Section 12
1. Gomez v Gomez-Samson
G.R. No. 156284
February 6, 2007
Facts: Which came first, the chicken or the egg?
This age-old question has spurned millions of debates in scientific and
religious circles, and has stimulated the imagination of generations of
children and adults. Many profess that they are certain of the answer, and
yet their answers are divergent.
On February 15, 1980, [petitioner] instituted these cases, to wit: (1) Civil
Case No. 36089, entitled: Augusto Gomez, as Special Administrator of the
Intestate Estate of Consuelo Gomez, Plaintiff, versus Maria Rita Gomez-
Samson, Marcial Samson, Jesus B. Gomez, and the Registers of Deeds of
Pasig and Marikina, Rizal, Defendants; and (2) Civil Case No. 36090,
entitled: Augusto Gomez, as Special Administrator of the Intestate Estate
of Consuelo Gomez, Plaintiff, versus Ariston Gomez, Sr., and Ariston B.
Gomez, Jr., Defendants, both in the Regional Trial Court, Pasig City.
CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez,
were sister and brothers, respectively. MARIA-RITA Gomez-
Samson, JESUS Gomez and ARISTON Gomez, JR. are the
children of ARISTON, SR. while AUGUSTO Gomez is the
child of Angel.
In Civil Case No. 36089, plaintiff AUGUSTO alleged in his
complaint that CONSUELO, who died on November 6, 1979,
was the owner of the following real properties:
(a) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 340233 in her name, x x x;
(b) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 353818 in her name, x x x,
(c) A parcel of land, with all the improvements thereon,
situated in Pasig, Metro Manila, covered by Transfer
Certificate of Title No. 268396 in her name, x x x;
that after the death of Consuelo, defendants Rita and Jesus fraudulently
prepared and/or caused to be prepared a Deed of Donation Intervivos; that
in the said document, Consuelo donated the above described properties to
defendants Rita and Jesus; that the said defendants forged or caused to be
forged the signature of the donor, Consuelo; that the notarial
acknowledgement on the said document was antedated to April 21, 1979;
that on the basis of the said document defendants sought the cancellation
of the certificates of title in the name of Consuelo and the issuance of new
ones in the names of defendants Rita and Jesus.
On the basis of the foregoing, plaintiff prayed that the Deed of Donation
Intervivos be declared false, null and void ab initio, and/or be nullified; that
TCT Nos. 340233, 353818, and 268396 be reinstated or be replaced by
titles in the name of the Intestate Estate of Consuelo Gomez; and, that
defendants be ordered to pay damages, by way of attorneys fees and
expenses of litigation plus costs.
On April 24, 1980, private defendants, and nominal defendants Registers of
Deeds of Pasig and Marikina, Rizal, filed their common answer, denying the
material allegations in the complaint and asserting that a copy of the deed
of donation was submitted to the Notarial Section of the CFI of Quezon City
as early as July 2, 1979; that the said document is valid and not a forgery
or otherwise subject to similar infirmity; that the said document being
valid, the properties covered therein passed in ownership to private
defendants, as early as April 20, 1979; that defendants have the perfect
and absolute right to cause the cancellation of TCT Nos. 340233, 353818,
and 26839 and request for the issuance of new certificates of titles in their
respective names; that they have the right to use, enjoy, possess, dispose
and own these properties; that no law was violated by the nominal
defendants when the old certificates of title were cancelled and new
certificates were issued in the name of the private defendants, hence,
plaintiff has no cause of action against the nominal defendants neither has
the court jurisdiction over the foregoing issue.
Defendants thereafter prayed for moral damages of P2,000,000.00;
compensatory damages of P1,000,000.00; exemplary damages of
P500,000.00; attorneys fees of P200,000.00; and that individual plaintiff be
made jointly and severally liable with the estate of Consuelo Gomez.
In Civil Case No. 36090, the same plaintiff alleged in his complaint that
Consuelo was also the sole and absolute owner of the following personal
properties:
(a) Seventy-five (75) common shares of stock of V-Tri Realty, Inc.
with a total par value of P75,000.00 and covered by Stock Certificate No.
003;
(b) Eleven thousand eight hundred fifty three (11,853) common
shares of stock of First Philippine Holdings Corporation with a total par
value of P118,530.00 covered by Stock Certificates Nos. A-02614 (7,443
shares) and A-02613 (2,040 shares) and A-09018 (2,370 shares);
(c) Jewelries and collectors items, contained in Consuelo Gomezs
Safe Deposit Box No. 44 at the PCI Bank, Marikina Branch, which were
inventoried on January 9, 1980 per Order of the Court in Special
Proceedings No. 9164;
(d) A four-door sedan 1978 Mercedes Benz 200 with Motor No.
11593810-050706, Serial/Chassis No. 12302050-069893, Plate No. A6-252
and LTC Registration Certificate No. 0140373 valued at P200,000.00, more
or less at the time Consuelo Gomez died;
(e) A four-door sedan 1979 Toyota Corona with Motor No. 12RM-
031643, Serial/Chassis No. RT-130-901150, Plate No. B-09-373 and LTC
Registration Certificate No. 0358757, valued at P50,000.00, more or less at
the time Consuelo Gomez died;
(f) Two hundred thousand pesos (P200,000.00) including accrued
interests on money market placement with the BA Finance Corporation per
its promissory note No. BAT-0116 dated March 9, 1978.
that after the death of Consuelo, defendants fraudulently prepared and/or
caused to be prepared a Deed of Donation Intervivos; that in the said
document Consuelo donated the above described properties to defendants
Ariston, Sr. and Ariston, Jr.; that the said defendants forged or caused to be
forged the signature of the donor, Consuelo; that the notarial
acknowledgment on the said document was antedated to April 21, 1979;
that on the basis of the said document defendant Ariston, Sr., [in]
December 1978, effected or tried to effect a change of the LTC registration
of the two (2) vehicles; that defendant Ariston, Jr., for his part, pre-
terminated the money market placements with BA Finance and received
checks in the sums of P187,027.74 and P4,405.56; that with the exception
of the jewelries, which are with the bank, defendant Ariston, Sr., has
benefited and will continue to benefit from the use of the two (2) vehicles
and from the dividends earned by the shares of stocks.
On the basis of the foregoing, the plaintiff prayed that the Deed of
Donation Intervivos be declared false, null and void ab initio, and/or be
nullified; that defendant Ariston, Sr., be ordered to deliver the stock
certificates, jewelries, collectors items, and vehicles in his possession plus
all the cash dividends earned by the shares of stock and reasonable
compensation for the use of the two (2) motor vehicles; that defendant
Ariston, Jr. be ordered to pay the amount of P191,533.00 received by him
from BA Finance, with interest from the time he received the amount until
he fully pays the plaintiff; and, damages, by way of attorneys fees and
expenses of litigation, plus costs.
On March 19, 1980, defendants Ariston, Sr. and Ariston Jr., filed their
answer, denying the material allegations in the complaint and asserting
that a copy of the Deed of Donation was submitted to the Notarial Section
of the CFI of Quezon City as early as July 2, 1979; that the said document is
valid and not a forgery or otherwise subject to similar infirmity; that the
said document being valid, the properties covered therein passed in
ownership to defendants, as early as April 20, 1979; and that defendants
have the perfect and absolute right to use, enjoy, possess and own these
properties.
Defendants thereafter prayed for moral damages of P2,000,000.00;
compensatory damages of P1,000,000.00; exemplary damages of
P500,000.00; attorneys fees of P200,000.00; and that individual plaintiff be
made jointly and severally liable with the estate of Consuelo Gomez.
On May 27, 1980, the plaintiff filed a Motion to Consolidate, in both cases,
which the trial court in Civil Case No. 36090 granted in its Order dated June
6, 1980. Whereupon, the records of Civil Case No. 36090 were transmitted
to the RTC, Branch 23.
After appropriate proceedings, the trial court directed the parties to submit
their respective memoranda thirty (30) days from their receipt of the
transcript of stenographic notes. In its joint decision dated April 8, 1992,
the trial court dismissed the complaints
Petitioner filed a Petition for Review with the Court of Appeals. The latter
affirmed the RTCs Joint Decision in the 4 September 2002 assailed
Decision. Petitioner filed a Motion for Reconsideration, but the same was
denied by the Court of Appeals in the assailed Resolution dated 27
November 2002.
Issue: Whether or not the Court of Appeals seriously erred in giving
credence to the testimony of former judge Jose Sebastian, the Notary
Public who notarized the assailed Deeds of Donation
Held: Credibility of Jose Sebastian
Petitioner claims that no credence should have been given to the
testimony of the notary public, Jose Sebastian, as said Jose Sebastian is the
same judge whom this Court had dismissed from the service in Garciano v.
Sebastian. Petitioner posits that the dismissal of Judge Jose Sebastian from
the service casts a grave pall on his credibility as a witness, especially
given how, in the course of the administrative proceedings against him, he
had lied to mislead the investigator, as well as employed others to distort
the truth.
Petitioner further claims that the reliance by the Court of Appeals on the 22
November 1979 Certification by Jose Sebastian is misplaced, considering
the questionable circumstances surrounding such certification. Said
certification, marked as petitioners Exhibit P, reads:
November 22, 1979
HON. ERNANI CRUZ PAO
 Executive Judge
CFI Quezon City
Sir:
In connection with the discrepancies noted by the Acting
Clerk of Court in my notarial report pertaining to another
document submitted to the Notarial Section last July 2,
1979 I have the honor to certify that documents Nos. 401
and 402 referring to Donations Inter Vivos executed by
Donor Consuelo C. Gomez in favor of Donees Ma. Rita
Gomez-Samson et. al. were signed in my presence by all
the parties and their instrumental witnesses on April 21,
1979 in my office. I hereby further certify that said two
documents among other documents were reported by me
in accordance with law on July 2, 1979, for all legal intents
and purposes.
In view of the above, it is respectfully requested that the
certified true copies of the said two documents officially
requested by one of the Donees be issued.
Very respectfully,
(Sgd.) JOSE R. SEBASTIAN
Notary Public
Petitioner points out that the Certification was made after the death of
Consuelo, and claims that the same appears to be a scheme by Jose
Sebastian to concoct an opportunity for him to make mention of the
subject Deeds of Donation intervivos, despite the plain fact that the latter
had utterly no relation to the matter referred to by Jose Sebastian in the
opening phrase of the letter.
It is well to note that, as stated by the Court of Appeals, Jose Sebastian was
originally a witness for petitioner Augusto. As such, Rule 132, Section 12, of
the Rules of Court prohibits petitioner from impeaching him:
SEC. 12. Party may not impeach his own witness. Except
with respect to witnesses referred to in paragraphs (d) and
(e) of section 10, the party producing a witness is not
allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if
so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness
stand.
The unwilling or hostile witness so declared, or the witness
who is an adverse party, may be impeached by the party
presenting him in all respects as if he had been called by
the adverse party, except by evidence of his bad character.
He may also be impeached and cross-examined by the
adverse party, but such cross-examination must only be on
the subject matter of his examination-in-chief.
This rule is based on the theory that a person who produces a witness
vouches for him as being worthy of credit, and that a direct attack upon
the veracity of the witness would enable the party to destroy the witness, if
he spoke against him, and to make him a good witness, if he spoke for him,
with the means in his hands of destroying his credit, if he spoke against
him.
Neither had there been declaration by the court that Jose Sebastian was an
unwilling or hostile witness. Jose Sebastian is also neither an adverse party,
nor an officer, director nor a managing agent of a public or private
corporation or of a partnership or association which is an adverse party.
Be that as it may, even if Jose Sebastian had been declared by the court as
an unwilling or hostile witness, the third paragraph of Section 12 as quoted
above, in relation to Section 11 of the same Rule, only allows the party
calling the witness to impeach such witness by contradictory evidence or
by prior inconsistent statements, and never by evidence of his bad
character. Thus, Jose Sebastians subsequent dismissal as a judge would
not suffice to discredit him as a witness in this case.
We have also ruled in People v. Dominguez, which, in turn cited Cordial v.
People, that:
(E)ven convicted criminals are not excluded from testifying
in court so long as, having organs of sense, they can
perceive and perceiving can make known their perceptions
to others.
The fact of prior criminal conviction alone does not
suffice to discredit a witness; the testimony of such
a witness must be assayed and scrutinized in
exactly the same way the testimony of other
witnesses must be examined for its relevance and
credibility. x x x. (Emphasis supplied.)
The effect of this pronouncement is even more significant in this case, as
Jose Sebastian has never been convicted of a crime before his testimony,
but was instead administratively sanctioned eleven years after such
testimony. Scrutinizing the testimony of Jose Sebastian, we find, as the trial
court and the Court of Appeals did, no evidence of bias on the part of Jose
Sebastian. On top of this, Jose Sebastians testimony is supported by the
records of the notarial registry, which shows that the documents in
question were received by the Notarial Registrar on 2 July 1979, which was
four months before the death of Consuelo on 6 November 1979.
Section 16
1. Borromeo v Court of Appeals
G.R. No. L-31342, L-31740
April 7, 1976
Facts: There are three preliminary questions We have to resolve. First,
Borromeo contends that this Court has no jurisdiction to entertain the
petition of the Aznars in G.R. No. L-31740 because the latter failed to file
said petition within fifteen days from December 20, 1969, the date they
were notified of the resolution now under review. Borromeo's theory is that
upon the filing of his own petition in G.R. No. L-31342 on December 20,
1969, by way of appeal from the aforesaid resolution in so far as it failed to
grant him the awards referred to in said petition, the Court of Appeals was
divested of jurisdiction to entertain the motion for reconsideration which
the Aznars filed on the same date, December 22, 1969, in the Court of
Appeals praying for the reversal of the same resolution, copy of which had
been received by them only on December 20, 1969. According to
Borromeo, what the Aznars should have done upon being notified of the
filing of the petition in G.R. No. L-31342 should have been to file already
their petition for review with this Court instead of filing or continuing with
their motion for reconsideration in the Appellate Court, and that since the
latter court had lost its jurisdiction over the case by reason of his
(Borromeo's appeal), citing in this respect the resolution of this Court of
September 3, 1965 in G.R. No. L-24762 (Manila Electric Co. vs. Public
Service Commission et al.), the Aznars' motion for reconsideration did not
suspend their period for appeal to this Court which they made only on
February 27, 1970 (erroneously alleged as March 11, 1970 by Borromeo).
Obviously, Borromeo's. contention has absolutely no merit. To start with,
when We issued Our resolution of January 13, 1970, granting the Aznars an
extension of fifteen (15) days from the time they were to be notified of the
resolution of the Court of Appeals of its action on their motion for
reconsideration then still pending therein. We already knew that the
petition of Borromeo against the same resolution of the Court of Appeals
had already been filed with Us. In other words, in that resolution, the Court
already recognized the right of the Aznars to file their own separate appeal
from the resolution of the Court of Appeals after the reconsideration
thereof was to be denied by the Court of Appeals notwithstanding
Borromeo's appeal was already with Us. Besides, to sustain Borromeo's
theory would lead to the absurd proposition that one party may be
deprived of the right to appeal from the portion of a decision against him
just because the other party who had been notified of the decision ahead
had already perfected his appeal in so far as the said decision adversely
affects him. Indeed, We have already virtually ruled against such pose of
Borromeo in Timoteo Simsim vs. The Hon. Judge Feliciano Belmonte etc. et
al., 34 SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco resolution
invoked by Borromeo is not in point.
Borromeo secondly tries to make capital of the fact that while it is true that
the brief of the Aznars was filed on time, on August 31, 1970, the last day
therefor, it did not contain a digest of the arguments nor the text of the
resolution sought to be reviewed, which are required by the rules (Sections
1 and 6 of Rule 56 read together with Section 16 of Rule 46) and that these
requirements were complied with only on September 19, 1970, for which
reason, he prays that their appeal should be dismissed pursuant to Section
1 (b) of Rule 50.
We are not impressed. The digest of arguments and the copy of the
appealed resolution are not in strict sense parts of the brief so as to justify
the charge that the Aznars filed their brief in two parts. No conceivsble
prejudice could have been caused to anyone concerned by their late filing
nineteen days after the reglementary period had expired, the brief itself,
with the assignments of error and the arguments supporting them, having
been filed already within said period. Of course, it would be Ideal if all the
requirements of the rules were complied with on time, but there is nothing
in principle or in the precedents relied upon by Borromeo that makes it
imperative for Us to dismiss an appeal upon no more ground than such
obviously unintentional and harmless technicality as the omission of the
requirements herein complained of.
The third preliminary issue raised by Borromeo is that the appeal of the
Aznars in G.R. No. L-31342 involves purely questions of fact. It is argued
that the reversal by the Court of Appeals of its original conclusion,
upholding the trial court, that the transactions in question were absolute
sales, by holding in its per curiam resolution that they were actually
equitable mortgages, does not constitute an error of law but a mere
reappraisal or reweighing of the evidence which it has the power to do.
Borromeo insists that a ruling as to whether a transaction is a sale or a
mortgage involves no more than evaluation of the evidence and is
consequently a factual matter beyond the Supreme Court's authority to
review except under peculiar circumstances that do not obtain here.
As already stated, the main controversy here centers on the true nature of
the three documents, Exhibits A, B and C, which on their faces are
unquestionably deeds of absolute sale of the real properties therein
described executed by the deceased Simeon Rallos on various dates in
favor of Emmanuel Aznar, in Exhibits A and C, and his sister, Alma Aznar,
in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as
administrator of the estate of Simeon Rallos, alleged that these documents
were in fact equitable mortgages to secure loans granted to Rallos by
Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their
reformation. The trial court dismissed the said complaint and on appeal,
said dismissal was affirmed by the Court of Appeals in its original decision
of January 30, 1968 penned by Justice Ramon NOLASCO and concurred in
by Presiding Justice Francisco B. Capistrano and Justice Antonio Caizares
The pertinent portions of said decision read thus:
We have examined Exhibits A, B and C carefully, and we find them clear,
unambiguous and unequivocal. If the terms of a contract are clear and
leave no doubt upon the intention of the contracting parties, the literal
meaning of its stipulations shall control. (Article 1370, Civil Code.) The
intention of the parties is to be deduced from the language employed by
them, and the terms of the contract, where unambiguous, are conclusive,
in the absence of averment and proof of mistake, the question being, not
what intention existed in the minds of the parties, but what intention is
expressed by the language used. When a written contract is clear and
unequivocal, its meaning must be determined by its contents alone; and a
meaning' cannot be given it other than that expressed. (City of Manila vs.
Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.).
The appellant capitalizes, on the statement, Exhibit K, which allegedly
shows that Matias Aznar charged Rallos with the payment of the taxes due
on the contested lots. According to Crispina Rallos Alcantara, the said
exhibit was prepared by an employee of Matias Aznar upon the latter's
orders, when she went to see him concerning the repurchase of the lots.
This, however, was denied by the defendant, Emmanuel Aznar, who
claimed that after the sale, neither Rallos nor his daughter Crispina went to
see any of the Aznars in their office for the redemption of the lots. The
exhibit in question, allegedly a statement of account of Rallos to Matias
Aznar involving the disputed transactions is neither dated nor signed.
much less by the party sought to be charged. The alleged writer thereof
was not presented at the trial of the case, and we have only the biased
testimony of Crispina as to its authenticity or preparation. Even if it were
true, however, that the writing was made, as alleged by Crispina, we
cannot consider the name as proof of what was said or transacted then.
The mere making of written -memorandum immediately after the interview
does not make the memorandum affirmative intrinsic proof of the things
said or transacted. (32 CJS 948.) Knowledge on the part of the person who
made the memorandum, at the time it was made, that the statements or
entries therein were correct must be shown (32 OJS 947), and this the
plaintiff failed to do. On the other hand, the record indubitably shows that
after the execution of the questioned instruments, the taxes on the lots
subject matter thereof were paid by the defendants vendees.
Consequently, we hold that Exhibit K has no evidentiary value, and the
lower court was correct in disregarding it ( Pp 82- 95, Record of L-31740.)
However, in its per curiam resolution of November 19, 1969, wherein
Presiding Justice Capistrano who had by then been elevated to this Court
was substituted by his successor Presiding Justice Julio Villamor, this rather
strong position taken by the appellate court was completely reversed by
itself as follows:
While it is true that in our decision rendered in this case, we held that the
notations or memoranda of Crispina Rallos Alcantara marked as Exhibits A-
2, A-3, B3 and C5 were self-serving and unsatisfactory as evidence of the
facts asserted (Decision, p. 24), the same, however, as now correctly
contended by the plaintiff-appellant in his motion for reconsideration, may
be considered as constituting part of the res gestae, and as such, are
admissible in evidence to show the nature of the contracts in question and
the relation of the parties involved.
Statements, acts or conduct accompanying or so nearly connected with
the main ion as to form a part of it, and which illustrate, elucidate qualify,
or the act, are admissible as part of the res gestae. Accordingly, the
attendant circumstances and the statements then made by the pudes are
admissible as part of the res gestae to show the execution of a contract,
and, where relevant, matters said and done which are parts of the res
gestae of the negotiation and execution of a contract are admissible to
show the existence and nature of the contract and the relation of the
parties. Matters attendant upon a sale or conveyance may also be
admissible m part of the res gestae. (32 CJS 30-32.)
Coversations occurring during the negotiation of a loan or other
transaction, as well as the instrument given or received, being part of the
res gestae, are competent evidence to show the Page 343 nature of the
transaction and the parties for whose benefit it was made, where that fact
is material. (National Bank vs Kennedy, 17 Wall. [U.S.] 19, 21 L. Ed. 554,
cited in 20 Am. Jur. 57.)
... The character of the transaction is precisely what the intention of the
parties at the time made it. It will therefore be discovered that the
testimony of those who were present at the time the instrument was made,
and especially of those who participated in the transaction, becomes most
important. (Cuyugan vs. Santos, 34 Phil. 100, 114-115.)
Thus, while the testimony of Crispina Rallos Alcantara may nor, be free
from bias, she being the daughter of the deceased, Simeon Rallos, the
same should not, however, be totally rejected on the ground of bias alone
(U.S. vs. Mante, 27 Phil. 124; People vs. Pagaduan 37 Phil. 90), considering
that it appears to be clearly and sufficiently supported by memoranda
which, as already stated, are admissible in evidence as part of the res
gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of the Philippine
National 7 Bank .(Exhibits X and Y). Besides, mere relationship of a witness
to a party does not discredit his testimony in court, (U.S. vs. Mante, supra.)
The thrust of the per curiam resolution is that the plaintiff Borromeo was
able to prove that the defendants Aznars "retained part of the purchase
price" stipulated in deeds in question and that there was unusual
inadequacy of said purchase price thereby justifying the use in this case of
the presumption created by Article 1602 of the Civil Code whenever said
circumstances are shown (Paragraphs 1 and 4 of said article). According to
the Court of Appeals, these circumstances were proven through, among
other evidence, the testimony of plaintiff Crispina Rallos, Alcantara, the
daughter of the deceased Simeon Rallos, who declared that she was
present on all occasions when the three transactions in dispute took place
between her father and Matias Aznar and that while thus listening to their
conversations she took down notes of the various amounts mentioned by
them and the respective purposes thereof such as interest, attorney's fees,
other obligations to be paid out of the money being borrowed by her
father, etc., which notes were Identified at the trial as Exhibits A-2, A-3, B-3
and C-5. More specifically, the Court of Appeals held that because the
testimony of the witness Alcantara was corroborated by these notes, it
should be believed, from which it can be gathered that it was only because
said notes were considered by it as inadmissible that in its original
decision, said testimony and notes were deemed to be without evidentiary
value for being self-serving. "While it is true," says the appealed resolution,
"that in our decision rendered in this case, we held that the notations or
memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3
and C-5. More specifically, the Court of Appeals held that because the
testimony and notes were deemed to be without evidentiary value for
being self-serving. "While it is true," says the appealed resolution, "that in
our decision rendered in this case, we held hat the notations or
memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A-3, B-3
and C-5 were self-serving and unsatisfactory as evidence of the facts
asserted (Decision, p. 24), the same, however, as nor correctly contended
by plaintiff-appellant in his motion for reconsideration, may be considered
as constituting part of the res gestae, and as such are admissible in
evidence to show the nature of the contracts in question and the relation of
the parties involved." (p. 18, Annex C of the petition.) It is the ruling
upholding the admissibility of said notes and memoranda as parts of the
res gestae that the Aznars contend to be a legal error committed by the
Court of Appeals.
Issue: WON the memoranda can be considered as part of res gestae
Held: We cannot see how the disputed notes and memoranda can be
considered in any sense as part of the res gestae as this matter is known in
the law of evidence. It must be borne in mind, in this connection, that
Crispina was not a party to the transaction in question. Only Simeon Rallos,
on the one hand, and Matias Aznar, if she is to be believed, or Emmanuel
and Alma Aznar, as the documents show, on the other, were the parties
thereto. The record does not reveal why Crispina was with her father and
the time, hence, there can be no basis for holding that she actually took
part in the transaction. That she allegedly took notes thereof while there
present made her at best only a witness not a party. It cannot be said,
therefore, that her taking down of her alleged notes, absent any showing
that she was requested or directed by the parties to do so or that the
parties, more particularly the Aznars, who are being sought to be bound by
then, knew what she was doing, constitute part of the transaction, the res
gestae itself. If such alleged taking of notes by Crispina has to be given any
legal significance at all, the most that it can be is that it is one
circumstance at all, the most that it can be is that it is one circumstance
relevant to the main fact in dispute. In other words it could at the most be
only circumstantial evidence.
The trouble however is that the admission of said notes and memoranda
suffers from a fatal defect. No witness other than Crispina has testified as
to the veracity of her testimony relative to her alleged notes and
memoranda. Not even her husband who, according to her, was present on
one of the occasions in issue, was called to testify. It cannot be denied that
Crispina is interested in the outcome of this case. In the words of the Court
of Appeals itself in its original decision, "her testimony cannot be
considered as absolutely unbiased or impartial", hence, "unreliable and
insufficient to justify the reformation of the instruments in question." Such
being the case, how can the notes and memoranda in dispute add any
weight to her testimony, when she herself created them? Surely, they
cannot have anymore credibility than her own declarations given under
oath in open court.
The extensive and repeated arguments of the parties relative to the issue
of whether or not self-serving statements may be admitted in evidence as
parts of the res gestae are very interesting and illuminating, but We fee
they are rather very interesting and illuminating, but We feel they are
rather off tangent. The notes supposedly prepared by witness Alcantara
during the transaction between her father and the Aznars do not partake at
all of the nature of hearsay evidence. If anything, they constitute
memoranda contemplated in Section 10 or Rule 132 which provides:
SEC. 10. When witness may refer to memorandum. A
witness may be allowed to refresh his memory respecting a fact,
by anything written by himself or under his direction at the time
when the fact occurred, or immediately thereafter, or at any other
time when the fact was fresh in his memory and he knew that the
same was correctly stated in the writing; but in such case the
writing must be produced and may be inspected by the adverse
party, who may, if he chooses, cross-examine the witness upon it,
and may read it in evidence. So, also, a witness may testify from
such a writing, though he retain no recollection of the particular
facts, if he is able to swear that the writing correctly stated the
transaction when made; but such evidence must be received with
caution.
As may be observed, this provision applies only when it is shown
beforehand that there is need to refresh the memory of the witness, which
is not the case here. Nowhere in the record is there any indication that
Alcantara needed during her testimony the aid of any memorandum in
respect to the matters contained in the notes in dispute. Besides, under
the above witness does not constitute evidence, and may not be admitted
as such, for the simple reason that the witness has just the same to testify
on the basis of refreshed memory. In other words, where the witness has
testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not
admissible as corroborative evidence. It is self-evident that a witness may
not be corroborated by any written statement prepared wholly by him. He
cannot be more credible just because he support his open-court
declaration with written statements of the same facts even if he did
prepare them during the occasion in dispute, unless the proper predicate
of his failing memory is priorly laid down. What is more, even where this
requirement has been satisfied, the express injunction of the rule itself is
that such evidence must be received with caution, if only because it is not
very difficult to conceive and fabricate evidence of this nature. This is
doubly true when the witness stands to gain materially or otherwise from
the admission of such evidence, which is exactly the case of Crispina
Alcantara.
Section 19
1. Patula v People
G.R. No. 164457
April 11, 2012
Facts: That on or about and during the period from March 16 to 20, 1997
and for sometime prior thereto, in the City of Dumaguete, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, being then
a saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having
collected and received the total sum of P131,286.97 from several
customers of said company under the express obligation to account for the
proceeds of the sales and deliver the collection to the said company, but
far from complying with her obligation and after a reasonable period of
time despite repeated demands therefore, and with intent to defraud the
said company, did, then and there willfully, unlawfully and feloniously fail
to deliver the said collection to the said company but instead, did, then
and there willfully unlawfully and feloniously misappropriate, misapply and
convert the proceeds of the sale to her own use and benefit, to the
damage and prejudice of the said company in the aforesaid amount of
P131,286.97. Contrary to Art. 315, par 1 (b) of the Revised Penal Code.
Petitioner pled not guilty to the offense charged in the information. At pre-
trial, no stipulation of factswas had, and petitioner did not avail herself of
plea bargaining.Thereafter, trial on the merits ensued.
The Prosecutions first witness was Lamberto Go, who testified that he was
the branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in
Dumaguete City since October 8, 1994; that petitioner was an employee of
Footluckers, starting as a saleslady in 1996 until she became a sales
representative; that as a sales representative she was authorized to take
orders from wholesale customers coming from different towns (like Bacong,
Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and
Siquijor), and to collect payments from them; that she could issue and sign
official receipts of Footluckers for the payments, which she would then
remit; that she would then submit the receipts for the payments for tallying
and reconciliation; that at first her volume of sales was quite high, but later
on dropped, leading him to confront her; that she responded that business
was slow; that he summoned the accounting clerk to verify; that the
accounting clerk discovered erasures on some collection receipts; that he
decided to subject her to an audit by company auditor Karen Guivencan;
that he learned from a customer of petitioners that the customers
outstanding balance had already been fully paid although that balance
appeared unpaid in Footluckers records; and that one night later on,
petitioner and her parents went to his house to deny having
misappropriated any money of Footluckers and to plead for him not to push
through with a case against her, promising to settle her account on a
monthly basis; and that she did not settle after that, but stopped reporting
to work.
On March 7, 2002, Gos cross examination, re-direct examination and re-
crossexamination were completed.
The only other witness for the Prosecution was Karen Guivencan,
whomFootluckers employed as its store auditor since November 16, 1995
until her resignation on March 31, 2001. She declared that Go had
requested her to audit petitioner after some customers had told him that
they had already paid their accounts but the office ledger had still reflected
outstandingbalances for them; that she first conducted her audit by going
to the customers in places from Mabinay to Zamboanguitain Negros
Oriental, and then in Siquijor; thatshe discovered in the course of her audit
that the amounts appearing on the original copies of receipts in the
possession of around 50 customers varied from the amounts written on the
duplicate copies of the receipts petitioner submitted to the office; that
upon completing her audit, she submittedto Go a written report
denominated as List of Customers Covered by Saleswoman LERIMA PATULA
w/ Differences in Records as per Audit Duly Verified March 16-20, 1997
marked as Exhibit A; and that based on the report, petitioner had
misappropriated the total amount ofP131,286.92.
During Guivencans stint as a witness, the Prosecution marked the ledgers
of petitioners various customers allegedly with discrepancies as Exhibits B
to YYand their derivatives, inclusive. Each of the ledgers had a first column
that contained the dates of the entries, a second that identified the
invoices by the number, a third that statedthe debit, a fourth that noted
the credit (or the amounts paid), and a fifth that summed the balances
(debit minus credit).Only 49 of theledgerswere formally offered and
admitted by the RTC because the 50thledger could no longer be found.
In the course of Guivencansdirect-examination,petitioners counsel
interposed a continuing objection on the ground that the figuresentered in
Exhibits B to YYand their derivatives, inclusive, were hearsay because the
persons who had made the entries were not themselves presented in
court. With that, petitioners counsel did not anymore cross-examine
Guivencan, apparently regarding her testimony to be irrelevant because
she thereby tended to prove falsification, an offense not alleged in the
information.
The Prosecution then formally offered its documentary exhibits, including
Exhibits B to YYand their derivatives (like the originals and duplicates of the
receipts supposedly executed and issued by petitioner), inclusive, the
confirmation sheets used by Guivencan in auditing the accounts served by
petitioner, and Guivencans so-called Summary (Final Report) of
Discrepancies.
After the Prosecution rested its case, the Defense decided not to file a
demurrer to evidence although it had manifested the intention to do so,
and instead rested itscase.The Prosecution and Defense submitted their
respective memoranda, and submitted the case for decision.

On January 28, 2004, the RTC, stating that inasmuch as petitioner had
opted not to present evidence for her defense the Prosecutions evidence
remained unrefuted and uncontroverted, rendered its decision finding
petitioner guilty of estafa.
Petitioner filed a motion for reconsideration, butthe RTC denied the motion
on May 7, 2004.
Issue: Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioners guilt for
estafaas chargeddespite their not being duly authenticated;and
Held: Petitioner also contends that the RTC grossly erred in admitting as
evidence Exhibits B to YY, and their derivatives, inclusive, despite their
being private documents that were not duly authenticated as required by
Section 20, Rule 132 of the Rules of Court.
Section 19, Rule 132 of the Rules of Courtdistinguishes between a public
document and a private document for the purpose of their presentation in
evidence, viz:
Section 19. Classes of documents. For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last
wills and testaments, and
(c) Public records, kept in the Philippines, of private documents
required by law to be entered therein.
All other writings are private.
The nature of documents as either public or private determines how the
documents may be presented as evidence in court. A public document, by
virtue of its official or sovereign character, or because it has been
acknowledged before a notary public (except a notarial will) or a
competent public official with the formalities required by law, or because it
is a public record of a private writing authorized by law, is self-
authenticating and requires no further authentication in order to be
presented as evidence in court.In contrast, a private document is any other
writing, deed, or instrument executed by a private person without the
intervention of a notary or other person legally authorized by which some
disposition or agreement is proved or set forth. Lacking the official or
sovereign character of a public document, or the solemnities prescribed by
law, a private document requires authentication in the manner allowed by
law or the Rules of Court before its acceptance as evidence in court. The
requirement of authentication of a private document is excused only in
four instances, specifically: (a) when the document is an ancient one within
the context of Section 21, Rule 132 of the Rules of Court; (b) when the
genuineness and authenticity of an actionable document have not been
specifically denied under oath by the adverse party;(c) when
thegenuineness and authenticity of the document
have been admitted; or (d) when the document is not being offered as
genuine.
There is no question that Exhibits B to YY and their derivatives were private
documents because private individuals executed or generated them for
private or business purposes or uses. Considering that none of the exhibits
came under any of the four exceptions, they could not be presented and
admitted as evidence against petitioner without the Prosecution dutifully
seeing to their authentication in the manner provided in Section20 of Rule
132 of the Rules of Court,viz:
Section 20. Proof of private documents. Before any private
document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that which it
is claimed to be.
The Prosecutionattempted to have Go authenticate the signature of
petitioner in various receipts, to wit:
ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the
original receipts, do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.
Q. But when asked to present those receipts before this Honorable Court,
can you assure this
(Next Page)
ATTY ABIERA (continuing):
Honorable Court that you will be able to present those receipts?
A. Yes.
Q. You are also familiar with the signature of the accused in this
case, Anna Lerima Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this
case?
A. I used to see her signatures in the payroll and in the receipts
also.
Q. Okay, I have here a machine copy of a receipt which we would
present this,or offer the same as soon as the original receipts can be
presented, but for purposes only of your testimony, Im going to
point to you a certain signature over this receipt number FLDT96
20441, a receipt from Cirila Askin, kindly go over the signature and
tell the Honorable Court whether you are familiar with the
signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word collector.
(Next Page)
ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather,
of the accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the
original receipts Your Honor, because its quite voluminous, so we will just
forego with the testimony of the witness but we will just present the same
using the testimony of another witness, for purposes of
identifying the signature of the accused. We will request that this
signature which has been identified to by the witness in this case be
marked, Your Honor, with the reservation to present the original copy and
present the same to offer as our exhibits but for the meantime, this is only
for the purposes of recording, Your Honor, which we request the same, the
receipt which has just been identified awhile ago be marked as our Exhibit
A You Honor.
COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit A-1.
(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What is the number of that
receipt?
ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received from
Cirila Askin.
xxx
As the excerpts indicate, Gos attempt at authentication of the signature of
petitioner on the receipt with serial number FLDT96 No. 20441 (a
document that was marked as Exhibit A, while the purported signature of
petitioner thereon was marked as Exhibit A-1) immediately fizzled out after
the Prosecution admitted that the document was a meremachinecopy, not
the original. Thereafter, as if to soften its failed attempt, the Prosecution
expressly promised to produce at a later date the originalsof the receipt
with serial number FLDT96 No. 20441 and other receipts. But that promise
was not even true, because almost in the same breath the Prosecution
offered to authenticate the signature of petitioner on the receiptsthrougha
different witness (though then still unnamed). As matters turned out in the
end, the effort to have Go authenticate both themachinecopy of the
receiptwith serial number FLDT96 No. 20441 and the signature of
petitioner on that receipt was wasteful because the machine copy was
inexplicablyforgotten and was no longer evenincluded in the Prosecutions
Offer of Documentary Evidence.
It is true that the original of the receipt bearing serial number FLDT96 No.
20441was subsequentlypresented as Exhibit Bthrough Guivencan.
However,the Prosecution did not establishthat the signature appearing on
Exhibit B was the same signature that Go had earliersought to identify to
be the signature of petitioner (Exhibit A-1) on the machine copy (Exhibit A).
This is borne out by the fact that the Prosecution abandoned Exhibit A as
the marking nomenclature for the machine copyof the receipt bearing
serial number FLDT96 No. 20441 for all intents and purposes of this case,
and used the same nomenclature to referinstead toan entirely
differentdocument entitled List of Customers covered by ANA LERIMA
PATULA w/difference in Records as per Audit duly verified March 16-20,
1997.
In her case, Guivencans identification of petitioners signature on two
receipts based alone on the fact that the signatures contained the legible
family name of Patula was ineffectual, and exposed yet another deep flaw
infecting the documentary evidence against petitioner. Apparently,
Guivencan could not honestly identify petitioners signature on the receipts
either because she lacked familiarity with such signature, or because she
had not seen petitioner affix her signature on the receipts, as the following
excerpts from her testimony bear out:
ATTY. ZERNA to witness:
Q. There are two (2) receipts attached here in the confirmation
sheet, will you go over these Miss witness?
A. This was the last payment which is fully paid by the customer. The
other receipt is the one showing her payment prior to the last payment.
COURT:
Q. Where did you get those two (2) receipts? remitted to Footluckers. Guivencanexclusively relied on the
A. From the customer. entries of the unauthenticated ledgersto support her audit report
Q. And who issued those receipts? on petitioners supposed misappropriation or conversion, revealing
A. The saleswoman, Miss Patula. her lack of independent knowledge of the veracity of the entries,
ATTY. ZERNA: as the following excerpts of her testimony show:
We pray, Your Honor, that this receipt identified be marked as Exhibit B-3, ATTY. ZERNA to witness:
receipt number 20441. Q. What is your basis of saying that your office records showed
that this Cecilia Askin has an account of P10,791.75?
(Next Page) ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT: COURT:
Mark it. Let the witness answer.
ATTY. ZERNA: WITNESS:
The signature of the collector be marked as A. I made the basis on our ledger in the office. I just copied that and
Q. By the way, there is a signature above the name of the collector, showed it to the customers for confirmation.
are your familiar with that signature? (shown to witness)
A. Yes. ATTY. ZERNA to witness:
Q. Whose signature is that? Q. What about the receipts?
A. Miss Patula. COURT:
Q. How do you know? Make a follow-up question and what was the result when you copied that
A. It can be recognized because of the word Patula. amount in the ledger and you had it confirmed by the customers, what was
Q. Are you familiar with her signature? the result when you had it confirmed by the customers?
A. Yes. WITNESS:
ATTY. ZERNA: A. She has no more balance but in our office she has still a balance of
We pray that the signature be bracketed and marked as Exhibit B-3-a P10,971.75.
COURT: ATTY. ZERNA to witness:
Mark it. Q. Do you have a-whats the basis of saying that the balance of this
ATTY. ZERNA: customer is still P10,971.75
The other receipt number 20045 be marked as Exhibit B-4 and the
signature as Exhibit B-4-a. (Next Page)
COURT:
Mark it. ATTY. ZERNA (continuing):
[i]n your office?
xxx COURT:
That was already answered paero, the office has a ledger.
ATTY. ZERNA: Q. Now, did you bring the ledger with you?
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to A. No, Maam.[35]
one Divina Cadilig. Will you please identify this receipt if this is the receipt
of your office? (Continuation of the Direct Examination of
A.Yes. Karen Guivencan on August 13, 2002)
Q.There is a signature over the portion for the collector. Whose signature
is this? ATTY. ZERNA to witness:
A.Ms. Patula. Q. Okay, You said there are discrepancies between the original and the
Q.How do you know that this is her signature? duplicate, will you please enlighten the Honorable Court on that
A.Because we can read the Patula. discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her
We also have similar impressions of lack of proper authentication ledger shows a zero balance she has fully paid while in the original
as to the ledgers the Prosecution presented to prove the
discrepancies between the amountspetitioner hadallegedly (Next page)
received from the customers and the amounts she had actually

WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred
Ninety-one Pesos and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded
to the Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance?
A. This is the copy of the customer while in the office, in the original receipt
she has still a balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---
COURT:
The confirmation sheet was the one you referred to as the receipt in
your earlier testimony? Is that what you referred to as the receipts, the
original receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which you said showed that that
particular customer still has a balance of Ten Thousand something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the
ledger?
A. Yes.[36]
In the face of the palpable flaws infecting the Prosecutions evidence, it
should come as no surprise that petitioners counsel interposed timely
objections. Yet, the RTC mysteriously overruled the objections and
allowedthe Prosecutionto present the unauthenticated ledgers, as follows:
(Continuation of the Direct Examination of
Witness Karen Guivencan on September 11, 2002)
ATTY. ZERNA:
Your Honor please before the witness will proceed to answer the
question, let me interpose our objection on the ground that this
ledger has not been duly identified to by the person who made the
same. This witness will be testifying on hearsay matters because
the supposed ledger was not identified to by the person who made
the same.
COURT:
Those ledgers were already presented in the last hearing. I think they were
already duly identified by this witness. As a matter of fact, it was she who
brought them to court
(Next Page)
COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ
That is correct, Your Honor, but the person who made the entries is
not this witness, Your Honor. How do we know that the entries
there is (sic) correct on the receipts submitted to their office.
COURT:
Precisely, she brought along the receipts also to support that. Let the
witness answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the auditor
of Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those
entries were taken. So, you answer the query of counsel.
xxx
ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing
objection to the questions profounded(sic) on those ledgers on the
ground that, as I have said, it is hearsay.
COURT:
Okey(sic). Let the continuing objection be noted.

CONTINUATION OF DIRECT-EXAMINATION Q (To Witness) The clerk who allegedly was the one who prepared
the entries on those ledgers, is she still connected with
Q Ms. Witness, last time around you were showing us several ledgers. Footluckers?
Where is it now?
A It is here. A She is no longer connected now, Your Honor,
Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is
her account in your office? COURT:
ATTY. DIEZ:
Alright proceed.
(Next Page)
ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So,
exempt from the hearsay rule.
COURT:
Okey(sic), proceed.
The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions
of the rules earlier quoted, as well as withSection 22 of Rule 132 of the
Rules of Court,which contains instructions on how to prove the
genuineness of a handwriting in a judicial proceeding, as follows:
Section 22. How genuineness of handwriting proved. The handwriting
of a person may be proved by any witness who believes it to be the
handwriting of such person because he has seen the person write, or
has seen writing purporting to be his upon which the witness has
acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom
the evidence is offered, or proved to be genuine to the satisfaction of
the judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the
execution or signing of the documents,the Prosecution surely did not
authenticate Exhibits B to YY and their derivatives conformably with the
aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive,
were inescapably bereft of probative value as evidence. That was the
onlyfair and just result, as the Court held in Malayan Insurance Co., Inc. v.
Philippine Nails and Wires Corporation:
On the first issue, petitioner Malayan Insurance Co., Inc.,
contends that Jeanne Kings testimony was hearsay because she
had no personal knowledge of the execution of the documents
supporting respondents cause of action, such as the sales contract,
invoice, packing list, bill of lading, SGS Report, and the Marine Cargo Policy.
Petitioner avers that even though King was personally assigned to handle
and monitor the importation of Philippine Nails and Wires Corporation,
herein respondent, this cannot be equated with personal knowledge of the
facts which gave rise to respondents cause of action. Further, petitioner
asserts, even though she personally prepared the summary of weight of
steel billets received by respondent, she did not have personal knowledge
of the weight of steel billets actually shipped and delivered.
At the outset, we must stress that respondents cause of action is
founded on breach of insurance contract covering cargo consisting of
imported steel billets. To hold petitioner liable, respondent has to prove,
first, its importation of 10,053.400 metric tons of steel billets valued at
P67,156,300.00, and second, the actual steel billets delivered to and
received by the importer, namely the respondent. Witness Jeanne King,
who was assigned to handle respondents importations, including their
insurance coverage, has personal knowledge of the volume of steel billets
being imported, and therefore competent to testify thereon. Her testimony
is not hearsay, as this doctrine is defined in Section 36, Rule 130 of the
Rules of Court.However, she is not qualified to testify on the
shortage in the delivery of the imported steel billets. She did not
have personal knowledge of the actual steel billets received. Even
though she prepared the summary of the received steel billets,
she based the summary only on the receipts prepared by other
persons. Her testimony on steel billets received was hearsay. It
has no probative value even if not objected to at the trial.
On the second issue, petitioner avers that King failed to properly
authenticate respondents documentary evidence. Under Section 20,
Rule 132, Rules of Court, before a private document is admitted in
evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was
acknowledged, any person who was present and saw it executed,
or who after its execution, saw it and recognized the signatures,
or the person to whom the parties to the instruments had
previously confessed execution thereof. In this case, respondent
admits that King was none of the aforementioned persons. She
merely made the summary of the weight of steel billets based on
the unauthenticated bill of lading and the SGS report. Thus, the
summary of steel billets actually received had no proven real
basis, and Kings testimony on this point could not be taken at face
value.
xxx Under the rules on evidence, documents are either public or
private. Private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court.Section 20of the
same law, in turn, provides that before any private document is received in
evidence, its due execution and authenticity must be proved either by
anyone who saw the document executed or written, or by evidence of the
genuineness of the signature or handwriting of the maker. Here,
respondents documentary exhibits are private documents. They
are not among those enumerated in Section 19, thus, their due
execution and authenticity need to be proved before they can be
admitted in evidence.With the exception concerning the summary
of the weight of the steel billets imported, respondent presented
no supporting evidence concerning their authenticity.
Consequently, they cannot be utilized to prove less of the insured
cargo and/or the short delivery of the imported steel billets. In
sum, we find no sufficient competent evidence to prove petitioners
liability.

That the Prosecutions evidence was left uncontested because petitioner
decided not to subject Guivencan to cross-examination, and did not tender
her contrary evidencewas inconsequential. Although the trial court had
overruled the seasonable objections to Guivencans testimony bypetitioners
counsel due to the hearsay character, it could not be denied thathearsay
evidence, whether objected to or not, had no probative value.Verily, the
flaws of the Prosecutions evidence were fundamental and substantive, not
merely technical and procedural, and were defects that the adverse partys
waiver of her cross-examination or failure to rebutcould not set right or
cure. Nor did the trial courts overruling of petitioners objections imbue the
flawed evidence with any virtue and value.
Curiously, the RTC excepted the entries in the ledgers from the application
of the hearsay rule by also terselystating that the ledgers were prepared in
the regular course of business. Seemingly, the RTC applied Section 43, Rule
130 of the Rules of Court, to wit:
Section 43. Entries in the course of business. Entries made at, or
near the time of the 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.
This was another grave error of the RTC.The terse yet sweeping mannerof
justifying the application of Section 43 was unacceptable due to the need
to show the concurrence of the several requisites before entries in the
course of business could be excepted from the hearsay rule. The requisites
are as follows:
(a) The person who made the entry must be dead or unable to testify;
(b) The entries were made at or near the time of the transactions to which
they refer;
(c) The entrant was in a position to know the facts stated in the entries;
(d) The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral, or religious;
(e) The entries were made in the ordinary or regular course of business or
duty.
The Court has to acquit petitioner for failure of the State to establish her
guilt beyond reasonable doubt. The Court reiterates that in the trial of
every criminal case, a judge must rigidly test the States evidence of guilt in
order to ensure that such evidence adhered to the basic rules of
admissibility before pronouncing an accused guilty of the crime charged
upon such evidence. The failure of the judge to do so herein nullified the
guarantee of due of process of law in favor of the accused, who had no
obligation to prove her innocence. Heracquittal should follow.
Dycoco v Orina
G.R. No 184843
July 30, 2010
Facts: Virgilio Dycoco (Dycoco) is alleged to have executed on October 9,
1995 a Real Estate Mortgage with Special Power to Sell Mortgaged Property
without Judicial Proceedings (REM) in favor of respondent Adelaida Orina
(Adelaida), covering a parcel of land located in Sta. Cruz, Manila and
registered under Transfer Certificate of Title (TCT) No. 105730 in Dycocos
name. The REM was notarized on even date by Notary Public Arwin Juco
Sinaguinan.
By Adelaidas claim, Dycoco was indebted to her in the amount of
P250,000.00, payable in six months, to bear monthly interest rate of five
percent (5%), to secure which Dycoco executed the REM.
For Dycocos alleged failure to pay his obligation, Adelaida extrajudicially
foreclosed the REM and as no redemption was made within the
reglementary period, Dycocos TCT was cancelled and, in its stead, TCT No.
243525 was issued in her name.
Dycocos attorneys-in-fact-brothers-in-law Cristino, Jose and Adolfo, all
surnamed Grafilo, who occupy the property covered by the REM as
caretakers/tenants, did not turn-over its possession to Adelaida, hence,
she, joined by her husband represented by her attorney-in-fact Evelyn
Sagalongos (Evelyn), filed a complaint for ejectment against them before
the Metropolitan Trial Court (MeTC) of Manila.
Upon receiving notice of the complaint, Dycoco, represented by his
attorneys-in-fact, filed a complaint for annulment of the REM and transfer
certificate of title with damages, docketed as Civil Case No. 01100522,
against Adelaida and her husband German Orina represented by Evelyn
before the Regional Trial Court (RTC) of Manila.
Dycocos attorneys-in-fact claimed that Dycocos signature on the REM was
forged, to prove which they presented various documents that Dycoco was
working in the United States of America as a licensed physician on the
alleged date of execution of the REM. They also presented Dycocos U.S.
Passport, personal checks, Special Power of Attorney and Affidavit; and a
Certification from the Clerk of Court of RTC Manila that the office does not
possess a copy of the REM, Notary Public Sinaguinan having not submitted
her notarial report for October 1995.
Herein respondents Adelaida et al., maintaining the due execution of the
REM, presented Evelyn who testified on a photocopy of the REM.
By Decision of May 23, 2005, Branch 15 of the Manila RTC dismissed
Dycocos complaint, holding that:
Plaintiff, [Dycoco], through the testimony of their (sic) lone witness as well
as their (sic) documentary exhibits tried to show that it was not . . . Dycoco
who mortgaged the said property. Cristino Grafilo even testified that their
brother Miguel, admitted to having stole (sic) the title and have (sic) it
mortgaged. Plaintiffs (sic), however, failed to establish that the mortgagor,
(sic) defendant Adelaida Orina, knew it was not Virgilio Dycoco who
mortgaged the same. (underscoring supplied)
By the assailed Decision, the Court of Appeals affirmed the trial courts
dismissal of Dycocos complaint, it holding that albeit Dycocos questioned
signature appearing on the REM and the documentary evidence presented
by his attorneys-in-fact bear striking differences, since Dycoco was not
presented on the witness stand to establish the genuineness, due
execution and contents of the documentary evidence, no probative value
can be ascribed thereto.
In not crediting evidentiary weight on Dycocos U.S. passport showing that
he was not in the Philippines when the REM was executed, the appellate
court held:
. . . [T]he existence, genuineness, due execution and contents of Exhibit I
have not been properly established. Again, the identification made by
plaintiff-appellant Cristino Grafilo (sic) will not suffice since he is not privy
to its issuance and execution. The plaintiff-appellants (sic) should have
presented a person competent to testify to establish the genuineness and
contents of Exhibit I like an officer from the Bureau of Immigration. But the
plaintiff-appellants (sic) failed to do so. Thus, this court finds the stance of
plaintiff-appellants (sic) that Virgilio Dycoco was out of the country at the
time of the execution of the questioned deed unsupported.
The motion for reconsideration of Dycocos attorneys-in-fact having been
denied by Resolution of October 3, 2008, the present petition for review
was filed.
Issue: WON the REM is a public document
Held: A perusal of the REM which is, as stated earlier, a merely photocopy,
shows the incompleteness of the acknowledgment portion. It reads:
Republic of the Philippines )
City of Manila ) S.S.
BEFORE ME, a Notary Public for and in the City of Manila, this 9 th day of
October 1995, personally came and appeared ____________________ (sic)
with Res. Cert. No. : 12262297 C issued on 27 July 95 at Manila and Tax
Account No.: 110-783-724 known to me and to me known to be the same
person who executed the foregoing instrument which he acknowledged
before me as his free and voluntary act and deed.
As the above-quoted acknowledgment shows, the name of the person who
personally appeared before the notary public is not stated.
Documents acknowledged before a notary public, except last wills and
testaments, are public documents. Since the subject REM was not properly
notarized, its public character does not hold.
Since the REM is not a public document, it is subject to the requirement of
proof for private documents under Section 20, Rule 132, which provides:
Section 20. Proof of private document. Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is
claimed to be. (underscoring supplied)
It was thus incumbent upon Adelaida to prove that Dycocos signature is
genuine. As stated earlier, a mere photocopy of the REM was presented. It
is axiomatic that when the genuineness of signatures on a document is
sought to be proved or disproved through comparison of standard
signatures with the questioned signature, the original thereof must be
presented. Why respondents did not present the original, they did not
explain. Why they did not present Adelaida, who must have been present
at the execution of the REM as her purported signature appears thereon, or
the notary public, or any of the witnesses, neither did they explain. Sec. 5
of Rule 130 which reads:
SEC. 5. When original document is unavailable. When the original
document has been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of the
unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

Upon the other hand, Dycocos attorneys-in-fact presented his U.S. passport
documenting when he entered and exited from the Philippines, as well as
various documents showing his genuine signature. The appellate court,
although upholding the admissibility of Dycocos documentary evidence,
did not ascribe weight to it, however, upon the justification that [e]ven if . .
. Cristino Grafilo was empowered to appear for and on behalf of plaintiff-
appellant Virgilio Dycoco in this case by virtue of a Special Power of
Attorney, the powers couched in said document do not vest upon the
former the power to testify on matters [of] which he has no personal
knowledge.
Contrary to the appellate courts stance, there was no necessity to present
Dycoco on the witness stand or to present the one who made the entries
on his U.S. passport. In respondents Comment/Opposition to Dycocos
formal offer of evidence, the passport was objected to as being immaterial,
irrelevant and impertinent. Such comment is a virtual admission of the
authenticity of the entries in the passport.
But more important, one of the documents offered by Dycoco is a Special
Power of Attorney executed on June 2, 2000 in Illinois, U.S.A. showing his
signature, notarized and certified in accordance with Public Act No. 2103,
which effectively dispenses with the requirement of presenting him on the
witness stand.
Section 2. An instrument or document acknowledged and authenticated
in a foreign country shall be considered authentic if the acknowledgment
and authentication are made in accordance with the following
requirements:
(a) The acknowledgment shall be made before (1) an ambassador,
minister, secretary of legation, charg daffaires, consul, vice-consul, or
consular agent of the United States, acting within the country or place to
which he is accredited, or (2) a notary public or officer duly authorized by
law of the country to take acknowledgments of instruments or documents
in the place where the act is done.
(b) The person taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him, and that he is
the same person who executed it, and acknowledged that the same is his
free act and deed. The certificate shall be under his official seal, if he is by
law required to keep a seal, and if not, his certificate shall so state. In case
the acknowledgment is made before a notary public or an officer
mentioned in subdivision (2) of the preceding paragraph, the certificate
of the notary public or the officer taking the acknowledgment shall
be authenticated by an ambassador, minister, secretary of
legation, charg daffaires, consul, vice-consul, or consular agent of
the United States, acting within the country or place to which he is
accredited. The officer making the authentication shall certify under his
official seal that the person who took the acknowledgment was at the time
duly authorized to act as notary public or that he was duly exercising the
functions of the office by virtue of which he assumed to act, and that as
such he had authority under the law to take acknowledgment of
instruments or documents in the place where the acknowledgment was
taken, and that his signature and seal, if any, are genuine. (emphasis and
underscoring supplied)
Evelyn insisted that Dycoco was present during the signing of the REM on
October 9, 1995:
ATTY. MERCADO:
Q: Madam Witness, when this document was prepared, were you present?
WITNESS:
A: Yes sir.
Q: Are you a witness in the execution of this document?
A: Yes sir.
Q: On page 2 of this document, the (sic) appears a signature above the
type-written name Adelaida Orina, will you please inform the Honorable
Court whose signature is this?
Q: Why do you know that it is the signature of Adelaida Orina?
A: Because she is included there.
Q: What do you mean by kasama po siya?
A: There were four of us at the office of the Notary Public.
Q: When you said four of you, whao (sic) are they?
A: Adelaida, Virgilio, two other witness (sic) and me.
Q: You are not four, you are five?
A: Yes sir.
Evelyns testimony not only contradicts the entries in Dycocos U.S.
Passport, however, it appearing therein that Dycoco visited the Philippines
on April 2, 1990 and arrived in the United States on April 9 of the same
year. Contrary to her claim, the REM does not reflect here as one of the
witnesses to its execution.