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People vs. Cerilla
The dying
declaration was of
the victim was applied in this case as sufficient to prove the criminal liability of the accused Cerilla.
At around 6:00 pm on 24 April 1998, the victim, Alexander Parreño (Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of Cerilla. They were cordially welcomed and entertained by Cerilla and his wife. An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged. On their way home, Michelle was walking ahead of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 meters from Cerilla’s house, Michelle heard an explosion. Michelle immediately turned her back and saw Cerilla pointing a gun at Alexander who, at that moment, was staggering towards her. Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreño. Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was Cerilla who shot him. Twenty minutes later, Alexander’s other daughter arrived. She was also told by Alexander at that moment that it was Cerilla who shot him.
Police officers rushed to the crime scene and helped carry Alexander to an ambulance. A police officer was able to ask Alexander who shot him to which he answered "Pato." "Pato" is an alias by which Cerilla is known.
Alexander’s wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him. Alexander died the following day.
A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death.
NOTE: Requisites for a dying declaration to be admissible – (1) 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. (2) 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. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. (3) 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. (4) The declaration must be offered in a
criminal case for homicide, murder, or parricide, in which the declarant is the victim. 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 Alexander’s ante mortem statement in the present criminal case for murder.
The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him.
The statements of victim complied with all the requisites of a dying declaration. First, Alexander’s declaration pertains to the identity of the person who shot him. Second, the fatal quality and extent of the injuries 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 declaration is offered in a criminal prosecution for murder where he was the victim.
The fact that the crime was committed during a blackout does not cast doubt on Alexander’s and Michelle’s positive identification of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range.
The positive identification of appellant must necessarily prevail over his alibi. It was not physically impossible for appellant to have been present at the scene of the crime at the time of its commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150 meters, more or less.
Ariate vs. People
The dying
declaration was of
the victim was not applied in this
case since it lacked the third requisite re: that the declarant would have been
competent to testify as the victim was not shown to have the opportunity to see the assailants.
Petitioners Jesus Geraldo and Amado Ariate were charged with homicide for the death of Arthur Ronquillo.
At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel, among other persons, on being informed of the shooting of Ronquillo, repaired to where he was, not far from his residence, and found him lying on his side and wounded. Although gasping for breath, he was able to utter to Mirasol, within the hearing distance of Arnel that he was shot by Badjing and Amado.
Petitioners who were suspected to be the "Badjing" and "Amado" responsible for the shooting of the victim were subjected to paraffin tests which yielded negative results.
In a document dated July 1, 2002, the victim's son Arnel gave a statement in a question and answer style that herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his father.
A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarant's death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant's death.
There is no dispute that the victim's utterance to his children related to the identities of his assailants. As for the victim's consciousness of impending death, it is not necessary to prove that he stated that he was at the brink of death; it suffices that, judging from the nature and extent of his injuries, the seriousness of his condition was so apparent to him that it may safely be inferred that such ante mortem declaration was made under consciousness of an impending death. The location of the victim's two gunshot wounds, his gasping for breath, and his eventual death before arriving at the hospital meet this requirement.
It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front, the post-mortem
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In another document dated July 4, 2002, Mirasol also gave a statement in a question and answer style that her father uttered that herein petitioners shot him.
At the witness stand, Mirasol echoed her father's declaration that "Badjing" and "Amado" shot him. Arnel substantially corroborated Mirasol's statement.
examination report having merely stated that the points of entry of the wounds were at the "right lumbar area" and the "right iliac area."
At all events, even if the victim's dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance.
However, it is the prosecution, not petitioners, which had the burden of proving that petitioners were, at the material time, the only ones in the barangay who bore such nicknames or aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive is essential for their conviction. The Court notes that in their affidavits supporting the criminal complaint, the victim's wife and children Mirasol and Arnel proffered not knowing any possible motive for petitioners to shoot the victim. At the trial, no evidence of any motive was presented by the prosecution. Petitioners' defense of denial and alibi thus assumes importance.
People vs. De Joya
The dying
declaration was of
the victim was not applied in this case since the purported dying declaration was incomplete and it did not correspond to the question asked.
Respondent was charged with the crime of robbery with homicide to which the respondent pleaded not guilty. After trial, the court a quo rendered a decision convicting De Joya of the crime charged.
The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten year old son Alvin and Herminia’ 88-year old mother, Eulalia, are residents of Baliuag, Bulacan.
In the afternoon of January 31, 1978, Herminia left for school to teach. Her mother Eulalia was then sitting at their sofa watching the television set. Her son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and he proceeded home.
At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria looked back to the direction of the Valencia's house. She noticed respondent standing and holding a bicycle at the yard of the Valencia's. When Alvin reached home, he saw his grandmother Eulalia lying down prostrate and drenched with her own blood. He immediately threw his bag and ran towards her. He then held her hands and asked her what happened, to which Eulalia answered “Si Paqui”. After saying these words, she let go of Alvin's hand and passed away.
Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia. The said doctor declared that said Eulalia had a heart attack which caused her death. When asked by Herminia Valencia why her mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr. Tolentino did not issue one and instead immediately left.
Herminia found out that the two gold rings worn by her mother were missing. The right earring of her mother was likewise missing. All of these were valued at P300.
That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed.
On the same night, Herminia found a beach walk step-in by the side of the cabinet near the door of their room downstairs, more or less one meter from where the victim was lying prostrate.
Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for her husband Arnedo but which she gave to Socorro De Joya, the wife of the respondent.
It must be noted that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?"
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 the res gestae of 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.
The statement as offered must not be merely a part 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.
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 presumption of truthfulness which constitutes the basis upon which dying declarations are received.
It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin.
The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia. The quarrel over the use of the bicycle which was supposed to have taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a person to slay another in such a violent and gory manner.
The testimony of Herminia about the single slipper that she found near or under the cabinet in the living room where Eulalia was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife.
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The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance that would show that appellant had perpetrated the slaying or the robbery.
Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day wake, does not give rise to any inference that appellant was the slayer of Eulalia. Appellant had explained that he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the afternoon Eulalia was killed and had viewed the body (before it was lying in state) along with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt.
Fuentes vs. CA
The declaration made by Zolio was
not given credence as an exception to the hearsay rule under
declaration against interest
because the so-called declarant was not shown to be dead or unable
to testify.
Petitioner Fuentes seeks the reversal of the decision of the CA affirming his conviction for murder.
At four o'clock in the morning of 24 June 1989, Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short hair." Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Fuentes stabbed him.
Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24 June 1989 while he was in a store in the barangay.
One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made
by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons." The admissibility in evidence of such declaration is grounded on
necessity and trustworthiness.
There are three essential requisites for the admissibility of a declaration against interest: (a)
the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.
The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence.
The Court noted, however, that no less than petitioner's own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie" Fuentes are one and the same person.
Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo.
But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness.
People vs. Bernal The deceased’s declaration to another person that he was having
an affair with the wife of the accused was
admitted in
Respondent, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Davao city.
A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses. On the other hand, Theodore Bernal testified for his defense.
In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as shown by their concerted acts evidentiary of a unity of thought and community of purpose." Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only. The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.
Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:
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evidence since it complied with all the requisites for a declaration
against interest to
be considered as an exception to the hearsay rule.
On August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.
After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat." When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him "not to run because they were policemen" and because he had an "atraso" or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latter's mother of the abduction.
The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernal's wife and this was the motive behind the former's kidnapping. Until now, Openda, Jr. is still missing. On the other hand, the defense asserts that Openda Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped.
A certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernal's wife were having an affair. Undoubtedly, his wife's infidelity was ample reason for Bernal to contemplate revenge.
declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.
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.
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.
Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment.
Parel vs. Prudencio The declaration made by the petitioner’s father
to the effect that he is the occupant
of the residential building and not the owner of such
building, was admitted and considered as a
declaration against interest
(against the heir, who is the petitioner in this
case) as an exception to the
hearsay rule.
On February 27, 1992, respondent filed a complaint for recovery of possession and damages against petitioner with the RTC alleging that he is the owner of a two-storey residential house located at No. 61 Forbes Park National Reservation near DPS compound in Baguio City. Such property was constructed solely from his own funds and declared in his name under Tax Declaration No. 47048. He commenced the construction of said house in 1972 until its completion three years later. When the second floor of said house became habitable in 1973, he allowed petitioner’s parents to move therein and occupy the second floor while the construction of the ground floor was on-going to supervise the construction and to safeguard the materials. When the construction of the second floor was finished in 1975, respondent allowed petitioner’s parents and children to transfer and temporarily reside thereat; it was done out of sheer magnanimity as petitioner’s parents have no house of their own and since respondent’s wife is the older sister of Florentino, petitioner’s father.
In November 1985, respondent wrote petitioner’s father a notice for them to vacate the said house as the former was due for retirement and he needed the place to which petitioner’s parents heeded when they migrated to U.S. in 1986. However, without respondent’s knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of respondent’s house. Petitioner’s refusal to vacate the house despite repeated demands prompted respondent to file the instant action for recovery of possession.
Petitioner filed his Answer with Counterclaim alleging that his parents are the co-owners of the said residential house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioner’s parents.
In deciding in favor of the petitioner, RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the property all in respondent’s name since tax declarations are not conclusive proof of ownership. It rejected the
We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of possession of the ground floor of the subject house as the exclusive owner thereof. The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest.
The affiant, Florentino, who died in 1989 was petitioner’s father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his children’s interests as his heirs.
A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. Notably, during Florentino’s lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latter’s will and held that the remedy of respondent was to file an action for ejectment; and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground that respondent’s action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court.
Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioner’s cross-examination that the existing structure of the two-storey house was in accordance with said building plan.
Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name since 1974. In fact, petitioner during his cross-examination admitted that there was no occasion that they paid the real estate taxes nor declared any portion of the house in their name.
In this case, the records show that although petitioner’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same. Thus, the CA did not consider the documentary evidence presented by petitioner.
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affidavit executed by Florentino declaring the house as owned by respondent saying that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement addressed to the late Florentino by the City Treasurer concerning the property’s tax assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for being hearsay.
A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party.
Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials to be used; and as a young boy he would follow-up some deliveries upon order of his father and never saw respondent in the construction site. The fact that not one of the witnesses saw respondent during the construction of the said house does not establish that petitioner’s father and respondent co-owned the house.
Tison vs. CA The declaration made by Teodora Domingo to the effect that the petitioners are her niece and nephew was admitted in evidence despite the absence of any independent evidence of pedigree or relationship. This
involves the first scenario of an act
or declaration about pedigree
wherein the claim is directed against the declarant, in this case against
her estate.
Petitioners filed an action for reconveyance against the private respondent Teodora Domingo for the parcel of land with a house an apartment located in Quezon City. The properties were originally owned by the spouses Martin and Teodora Guerrero.
Petitioners claim to be the niece and nephew of Teodora Guerrero who died leaving only Martin and the petitioners as the heirs. Upon the death of his wife, Martin Guerrero then executed an Affidavit of Extrajudicial Settlement adjudicating unto him, allegedly as the sole heir, the land in dispute. Subsequently, a TCT was issued to Martin, which he used in selling the property to respondent Domingo.
Respondent Domingo thereafter acquired a TCT in her name. The petitioners claim that they are entitled to inherit ½ of the property by right of representation.
Petitioner Corazon Dezoller Tison was presented as the lone witness, with the following documentary evidence offered to prove petitioners' filiation to their father and their aunt, to wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates of destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin and Teodora Guerrero.
Private respondent filed a Demurrer to Plaintiff's Evidence on the ground that petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance with Article 172 of the Family Code. It is further averred that the testimony of petitioner Corazon Dezoller Tison regarding her relationship with her alleged father and aunt is self-serving, uncorroborated and incompetent, and that it falls short of the quantum of proof required.
There is no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. And well settled is the rule that the issue of legitimacy cannot be attacked collaterally. The issue as to whether petitioners are the legitimate children of Teodora Guerrero’s father cannot be properly controverted in the present action for reconveyance. This is aside, of course, from the further consideration that private respondent is not the proper party to impugn the legitimacy of herein petitioners. The presumption consequently continues to operate in favor of petitioners unless and until it is rebutted.
The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related
to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam,
that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon.
The general rule is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family.
The declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid a failure of justice.
Mendoza vs. CA The act or declaration (about pedigree) made by the mother and brother of the alleged father of Teopista Toring to a certain Isaac Mendoza, who was the nephew
of the alleged
The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring Tufiacao, the herein private respondent, alleged that she was born on August 20, 1930, to Brigida Toring, who was then single, and defendant Casimiro Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a recognized illegitimate child. Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and set up a counterclaim for damages and attorney's fees.
Two witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both relatives of Casimiro.
An illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court.
The Court noted that it was only Isaac Mendoza who testified on this question of pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter.
Such acts or declarations may be received in evidence as an exception to the hearsay rule. Nevertheless, there are certain safeguards against its abuse. The following requisites have to be
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father, was admitted in evidence as it complied with the needed requisites.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted as a go-between for their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro frequently handed him money to be given to Brigida.
Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various amounts to be delivered to Teopista. Isaac also declared that Casimiro intended to give certain properties to Teopista.
complied with before the act or declaration regarding pedigree may be admitted in evidence: (1)
the declarant is dead or unable to testify; (2) the pedigree must be in issue; (3) the declarant must be a relative of the person whose pedigree is in issue; (4) the declaration must be made before the controversy arose; and (5) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration.
All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs.
Solinap vs. Locsin, Jr. As a general rule, entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated. However, in the case at bar, the certificate, which issued by
the Local Civil Registrar, presented by the respondent bore irregularities and differences from the certificate, which was acquired from the
Civil Registrar General, presented by the petitioners. The glaring discrepancies between the two Certificates of Live Birth have overturned the genuineness of the certificated entered in the
Eleven months after Juan "Jhonny" Locsin, Sr. died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed with the RTC a Petition for Letters of Administration praying that he be appointed Administrator of the Intestate Estate of the deceased. He alleged, among others, (a) that he is an acknowledged natural child of the late Juan C. Locsin; (b) that during his lifetime, the deceased owned personal properties which include undetermined savings, current and time deposits with various banks, and 1/6 portion of the undivided mass of real properties owned by him and his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c) that he is the only surviving legal heir of the decedent.
Before the hearing scheduled by the RTC, the heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed an opposition to respondent's petition for letters of administration. They averred that respondent is not a child or an acknowledged natural child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name.
Another opposition to the petition was filed by Lucy Salinop (sole heir of the late Maria Locsin Vda. De Araneta, sister of the deceased), Manuel Locsin and the successors of the late Lourdes C. Locsin alleging that respondent's claim as a natural child is barred by prescription or the statute of limitations.
To support his claim that he is an acknowledged natural child of the deceased, respondent submitted a machine copy of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Clerk Registrar of Iloilo City. It contains the information that respondent's father is Juan C. Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by his signatures. To prove the existence and authenticity of the document, respondent presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City, who produced and identified in court the bound volume of 1957 records of birth where the alleged original of Certificate of Live Birth No. 477 is included. Respondent also offered in evidence a photograph showing him and his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead body. The photograph, respondent claims, shows that he and his mother have been recognized as family members of the deceased.
In their oppositions, petitioners claimed that Certificate of Live Birth No. 477 is spurious. They submitted a certified true copy of Certificate
The records of births from all cities and municipalities in the Philippines are officially and regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil Registrars. Since the records of births cover several decades and come from all parts of the country, to merely access them in the Civil Registry General requires expertise. To locate one single birth record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely that any of these employees in Metro Manila would have reason to falsify a particular 1957 birth record originating from the Local Civil Registry of Iloilo City.
With respect to Local Civil Registries, access thereto by interested parties is obviously easier. Thus, in proving the authenticity of the certificate presented by the respondent, more convincing evidence than those considered by the trial court should have been presented.
The trial court held that the doubts respecting the genuine nature of certificate presented by the respondent are dispelled by the testimony of Rosita Vencer, Local Civil Registrar of Iloilo City. However, it was shown that Vencer's knowledge of respondent's birth record allegedly made and entered in the Local Civil Registry in January 1957 was based merely on her general impressions of the existing records in that Office.
When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary from those appearing in the copy transmitted to the Civil Registry General, pursuant to the Civil Registry Law, the variance has to be clarified in more persuasive and rational manner. In this regard, the Court found Vencer's explanation not convincing.
Further, it is logical to assume that the 1956 forms would continue to be used several years thereafter. But for a 1958 form to be used in 1957 is unlikely.
There are other indications of irregularity relative to the certificate presented by the respondent:
The back cover of the 1957 bound volume in the Local Civil Registry of Iloilo is torn. The assailed certificate is merely pasted with the bound volume, not sewn like the other entries. The documents bound into one volume are original copies. The assailed certificate is a carbon copy of the alleged original and sticks out like a sore thumb because the entries therein are typewritten, while the records of all other certificates are handwritten. Unlike the contents of those other certificates, the assailed certificate does not indicate
important particulars, such as the alleged father's religion, race, occupation, address and business.
The space which calls for an entry of the legitimacy of the child is blank. On the back, there is a purported signature of the alleged father, but the blanks calling for the date and other details of his Residence Certificate were not filled up.
It bears stressing that Section 44, Rule 130 of the Rules of Court provides that: Entries in
official records made in the performance of his duty by a public officer of the Philippine, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.
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Local Civil Registry; thus, the
certificate presented by the respondent was held inadmissible and insufficient to prove filiation to the deceased.
of Live Birth No. 477 found in the Civil Registrar General, Metro Manila, indicating that the birth of respondent was reported by his mother, Amparo Escamilla and that the same does not contain the signature of the late Juan C. Locsin. They observed as anomalous the fact that while respondent was born on October 22, 1956 and his birth was recorded on January 30, 1957, the certificate presented by the respondent was recorded on a December 1, 1958 revised form. On the other hand, the certificate presented by the petitioners appears on a July, 1956 form, which was already used before respondent's birth. This scenario dearly suggests that the certificate presented by the respondent was falsified. Petitioners presented as witness a handwriting expert who testified that the signatures of Juan C. Locsin and Emilio G. Tomesa, then Civil Registrar of Iloilo City, appearing in the respondent’s certifcate are forgeries. He thus concluded that the said Certificate is a spurious document surreptitiously inserted into the bound volume of birth records of the Local Civil Registrar of Iloilo City.
The trial court rendered a decision, which was affirmed by the CA on appeal, holding that the certificate and photograph are sufficient proofs of respondent’s illegitimate filiation with the deceased.
In this case, the glaring discrepancies between the two Certificates of Live Birth (the one presented by the respondent from the Local Civil Registrar and the one presented by the petitioners from the Civil Registrar General) have overturned the genuineness of the certificated entered in the Local Civil Registry. What is authentic is the certificate recorded in the Civil Registry General.
Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation
Jison vs. CA
The letters and notes written by
the relatives of the alleged father,
acknowledging the illegitimate status of the respondent, does not fall under the second scenario contemplated under acts or declaration about pedigree as independent evidence of pedigree as to the relationship between the declarant and the
person against whom the claim is
directed was not presented. It also does not
fall within the purview of the second type of family reputation or tradition regarding pedigree as the letters is not
In her complaint filed with the RTC on 13 March 1985, MONINA alleged that 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. As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo. MONINA claimed that since childhood, she had enjoyed the continuous and implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO 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.
In his answer, 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. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint.
At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. These witnesses explained individual circumstances, which induced them to believe that MONINA was Francisco’s daughter.
On 21 October 1986, MONINA herself took the witness stand. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar and baptismal certificates, she was born on 6 August 1946 to Esperanza Amolar and FRANCISCO. MONINA first studied at Sagrado
The testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: (1) FRANCISCO is MONINA's father and she was conceived at the time when her mother was in the employ of the former; (2) FRANCISCO recognized MONINA as his child through his overt acts and conduct; and (3) Such recognition has been consistently shown and manifested throughout the years publicly, 35spontaneously, continuously and in an uninterrupted manner.
MONINA's reliance on the certification issued by the Local Civil Registrar concerning her birth is clearly misplaced. It is settled that a certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person. Simply put, if the alleged father did not intervene in the birth certificate, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latter's part. In like manner, FRANCISCO's lack of participation in the preparation of the baptismal certificates and school records renders these documents incompetent to prove paternity. However, despite the inadmissibility of the school records per se to prove the paternity, they may be admitted as part of MONINA's testimony to corroborate her claim that FRANCISCO spent for her education.
The certificates issued by the Local Civil Registrar and the baptismal certificates may not be taken as circumstantial evidence to prove MONINA's filiation. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same.
As to the various notes and letters written by FRANCISCO's relatives, allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in issue, as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarants-authors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question.
Rule 130, Section 40, provides: The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree 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
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similar to family possessions such as family bibles, family books, engravings, etc. Further, it also cannot form part
of common reputation. 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.
where she stayed as a boarder. While at Sagrado, from 1952 until 1955 (up to Grade 4), FRANCISCO paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give the money to her mother, or Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools, but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two semesters at University of San Agustin, she transferred to De Paul College and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974 and took up an M.B.A. at De La Salle University as evidenced by her transcript, wherein FRANCISCO was likewise listed as “Guardian”.
In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the RTC. As additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iñigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Esperanza’s employment ceased as of October, 1944, and that while employed by him, Esperanza would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three female workers and two (2) male workers. After Esperanza left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Esperanza and disavowed any knowledge about MONINA’s birth. In the same vein, he denied having paid for MONINA’s tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter.
The trial court ruled against Monina but the Court of Appeals reversed the trial court’s decision.
affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like may be received as evidence of pedigree.
It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. The scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. These have been described as objects "openly exhibited and well known to the family," or those "which, if preserved in a family, may be regarded as giving a family tradition." Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates.
Clearly, the various notes and letters written by FRANCISCO’s relatives, 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.
Section 41, Rule 130 of the Rules of Court provides that “Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputations.”
The 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. 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.
However, their inadmissibility notwithstanding, such letters and notes, may properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter.
As to FRANCISCO's other witnesses, the testimonies of the witnesses are considered insufficient to overcome MONINA's evidence. It merely consist of denials, which being in the form of negative testimony, necessarily stand infirm as against positive testimony.
All told, MONINA's evidence hurdled "the high standard of proof" required for the success of an action to establish one's 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.
Ferrer vs. de Inchausti The testimony of Joaquin de Inchausti, referring to the statement made by his half-brother Ramon Martinez de Viademonte, to
Plaintiffs Rafael and Maria Angelina Ferrer filed a complaint praying for a declaration that Rosa Matilde Viademonte, mother of the plaintiffs herein, had the right to succeed to the inheritance left by Isabel Gonzales in the same proportion and capacity as the other four children of the latter namely, Ramon, Rafael, Joaquin, and Clotilde. The plaintiffs allege that they are the only legitimate heirs of Rosa Viademonte and are entitled to receive the latter’s share, that is, one-fifth of the estate left by Isabel Gonzales.
Evidence adduced at the trial to prove the origin of the cause of action shows, in a manner which leaves no room for doubt, that Rosa was not a legitimate daughter of Isabel Gonzales and it follows that her children have no right to a part of the hereditary property of Isabel Gonzales.
On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in the evening a children three days old named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was baptized by the priest Don Remegio Rodriguez with the authority of
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the effect that Rosa Matilde (mother of the platintiff) is the same Rosa Matilde Robles, thereby rebutting the contention that Rosa Matilda
is a legitimate daughter of Isabel Gonzales, was admitted in evidence as part of family reputation or tradition regarding pedigree.
They allege that Isabel was first married to Ramon Martinez Viademonte and that their mother Rosa was the fruit of their relationship. Isabel was then married Jose Joaquin de Inchausti, father of defendants herein.
Counsel for the plaintiffs sought to establish that Rosa Matilde Viademonte, mother of the plaintiffs, has been treated and considered as a daughter of Isabel Gonzales and that on one occasion, the said Gonzales remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte.
Also, that Joaquin C. de Inchausti, the son of Isabel Gonzales and Jose Joaquin de Inchausti, dedicated a picture to Rosa in the following manner: “To my dear and unforgettable sister Rosa.” College records of the latter at Collegio de Santa Isabel were shown to establish filiation.
The defendants presented an entry in the notebook of Ramon Viademonte Jr. which showed that true name of Rosa Matilde Viademonte was Rosa Matilde Robles, born of unknown parents in September 1, 1952. Notwithstanding the arguments of the plaintiff, Joaquin de Inchausti testified that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister but a mere protégée and that her true name was Rosa Matilde Robles and that on occasion the said brother showed him a copy of the certificate of birth which he took from the parochial church.
said rector, and according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-mentioned baptismal certificate of Rosa Matilde Robles.
Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that on that occasion the said brother showed him the certificate of birth, a copy of which he took from the parochial church.
In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are members of the same family, in accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde Robles which is mentioned and because she was born in 1852, in no manner could she be the legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose marriage was dissolved in 1836 by the death of the husband.
Rule 130, Section 40, provides: The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree 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. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like may be received as evidence of pedigree.
In Re Mallari The testimonies of the witnesses, who lived in the same community
of respondent’s paternal grandmother, to the effect that his
paternal grandmother was unmarried and was a Filipino citizen, was admitted in evidence as an exception to the hearsay rule under
common reputation. Since respondent’s paternal grandmother was a Filipino citizen, his father was consequently a Filipino citizen, making the respondent also a Filipino citizen and not a Chinese
national.
The SC ordered the investigation of the matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar on March 5, 1962, for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines.
After an investigation, a decision was rendered by this Court holding that by preponderance of evidence, it appeared that respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother admittedly being a Chinese, respondent is likewise a Chinese national. Consequently respondent Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to him.
On February 4, 1969, respondent petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the introduction of which could alter the decision previously promulgated. The evidence proposed to be presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Estaben Mallare, respondent's father, is the natural son of Ana Mallare, a Filipino; and (2) testimonies of certain persons who had a known Esteban Mallare and his mother during their lifetime.
Specifically, the respondent presented the following witnesses: Damiana Cabangon who declared that she was with her mother,
the "hilot" who attended to Ana Mallare during her delivery, when Esteban Mallare was born; that she was present when Esteban was baptized; that Ana Mallare had lived continuously in Macalelon and was reputed to be unmarried; that she had never met or seen Esteban's father, a certain Mr. Dy.
Rafael Catarroja, the former mayor of Macalelon, who declared that he knew Esteban Mallare even as a child; that Esteban was
The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare (respondent’s father). Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations.
The public reputation in Macalelon that Esteban was Ana's natural child, testified to by the witness, would constitute proof of the illegitimacy of the former. Besides, if Estaban were really born out of legal union, it is highly improbable that he would be keeping the surname "Mallare" after his mother, instead of adopting that of his father.
The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog (and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of evidentiary value. The declarations were not only based on the reputation in the community regarding her race or race-ancestry, which is admissible in evidence, but they must have certain factual basis. For it must be realized that in this Philippine society, every region possesses certain characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same region even from the way the latter speaks. Considering that the witnesses testified having known, and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should receive a high degree of credibility.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship. Neither could any act taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled.
And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928, and that as early as 1925 (when he was about 22 years old), Esteban was already
