merely apart of the whole as it was expressed by the

declarant; it must be complete as far it goes.But it is immaterial how much of the

whole affair of the death is related, provided the statement includes all that the

declarant wished or intended to include in it. Thus,if an interruption (by death

or by an intruder) cuts short a statement which thus remains clearly less than that

which the dying person wished to make, the fragmentary statement is not

receivable, because the intended whole is not there, and the whole might be of a

very different effect from that of the fragment;yet if the dying person finishes the

statement he wishes to make, it is no objection that he has told only a portion of

what he might have been able to tell.4(Emphasis supplied)

The reason upon which incomplete declarations are generally excluded, or if

admitted, accorded little or no weight, is that since the declarant was prevented (by

death or other circumstance) from saying all that he wished to say, what he did say

might have been qualified by the statements which he was prevented from making.

That incomplete declaration is not therefore entitled to the presumpti

truthfulness which constitutes the basis upon which dying declaration

received.

(Acquitted)

People vs Santos: (Murder)

Accused: Francisco Santos @ Pran andVillamor Asuncion

Victim: David Ambre (Dying Declaration:Lolita asked her husband who ha

him and the latter answered, It wasParePran.[5]She heard Davids words be

like Lolita, she had also placed her head near David who was still alive at the t

A dying declaration is entitled to the highest credence because no perso

knows of his impending death would make a careless and false accusation.[27]

exception to the hearsay rule, the requisites for its admissibility are as follow

the declaration is made by the deceased under the consciousness of his impe

death; (2) the deceased was at the time competent as a witness; (3) the decla

concerns the cause and surrounding circumstances of the declarants death; athe declaration is offered in a criminal case wherein the declarants death

subject of inquiry.[28]

It must be shown that a dying declaration was made under a realization

decedent that his demise or at least, its imminence -- not so much the

eventuation of death -- is at hand.[29]This may be proven by the statement

deceased himself or it may be inferred from the nature and extent of the dec

wounds, or other relevant circumstances.

We stress that when a person is at the point of death, every moti

falsehood is silenced and the mind is induced by the most powerful consideratspeak the truth.

A declaration made spontaneously after a startling occurrence is deem

such when (1) the principal act, the res gestae, is a startling occurrence; (

statements were made before the declarant had time to contrive or devise; a

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the statements concern the occurrence in question and its immediately attending

circumstances

(Convicted)

People vs Rada & Sacdalan: (Multiple Murder)

Accused: RADA AND SACDALAN (CAFGUS)

VICTIM:Simeon Castillo, Isidro Castillo and Leonora Castillo (Leonora with

repeated dying declaration while she was being brought to the hospital that it was

the two accused that shot them)

Variations in the testimony of witnesses on the same side in respect to minor,

collateral, or incidental matters do not usually impair the weight of their united

testimony to the prominent facts. The witnesses testifying to the same event do not

have to be consistent in every detail as differences in recollection or viewpoints or

impressions are inevitable (People vs. Fabros, 214 SCRA 694 [1992]). Indeed, if

rights were to be lost merely because witnesses, while agreeing on the essential fact,

fail to testify harmoniously on all the particulars, a very large proportion of casesinvolving wrongs would find no redress in law.

All that accused-appellants could offer by way of defense are alibi and

denial. These defenses cannot prevail over the positive identification of credible

prosecution witnesses (People vs. Villanueva, 242 SCRA 47 [1995]; People vs.

Layno, 264 SCRA 558 [1996]) as well as where there is an ante mortem statement of

the victim received in evidence either as a dying declaration or as part of the res

gestae (People vs. Baguio, 196 SCRA 459 [1991]). Especially must this be so, in view

of defense witnesses Sgt. Verde and Kagawad Tolentino's claim that the place where

they allegedly were at the time of the incident is only about two kilometers from the

crime scene (tsn, Feb. 18, 1992, p. 42; Feb. 19, 1992, pp. 16-17). Essential to avalid defense of alibi is the physical impossibility of the accused to be present at the

scene of the crime at the time of the commission thereof (People vs. Daquipil, 240

SCRA 314 [1995]; People vs. Dayson, 242 SCRA 124 [1995]). Accused-appellants

failed to demonstrate any of these elements in the case at bench.

Both Accused CONVICTED.

PEOPLE VS CERILLA (Murder)

Accused: Joemarie Cerilla @ PATO

Victim: Alexander Parreo (Dying Declaration to his daughters and to his w

well as to the police that it was PATO who shot him. Died the following da

A dying declaration is a statement made by the victim of homicide, ref

to the material facts which concern the cause and circumstances of the killin

which is uttered under a fixed belief that death is impending and is certain to

immediately, or in a very short time, without an opportunity of retraction and

absence of all hopes of recovery. In other words, it is a statement made by a p

after a mortal wound has been inflicted, under a belief that death is certain, s

the facts concerning the cause and circumstances surrounding his/her dea

an exception to the rule against hearsay evidence, a dying declaration o

mortem statement is evidence of the highest order and is entitled to u

credence since no person aware of his impending death would make a carele

false accusation.

is thus admissible to provide the identity of the accused and the deceased,

to show the cause of death of the deceased,

the circumstances under which the assault

was made upon him.

The reasons for its admissibility is necessity and trustworthiness. Nec

because the declarants death renders it impossible his taking the witness

and it often happens that there is no other equally satisfactory proof of the

allowing it, therefore, prevents a failure of justice. And trustworthiness, becaudeclaration is made in extremity, when the party is at the point of death and

every motive to falsehood is silenced and the mind is induced by the most po

considerations to speak the truth. The law considers the point of death

situation so solemn and awful as creating an obligation equal to that wh

imposed by an oath administered in court.

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Four requisites must concur in order that a dying declaration may be admissible,

thus:first,the declaration must concern the cause and surrounding circumstances

of the declarant's death. This refers not only to the facts of the assault itself, but

also to matters both before and after the assault having a direct causal connection

with it. Statements involving the nature of the declarants injury or the cause of

death; those imparting deliberation and willfulness in the attack, indicating the

reason or motive for the killing; justifying or accusing the accused; or indicating the

absence of cause for the act are admissible.[40]Second,at the time the declaration

was made, the declarant must be under the consciousness of an impending death.

The rule is that, in order to make a dying declaration admissible, a fixed belief in

inevitable and imminent death must be entered by the declarant. It is the belief in

impending death and not the rapid succession of death in point of fact that renders

the dying declaration admissible. It is not necessary that the approaching death be

presaged by the personal feelings of the deceased. The test is whether the declarant

has abandoned all hopes of survival and looked on death as certainly impending.[41]Third,the declarant is competent as a witness. The rule is that where the

declarant would not have been a competent witness had he survived, the proffered

declarations will not be admissible. Accordingly, declarations made by a child too

young to be a competent witness or by a person who was insane or incapable ofunderstanding his own statements by reason of partial unconsciousness are not

admissible in evidence.[42]Thus, in the absence of evidence showing that the

declarant could not have been competent to be a witness had he survived, the

presumption must be sustained that he would have been competent.[43]Fourth,the

declaration must be offered in a criminal case for homicide, murder, or parricide, in

which the declarant is the victim.[44]Anent this requisite, the same deserves no

further elaboration as, in fact, the prosecution had caused its witnesses to take the

stand and testify in open court on the substance of Alexanders ante mortem

statement in the present criminal case for murder.

First, Alexanders declaration pertains to the identity of the person who shothim. Second, the fatal quality and extent of the injuries[49]he suffered underscore

the imminence of his death as his condition was so serious that his demise

occurred the following morning after a thirteen (13)-hour operation. Third, he would

have been competent to testify had he survived. Fourth, his dying declarat

offered in a criminal prosecution for murder where he was the victim.

Accused: CONVICTED

DECLARATION AGAINST INTEREST

PEOPLE VS BERNAL (Kidnapping)

Accused: Theodore Bernal

Victim Openda Jr:

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., te

that sometime in January 1991, Openda, Jr. confided to him that he and B

wife Naty were having an affair. One time, Naty even gave Openda, Jr. money

they used to pay for a motel room. He advised Naty not to do it again becau

(was) a married woman.[9]Undoubtedly, his wifes infidelity was ample reas

Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the iden

the perpetrator. Coupled with enough circumstantial evidence or facts from w

may be reasonably inferred that the accused was the malefactor, motive m

sufficient to support a conviction.[10]Openda, Jr.s revelation to Enriquez reg

his illicit relationship with Bernals wife is admissible in evidence, pursua

Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. -- The declaration made by a person dece

or unable to testify, against the interest of the declarant, if the fact asserted in

declaration was at the time it was made so far contrary to declarants own inte

that a reasonable man in his position would not have made the declaration un

he believed it to be true, may be received in evidence against himself or his

successors-in-interest and against third persons.

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With the deletion of the phrase pecuniary or moral interest from the present

provision, it is safe to assume that declaration against interest has been expanded

to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal.[11]

A statement may be admissible when it complies with the following requisites,

to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact

against the interest of the declarant; (3) that at the time he made said declaration

the declarant was aware that the same was contrary to his aforesaid interest; and(4) that the declarant had no motive to falsify and believed such declaration to be

true.

ACT OR DECLARATION ABOUT PEDIGREE

Tandog vs Macapagal

The above-named petitioners claim that they and their predecessors-in-interest have

been in actual, open, continuous, exclusive, and notorious possession of the landsince time immemorial. They trace their rights to Casimiro Policarpio, unmarried,

who died in 1945. He was survived by his nephews and nieces, now deceased,

except Maria Bautista Catanyag. She and Casimiros grand nieces and grand

nephews (herein petitioners) have continued possessing and cultivating the land.

When petitioners decided to apply for the judicial registration of the property, they

found that portions of the land have been occupied by spouses Alfonso and Marina

Calderon and Renato Macapagal, respondents. According to petitioners, spouses

Calderon used falsified documents to justify their possession of 20,116 square

meters of the land which they sold to the government. For his part, Renato

Macapagal applied for and was granted Free Patent which led to the issuance to him

of Original Certificate of Title (OCT). Because of these incidents, petitioners filed

with the RTC a complaint for quieting of title.

Respondent Marina Calderon, in her answer, specifically denied petit

allegations in their complaint. She alleged that she and her husband bough

property in 1958 and, since then, have been in possession of the same

planted trees and crops thereon. Also, they have been paying the correspo

realty taxes. She does not knowpetitioners who are all strangers in the place.

After petitioners had presented their evidence, spouses Calderon filed a demu

evidence. In an Order dated March 20, 1995, the trial court granted their m

and dismissed the complaint.

As a general rule, a cloud which may be removed by suit to quiet title is not c

by mere verbal or parol assertion of ownership of or an interest in property

rule is subject to qualification, where there is a written or factual basis f

asserted right. Thus, a claim of right based on acquisitive prescription or ad

possession has been held to constitute a removable cloud on title.

While petitioners alleged that respondents claim of adverse possession is a clo

their (petitioners) interest in the land, however, such allegation has not

proved.The alleged falsified documents relied upon by respondents to justify

possession were merely marked as exhibits but were never formally offeevidence by petitioners.We have consistently ruled that documents which ma

been marked as exhibits during the hearing, but which were not formally offe

evidence, cannot be considered as evidence, nor can they be given any evide

value.[4]

It is important that petitioners must first establish their legal or equitable title

interest in the real property which is the subject matter of the action.[5]Petit

failed to do so. Parenthetically, they did not present any evidence to prov

Casimiro Policarpio existed and that he is their predecessor-in-interest

testimonies can not be considered declarations about pedigree.In order

pedigree may be proved by acts or declarations of relatives under Section

the Revised Rules of Evidence, it is necessary that (a) the actor or declar

dead or unable to testify; (b) the act or declaration is made by a person r

to the subject by birth or marriage; (c) the relationship between the dec

or the actor and the subject is shown by evidence other than such a

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declaration; and (d) the act or declaration was made ante litem motam, or

prior to the controversy. Records show that petitioners failed to establish by

evidence any or all the above requisites.

Tecson vs. Commission on Elections [GR 151434, 3 March 2004] (Petition to

disqualify FPJ because of his Citizenship)

Tecson vs. Commission on Elections[GR 151434, 3 March 2004]

Facts:

Petitioners sought for respondent Poes disqualification in the presidential elections

for having allegedly misrepresented material facts in his (Poes) certificate of

candidacy by claiming that he is a natural Filipino citizen despite his parents both

being foreigners. Comelec dismissed the petition, holding that Poe was a Filipino

Citizen. Petitioners assail the jurisdiction of the Comelec, contending that only the

Supreme Court may resolve the basic issue on the case under Article VII, Section 4,

paragraph 7, of the 1987 Constitution.

Issue:

Whether or not it is the Supreme Court which had jurisdiction.

Whether or not Comelec committed grave abuse of discretion in holding that Poe

was a Filipino citizen.

Ruling:

1.) The Supreme Court had no jurisdiction on questions regarding qualification of a

candidate for the presidency or vice-presidency before the elections are held.

"Rules of the Presidential Electoral Tribunal" in connection with Section 4,

paragraph 7, of the 1987 Constitution, refers to contests relating to the election,

returns and qualifications of the "President" or "Vice-President", of the Philippines

which the Supreme Court may take cognizance, and not of "candidates" for

President or Vice-President before the elections.

2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino

Citizen.

The 1935 Constitution on Citizenship, the prevailing fundamental la

respondents birth, provided that among the citizens of the Philippines are

whose fathers are citizens of the Philippines."

Tracing respondents paternal lineage, his grandfather Lorenzo, as evidenced

latters death certificate was identified as a Filipino Citizen. His citizenship wa

drawn from the presumption that having died in 1954 at the age of 84, Lo

would have been born in 1870. In the absence of any other evidence, Lorenzosof residence upon his death in 1954 was presumed to be the place of residenc

his death, such that Lorenzo Pou would have benefited from the "en

Filipinization" that the Philippine Bill had effected in 1902. Being so, Lor

citizenship would have extended to his son, Allan---respondents father.

Respondent, having been acknowledged as Allans son to Bessie, thoug

American citizen, was a Filipino citizen by virtue of paternal filiation as evid

by the respondents birth certificate. The 1935 Constitution on citizenship d

make a distinction on the legitimacy or illegitimacy of the child, thus, the alle

of bigamous marriage and the allegation that respondent was born only befo

assailed marriage had no bearing on respondents citizenship in view established paternal filiation evidenced by the public documents presented.

But while the totality of the evidence may not establish conclusively that respo

FPJ is a natural-born citizen of the Philippines, the evidence on hand still

preponderate in his favor enough to hold that he cannot be held guilty of h

made a material misrepresentation in his certificate of candidacy in violat

Section 78, in relation to Section 74 of the Omnibus Election Code.

Section 39, Rule 130, of the Rules of Court provides

Act or Declaration about pedigree. The act or declaration of a person deceas

unable to testify, in respect to the pedigree of another person related to him by b

marriage, may be received in evidence where it occurred before the controvers

the relationship between the two persons is shown by evidence other than such

declaration. The word pedigree includes relationship, family genealogy,

marriage, death, the dates when and the places where these facts occurred, an

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names of the relatives. It embraces also facts of family history intimately connected

with pedigree.

For the above rule to apply, it would be necessary that (a) the declarant is already

dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the

declarant must be a relative of the person whose pedigree is in question, (d)

declaration must be made before the controversy has occurred, and (e) the

relationship between the declarant and the person whose pedigree is in question

must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of

Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted

to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ,

i.e, living together with Bessie Kelley and his children (including respondent FPJ) in

one house, and as one family

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in

Stockton, California, U.S.A., after being sworn in accordance with law do hereby

declare that:

1. I am the sister of the late Bessie Kelley Poe.

2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, morepopularly known in the Philippines as Fernando Poe, Jr., or FPJ.

4. Ronald Allan Poe FPJ was born on August 20, 1939 at St. Luke's Hospital,

Magdalena Street, Manila.

x x x x x x x x x

7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were

students at the University of the Philippines in 1936. I was also introduced to

Fernando Poe, Sr., by my sister that same year.

8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth,

Ronald, Allan and Fernando II, and myself lived together with our mother at our

family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of

Manila in 1945, except for some months between 1943-1944.

10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more

children after Ronald Allan Poe.

x x x x x x x x x

18. I am executing this Declaration to attest to the fact that my nephew, Ronald

Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando

Poe, Sr.

Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas

Declarant

FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Section 40. Family reputation or tradition regarding pedigree. The reputat

tradition existing in a family previous to the controversy, in respect to the pe

of any one of its members, may be received in evidence if the witness tes

thereon be also a member of the family, either by consanguinity or affinity. E

in family bibles or other family books or charts, engravings on rings, family po

and the like, may be received as evidence of pedigree.

GRAVADOR VS MAMIGO (Forced Retirement)

Petitioner wrote the Director of Public Schools, protesting his forced retireme

the ground that the date of his birth is not November 26, 1897 but Decemb

1901. Attached to his letter was the affidavit, executed on July 26, 1962, of L

Bandoquillo and Pedro A. Sienes both of Amlan Negros Oriental, in which the

affiants declared that they knew that the petitioner "was born on Decemb

1901, in the Municipality of Amlan formerly known as New Ayuquitan Provi

Negros Oriental, Philippines" because, "we were the neighbors of the late sp

NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents], a

were present when said PEDRO GRAVADOR was born; furthermore,we wer

invited during the baptismal party a few weeks after the birth of said P

GRAVADOR."

On July 6, 1967 the petitioner asked for the dismissal of the appeal on the g

that the issues posed thereby had become moot with his retirement from the s

on December 11, 1966 and the payment to him of the corresponding retir

benefits. SC deemed it necessary, however, to review the trial court's decision

merits, considering that the computation of retirement annuities is based a

other things, on the number of years of service of a retiree,1 and that paymbenefits already made to the petitioner on the basis of December 11, 1901

date of his birth would not exempt him from the obligation to make a refund s

this Court ultimately rule that he was actually born November 26, 1897,

respondents claim.

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The import of the declaration of the petitioner's brother, contained in a verified

pleading in a cadastral case way back in 1924, to the effect that the petitioner was

then 23 years old, can not be ignored. Madeante litem motam by a deceased relative,

this statement is at once a declaration regarding pedigree within the intendment

and meaning of section 33 of Rule 130 of the Rules of Court. Thus, December 11,

1901 is established as the date of birth of the petitioner not only by evidence of

family tradition but also by the declaration ante litem motam of a deceased relative.

Finally, the patties are agreed that the petitioner has a brother, Constantino, who

was born on June 10, 1898 and who retired on June 10, 1963 with full retirementpay. The petitioner then could not have been born earlier than Constantino, say in

1897 as pre-war records indicate, because Constantino is admittedly older than he.

PEOPLE VS. ALEGADO (2 counts of rape)

Accused : Alfredo Alegado

Offended Party: Christina Deang (below 12 years old)

Firstly, the accused-appellant contends that the offended party's actual age at the

time of the alleged incidents of rape was not establisher with certainty, hence, it waserror on the part of the trial court to convict the accused-appellant of statutory

rape.

We are not persuaded. The testimonies of the prosecution witnesses, the offended

party herself and her maternal grandfather, Cornelio Villarosa, as to the fact that

the victim was born on September 5, 1976 do not constitute hearsay evidence as

claimed by the accused-appellant but rather fall under the exceptions to the hearsay

rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on

Evidence. Under Section 40 of the said Rule, it is provided, in part, that:

SEC. 40. Family reputation or tradition regading pedigree. The reputation or

tradition existing in a family previous to the controversy, in respect to the pedigree

of any of its members, may be received in evidence if the witness testifying thereon

be also a member of the family, either by consanguinity or affinity. ...

The word pedigree under Section 39 of the same Rule includes relationship, family

genealogy, birth, marriage, death, the dates when and the places where these facts

occurred and the names of the relatives.

In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:

... [D]eclarations in regard to pedigree, although hearsay, are admitted o

principle that they are natural expressions of persons who must know the

(See Sec. 33, Rule 130 Revised Rules of Court now Sec. 39, Rule 130 under th

Rules). Pedigree testimony is admitted because it is the best that the nature

case admits and because greater evil might arise from the rejection of such

than from its admission.

(In the present case, the applicability of Rule 130, Section 39 of the Revised

on Evidence to prove the victim's age is beyond question. The said pro

contains three requisites for its admissibility, namely: (1) that there is controve

respect to the pedigree of any of the members of a family; (2) that the reputattradition of the pedigree of the person concerned existed previous t

controversy; and (3) that the witness testifying to the reputation or tra

regarding the pedigree of the person must be a member of the family of said p

All these preconditions are obtaining in the case at bar considering that the d

birth of the rape victim is being put in issue; that the declaration of the vi

grandfather relating to tradition (sending a child to school upon reaching the

seven) existed long before the rape case was filed; and that the witness testify

the said tradition is the maternal grandfather of the rape victim.

Moreover, the offended party herself categorically stated in open court that sh

born on September 5, 1976

It is long-settled, that the testimony of a person as to his age is admissible alt

hearsay and though a person can have no personal knowledge of the date

birth as all the knowledge a person has of his age is acquired from what he

by his parents he may testify as to his age as he had learned it from his p

and relatives and his testimony in such case is an assertion of family tra

(Gravador v. Mamigo, 20 SCRA 742) ... (Rollo, p. 93-94)

Inasmuch as the accused-appellant failed to present contrary evidence to d

the prosecution's claim that the victim in this case was below twelve (12) yea

at the time of the rape incidents under consideration, we affirm the trial c

finding that the victim in these rape cases was under twelve years of age.

ACCUSED CONVICTED OF Statutory Rape

COMMON REPUTATION

Section 41.Common reputation. Common reputation existing previous

controversy, respecting facts of public or general interest more than thirty years

respecting marriage or moral character, may be given in evidence. Monument

inscriptions in public places may be received as evidence of common reputation.

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JISON VS CA (Petition for Recognition as an Illegitimate child filed by Monina

Jison against Francisco Jison)

FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end

of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F.

Amolar (who was then employed as the nanny of FRANCISCO's daughter,

Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and

since childhood, had enjoyed the continuous, implied recognition as an illegitimate

child of FRANCISCO by his acts and that of his family. MONINA further alleged thatFRANCISCO gave her support and spent for her education, such that she obtained a

Master's degree, became a certified public accountant (CPA) and eventually, a

Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her,

MONINA prayed for a judicial declaration of her illegitimate status and that

FRANCISCO support and treat her as such. FRANCISCO alleged that he could not

have had sexual relations with Esperanza Amolar during the period specified in the

complaint as she had ceased to be in his employ as early as 1944, and did not know

of her whereabouts since then; further, he never recognized MONINA, expressly or

impliedly, as his illegitimate child.

Several witnesses were presented by MONINA consisting of former and present

employees of FRANCISCO and testified that MONINAs filiation was common

knowledge among the people in the office at Nelly Garden.

CA erred in GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY

THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT

THE SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER

UNDER THE BASIC RULES OF EVIDENCE.

We likewise disagree with the ruling of the Court of Appeals that the certificates

issued by the Local Civil Registrar and the baptismal certificates may be taken as

circumstantial evidence to prove MONINAs filiation. Since they areper

seinadmissible in evidence as proof of such filiation, they cannot be admitted

indirectly as circumstantial evidence to prove the same.

As to Exhibits S, T, U and V, the various notes and letters writt

FRANCISCOs relatives, namely Mike Alano, Emilio Jison, Mariquit Lope

Fernando Lopez, respectively, allegedly attesting to MONINAs filiation, while

due execution and authenticity are not in issue,[40]as MONINA witnesse

authors signing the documents, nevertheless, under Rule 130, Section 3

contents of these documents may not be admitted, there being no showing th

declarants-authors were dead or unable to testify, neither was the relatio

between the declarants and MONINA shown by evidence other than the docu

in question.[41]

As to the admissibility of these documents under Rule 130, S40, however, this requires further elaboration.

Rule 130, Section 40, provides:

Section 40. Family reputation or tradition regarding pedigree. -- The reputation

tradition existing in a family previous to the controversy, in respect to the pedi

of any one of its members, may be received in evidence if the witness testifying

thereon be also a member of the family, either by consanguinity or affinity. En

in family bibles or other family books or charts, engravings on rings, family po

and the like, may be received as evidence of pedigree. (underscoring supplied)

It is evident that this provision may be divided into two (2) parts: the p

containing the first underscored clause which pertains to testimonial evi

under which the documents in question may not be admitted as the authors t

did not take the witness stand; and the section containing the second under

phrase. What must then be ascertained is whether Exhibits S to V, as p

documents, fall within the scope of the clause and the like as qualified b

preceding phrase [e]ntries in family bibles or other family books or c

engravings on rights [and] family portraits.

We hold that the scope of the enumeration contained in the second por

this provision, in light of the rule ofejusdem generis, is limited to objects whi

commonly known as family possessions, or those articles which represent, in

a familys joint statement of its belief as to the pedigree of a person.[42]Thes

been described as objects openly exhibited and well known to the family,[43]or

which, if preserved in a family, may be regarded as giving a family tradition.[44]

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examples of these objects which are regarded as reflective of a familys reputation or

tradition regarding pedigree are inscriptions on tombstones,[45]monuments or coffin

plates.[46]

Plainly then, Exhibits S to V, as private documents not constituting "family

possessions" as discussed above, may not be admitted on the basis of Rule 130,

Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section

41 regarding common reputation,[47]it having been observed that:

[T]he weight of authority appears to be in favor of the theory that it is the general

repute, the common reputation in the family, and not the common reputation in

community, that is a material element of evidence going to establish pedigree. xxx

[Thus] matters of pedigree may be proved by reputation in the family, and not by

reputation in the neighborhood or vicinity, except where the pedigree in question is

marriage which may be proved by common reputation in the community.

Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like

manner as MONINA's school records, properly be admitted as part of her testimony

to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his

daughter.

All told, MONINAs evidence hurdled the high standard of proof required for the

success of an action to establish ones illegitimate filiation when relying upon the

provisions regarding open and continuous possession or any other means allowed

by the Rules of Court and special laws; moreover, MONINA proved her filiation by

more than mere preponderance of evidence. SC RULED IN FAVOR OF MONINA

PART OF RES GESTAE

Section 42. Part of res gestae. Statements made by a person while a starting

occurrence is taking place or immediately prior or subsequent thereto with respect to

the circumstances thereof, may be given in evidence as part of res gestae. So, also,

statements accompanying an equivocal act material to the issue, and giving it a legal

significance, may be received as part of the res gestae.

PEOPLE VS ROBERTO NER (MURDER)

VICTIM: JOSE DE LEON

The case hinges on whether or not appellant has been sufficiently identified

killer or one of the killers of Jose de Leon. In this connection, the main witness

the prosecution were Estanislao de Leon, Leonardo Bolea, Rodolfo Rosales

Artemio Tiong.

The defense insists that the testimony of Patrolman Tiong concernin

conversation with Angelina Viray should be disregarded as hearsay, for Angeli

not take the witness stand. Said conversation took place in Boy's apartment, o

17, 1964, between 10:09 and 10:30 p.m., or immediately after the occurrenc

referred to the circumstances surrounding the same. At that time, Angelina ha

as yet, fully recovered from the effects of the assassination of her commo

husband, practically, if not actually, before her own eyes. In fact, she was no

crying; she had, also, been repeatedly saying, almost hysterically, that Boy had

shot by "Pirate". Tiong's testimony about the statements then made by her,

she could deliberated on the events that had transpired a few minutes befor

properly admitted under Sec. 36 of Rule 130 of the Rules of Court, pursu

which:

... Statements made by a person while a startling occurrence is taking

orimmediately prior or subsequent theretowith respect to the circumstances th

may be given in evidence as a part of the RES GESTAE. ...

Indeed, it has been held:

... that declarations which are the natural emanations or outgrowths

act or occurrence in litigation,although not precisely concurrent in point of t

they were yet voluntarily and spontaneously made so nearly contemporaneous

be in the presence of the transaction which they illustrate and explain, and

made under such circumstances as necessarily to exclude the idea of des

deliberation, must, upon the clearest principles of justice, be admissible as p

the act or transaction itself.2

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It is true that, in saying that Boy had been shot by Pirate, Angelina did not

explain to Patrolman Tiong whether or not she had seen the latter in the act of

firing, although she said so in an affidavit made by her in the City Fiscal's office.

Her story to Patrolman Tiong indicated, however, that she had seen appellant and

Boy talking in the living room of his apartment, shortly before the shooting, and

that, accordingly, she had personal knowledge of appellant'spresenceat the scene of

the occurrence.

The fact that Angelina's statement to Tiong was part of her narration,prompted by his questions about the details of the occurrence, does not detract from

the spontaneity of her statement. All that is required for the admissibility of a given

statement as part of theres gestae, is that it be made under the influence of a

startling event witnessed by the person who made the declaration3before he had

time to think and make up a story4, or to concoct or contrive a falsehood5, or to

fabricate an account6, and without any undue influence in obtaining it7, aside

from referring to the event in question or its immediate attending circumstances.8

Accused Convicted.

PEOPLE VS SANCHEZ (ARSON)

Accused Danilo Sanchez and Juanito Zamora

Arson of the house of SPS. Nepescua.Trial then proceeded against him with the

prosecution presenting as its witnesses Demetrio Matabang, Pedro Parayno, Julieta

Nepuscua and Cesar Nepuscua. The lone eyewitness, Mr. Elpidio Nepuscua, could

no longer be presented because he died on 13 December 1982. 3He, however,

signed a statement on 24 November 1982 before an investigator of the IntegratedNational Police of Aguilar, Pangasinan wherein he implicated the accused as the

person who burned the house.

Accused imputes upon the trial court the commission of the following errors:

1. . . . in not considering the statement of Elpedio (sic) Nepuscu

hearsay evidence.

2. . . . in convicting the accused-appellant by considering the

information made by Elpedio (sic) Nepuscua to his wife Julieta

Nepuscua and his son Cesar Nepuscua as part of the res gestae

According to Julieta, at 4:00 o'clock in the morning of 23 November 198

husband arrived at the house of Filomena and related to her that "on that eof November 22, 1982, there were four (4) persons who went near our hous

they were carrying with them rice stalks or hay and then one of them calle

saying "Tatay, tatay, bangon kayo ta ansakit so eges nen nanay, iyacar ta

hospital", which means, "Father, father wake up because my mother is su

from stomach (sic) ache and we will rush her to the hospital." He further to

that on that same evening, Danilo Sanchez went up to the balcony of their

carrying with him one (1) bundle of rice hay which he then set on fire thus ca

the burning of their house.

In his sworn statement, Elpidio narrated the burning incident. He catego

admitted therein that he reported the incident to the Calasiao Police Station, bdid not mention the names of the culprits for fear that he and his family wo

placed in danger once the culprits discovered that they had been identifi

suspects.

There can, therefore, be no question that the only eyewitness to the burning

house was Elpidio Nepuscua. Unfortunately, he died even before the Inform

was prepared and filed. Thus, he could no longer testify during trial.

A careful scrutiny of the records discloses that the prosecution relied solelyo

sworn statement of Elpidio Nepuscua wherein he named the accused, J

Zamora, and two others whom he failed to identify, as the parties who set his on fire, and the testimony of his wife Julieta Nepuscua to the effect that

November 1982, she, her children and three (3) grandchildren were evacua

Elpidio to the house of her sister-in-law, Filomena Nepuscua, because h

accused and Juanito Zamora were angry with Elpidio because the latter re

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them for having cut on 20 November 1982 the bamboo trees that were mortgaged to

them (Nepuscuas) by Maria Billota, Juanito's mother. Julieta also declared that at

4:00 o'clock in the morning of 23 November 1982 four (4) hours after the burning

of the

house Elpidio told her that in the evening of 22 November 1982, four (4) persons

carrying rice stalks went near their house; one of them uttered "father, father wake

up because my mother is suffering from stomach (sic) ache and we will rush her to

the hospital"; thereafter, Danilo Sanchez went up to the balcony of their house

carrying a bundle of rice stalks and set the same on fire. The court admitted inevidence Elpidio's sworn statement and considered Elpidio's declaration to Julieta

as part of res gestae.

The so-called statement uttered by Elpidio Nepuscua to his wife Julieta at about

4:00 o'clock in the morning of 23 November 1982, or four (4) hours after the

burning, implicating accused, should not have been admitted as part of the res

gestae.

Section 42 of Rule 130 provides:

Statements made by a person while a startling occurrence is takingplace or immediately prior or subsequent thereto with respect to the

circumstances thereof, may be given in evidence as part of theres

gestae. So, also, statements accompanying an equivocal act material

to the issue, and giving it a legal significance, may be received as part

of the res gestae.

Res gestae means the "things done". 27It "refers to those exclamations and

statements made by either the participants, victims, or spectators to a crime

immediately before, during, or immediately after the commission of the crime, when

the circumstances are such that the statements were made as spontaneous reaction

or utterance inspired by the excitement of the occasion and there was no

opportunity for the declarant to deliberate and to fabricate a false statement."28A

spontaneous exclamation is defined as "a statement or exclamation made

immediately after some exciting occasion by a participant or spectator and asserting

the circumstances of that occasion as it is observed by him. The admissibility of

such exclamation is based on our experience that, under certain ex

circumstances of physical or mental shock, a stress of nervous excitement m

produced in a spectator which stills the reflective faculties and removes

control, so that the utterance which then occurs is a spontaneous and s

response to the actual sensations and perceptions already produced by the ex

shock. Since this utterance is made under the immediate and uncon

domination of the senses, rather than reason and reflection, and during the

period when consideration of self-interest could not have been fully brought to

the utterance may be taken as expressing the real belief of the speaker as facts just observed by him."29In a manner of speaking, the spontaneity

declaration is such that the declaration itself may be regarded as the event spe

through the declarant rather than the declarant speaking for himself.30Or,

differently, ". . . the events speak for themselves, giving out their fullest me

through the unprompted language of the participants. The spontaneous chara

the language is assumed to preclude the probability of its premeditati

fabrication. Its utterance on the spur of the moment is regarded, with a good d

reason, as a guarantee of its truth."31

There are, therefore, three (3) requisites for the admission of evidenconstituting part of the res gestae: (1) that the principal act, the res gestae

startling occurrence; (2) the statements were made before the declarant had t

contrive or devise; and (3) that the statements must concern the occurren

question and its immediately attending circumstances.

The cases are not uniform as to the interval of time that should separa

occurrence of the startling event and the making of the declaration. W

important is that the declarations were voluntarily and spontaneously ma

nearly contemporaneous as to be in the presence of the transaction which

illustrate and explain, and were made under such circumstances as necessa

exclude the idea of design or deliberation . . ." 40

In the light of the foregoing principle on res gestae and the settled jurispru

thereon, We find the questioned statement of Elpidio Nepuscua to his wife

lacking in spontaneity and to have been given after he had the luxury of

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to concoct a story or fabricate an account. If indeed he was at his house at the

time the accused and the latter's alleged companions came, and the burning took

place at midnight, considering that the house of Filomena where his wife and

children were sleeping was only 150 meters away, and there being no evidence at all

that he was prevented through threats and intimidation by the accused and his

companions or that he was struck by fear which immobilized him from immediately

leaving the scene of the fire, no plausible reason may be summoned to justify or

explain his nearly four-hour delay in reporting the incident to his wife and other

members of his family. He could easily negotiate that distance in less than five (5)minutes. Doubtless, the burning of their house was no ordinary event; such a

dastardly occurrence caused an irreparable loss of property and rendered them

homeless.The shock and excitement it naturally produced was more than

enough to propel his feet to bring him to his family as soon as possible. It

behooved Elpidio to relay the tragic event to those dear to him without any

delay; thus, his conduct cannot be reconciled with human experience,

ordinary habits of men and common sense. It could, however, be easily reconciled

if he were, in fact, with his family in the house of Filomena during the fire. If he

evacuated his family to the house of Filomena on 21 November 1982 because he

was afraid of the accused and Juanito Zamora, there was no reason at all for him torisk his life and limb by staying alone in their house. That he was not in the house

at the time of the burning seems to be supported by the conduct of the members of

his family. As testified to by Julieta and her son Cesar, they just looked out the

window of Filomena's house while their own house was burning. They never

mentioned that they expressed fears as to Elpidio's fate, if in fact the latter was left

in the house. All that Julieta could do was to prevent Cesar from returning to their

burning house for fear that the persons who set it on fire would harm him. Cesar

then left for Manila at 3:00 o'clock early the next morning, 23 November 1982,

barely three (3) hours after the fire. He did not proceed to their house to find out

what had happened to his father. By that time, worry over Elpidio's fate did not seize

or overcome both Julieta and Cesar. If indeed Elpidio was in their house before thefire and he left the scene only four (4) hours later, the conduct of his wife and son

seemed too unnatural.

Another badge of untrustworthiness attributable to the alleged statement giv

Elpidio to his wife is his deliberate suppression of the names of the "suspects"

he reported the incident to the police authorities of Calasiao, Pangasinan

morning of 23 November 1982. The reasons given therefor are palpably unte

In the first place, there is no evidence that the accused and his companions

reputation for being violent; if they were known for their violence and Elpidio w

afraid of revealing their names, then he would have kept their ident

pectoris. This he failed to do during the investigation at the P.C. Headquarte

following day despite the absence of any assurance of protection.

After everything is said and done, it is clear to Us that serious doubts surroun

questioned statement of Elpidio to his wife, especially when viewed in the light

probability of concoction he had every reason to get even with the accuse

Juanito Zamora.

Accused then deserves an acquittal on the ground of reasonable

ACQUITTED.

PEOPLE VS EDELCIANO AMACA @ EDDIE (MURDER)

The ante mortem statement of the victim is sufficient to identify the assailant

case at hand. However, the accused cannot be convicted of murder attend

treachery, because the Information charged him with murder qualified on

evident premeditation. This legal lapse of the prosecution -- for that matte

prosecution lapse -- should benefit the appellant, because in a criminal cas

accused may be held accountable only for the crime charged (or for the

necessarily included therein), and every doubt must be resolved in his favor

we hold him guilty only of homicide. Furthermore, since the heirs of the

waived their claim through an affidavit of desistance, no award for civil inde

should be included in this Decision finding the accused guilty of the homicide.

Victim suffered two gunshot wounds at the back

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Bernardo Mangubat, member of the Philippine National Police of Canlaon City,

testified that as a police investigator one of his companions in the force fetched him

from his residence at about 7:00 in the evening of October 1, 1990, and informed

him of a shooting incident, where the victim was at the clinic of Dr. Cardenas, which

was near his residence. Upon reaching the clinic of Dr. Cardenas, he saw the victim

already on board a Ford Fiera pick up ready for transport to the hospital. He

inquired from the victim about the incident, and the former answered he was shot

by CVO Amaca and Ogang. Upon query why he was shot, the victim said he did not

know the reason why he was shot. Upon being asked as to his condition, the victimsaid that he was about to die. (TSN, p. 22, March 4, 1992) Upon being asked, the

victim identified himself as Nelson (sic) Vergara. He was able to reduce into writing

the declaration of victim Vergara, and have the latter affixed (sic) his thumbmark

with the use of his own blood in the presence of Wagner Cardenas, the brother of

the City Mayor. (Exh. C)

Defense: Alibi

Ante Mortem Statement as Res Gestae

The ante mortem statement may also be admitted in evidence when consideredas part of the res gestae, another recognized exception to the hearsay rule provided

specifically under Rule 130, Section 36 of the Rules of Court. The requisites for the

admissibility of statements as part of the res gestae are: (a) the statement is

spontaneous; (b) it is made immediately before, during or after a startling

occurrence; and (c) it relates to the circumstances of such occurrence.[27]These

requirements are obviously fulfilled in the present case where the statement, subject

of this discussion, was made immediately after the shooting incident and, more

important, the victim had no time to fabricate.

An ante mortem statement may be admitted in evidence as a dying declaration

and as part of the res gestae. This dual admissibility is not redundant and has theadvantage of ensuring the statements appreciation by courts, particularly where the

absence of one or more elements in one of the said exceptions may be raised in

issue. In this manner, the identification of the culprit is assured

PEOPLE VS RESTITUTO MANHUYOD (RAPE)

Private Complainant: Daughter of Accused Rellane and his wife Yo

Manhuyod

However repulsive and condemnable the act of a father raping his daughter, y

Constitution mandates that an accused is entitled to the presumptiinnocence. Thus, after a scrutiny of the record and the evidence in this case, w

ourselves unable to affirm the judgment of the trial court. Acquittal th

compelled by law since the presumption of innocence was not overcom

conviction having been based on hearsay evidence and a miscomprehension

rule on statements forming part of theres gestae.

Subject Exhibits: B, the sworn statement of Yolanda given before Atty. Tom

and subscribed and sworn to before Atty. Icao, Jr. on 8 June 1995; C, the

statement of Relanne given before Atty. Icao, Jr. on 8 June 1995;

Court issued Warrant for indirect contempt of Yolanda and Rellane forappearance. They were not presented. the prosecution rested its case solely o

basis of the testimonies of NBI agent Atty. Tomarong, NBI agent Atty. Icao, J

NBI Medico-Legal Officer Dr. Refe, together with the documents they identifi

testified on.

The trial court held that Exhibits B and C were convincing as they men

details which could not have been concocted, as such, they constitute[d] p

theres gestae, an exception to the hearsay rule

the NBI agents and medico-legal officer had no personal knowledge as to

actually and truthfully happened; hence, their testimony as to what Relann

Yolanda narrated were likewise inadmissible hearsay. Accused further cont

that what was established during trial was that Relanne and Yolanda were no

interested in pursuing the criminal complaint against him; hence the case s

have been dismissed for their lack of interest to prosecute the same.

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It is a basic rule in evidence set forth in Section 36 of Rule 130 of the Rules of

Court that a witness can testify only to those facts which he knows of his own

personal knowledge,i.e., which are derived from his own perception; otherwise,

such testimony would be hearsay. Hearsay evidence is defined as evidence not of

what the witness knows himself but of what he has heard from others.[42]Obviously

then, the NBI agents testimonies touching upon what was told them by Relanne and

Yolanda concerning the events relating to the alleged commission of rape in question

was hearsay. As a matter of fact, insofar as Yolanda was concerned, since she was

not an eyewitness to the commission of the rape, but obtained knowledge thereofonly from Relanne, the testimony of Atty. Tomarong with respect to what Yolanda

told him, even constituted double hearsay.

It is settled that unless the affiants themselves take the witness stand to affirm

the averments in their affidavits, the affidavits must be excluded from a judicial

proceeding for being inadmissible hearsay. The rationale for this is respect for the

accuseds constitutional right of confrontation, or to meet the witnesses against him

face-to-face.[43]To safeguard this right, Section 1 of Rule 132, of the Rules of Court

thus provides that the examination of witnesses presented in a trial or hearing must

be done in open court, and under oath or affirmation.[44]At bottom, admitting

Exhibits A, B, and C only as part of the testimonies of the NBI agents could validlybe done, but in light of the foregoing discussion, these exhibits should have been

excluded insofar as their contents related to the truth of the matter concerning the

commission of the rape in question.

All that is required for the admissibility of a given statement as part of

theres gestae, is that it be made under the influence of a startling event

witnessed by the person who made the declaration before he had time to

think and make up a story, or to concoct or contrive a falsehood, or to

fabricate an account, and without any undue influence in obtaining it,

aside from referring to the event in question or its immediate attending

circumstances.

In sum, there are three requisites to admit evidence as part of theres gestae: (1)

that the principal act, theres gestae, be a startling occurrence; (2) the statements

were made before the declarant had the time to contrive or devise a falsehood; and

(3) that the statements must concern the occurrence in question and its imm

attending circumstances.[47]

It goes without saying that the element of spontaneity is critical. The fol

factors are then considered in determining whether statements offered in ev

as part of theres gestaehave been made spontaneously,viz., (1) the tim

lapsed between the occurrence of the act or transaction and the making

statement; (2) the place where the statement was made; (3) the condition

declarant when he made the statement; (4) the presence or absence of interevents between the occurrence and the statement relative thereto; and (5) the n

and circumstances of the statement itself.[48]As to the first factor, the fol

proves instructive:

T]he rule is that the statements, to be admissible, should have been ma

before there had been time or opportunity to devise or contrive anythi

contrary to the real facts that occurred. What the law altogether distrusts

not afterspeech but afterthought.

[T]here are no limits of time within which theres gestaecan be arbitrar

confined. These limits vary in fact with each particular case. The acts declarations are not required to be contemporaneous with the primary fa

but they must be so connected with it as to make the act or declaration a

the main fact particularly inseparable, or be generated by an excited feeli

which extends, without break or let-down, from the moment of the eve

they illustrate. In other words, if the acts or declarations sprang out of t

principal transaction, tend to explain it, were voluntary and spontaneou

and were made at a time so near it as to preclude the idea of delibera

design, they may be regarded as contemporaneous in point of time, and a

admissible.[49]

Tested against the foregoing requisites to admit statements as part of tgestaeand factors to test the spontaneity of the statements, we do not hesit

rule that the sworn statement of Relanne (Exhibit C) fails to qualify as part

res gestae for these reasons: (1) it was executed only on 8 June 1995 or, thi

(36) days after the alleged rape on 3 May 1995, providing her more than suffi

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time to concoct or contrive a falsehood; (2) it was made after she had resolved to file

a case for rape against her father, a decision which required much deliberation and

would cause her obvious pain as the filing would expose her to public humiliation

and shame, bring dishonor to her family and visit upon her father the penalty of

death; (3) she gave the statement after three critical intervening events had

occurred,viz., her pregnancy, filing the complaint sheet and her being referred to

the NBI medico-legal officer for examination; and (4) it was made far from the place

where the principal event -- the alleged rape -- was committed,i.e., the latter took

place in the De la Paz, Liloy, Zamboanga del Norte, while the statement was made inDipolog City, at the sub-office of the NBI, and any map of Zamboanga del Norte will

show that Tampilisan and Dipolog City do not even adjoin each other.

Turning to the sworn statement of Yolanda (Exhibit B), with more reason should

this not qualify as forming part of theres gestae. Yolanda did not witness the

principal event and all she knew of it was told to her by Relanne. Even if the issue of

admissibility is confined to what Relanne had told Yolanda, the same conclusion

would be reached for it clearly appears in Exhibit A that Relanne had not

spontaneously told Yolanda of the alleged rape. In fact, the latter had to confront the

former only after the accused confessed to Yolanda that he had molested

Relanne. Moreover, the confrontation took place on 3 June 1995, or a month afterthe alleged rape.

Ineluctably then, the trial court erred in admitting Exhibits B and C as part of

theres gestae.

PEOPLE VS OSCAR MANSUETO (MURDER)

Victim: Jacinto Pepito

Jacinto Pepito (hereafter JACINTO) lived at his mothers house in Liloan, Cebu

with his son Jeovani and 17-year-old daughter Cleofe (hereafter CLEOFE). At

around 8:25 p.m. on 26 October 1991, CLEOFE roused JACINTO from his sleep and

informed him that a man outside the house was calling for him. JACINTO got up

and went down the house. Downstairs, JACINTO saw the man who was sta

outside the gate of the house. Are you Jacinto? the man asked. Yes, I am Ja

JACINTO replied. Without warning, the man drew a gun and fired one s

JACINTO.

The man tried to shoot JACINTO a second time but the gun woul

fire. Summoning whatever strength was left in him, JACINTO reached out f

assailant. The man, however, hurriedly ran across the street to where a moto

was waiting. He boarded the motorcycle; he and the driver sped away. At thatJACINTOs body lay on the ground lifeless.

The gunman was never brought to court to answer for his dastardly a

remained at-large. The driver of the getaway motorcycle was identified a

investigation conducted by the police to be the accused-appellant, Oscar Man

as conspirator for the crime of Murder.

The States principal witness, CLEOFE, testified on the circumstances lead

the death of her father as already narrated.[5]When asked whether she had a

look (at) the man who was driving the motorcycle, CLEOFE said that she is fa

with his face because (she) often see(s) him. She further explained that shegood view of said driver for about five seconds as he and the gunman sped

Besides, the place where the driver waited for the gunman was illuminated b

light coming from a nearby vulcanizing shop owned by one Arnold Hernande

then identified the driver of the motorcycle as OSCAR, whom she claimed w

paramour of her mother, Moisesa Pepito.

Accused challenges CA in ruling and giving credence to the stateme

witness CLEOFE immediately after the shooting incident as part of the res ges

The trial court believed CLEOFE and found her to be a credible witness

she testified that OSCAR was the driver of the getaway motorcycle. In its de

the trial court stated that:

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On the other hand, the identification by witness, Cleofe Pepito of the accused as

the motorcycle driver, who was waiting in the wings to facilitate the escape of the

gunman was never destroyed by the defense. In fact, in answer to the question of

private prosecutor whether witness Cleofe Pepito had a good look at the man who

was driving the motorcycle, her answer was a definite yes, and when she was asked

as to why she was definite, her answer was that she was familiar with his face

because she had often seen him. Later on, as records show, this witness was able to

explain her familiarity and it was the result of having been instructed by her mother

to collect accounts supposedly due her mother from the accused.

In his Appellants Brief, OSCAR additionally attempts to impeach the credibility

of CLEOFE on the grounds of bias and her failure to mention OSCAR as the driver

of the getaway motorcycle when she reported the shooting incident to the Liloan

Police immediately after it occurred should form part of the res gestae. OSCAR

contends that the omission, as part of theres gestae, should have been afforded

evidentiary weight.

OSCAR, however, misunderstands the admissibility in evidence of statements as

part of the res gestae which is considered in Section 42, Rule 130 of the Rules of

Court as an exception to the rule on hearsay evidence. Res Gestae refers to thoseexclamations and statements made by either the participants, victims, or spectators

to a crime immediately before, during, or after the commission of the crime, when

the circumstances are such that the statements were made as a spontaneous

reaction or utterance inspired by the excitement of the occasion and there was no

opportunity for the declarant to deliberate and to fabricate a false statement.

[34]The rule in res gestae applies when the declarant himself did not testify and

provided that the testimony of the witness who heard the declarant complies with

the following requisites: (1) that the principal act, the res gestae, be a startling

occurrence; (2) the statements were made before the declarant had the time to

contrive or devise a falsehood; and (3) that the statements must concern the

occurrence in question and its immediate attending circumstances.

Since CLEOFE herself testified, there is absolutely no room for the application

of the rule on res gestae. Besides, subject matters not mentioned or are outside the

statements or explanations given by the declarant, in this case CLEOFE, obv

do not form part of the res gestae.

Accused Convicted.

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JUANITO TALIDANO VS FALCON MARITIME (Illegal Dismissal Case)

Petitioner submits that the Court of Appeals erred in relying merely on fax

messages to support the validity of his dismissal from employment. He maintains

that the first fax message containing the information that the vessel encroached on

a different route was a mere personal observation of the ship master and should

have thus been corroborated by evidence, and that these fax messages cannot be

considered as res gestae because the statement of the ship master embodied thereinis just a report. He also contends that he has not caused any immediate danger to

the vessel and that if he did commit any wrongdoing, the incident would have been

recorded in the logbook. Thus, he posits that the failure to produce the logbook

reinforces the theory that the fax messages have been concocted to justify his

unceremonious dismissal from employment. Hence, he believes that his dismissal

from employment stemmed from his filing of the complaint with the ITF which his

superiors resented.

Section 42 of Rule 13040of the Rules of Court mentions two acts which form part

of the res gestae, namely: spontaneous statements and verbal acts. In spontaneous

exclamations, the res gestae is the startling occurrence, whereas in verbal acts, theres gestae are the statements accompanying the equivocal act.41We find that the

fax messages cannot be deemed part of the res gestae.

To be admissible under the first class of res gestae, it is required that: (1) the

principal act be a startling occurrence; (2) the statements were made before the

declarant had the time to contrive or devise a falsehood; and (3) that the statements

must concern the occurrence in question and its immediate attending

circumstances.42

Assuming that petitioners negligencewhich allegedly caused the ship to deviate

from its courseis the startling occurrence, there is no showing that the statementscontained in the fax messages were made immediately after the alleged incident. In

addition, no dates have been mentioned to determine if these utterances were made

spontaneously or with careful deliberation. Absent the critical element of

spontaneity, the fax messages cannot be admitted as part of the res gestae of t

first kind.

Neither will the second kind of res gestae apply. The requisites for its admissib

are: (1) the principal act to be characterized must be equivocal; (2) the equivoca

must be material to the issue; (3) the statement must accompany the equivoca

and (4) the statements give a legal significance to the equivocal act.43

Petitioners alleged absence from watch duty is simply an innocuous act or at l

proved to be one. Assuming arguendo that such absence was the equivocal act

nevertheless not accompanied by any statement more so by the fax statements

adverted to as parts of the res gestae. No date or time has been mentioned to

determine whether the fax messages were made simultaneously with the purp

equivocal act.

Furthermore, the material contents of the fax messages are unclear. The matte

route encroachment or invasion is questionable. The ship master, who is the a

of the fax messages, did not witness the incident. He obtained such informatio

from the Japanese port authorities. Verily, the messages can be characterized double hearsay.

Private respondents sole reliance on the fax messages in dismissing petitioner

clearly insufficient as these messages were addressed only to itself. No notice w

ever given to petitioner apprising him in writing of the particular acts showing

neglect of duty. Neither was he informed of his dismissal from employment.

Petitioner was never given an opportunity to present his side. The failure to com

with the two-notice rule only aggravated respondents liability on top of dismis

petitioner without a valid cause.

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ENTRIES IN THE COURSE OF BUSINESS

Section 43. Entries in the course of business. Entries made at, or near the time of

transactions to which they refer, by a person deceased, or unable to testify, who was

in a position to know the facts therein stated, may be received as prima

facie evidence, if such person made the entries in his professional capacity or in the

performance of duty and in the ordinary or regular course of business or duty.

AZMAR VS CITIBANK

EMMANUEL B. AZNAR, Petitioner, vs.

CITIBANK, N.A., (Philippines), Respondent.

G.R. No. 164273; March 28, 2007

Facts:

Petitioner is a holder of a credit card and claims that when he presented his credit

card in some establishments in Malaysia, Singapore and Indonesia, the same wasnot honored. And when he tried to use the same in Ingtan Tour and Travel Agency

(Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again

dishonored for the reason that his card was blacklisted by the respondent bank.

To prove that respondent blacklisted his credit card, Petitioner presented a computer

print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT

ACTIVITY REPORT, issued to him by Ingtan Agency with the signature of one

Victrina Elnado Nubi which shows that his card in question was

DECL OVERLIMIT or declared over the limit.

The Regional Trial Court rendered its decision dismissing petitioners complaint forlack of merit. It held that as between the computer print-out presented by petitioner

and the Warning Cancellation Bulletins presented by respondent, the latter had

more weight as their due execution and authenticity was duly established by

respondent.

Upon motion for reconsideration, the decision was reversed. Judge De la Pea

that the computer print-out was printed out by Nubi in the ordinary or r

course of business in the modern credit card industry and Nubi was not a

testify as she was in a foreign country and cannot be reached by subpoena

same took judicial notice of the practice of automated teller machines (ATM

credit card facilities which readily print out bank account status, therefo

print-out can be received as prima facie evidence of the dishonor of petiti

credit card.

On appeal, the Court of Appeals ruled that the computer print-out is an elec

document which must be authenticated pursuant to Section 2, Rule 5 of the

on Electronic Evidence or under Section 20 of Rule 132 of the Rules of Cou

anyone who saw the document executed or written; Petitioner, however, fai

prove its authenticity, thus it must be excluded.

Issues:

i. Whether or not the On Line Authorization Report is an elec

document?

ii. Whether or not the On Line Authorization Report cons

electronic evidence?

Held:

The petition was denied by the Supreme Court for lack of merit.

Petitioner puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACC

ACTIVITY REPORT, a computer print-out handed to petitioner by Ingtan Agen

prove that his credit card was dishonored for being blacklisted. On said pri

appears the words DECL OVERLIMIT.

As correctly pointed out by the RTC and the CA, however, such exhibit cann

considered admissible as its authenticity and due execution were not suffi

established by petitioner.

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The prevailing rule at the time of the promulgation of the RTC Decision is Section

20 of Rule 132 of the Rules of Court. It provides that whenever any private

document offered as authentic is received in evidence, its due execution and

authenticity must be proved either by (a) anyone who saw the document executed or

written; or (b) by evidence of the genuineness of the signature or handwriting of the

maker.

Petitioner, who testified on the authenticity did not actually see the document

executed or written, neither was he able to provide evidence on the genuineness of

the signature or handwriting of Nubi, who handed to him said computer print-out.

Even if examined under the Rules on Electronic Evidence, which took effect on

August 1, 2001, and which is being invoked by petitioner in this case, the

authentication of the computer print-out would still be found wanting.

Petitioner claims that his testimony complies with par. (c), i.e., it constitutes the

other evidence showing integrity and reliability of Exh. G to the satisfaction of the

judge. The Court is not convinced. Petitioners testimony that the person from

Ingtan Agency merely handed him the computer print-out and that he thereafter

asked said person to sign the same cannot be considered as sufficient to show saidprint-outs integrity and reliability. As correctly pointed out by Judge Marcos in his

May 29, 1998 Decision, Exh. G does not show on its face that it was issued by

Ingtan Agency as petitioner merely mentioned in passing how he was able to secure

the print-out from the agency. Petitioner also failed to show the specific business

address of the source of the computer print-out because while the name of Ingtan

Agency was mentioned by petitioner, its business address was not reflected in the

print-out.

Indeed, petitioner failed to demonstrate how the information reflected on the print-

out was generated and how the said information could be relied upon as true.

Related:

Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which perta

entries in the course of business, to support Exh. "G". Said provision reads:

Sec. 43. Entries in the course of business. Entries made at, or near the time

transactions to which they refer, by a person deceased or unable to testify, wh

in a position to know the facts therein stated, may be received as

facie evidence, if such person made the entries in his professional capacity or

performance of duty and in the ordinary or regular course of business or duty

Under this rule, however, the following conditions are required:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performanc

duty, whether legal, contractual, moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty

As correctly pointed out by the RTC in its May 29, 1998 Decision, there appe

the computer print-out the name of a certain "Victrina Elnado Nubi" a

signature purportedly belonging to her, and at the left dorsal side were handw

the words "Sorry for the delay since the records had to be retrieved. Regards.

Mario." It is not clear therefore if it was Nubi who encoded the information sta

the print-out and was the one who printed the same. The handwritten anno

signed by a certain Darryl Mario even suggests that it was Mario who print

same and only handed the print-out to Nubi. The identity of the entrant, requi

the provision above mentioned, was therefore not established. Neither did pet

establish in what professional capacity did Mario or Nubi make the entr

whether the entries were made in the performance of their duty in the ordin

regular course of business or duty.

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G.R. No. 155550 January 31, 2008

NORTHWEST AIRLINES, INC.,petitioner,

vs.

STEVEN P. CHIONG,respondent.

D E C I S I O N

NACHURA,J.:

Before us is a petition for review oncertiorariunder Rule 45 of the Rules of Court seeking the

reversal of the Court of Appeals (CA) Decision1in CA-G.R. CV No. 503082which affirmedin

totothe Regional Trial Court (RTC) Decision3holding petitioner Northwest Airlines, Inc.

(Northwest) liable for breach of contract of carriage.

On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation (Philimare), as the

authorized Philippine agent of TransOcean Lines (TransOcean), hired respondent Steven

Chiong as Third Engineer of TransOceans vesselM/V Elbiaat the San Diego, California Port.

Under the service crew agreement, Chiong was guaranteed compensation at a monthly salary

of US$440.00 and a monthly overtime pay of US$220.00, or a total of US$7,920.00 for one

year.

Subsequently, on March 27, 1989, Philimare dispatched a Letter of Guarantee to CL Hutchins

& Co., Inc., TransOceans agent at the San Diego Port, confirming Chiongs arrival thereat in

time to board theM/V Elbiawhich was set to sail on April 1, 1989 (California, United States