32642468 Evidence Digests Part 2

8/3/2019 32642468 Evidence Digests Part 2

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Prof. V. A. Avena A2010Evidence

Best Evidence Rule

AIR FRANCE vs. CARRASCOSO18 SCRA 155

SANCHEZ; Sep 28, 1966(athe)

NATURE: Review on certiorari

FACTSCarrascoso, a civil engineer, was a member of a groupof 48 Filipino pilgrims that left Manila for Lourdes onMarch 30, 1958.On March 28, 1958, the defendant, Air France, throughits authorized agent, Philippine Air Lines, Inc., issued toplaintiff a 'first class' round trip airplane ticket fromManila to Rome. From Manila to Bangkok, plaintifftraveled in 'first class', but at Bangkok, the Manager ofthe defendant airline forced plaintiff to vacate the 'first

class' seat that he was occupying because, in the wordsof the witness Ernesto G. Cuento, there was a 'whiteman', who, the Manager alleged, had a 'better right tothe seat. When asked to vacate his 'first class' seat, theplaintiff, as was to be expected, refused, and tolddefendant's Manager that his seat would be taken overhis dead body; a commotion ensued; plaintiffreluctantly gave his 'first class' seat in the plane.After transferring to the tourist class seat, one flightattendant approached him and requested from him histicket and said that she will note of his transfer. Herefused because for him it is tantamount to acceptinghis transfer. Later, he went to the pantry that was nextto him and the purser was there. He told him that herecorded the incident in his notebook. He read it and

translated to him because it was recorded in French. "First class passenger was forced to go to the touristclass against his will, and that the captain refused tointervene." Carrascoso, during trial, included thisincident in his testimony.

ISSUES1.WON Carrascoso was entitled to the first class seat

he claims

2. WON the CA erred in finding that the pursermadean entry in his notebooks reading "First classpassenger was forced to go to the tourist classagainst his will, and that the captain refused tointervene" is predicated upon evidence which is

incompetent, therefore not admissible (because thedefendant was saying that the best evidence in thiscase is the entry and not the testimony)

HELD

1. YES. The testimony of the defendants witnesses thatthe issuance of first class ticket was no guarantee thatthe passenger would have a first class ride, but suchwould depend upon the availability of first class seatcannot hold water. Oral evidence cannot prevail overwritten evidence, in this case, the first class tickets ofthe plaintiff without any reservation whatever and evenmarked with OK, meaning confirmed.2. NO. The subject of inquiry is not the entry, but theouster incident. Testimony of the entry does not comewithin the proscription of the best evidence rule. Suchtestimony is admissible.Besides, from a reading of the transcript just quoted,when the dialogue happened, the impact of thestartling occurrence was still fresh and continued to be

felt. The excitement had not as yet died down.Statements then, in this environment, are admissible aspart of the res gestae. For, they grow "out of thenervous excitement and mental and physical conditionof the declarant". The utterance of the purserregarding his entry in the notebook was spontaneous,and related to the circumstances of the ouster incident.Its trustworthiness has been guaranteed. It thusescapes the operation of the hearsay rule. It forms partof the res gestae.Moreover, if it were really true that no such entry wasmade, the deposition of the purser could have clearedup the matter.

DISPOSITION: Decision of CA affirmed.

HERNAEZ v McGRATHTUASON; July 9, 1952

G.R. No. L-4044(jojo)

NATURE- On action of ejectment and for damagescommenced in the CFI of Manila by Pedro C. Hernaezand Asuncion de la Rama Vda. de Alunan, in her ownbehalf and as an administratix of the estate of herdeceased husband, Rafael R. Alunan, against thePhilippine Alien Property Administration (PAPA).

FACTS- Rafael Alunan and Pedro Hernaez formerly wereregistered owners in equal share of a land, 8contiguous parcels with a combined area of 4,533.34

sqm covered by TCT Nos. 46872-46880 and situated inthe corner of Cortabitarte and Dewey Boulevard,Manila. 8 residential houses were built on these lots butthey were destroyed by war operations in the early partof 1945.In Feb. 1943, a deed of sale, on which Alunan's andHernaez names were signed as sellers and theHakodate Dock Co., Ltd., a Japanese commercial firm,as buyer, in consideration of P170,000, was presentedfor registration in the office of register of deeds, and onMarch 3, TCT Nos. 66832-66839 in the name of thepurchaser were issued in lieu of the old CT Nos. 53930-53938, which were totally cancelled. On the strength ofthis registration,the lots and all improvements stillexisting thereon were vested as property of an enemy

national by the PAPA, a US Governmentinstrumentality, In April 1947, under the authority ofthe US Trading with the Enemy Act, as amended, thePhilippine Property Act of 1946, and Executive OrderNo. 9818.- The RP as the transferee of the property in litigationcame into the case as intervenor on the side of thedefendant. Dr. Nicanor Jacinto also filed a complaint inintervention but in opposition to the defendant as wellas the plaintiffs. The questioned property has beenmortgaged to Jacinto before the outbreak of the war tosecure a promissory note for P160,000, and althoughthe mortgage had been paid and cancelled in 1943, Dr.

Jacinto alleged that he had accepted the payment andagreed to the cancellation in fear of Japanese reprisal.

- The issue was complicated by the theft afterliberation from the office of the register of deeds, of thedeed of sale, the transfer certificates of title by virtuethereof, and other papers pertaining to the lastregistration. The plaitiffs representation madedetermined and repeated efforts to block the attemptsof appellants any oral evidence touching on the allegedcontents of the documents supposedly executed byAlunan and Hernaez in favor of the Hakodate, whichefforts were futile.- As maters stand, only one unsigned copy of theaforesaid deed, which had been secured from the file ofthe Hakodate home office in Hokaido, Japan, wasintroduced. Hakodate's signed copy is said to have

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been lost or destroyed in the bombing of Tokyo in 1945along with the company's office in that city. And thecopy or the copies which had been kept by the notarypublic before whom the document was acknowledgedhad also been burned with his other papers during the

fight for liberation of Manila. As a result, defendant'sproofs on the controverted execution of the lost deedare only the entries thereof in the registrar's office,collateral documents, and parol testimony, some direct,some circumstantial, but none precise or unequivocal interm.- Hernaez was the lone witness on his behalf and forhis co-plaintiff. The gist of Hernaez' testimony is that ifany document was presented the register of deeds'office purporting to have been executed by him and hisco-owner, that document was a forgery.Hernaez in part declared: "We were forced by the

Japanese to vacate the houses. They told me theyneeded the property and I had to cooperate,collaborate with them and I had no other alternative

but to sell my property. They detained at the Port Areauntil midnight; it was midnight when they sent me backto my house but they retained the titles. I think therewere eight titles. They told me that I had to sign thedeed of sale. I had been expecting that they will appearthere to make me sign the deed of sale in my house orin the office of the Navy at Legaspi Landing, but whathappened is that they did not appear in my house, andafterwards I found out that Captain Tanabe (Watanabe,Hakodate's manager) was sent back to Tokyo."- The principal witness for the defendant on thedispute sale were Satoru Watanabe, Napoleon Garciaand Jose Ma. Recto.- Watanabe: testifies that he was in the Philippines inthe early part of the war as acting manager of the

Manila Branch of the Hakodate Dock. Co., Ltd; that heknew Hernaez and Alunan. He recalls the transactionbetween the Hackodate Dock Co., Ltd., on the one handand Hernaez and Alunan on the other, concerning thesale of the land and buildings located at the corner ofCortabitarte and Cavite (Dewey) Boulevard. He saysthat the deed of sale was prepared in Doctor Recto'soffice but he was not present having gone to that officeonly after he had been informed that the document wasready; that after he had been assured that thedocument was complete, he affixed his signaturethereto; that according to his memory he was asked tosign the document after the vendors, Alunan andHernaez, had signed it; that as he left Manila for Japan

shortly after he had signed the deed of sale, he doesnot know what happened to the copy of said documentwhich was delivered to Hakodate Dock. Ltd., that afterhe had returned to Tokyo, the document was forwardedto the Tokyo office, at the beginning of the following

year; that the duplicate original and the unsignedcopies thereof were kept in the Tokyo office; that theduplicate original was burned when the Tokyo officewas bombed by the United States Airforce in 1945, butthat a copy (made by the Hakodate Manila office) of theduplicate original which was kept by the Manila Branchoffice was not destroyed and he brought it along whenhe came to the Philippines to testify; that he saw thatcopy of the first time in the Hokaido office of theHakodate Dock Co. when he went there before comingto the Philippines.- Garcia, an assistant in the office of Atty. Recto,declares that he was a notary public and recall that, assuch, he ratified a document in which Alunan andHernaez and the Hakodate Dock. Ltd., were the parties;

and all the notarial copies were lost or destroyed; thathe made at least five copies of which he retained twoand handed over the rest and the original to theparties; that Hakodate at least received one copy. Hesays he did not remember to whom he delivered theoriginal. On cross-examination by the attorney for Dr.

Jacinto, Garcia says that he does not know whoengaged his firm; he only knows that Recto requestedhim to notarize the document. Nevertheless he recallsthat the vendors were Hernaez and Alunan and thevendee the Hakodate Dock. Ltd, He says that thedocuments were signed in his presence and that hemust have given Alunan or Hernaez a copy. He furthersays he cannot exactly tell where the document wasratified but that it must have been either in his office or

in the office of the parties whether he went with hisnotarial equipment. He thinks he says, that he went tothe office of Secretary Alunan in the old legislativebuilding.- Recto: testifies that during the Japanese occupationhis law office was on the 3rd floor of the SorianoBuilding. He recalls a transaction between Alunan andhernaez on the one hand and the Hakodate Dock. Ltd.,on the other. He thinks that he drew a deed of sale andthat the document was signed in his office; that he wasin the same room. He was asked if he was one of thewitnesses to the document but the question wasobjected to and the objection was sustained. He furtherdeclares that he took charge of registering the deeds of

sale and that after the registration he succeeded ingetting the certificates of title in the name of thevendee and delivered them to the latter. He says he didnot remember if his firm was the retained the counselfor the Hakodate Dock Co., nor is he sure where the

transaction took place. He would not be able to identifythe document if only a copy thereof was shown to him.He states that he does not remember if the transactionwas a sale; all he remembers is that it was atransaction between Hernaez and Alunan and theHakodate Doc Ltd., and the papers were signed at hisoffice at the Soriano Building by alunan and Hernaez,as afar as he can recall. He recalls another transactionof Hakode in which the preparation of the documentwas more or less entrusted to him by the HakodateDock Co. He says that he was informed by Messrs.Hernaez and Alunan regarding the transaction thatthere had been an argument between them.

The trial Judge did not make express findings onWatanabe's credibility, and referring to Garcia's and

Recto's testimony, noting that the same are becloudedwith the phrases "it could have been", "it must havebeen signed, in his presence". Moreover, the judgeinsinuated that Hakodate's signed copy existed at thetime of the trial and had been suppressed, and actingon this belief, disregarded all parol evidence by whichthe defendant had attempted to establish thegenuineness of the deal. Said the court: There is nosufficient evidence on record to show the loss of all thesigned copies of the questioned document. Loss of theoriginal and the signed copies must be satisfactorilyestablished before secondary evidence can beadmitted. Specially when the signatures on thedocument is claimed to have been forged, it becomesabsolutely necessary and indispensable the production

on original or a signed copy of the document. Thus, nosecondary evidence can be entertained to prove thedocument of the lost document, especially if thesupposed document is contested to be falsified offorged.RTC ruled in favor of the plaintiffs and dismissed thecomplaints in intervention.

ISSUEWON the signatures of Alunan and Hernaez on the deedof sale are authentic

HELDYES

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- No valid ground can be perceived for the insinuationthat the defendant or the Hakodate Dock Co. concealedany of the signed copies of the disputed deed. It ishighly inconceivable that the United StatesGovernment or the Philippine Government

representatives would be capable or resorting to suchdishonorable and shyster tactics in order to win thecase and dispossess legitimate owners of theirproperty. Much less can it be imagined that thoserepresentatives had a hand in the loss of pertinentpapers in the register of deeds' office. It would havebeen nonsensical on their part to steal the verydocuments on which they based their action in vestingthe property.As for Hakodate Dock Company, his firm had nointerest in the result of the suit. It could not haveentertained any hope of getting the property under anycircumstances. Furthermore, Watanabe has no longerconnected with Hakodate when he testified at the trial.Be that as it may, the court below was entirely

mistaken in holding that parol evidence of theexecution of the instrument was barred. The courtconfounded the execution and the contents of thedocument. It is the contents, which in this case are notin dispute, which may not be proved by secondaryevidence when the instrument itself is accessible.Proofs of the execution are not dependent on theexistence or non-existence of the document, and as amatter of fact, such proofs of the contents: dueexecution, besides the loss, has to be shown asfoundation for the introduction of secondary evidenceof the contents.Section 46 ROC:There can be no evidence of a writing other than thewriting itself the contents of which is the subject of

inquiry, except in the following cases: x x x x x x x x xSection 51 ROC:When the original writing has been lost or destroyedupon proof of its execution and loss or destruction, itscontents may be proved by a copy, or by a recital of itscontents in some authentic document, or by therecollection of witnesses.- Evidence of the execution of a document is, in thelast analysis, necessarily collateral or primary. Itgenerally consists of parol testimony or extrinsicpapers. Even when the document is actually produced,its authenticity is not necessarily, if at all, determinedfrom its face or recital of its contents but by parol

evidence. At the most, failure to produce thedocument, when available to establish its executionmay affect the weight of the evidence presented outnot the admissibility of such evidence.In spite of the defects which the trial court noted in

Garcia's and Recto's testimony, the same andWatanabe's leave little or no room for doubt thatAlunan and her Hernaez did affix their signatures to thedeed of sale. Hernaez' testimony which the trial courtsays "it finds no reason to doubt" actually has to manyserious flaws to justify the court's faith. The testimonyis highly improbable in many important respects and isdirectly or indirectly contradicted by evidence moretrustworthy and by well-established facts. Withoutgoing to minute detail, the following considerationsshould suffice to illustrate the point.- The evasive answers Hernaez in his cross-examination cast serious reflection on the truth of theprotestations that the stolen document was forged.Hernaez did not have to be shown the deed to be able

to tell that he had not signed it if that had been thecase. The point sought by the questions was veryspecific and must have been uppermost in the witnessmind. It was the thesis of his complaint and had beenthe subject of a prolonged investigation before the suitwas filed. Dates and years and figures" "difficult toremember" had nothing to do with, and could not haveobscured the right answer to the simple questionwhether Hernaez and Alunan had disposed of theirproperty which they were trying to recover. In factpreviously Hernaez and vehemently affirmed. "I neversigned a deed of sale to any body, much less toHakodate Dock Co."- One other notable feature of Hernaez' testimony isthe absence therefrom of any reference to Alunan in

connection with the alleged seizure of their houses andcertificates of title. Although there is no proof on therecord relative to Alunan's official position at the timeother than that he had an office in the legislativebuilding, the court may take judicial notice of the factthat Alunan was a member of the ExecutiveCommission and later cabinet minister in the Japanesesponsored Government of the Philippines. The point isthat if what Hernaez says were correct, it does notseem probable that Alunan would not have known theoccurrence, and knowing it, taken steps to recover theseized titles or compensation for the property. It doesnot seem likely that he would not have at leastcomplained to the Japanese higher authorities and

secured some information about what we became oftheir certificates.- Yet Hernaez would have the court believe, as wegather from his testimony, that neither he nor hispartner learned of the whereabouts of their titles until

after the Japanese had been driven away from thePhilippines and that for the two years they allowedthemselves to be deprived of the use of their propertywithout protest. Let it be remembered that the propertyhad not been taken by the armed forces for warpurposes but by a private concern if attached to andoperating under the supervision of the Japanese Navy.Contrary to Hernaez' assertions, Watanabe did not holdany military rank or status, and the houses and lotswere used as quarters for the firm's civilian employeesand acquired in the firm's name with its own money.

The charge suggested by the line of plaintiff's evidencethat the Hakodate Dock Co. resorted to frauds andcoercion so as not to pay for the plaintiffs' land andhouses is discredited by the fact that it settled the

mortgage, paying an amount which was only P10,000short of the purchase price. This payment bearswitness to Hakodate's good faith and willingness tospend for what it got. At the same time, and this ismore important to the immediate issue, it is mutetestimony to the due execution of the sale by Alunanand Hernaez; for it is not logical to suppose that theHakodate would have parted with a huge amount ofcash, huge at the time, if the owners had not executeda valid deed of conveyance.Another idea that suggests itself is that the officers ofthe Hakodate, of the Hahodate, if they had a mind tocommit frauds, would not have been chosen Doctor

Jacinto for the victim of its felony in preference to asenator-elect, which Mr. Hernaez was, and a member of

the Cabinet. To forge a deed of cancellation held by aprivate citizen who wielded no official influence wouldhave been undoubtedly the easier and the risks offailure, not to say punishment, the lesser.- The premise of his ratiocination is wrong in thatHernaez testified that he and no the Hakodate Dock Co.paid off the mortgage. However, the clear weight of theevidence both as to quality and the number ofwitnesses is against the plaintiffs.- Against the plaintiffs' evidence there is the testimonyof Watanabe and Jacinto who said the payment wasaffected by the former, and of Recto and Garcia whosaid that the cancellation was arranged and perfected

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in their law office at the instance of the Hakodaterepresentatives.- In contract, Hernaez said he did "not know whohandled the cancellation," a matter which seemed tooimportant not to be remembered, contenting himself

with the statement that "The thing is that when he paidhim (Jacinto) he gave us the release." And as to theplace of cancellation, he said that it was somewhere onthe Escolta, in the office of the law firm of Duran, Lim &Bausa, when, it is conclusively established, Attuy. Lim,who was Jacinto's attorney, and whom Hernaezapparently had in mind, separated from that firm asearly as the beginning of the Japanese occupation in1942, and, as a matter of fact, the cancellation wasexecuted, as above, seen, in the Recto Law Office andnot in the law office of Duran, Lim & Bausa. Note thatthe attesting witnesses to the cancellation wereNapoleon Garcia and Jose Ma. Recto and the documentwas acknowledge before Garcia was notary public.- The fact that the deed of cancellation was made in

the name of Alunan and Hernaez cannot be any meansbe taken as evidence of plaintiff's theory. The paymentwas in reality made in their name although the moneycame was received by the payee from Watanabe. Forthe purpose of registration, the deed of cancellationhad to be deframed the way it was drawn.- The overwhelming preponderance of the evidencelikewise discredits Hernaez' declaration that his andAlunan's certificates of title were in his possession.

Jacinto said he had them, and it could not have beenotherwise. It is the invariable and sensible practice ofmortgagees to keep the title to the property mortgagedas a necessary measure of protection. In the testimonybefore the court (he had lenghtly testified before theclaim committee of the PAPA Hernaez admitted that

Doctor Jacinto did not depart from this practice. Inanswer to the court's question whether he turned overto Doctor Jacinto the said certificates when he executedthe mortgage, he answered in the affirmative. Howthen could Hernaez have those certificates when hewas allegedly carried to the Legaspi Landing where, hesaid, they were taken away from him?

The deed of sale and the deed of cancellation wereexecuted on the same date, February 20, and thegenuineness of the latter deed is admitted. This beingso, Hernaez could not have had the certificates of titleand these could not have been taken away from himbefore that date. If it be asserted that the certificatesmight have been handed over to the Japanese on the

same date the mortgage was cancelled and thecancellation was registered, the assertion wouldcontradict Hernaez' testimony from which the clearinference is that he had the titles in his home for daysor weeks before the Legaspi Landing incident. Besides,

Watanabe and his attorneys and notary could not byany possibility have drawn or registered the deed ofsale on the same date the certificates were returned toHernaez to Doctor Jacinto.- One of the arguments advanced to drive home thepoint that the questioned sale was fake is that, it issaid, Alunan and Hernaez did not have any need to sellthis property. Moreover, it is alleged purchase pricewas far below its actual value.- Jacinto testified that having heard that the property inquestion was being sold to the Japanese, heimmediately gave instructions to his then attorney,Manuel Lim, to see Alunan and Hernaez and offer in hisbehalf to buy it. And Atty. Lim, who was SolGen whenhe testified corroborated his former client, stating that

about the end of 1942 or the early part of 1943, herequested Alunan to let Doctor Jacinto buy the saidproperty, and proposed easy terms. He said that hecalled on Alunan twice or three times in the latter'soffice in the Legislative Building; that in the first visitAlunan said that he would consult with his partner,Senator Hernaez, and in the second, that he and hispartner were still undecided, but remarked that he hadreceived an offer from a Japanese firm and that he(Alunan) and Hernaez would prefer to make the sale ofthe Japanese. We have no reason to suspect theveracity at these witnesses.

That Alunan and Hernaez were not averse to selling theproperty in question may be inferred from the plaintiffs'own evidence. Hernaez testified that he had sold to a

Chinese in 1944 the land on Dewey Boulevard wherethe Riviera is now located, for P360,000 or P375,000and a parcel, location not revealed, to Toyo MenkaKaisha for P40,000 "nearly the same time, March1943," a lot by which the way, according to Hernaez hewas also claiming from the PAPA. He also disclosed thathe had "sold many jewelries, watches and otherthings," which goes to show that they were notoversupplied with cash. Of equal significance is thestatement indicating that Hernaez and Alunan wereengaged in real estate business. Hernaez stated, "Weused to have here some properties that we sold on tenyears installment before the war and after the war."

- In the matter of the value of the houses and lotsregistered by the Hakodate Dock Co., the trial courtbelieved that the price stated in the deed was highlyinadequate and regarded this alleged inadequate assupporting the contention that the sale was forged.

The court seems to have overlooked the fact that theproperty sold to Hakodate Dock Co., was only eightparcels containing a total area of 4,533,34 squaremeters, whereas the property which the plaintiff hadbought from Chuan & Sons for P185,000 and of whichthe property in questioned formed a part, measured8,027.72 square meters. So that by selling the aboveportion of P170,000, they were able to recoup nearly alltheir investment, without counting the rents they hadtheretofore realized on the houses, and keep nearlyone-half of their original acquisition as a clear profit.

That was not a bad bargain. It is a matter of commonknowledge that in February 1943 Japanese war noteswere still about at par with the Commonwealth peso.

The sale of the plaintiff's other land in Dewey Boulevard

for a much higher price in proportion to its size tookplace in 1944, or in the latter part of 1943 at theearliest, when the Japanese war notes had beenshipping down fast. At any rate, the proceeds of thesale were more than enough to liquidate theirmortgage debt, the payment of which the purchasertook charge of attending to. As Hernaez said, "the thingis that when we paid him (Jacinto) he gave us therelease."- For another thing, it is a mistake to take the allegedinadequacy of the price stated in the deed of evidenceof forgery, for figures are easy to fabricate and a forgerwould endeavor to fix an amount in accord with theprevailing rates of real estate value precisely toforestall such suspicion as is put forward in this case.

- The appealed decision says "another issue raised bythe plaintiffs is the illegality of the alleged acquisitionby the Hakodate Dock Co. Ltd., of the property underlitigation, assuming that a contract was duly executedby Messrs. Alunan and Hernaez in favor of the saidcompany," And citing Krivenco vs. Register of Deeds,the court concluded that the sale would be null andvoid any way.- As the appellants have noted, nowhere in thepleadings did the plaintiffs impeach the validity of thesale to Hakodate Dock Co., on constitutional grounds.And even if they had, the present case would not becontrolled by the doctrine laid down in the Krivenkocase. The Philippine Constitution was not in force

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during the Japanese occupation of the Philippines. Theconstitution was inoperative at least with reference to

Japanese citizens. Military Ordinance No. 2,promulgated on March 14, 1942, expressly excluded"Japanese subjects from the operation of prohibition

and limitations on civil rights, benefits and privileges,which by reason, of their nationality are denied themby laws, statutes, administrative orders or regulationsof the Philippines." There is no doubt about the rightsunder the international law of the belligerent occupantsto issue this decree.- The court would also invalidate the sale on the theory"that the Hakodate Dock Co. Ltd., a purely Japaneseconcern, was never registered as such in thePhilippines nor was it authorized to transact business inaccordance with existing Philippine Corporation Law."

This question, like the just discussed, has not beenraised in the pleadings. What is more, we know of nolaw or provision of the Corporation Law which prohibitsa business concern not authorized to transact business

from buying or owning real property. As to counsel'sobservation that "there was no proof that SatoruWatanabe, who was then merely an acting Manilamanager of the company, was duly authorized torepresent said company," the defect if there was adefect was one which the only principal or the party forwhom Watanabe purported to act could use to rescindthe sale.- The probabilities of forgery are very remote and thedirect evidence for the defendant has abundantly andconvincingly established that the property was sold byits former owners for valuable consideration. The lossof the pertinent records in the office of the register ofdeeds cannot be availed of to bolster the plaintiffs' caseor weaken the defense. If the loss is to produce any

effect, the effect should be reverse, considering allcircumstances surrounding the theft.Doctor Jacinto's case: Doctor Jacinto testified: He waspaid the amount of the mortgage by a Japanese, whosaid that he represented the Hakodate Dock Co., at thebeginning of 1943, and deposited the check, signed bya Japanese, in the Philippine Bank of Commerce. Heexecuted a release of the mortgage because he wastold by the Japanese, accompanied by a Filipino fromthe law firm of Mr. Recto that the document ofcancellation was already prepared. He was informedthat they had purchased the property for the HakodateDock Co. He was reluctant to sign the deed ofcancellation because, in the first place, the amount did

not cover the whole balance, and in the second place, itwas not the money which he had loaned. When theynoticed his reluctance they told him that he could begrateful because they could have taken the propertywithout anything for it.

The court can sympathize with the mortgagee andbelieve that at heart he was opposed to the payment ofhis credit in Japanese money and would not haverejected or protested against the payment if it hadbeen tendered by the debtor directly. Under theapplicable law and uniform decisions of this Court,however, the payment was enforceable irrespective ofthe attitude of the creditor. The debtor or his successor-in-interest had the right to pay the mortgage in

Japanese war notes, which were the authorizedcurrency in circulation, not to say the only currencyavailable. In other words, the payment would havereleased the mortgage even if it had been tendered bythe mortgagor personally and had been turned down bythe mortgagee. That was the unfortunate situation into

which thousands of prewar creditors were thrust by thewar, most of them being forced to accept Japanesemilitary notes when these were little better thanuseless.- The disparity in value, if any, between Japanese warnotes and the Philippine peso in February 1943 was notgreat, however. According to the Ballantyne conversiontable, the exchange ratio between the two currencies inFebruary 1943 was P1 to P1.10. It is to be kept in mindthat the scale did not pretend to be exact. The ratiocould have been still even. The belief is, perhaps,confirmed by the price of the absolute sale which wasonly P10,000 more than the mortgage debt.In any event, the mortgagee, whatever his feelings, didaccept the payment, deposit the cash in the bank in

current account, and could have made use of it. At thethen prevailing value of Japanese war notes, theamount could have been invested profitably in otherreal estate or business transactions. Under thecircumstances, the principle of estoppel is not to beruled out.

DISPOSITION:Upon the foregoing considerations, the judgment as tointervenor Dr. Jacinto is affirmed and as to thedefendant reversed the defendant being herebyabsolved, with costs of both instances against theplaintiffs and appellees.

ARCEO v CAG.R. No. 142641

CORONA, July 17, 2006(cha)

NATUREPetition for review on certiorariFACTS-Arceo obtained 2 consecutive loans from Cenizal:P100k then P50k. He then issued a BPI Check postdatedAugust 4, 1991 for P150k at Cenizals house located at70 Panay Ave., QC.-August 4, 1991, Cenizal did not deposit the checkimmediately because Arceo promised 7 times that hewould replace the check with cash. But since Arceofailed to replace the check, Cenizal brought the checkto the bank for encashment 120 days after the duedate. The checked bounced because of insufficientfunds.

-Cenizal then went to Arceos house to inform him ofthe dishonor of the check. However, Arceo already leftthe place. Arceo was given a letter giving him 3 daysfrom receipt thereof to pay the amount of the check butArceo still failed to pay.-Cenizal then executed an affidavit and submitteddocuments in support of his complaint for estafa andviolation of BP 221.-However, Cenizal lost the check in question and thereturn slip after a fire occurred near his residence on1992. He executed an Affidavit of Loss instead.-TC: GUILTY

1 SECTION 1. Checks without sufficient funds. ? Any person who makes or draws and issues any

check to apply on account or for value, knowing at the time of issue that he does not have

sufficient funds in or credit with the drawee bank for the payment of such check in full upon its

presentment, which check is subsequently dishonored by the drawee bank for insufficiency of

funds or credit or would have been dishonored for the same reason had not the drawer, without

any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not

less than thirty days but not more than one (1) year or by a fine of not less than but not more

than double the amount of the check which fine shall in no case exceed Two Hundred Thousand

Pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit

with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient

funds or to maintain a credit to cover the full amount of the check if presented within a period of

ninety (90) days from the date appearing thereon, for which reason it is dishonored by the

drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who

actually signed the check in behalf of such drawer shall be liable under this Act.

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-CA:GUILTY, MFR denied-Petitioners contention: TC and CA erred in convictinghim because: (1) prosecution failed to present thedishonored check during trial; (2) the check waspresented beyond the 90-day period provided under

the law; (3) notice requirement was not complied with,given only 3 days and not 5 banking days to pay, asrequired by law; (4) payment of obligation

ISSUE1. WON the CA erred in convicting him even though thecheck was presented beyond the 90-day period2. WON the prosecution is required to present thecheck which was dishonored3. WON all the elements of the offense are present4. WON Arceo was deprived of the 5-day periodrequired by law and if ever, did he pay

HELD1. NO.

Ratio. The 90-day period provided in the law is not anelement of the offense. Neither does it dischargepetitioner from his duty to maintain sufficient funds inthe account within a reasonable time from the dateindicated in the check. According to current bankingpractice, the reasonable period within which to presenta check to the drawee bank is six months. Thereafter,the check becomes stale and the drawer is dischargedfrom liability thereon to the extent of the loss causedby the delay. [Wong vs. CA]Reasoning. Cenizals presentment of the check to thedrawee bank 120 days (four months) after its issue wasstill within the allowable period. Petitioner was freedneither from the obligation to keep sufficient funds inhis account nor from liability resulting from the

dishonor of the check.

2. NORatio. The rule applies only where the content of thedocument is the subject of the inquiry. Where the issueis the execution or existence of the document or thecircumstances surrounding its execution, the bestevidence rule does not apply and testimonial evidenceis admissible. The gravamen of the offense is the act ofdrawing and issuing a worthless check. Hence, thesubject of the inquiry is the fact of issuance orexecution of the check, not its content.Reasoning. The due execution and existence of thecheck were sufficiently established. Cenizal testified

that he presented the originals of the check, the returnslip and other pertinent documents before the Office ofthe City Prosecutor of Quezon City when he executedhis complaint-affidavit during the preliminaryinvestigation. The City Prosecutor found a prima facie

case against petitioner for violation of BP 22 and filedthe corresponding information based on thedocuments. Although the check and the return slipwere among the documents lost by Cenizal in a fire thatoccurred near his residence on September 16, 1992, hewas nevertheless able to adequately establish the dueexecution, existence and loss of the check and thereturn slip in an affidavit of loss as well as in histestimony during the trial of the case. Moreover,petitioner himself admited that he issued the check. Henever denied that the check was presented forpayment to the drawee bank and was dishonored forhaving been drawn against insufficient funds.

3. YES. Both the trial and appellate courts found that

petitioner issued the postdated check in the amount ofP150k. Check was deposited but was dishonored forinsufficient funds. Petitioner knew he did not havesufficient funds, he even requested Cenizal not toencash it and promised that he would replace it withcash instead. Nevertheless, he still did not replace thechecks with cash.

4. NO and NO. Cenizals counsel informed Arceo inwriting of the checks dishonor and demanded paymentof the value of the check. Petitioner still failed to paythe amount of the check even after receipt of demandfor payment, even after the period of 5 banking dayshave passed. On payment, he presented no proof tosupport it. If he indeed paid, he should have redeemed

the check from Cenizal as in the ordinary course ofbusiness but instead, Cenizal still possessed the check.

Disposition. WHEREFORE, the petition is herebyDENIED. The April 28, 1999 decision and March 27,2000 resolution of the Court of Appeals in CA-G.R. CRNo. 19601 are AFFIRMED. Costs against petitioner.

US V GREGORIO & BALISTOYG.R. No. L-5791

TORRES; December 17, 1910(rach)

NATUREAppeals were interposed by the defendants BernardoGregorio and Eustaquio Balistoy from the judgmentrendered in the two causes prosecuted which wereconsolidated

FACTS- This case concerns the falsity of a documentalleged to have been written on a date prior tothe one when it actually was prepared, whichinstrument simulates the sale of a parcel of land by itsowner to a third party, with the intent to defraud thecreditor, who, through proper judicial process, solicitedand obtained the attachment and sale of the saidproperty in order, with the proceeds of such sale, torecover the amount which the owner of the land owedhim.- Prior case: In a suit instituted by Pedro Salazar, asa creditor, against Eustaquio Balistoy, in the justiceof the peace court of Libog, for the payment of a

certain sum of money, judgment was rendered whereinthe debtor was sentenced to pay to the plaintiffP275.92.- For the execution of the said judgment, two ruralproperties belonging to the debtor were attached. May27, 1908 was set as the date for the sale andadjudication of the said attached properties. A few daysbefore such date, Bernardo Gregorio requested thedeputy sheriff to exclude the said realty from theattachment, alleging that he was the owner of the landsituated in Tambogon, one of the properties leviedupon, for the reason that he had acquired it bypurchase from the judgment debtor, Balistoy, in1905, prior to the filing of the complaint.- By reason of this claim and petition, the judgment

creditor, Salazar, had to give a bond, in view of whichthe sheriff proceeded with the sale of the said property,and of another, also attached for the sum of P300, andboth were adjudicated to the judgment creditor.- In order that the claim of intervention presented tothe sheriff might prosper, Bernardo Gregorioattached thereto the document Exhibit D, at theend of which and among other particulars appears thememorandum dated in Libog as of February 22, 1905,and signed by Eustaquio Balistoy, Lorenzo Gregorio,and Cirilo Valla, and in which Balistoy states that hebought the land referred to in the said document fromLuis Balistoy and sold it to Bernardo Gregorio for P300,wherefore he signed as such vendor.

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- Current charge: Balistoy, with intent to injure hiscreditor, Pedro Salazar, and for the purpose ofavoiding the attachment and sale of one of theproperties belonging to him, to secure the paymentof the judgment obtained by his creditor in the

aforementioned suit, did, with disregard of the truth inthe narration of the facts, execute or write the saidmemorandum whereby, on February 25, 1905, hemade or simulated a conveyance of one of the attachedproperties in favor of the said Bernardo Gregorio,according to the aforesaid copy, when in fact thesaid memorandum was written in April, 1908.- The court pronounced both of them guilty offalsification of a private document. Defendantsappealed.

ISSUEWON the defendants were guilty of the crime offalsification of a private document

HELDNORatio Through the lack of the original documentcontaining the memorandum alleged to be false, it isimproper to hold, with only a copy of the said original inview, that the crime prosecuted was committed; andalthough, judging from the testimony of the witnesseswho were examined in the two consolidated causes,there is reason to entertain much doubt as to thedefendants' innocence, yet, withal, this case does notfurnish decisive and conclusive proof of theirrespective guilt as coprincipals of the crimecharged. Defendants in a criminal cause are alwayspresumed to be innocent until their guilt be fullyproven, and, in case of reasonable doubt and when

their guilt is not satisfactorily shown, they are entitledto a judgment of acquittal.- In criminal proceedings for the falsification of adocument, it is indispensable that the judges andcourts have before them the document alleged tohave been simulated, counterfeited, or falsified,in order that they may find, pursuant to the evidenceproduced in the cause, whether or not the crime offalsification was committed, and also, at the same time,to enable them to determine the degree of eachdefendant's liability in the falsification underprosecution.Reasoning In the charge filed in this case against thevendor and the vendee of the land in question, it is

stated that these parties, the defendants, simulated thesaid memorandum of sale or conveyance of the landwith the intent to injure the creditor, Pedro Salazar.- But as the original document, setting forth thesaid memorandum, was not presented, but

merely a copy thereof, and furthermore, as itcould not be ascertained who had the original ofthe document containing the memorandum inquestion, nor the exact date when the latter waswritten.- The said memorandum, presumed to be simulatedand false, was not literally compared by the sheriff whotestified that he had seen its original for but a fewmoments, nor by any officer authorized by law tocertify to documents and proceedings such as arerecorded in notarial instruments, nor even by twowitnesses who might afterwards have been able totestify before the court that the copy exhibited was inexact agreement with its original.- Therefore, on account of these deficiencies,

doubt arises as to whether the original of thedocument, Exhibit D, really existed at all, andwhether the memorandum at the foot of the saidexhibit is an exact copy of that alleged to have beenwritten at the end of the said original document.Disposition For the foregoing reasons, it is proper, inour opinion, with a reversal of the judgment appealedfrom, to acquit, and we hereby do acquit EustaquioBalistoy and Bernardo Gregorio.

PROVINCIAL FISCAL OF PAMPANGA V REYESG.R. No. 35366

VILLAMOR; August 5, 1931(apple)

NATUREPetition for the issuance of a writ of mandamus

FACTS-The provincial fiscal of Pampanga filed twoinformations for libel against Andres Guevarra, allegingthat he caused the publication in Ing Magumasid( weekly paper in Pampango dialect), a squib in verse,intended to impeach the honesty, integrity, andreputation of Clemente Dayrit and MarianoNepomuceno.-The fiscal attempted to present as evidence Exhibits A,B, C, and D, which are copies of the Ing Magumasid

containing the libelous article with the innuendo,another article in the vernacular published in the sameweekly, and its translation into Spanish.-Counsel for the defendant objected to this evidence,which objection was sustained by the court.

Petitioner's Contention-The exhibits in question are the best evidence of thelibel, the subject matter of the information, and shouldtherefore be admittedRespondent's ArgumentInasmuch as the libelous articles were not quoted in theinformation (what was quoted was not the actual articlebut its Spanish translation), said evidence cannot beadmitted without amending the information.

ISSUE1.WON an information charging a libel published in anunofficial language, without including a copy of thelibelous article, but only a translation into Spanish isvalid

2. WON a writ of mandamus to compel therespondent judge to admit Exhibits A, B, C, and Dshould issue

HELD1. YesGen rule: The complaint or information for libel mustset out the particular defamatory words as published,and a statement of their substance and effect isinsufficientException: If the libelous article had been published inan unofficial language, as in this case, it is sufficient toinsert a Spanish or English translation in theinformation.2.Yes.

-The general rules regarding the admissibility ofevidence are applicable to cases of libel or slander. Theevidence must be relevant, and not hearsay.-This being so, the rule of procedure whichrequires the production of the best evidence, isapplicable to the present case.-Certainly, the copies of the weekly where thelibelous article was published, and itstranslation, constitute the best evidence of thelibel charged. The newspaper itself is the bestevidence of an article published in it.-The respondent judge undoubtedly has discretion toadmit or reject the evidence offered by the fiscal; but inthe instant case his refusal to admit such evidence

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amounts to an abuse of that discretion, which may becontrolled by this court by means of mandamusproceedings.

Disposition

Petition granted

PEOPLE v. TANDOYGR 80505;

December 4, 1990; Cruz(Ina)

FACTSAn information against Tandoy was filed with the

RTC. It charged him with selling 10 pieces of driedmarijuana, a prohibited drug, for P20. He wasconvicted. He appealed.

Prosecutions evidence:

Police officers conducted a buy-bust operationalong Solchuaga St., Bgy Singkamas, Makati. Oneofficer posed as a buyer and waited for a pusher near astore. Tandoy approached him and right away askedhim if wanted to iskor. The officer paid a P10 bill andtwo P5 bills (marked money) for two rolls of marijuana.

Then the other officers arrested Tandoy. They made abody search and found 8 more rolls. They brought himto the police station to be investigated. Tandoyremained silent after being read his rights. This wasnarrated by 3 police officers.

Microscopic, chemical and chromatographicexamination of the confiscated marijuana was positivefor marijuana. The marijuana was offered as exhibit.

Defendants story:He was playing cara y cruz with 15 other people

along Solchuaga St., when somebody suddenly saidthat the police were making arrests. The peoplegrabbed the bet money and scattered. He was arrestedand the money they found on him was from the game.He and a fellow player were taken to the police stationand mauled to give up the other pushers.

The trial court believed the police officers storyover the defendants. Applying the presumption thatthey had performed their duties in a regular manner, itrejected Tandoy's uncorroborated allegation that hehad been manhandled and framed.

ISSUEWON the admission of only the Xerox copy of the P10bill was erroneous, based on best evidence rule.

RULINGNO.Apparently, appellant erroneously thinks that said

marked money is an ordinary document falling underSec. 2, Rule 130 of the Revised Rules of Court whichexcludes the introduction of secondary evidence exceptin the five (5) instances mentioned therein.

The best evidence rule applies only when thecontents of the document are the subject of inquiry.Where the issue is only as to whether or not suchdocument was actually executed, or exists, or in thecircumstances relevant to or surrounding its execution,the best evidence rule does not apply and testimonialevidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4Martin, op. cit., p. 78.)

Since the aforesaid marked money was presentedby the prosecution solely for the purpose ofestablishing its existence and not its contents, othersubstitutionary evidence, like a xerox copy thereof, istherefore admissible without the need of accounting forthe original.

Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction ofthe accused-appellant because the sale of themarijuana had been adequately proved by thetestimony of the police officers. So long as themarijuana actually sold by the accused-appellant hadbeen submitted as an exhibit, the failure to produce themarked money itself would not constitute a fatalomission.

DE VERA v. AGUILARGR 83377; February 9, 1993; Campos, Jr.

(Chrislao)

FACTS-Petitioners Basilio, Luis, Felipe, Eustaquia and Maria,all surnamed de Vera and respondent Leona, married torespondent Mariano Aguilar, are the children and heirsof the late Marcosa Bernabe who died on May 10, 1960.

-In her lifetime, Marcosa Bernabe owned the disputedparcel of land

-The disputed property was mortgaged by petitionersBasilio and Felipe de Vera to a certain Atty. LeonardoBordador. When the mortgage had matured, therespondents redeemed the property from Atty.Leonardo Bordador and in turn Marcosa Bernabe soldthe same to them as evidenced by a deed of absolutesale dated February 11, 1956.

-On February 13, 1956, the respondents registered thedeed with the Registry of Deeds of Bulacan resulting inthe cancellation of the tax declaration in the name ofMarcosa Bernabe and the issuance of another in thename of the Aguilars.

-On July 20, 1977, respondent Mariano Aguilar was

issued a free patent to the land on the basis of whichOriginal Certificate of Title was issued in his name.

-The petitioners wrote to the respondents claiming thatas children of Marcosa Bernabe, they were co-owners ofthe property and demanded partition thereof on threatsthat the respondents would be charged with perjuryand/or falsification. The petitioners also claimed thatthe respondents had resold the property to MarcosaBernabe on April 28, 1959.

-On September 27, 1980, the respondents wrote inreply to the petitioners that they were the sole ownersof the disputed parcel of land and denied that the land

was resold to Marcosa Bernabe.

-True to petitioners' threat, they filed a falsificationcase against the respondents. However, on March 31,1981, Assistant Provincial Fiscal Arsenio N. Mercado ofBulacan recommended dismissal of the charge offalsification of public document against therespondents for lack of a prima facie case.

-On March 26, 1981, petitioners filed a suit forreconveyance of the lot.

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-TC ruled in petitioners favor. CA reversed. It foundthat the loss or destruction of the original deed of salehas not been duly proven by the petitioners. Hence,secondary evidence, i.e., presentation of the xeroxedcopy of the alleged deed of sale is inadmissible

ISSUE-WON petitioners have satisfactorily proven the loss ofthe original deed of sale so as to allow the presentationof the xeroxed copy of the same.

RULING

-NO. Secondary evidence is admissible when theoriginal documents were actually lost or destroyed. Butprior to the introduction of such secondary evidence,the proponent must establish the former existence ofthe instrument. The correct order of proof is as follows:Existence; execution; loss; contents although this order

may be changed if necessary in the discretion of thecourt. The sufficiency of proof offered as a predicate forthe admission of an alleged lost deed lies within the

judicial discretion of the trial court under all thecircumstances of the particular case.

-A reading of the decision of the trial court shows that itmerely ruled on the existence and due execution of thealleged deed of sale dated April 28, 1959. It failed tolook into the facts and circumstances surrounding theloss or destruction of the original copies of the allegeddeed of sale.

-In the case at bar, the existence of an alleged sale of a

parcel of land was proved by the presentation of axeroxed copy of the alleged deed of absolute sale.

-In establishing the execution of a document the samemay be established by the person or persons whoexecuted it, by the person before whom its executionwas acknowledged, or by any person who was presentand saw it executed or who, after its execution, saw itand recognized the signatures; or by a person to whomthe parties to the instrument had previously confessedthe execution thereof.

-SC agrees with the TC's findings that petitioners havesufficiently established the due execution of the allegeddeed of sale through the testimony of the notary public.

-After the due execution of the document has beenestablished, it must next be proved that said documenthas been lost or destroyed. The destruction of theinstrument may be proved by any person knowing thefact. The loss may be shown by any person who knewthe fact of its loss, or by any one who had made, in the

judgment of the court, a sufficient examination in theplace or places where the document or papers ofsimilar character are usually kept by the person inwhose custody the document lost was, and has beenunable to find it; or who has made any otherinvestigation which is sufficient to satisfy the court thatthe instrument is indeed lost.

-However, all duplicates or counterparts must be

accounted for before using copies. For, since all theduplicates or multiplicates are parts of the writing itselfto be proved, no excuse for non-production of thewriting itself can be regarded as established until itappears that all of its parts are unavailable (i.e. lost,retained by the opponent or by a third person or thelike)

-In the case at bar, Atty. Emiliano Ibasco, Jr., notarypublic who notarized the document testified that thealleged deed of sale has about four or five originalcopies.Hence, all originals must be accounted forbefore secondary evidence can be given of anyone. This petitioners failed to do. Records show

that petitioners merely accounted for three outof four or five original copies.

CA affirmed

RODELAS V ARANZA ET AL.RELOVA; DECEMBER 7, 1982

(jaja)

FACTSOn January 11, 1977, appellant filed a petition with theCourt of First Instance of Rizal for the probate of theholographic will of Ricardo B. Bonilla and the issuance

of letters testamentary in her favor. The petition wasopposed by the appellees Amparo Aranza Bonilla,Wilferine Bonilla Treyes Expedita Bonilla Frias andEphraim Bonilla. The appellees likewise moved for theconsolidation of the case with another case. Their

motion was granted by the court in an order dated April4, 1977. On November 13, 1978, following theconsolidation of the cases, the appellees moved againto dismiss the petition for the probate of the will. Theyargued that: (1) The alleged holographic was not a lastwill but merely an instruction as to the managementand improvement of the schools and colleges foundedby decedent Ricardo B. Bonilla; and (2) Lost ordestroyed holographic wills cannot be proved bysecondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismisswas denied by the court in its order of February 23,1979. The appellees then filed a motion forreconsideration on the ground that the order was

contrary to law and settled pronouncements andrulings of the Supreme Court, to which the appellant inturn filed an opposition. On July 23, 1979, the court setaside its order of February 23, 1979 and dismissed thepetition for the probate of the will of Ricardo B. Bonilla.

The court said held that in view of the lapse of morethan 14 years from the time of the execution of the willto the death of the decedent, the fact that the originalof the will could not be located shows that the decedenthad discarded before his death his allegedly missingHolographic Will.

Appellant's motion for reconsideration was denied.Hence, an appeal to the Court of Appeals in which it iscontended that the dismissal of appellant's petition is

contrary to law and well-settled jurisprudence. On July7, 1980, appellees moved to forward the case to thisCourt on the ground that the appeal does not involve aquestion of fact.

ISSUEWON a holographic will which was lost or cannot befound can be proved by means of a photostatic copy

HELDYES. Pursuant to Article 811 of the Civil Code, probateof holographic wills is the allowance of the will by thecourt after its due execution has been proved. Theprobate may be uncontested or not. If uncontested, at

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least one Identifying witness is required and, if nowitness is available, experts may be resorted to. Ifcontested, at least three Identifying witnesses arerequired. However, if the holographic will has been lostor destroyed and no other copy is available, the will

cannot be probated because the best and onlyevidence is the handwriting of the testator in said will.It is necessary that there be a comparison betweensample handwritten statements of the testator and thehandwritten will. But, a photostatic copy or xerox copyof the holographic will may be allowed becausecomparison can be made with the standard writings ofthe testator. In the case of Gam vs. Yap, 104 PHIL. 509,the Court ruled that "the execution and the contents ofa lost or destroyed holographic will may not be provedby the bare testimony of witnesses who have seenand/or read such will. The will itself must be presented;otherwise, it shall produce no effect. The law regardsthe document itself as material proof of authenticity."But, in Footnote 8 of said decision, it says that "Perhaps

it may be proved by a photographic or photostaticcopy. Even a mimeographed or carbon copy; or byother similar means, if any, whereby the authenticity ofthe handwriting of the deceased may be exhibited andtested before the probate court," Evidently, thephotostatic or xerox copy of the lost or destroyedholographic will may be admitted because then theauthenticity of the handwriting of the deceased can bedetermined by the probate court.

.NAPOCOR v. HON. RAMON G. CODILLA, JR.[BANGPAI SHIPPING COMPANY, & WALLEM

SHIPPING, INC.]G.R. No. 170491

CHICO-NAZARIO; April 4, 2007(edel)

Nature: Certiorari under Rule 45Facts:-M/V Dibena Win, a vessel of foreign registry owned andoperated by Bangpai allegedly bumped and damagedNAPOCORs Power Barge 209 which was then mooredat the Cebu International Port.-NAPOCOR then filed before the Cebu RTC a complaintfor damages against Bangpai for the alleged damagescaused on the power barges.

-NAPOCOR filed an Amended Complaint dated 8 July1996 impleading Wallem as additional defendant,contending that the latter is a ship agent of Bangpai.-Bangpai & Wallem filed their respective Motions toDismiss which were denied by J. Codilla.

-NAPOCOR after adducing evidence during the trial ofthe case, filed a formal offer of evidence before thelower court consisting of Exhibits "A" to "V" togetherwith the sub-marked portions thereof. Consequently,Bangpai and Wallem filed their respective objections tosaid formal offer of evidence.- J. Codilla denied (through an order) the admission andexcluding from the records NAPOCORs Exhibits "A","C", "D", "E", "H" and its sub-markings, "I", "J" and itssub-markings, "K", "L", "M" and its sub-markings, "N"and its sub-markings, "O", "P" and its sub-markings, "Q"and its sub-markings, "R" and "S" and its sub-markings.-According to the court a quo: The record shows thatthe plaintiff has been given every opportunity topresent the originals of the Xerox or photocopies of the

documents it offered. It never produced the originals.The plaintiff attempted to justify the admission of thephotocopies by contending that "the photocopiesoffered are equivalent to the original of the document"xxxthe Xerox copies do not constitute theelectronic evidence defined in Section 1 of Rule 2 of theRules on Electronic Evidencexxx However, theseexcluded evidence should be attached to the records ofthis case to enable the appellate court to pass uponthem should an appeal be taken from the decision onthe merits to be rendered upon the termination of thetrial of this case.- NAPOCORs MR was denied and so the filed a petitionfor Certiorari via R64 before the Court of Appealsmaintaining that J. Codilla acted with GAD amounting to

lack or excess of jurisdiction in denying the admissionof its exhibits and its sub-markings.- CA dismissed the petition as it appeared that therewas no sufficient showing by NAPOCOR that there wasGAD. It appeared that the pieces of documentaryevidence which were denied admission were notproperly identified by any competent witness. Also,they found that the judge acted within the pale of hisdiscretion when he denied admission of saiddocumentary evidence for in Sec 3 of Rule 130 of theRoC, when the subject of inquiry are the contents ofdocuments, no evidence shall be admissible other thanthe original documents themselves, except in certaincases specifically so enumerated therein, and the

petitioner has not shown that the non-presentation ornon-production of its original documentary pieces ofevidence falls under such exceptions. Lastly, the CAsaid that the information (in said exhibits) were notreceived, retrieved or produced electronically and that

NAPOCOR had not properly authenticated suchevidence as electronic documents.- Hence, the instant petition wherein NAPOCOR insiststhat the photocopies it presented as documentaryevidence actually constitute electronic evidence basedon its own premise that an "electronic document" asdefined under Section 1(h), Rule 2 of the Rules onElectronic Evidence is not limited to information that isreceived, recorded, retrieved or producedelectronically. Rather, "electronic document" can alsorefer to other modes of written expression that isproduced electronically, such as photocopies, asincluded in the sections catch-all proviso: "any print-out or output, readable by sight or other means".

ISSUE: WON the photocopies are indeed electronicdocuments as contemplated in RA No. 8792 or the IRRof the Electronic Commerce Act, as well as the Rules onElectronic Evidence/ WON said electronic documentsqualify under the one of the exceptions of BestEvidence Rule so that those may be admitted asdocumentary evidence

HELD: NO/NO.Reasoning:

-A perusal of the information contained in thephotocopies submitted by NAPOCOR will reveal that notall of the contents therein, such as the signatures of thepersons who purportedly signed the documents, may

be recorded or produced electronically. By no stretch ofthe imagination can a persons signature affixedmanually be considered as information electronicallyreceived, recorded, transmitted, stored, processed,retrieved or produced.- According to the SC, the TC did not commit an errorwhen it denied the admissibility of the photocopies asdocumentary evidence as Napocor failed to establishthat its offer falls under the exceptions (as hereinenumerated).

Best Evidence Rule under Rule 130 (as discussedby the SC):

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When the original document has been lost ordestroyed, or cannot be produced in court, the offeror,upon proof of its execution or existence and the causeof its unavailability without bad faith on his part, mayprove its contents by a copy, or by a recital of its

contents in some authentic document, or by thetestimony of witnesses in the order stated. The offerorof secondary evidence is burdened to prove thepredicates thereof: (a) the loss or destruction of theoriginal without bad faith on the part of theproponent/offeror which can be shown bycircumstantial evidence of routine practices ofdestruction of documents; (b) the proponent mustprove by a fair preponderance of evidence as to raise areasonable inference of the loss or destruction of theoriginal copy; and (c) it must be shown that a diligentand bona fide but unsuccessful search has been madefor the document in the proper place or places.- History of BER: Before the onset of liberal rules ofdiscovery, and modern technique of electronic copying,

the best evidence rule was designed to guard againstincomplete or fraudulent proof and the introduction ofaltered copies and the withholding of the originals. Butthe modern justification for the rule has expanded fromthe prevention of fraud to a recognition that writingsoccupy a central position in the law. The importance ofthe precise terms of writings in the world of legalrelations, the fallibility of the human memory asreliable evidence of the terms, and the hazards ofinaccurate or incomplete duplicate are the concernsaddressed by the best evidence rule. (Lee v. P of thePhils)

-DEFINITION: "electronic document" refers toinformation or the representation of information, data,

figures, symbols or other models of written expression,described or however represented, by which a right isestablished or an obligation extinguished, or by which afact may be proved and affirmed, which is received,recorded, transmitted, stored, processed, retrieved orproduced electronically. It includes digitally signeddocuments and any printout, readable by sight or othermeans which accurately reflects the electronic datamessage or electronic document.-The rules use the word "information" to define anelectronic document received, recorded, transmitted,stored, processed, retrieved or produced electronically.

This would suggest that an electronic document isrelevant only in terms of the information contained

therein, similar to any other document which ispresented in evidence as proof of its contents.However, what differentiates an electronic documentfrom a paper-based document is the manner by whichthe information is processed; clearly, the information

contained in an electronic document is received,recorded, transmitted, stored, processed, retrieved or

produced electronically.

* NOTE: It was also said that NAPOCOR continued toobdurately disregard the opportunities given by the TCfor it to present the originals of the photocopies itpresented BUT at the SC it prayed that it be allowed topresent the originals of the exhibits that were deniedadmission or in case the same are lost, to lay thepredicate for the admission of secondary evidence.However, SC denied said prayer.

DISPOSITIVE: Petition DENIED. CA DECISION of 9

November 2005 AFFIRMED. Costs against petitioner.

REPUBLIC V. VERZOSAGR NO. 173525

TINGA; March 28, 2008(chriscaps)

FACTS- Verzosa filed petition for reconstitution of orig TCT,alleging that she and Edna Garcia are registeredowners of parcel of land.- However, the orig was burned when QC Hall wasgutted by fire. The Duplicate Certificate was lost asshown by Affidavit of Loss.

- Real estate taxes on he prop have been paid.- RTC set the case for hearing. Only rep from OSGappeared. Petitioner-appellee was allowed to presentfurther evidence. Hearing was reset on the ground,among others, of the need to amend petition toimplead petitioners co-owner, Edna Garcia, who is alsoher sister. On July 18, 2001, petitioner filed a motion forleave to present evidence ex-parte without impleadingher co-owner, citing the irreconcilable differencesbetween them which the RTC granted.- RTC ordered Register of Deeds to reconstitute.Hence, the appeal by Republic, through OSG.- According to the Court of Appeals, the petition forreconstitution was filed under Sec. 3(f) of Republic Act

(R.A.) No. 26 which grants the court the authority toconsider other documents which it finds sufficient andproper bases for the reconstitution prayed for. In thiscase, the documentary evidence presented byrespondent Gertrudes B. Verzosa, coupled with the

Report submitted by the Land Registration Authority(LRA) confirming the previous existence of TCT No.140606, is sufficient basis to grant the reconstitution.- OSG argues respondent did not prove that she hadexerted honest efforts to secure the documentsenumerated in the law and had failed to find them.

ISSUEWON TCT should be reconstituted

HELDYES.- Sec. 3 of R.A. No. 26 enumerates the sources uponwhich the reconstitution of transfer certificates of titleshall be based.

- Among the sources enumerated in Sec. 3 of R.A. No.26, the owners duplicate of the transfer certificate oftitle is given primacy because such document is, by allaccounts, an exact reproduction of the original copy ofthe transfer certificate of title. It is required, however,that the owners duplicate certificate itself, and not amere photocopy thereof, be presented to the court.- In this case, only a photocopy of the owners duplicatewas presented.- Photocopy of the owners certificate of title presentedby respondent in support of her petition is stillconsidered secondary evidence. As such, it isinadmissible unless respondent proves any of theexceptions provided in Sec. 3, Rule 130.- The Court explained the order of presentation of

secondary evidence under Sec. 5, Rule 130 of the Rulesof Court as existence, execution, loss, contents. Theorder may be changed if necessary in the discretion ofthe court. The sufficiency of the proof offered as apredicate for the admission of an allegedly lostdocument lies within the judicial discretion of the trialcourt under all the circumstances of the particular case.- Ultimately, the Court reinstated the decision of thetrial court because of the failure of the Spouses Mateoto satisfactorily show that the original of the transfercertificate of title sought to be reconstituted had beenlost or is no longer available, as well as the illegibility ofthe photocopy presented.

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- Respondent submitted several documents to proveexistence, execution and contents of the Certificate of

Title. Respondent also duly proved loss of ownerscopy.- When a court, after hearing of a petition for

reconstitution, finds that the evidence presented issufficient and proper to grant the same, that thepetitioner therein is the registered owner of theproperty, and that the certificate sought to bereconstituted was in force at the time it was lost, itbecomes the duty of the court to issue the order ofreconstitution.

Parol Evidence Rule

BPI V FIDELITY & SURETY CO.G.R. No. L-26743

MALCOLM; October 19, 1927(joey)

NATUREAppeal from the decision of the CFI of Manila

FACTS- Laguna Coconut Oil Co. executed a promissorywherein it promised to pay the Philippine Vegetable

Company, Inc., or order, P50,000.- Fidelity and Surety Company of the Philippine Islandsmade a notation on the note as follows: For value,received, we hereby obligate ourselves to hold theLaguna Coconut Oil Co. harmless against loss forhaving discounted the foregoing note at the valuestated therein.- Philippine Vegetable Oil Company endorsed the notein blank and delivered it to BPI. After maturity of thenote, demand for its payment was made on the LagunaCoconut Oil Co., the Philippine Vegetable Oil Company,and the Fidelity and Surety Company of the PhilippineIslands, all of whom refused to pay, the first beingadmittedly insolvent.

- BPI filed a case against the Laguna Coconut Oil Co.and the Fidelity and Surety Company. The Fidelity andSurety Company interposed a demurrer to the plaintiff'scomplaint twice and was sustained twice. BPI appealedto the SC where the ruling was reversed and the case

remanded for further proceedings.- Back in the TC, Laguna Coconut Oil Co. made nodefense, and judgment by default was obtained againstit. The case as to Fidelity and Surety Company wassubmitted to the court upon a stipulation of facts. TCrendered judgment against the Fidelity and SuretyCompany for the full amount of the note, with interest.Fidelity and Surety Company appealed alleging that theaction involved a reformation of the contract ofguaranty, which was not put in issue by the pleadings.

Judgment was reversed and the action dismissed,"without prejudice to the bringing of another actionupon the same cause."- BPI filed a new case wherein it attempted to connectthe promissory note with an existing obligation of the

Philippine Vegetable Oil Company in the form ofanother promissory note. The evidence was alsointended to demonstrate that a clear error had beencommitted when reference was made to the LagunaCoconut Oil Co. instead of Bank of the PhilippineIslands in the notation on the note.- TC: The note could not have been discounted by theLaguna Coconut Oil Co., and this must logically havebeen done by BPI. Judgment in favor of the BPI forP50,000 plus interest, attorney's fees, and costs.

ISSUESWON reformation of the note, and thereafter, itsenforcement, is justified.

HELDNORatioTo justify the reformation of a written instrumentupon the ground of mistake, the concurrence of threethings are necessary, the misake: (1) should be of afact; (2) should be proved by clear and convincingevidence; and (3) should be common to both parties tothe instrument.Reasoning- According to Sec. 285 of the Code of Civil Procedure,a written agreement is presumed to contain all theterms of the agreement. However, the Code permitsevidence of the terms of the agreement other than thecontents of the writing where a mistake or imperfection

of the writing, or its failure to express the true intentand agreement of the parties, is put in issue by thepleadings.- Philippine Sugar Estates Development Company vs .Government of the Philippine Islands: (1) the courts of

equity will reform a written contract where, owing tomutual mistake, the language used therein did not fullyor accurately express the agreement and intent of theparties; (2) the relief by way of reformation will not begranted unless the proof of mutual mistake be "of theclearest and most satisfactory character;" (3) theevidence introduced by the appellant met thesestringent requirements.- Centenera vs . Garcia Palicio; Mendozana vs . PhilippineSugar Estates Development Co. and De Garay: theamount of evidence necessary to sustain a prayer forrelief where it is sought to impugn a fact in a documentis always more than a mere preponderance of theevidence.- An examination of the note and the guaranty

discloses that in the notation to the note the word"hold" is interlined. This indicates that the VP(signatory) of the Fidelity and Surety Company had hisparticular attention called to the language of the note,and corrected the typewritten matter by inserting in inkthe word quoted. That the writer of the notation fell intoa further error in obligating the company to the LagunaCoconut Oil Co. may be possible. That the writer mayhave had in mind to use the words Philippine VegetableOil Company, Inc. may also be possible. The names ofthe two parties before the guarantor were LagunaCoconut Oil Co. and Philippine Vegetable Oil Company,Inc. The guaranteeing company could not very wellhave assumed that BPI at a later date wascontemplating discounting the note.

- It is also apparent on the face of the note that it wasto draw interest at maturity. This would disprovediscount of the note by BPI on or before the maturitydate. In truth, it is not certain that BPI ever did discountthe note.- The bookkeeping entries of the bank are hardlycompetent against a stranger to the transaction.Moreover, one entry at least in plaintiff's Exhibit Ehas been changed by erasing the words "y Fidelity andSurety Co. of the Phil. Islands" and substituting"Philippine Vegetable Oil Co. garatizado p. Fidelity &Surety Co. of the Phil. Islands." The book entries takenat their face value are not conclusive.

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- The correspondence between the parties fails todisclose either an express or implied admission that thedefendant had executed the guaranty in question infavor of the plaintiff bank. An attempt to interpret thecorrespondence merely leads open further into the field

of speculation. Yet the rule is that an admission ordeclaration to be competent must have been expressedin definite, certain, and unequivocal language. Here theexhibits are couched in language which is neitherdefinite, certain, nor unequivocal for nowhere do theycontain an admission of a guaranty made by thedefendant company for the protection of the BPI.- There may have been a mistake here. It would,however, seem to be straining the natural course ofevents to hold the Fidelity and Surety Company of thePhilippine Islands a party to that mistake.- With all the various pleadings, all the variousincidents, all the various facts, all the various legalprinciples, and all the various possibilities to theforefront, we cannot bring ourselves to conclude that

the plaintiff, by proof of the clearest and mostsatisfactory character constituting more than apreponderance of the evidence, has established amutual mistake. Instead, the proof is left far behindthat goal.Dispositive Judgment appealed from reversed.

SEPARATE OPINION

AVANCEA, STREET, VILLAMOR and ROMUALDEZ[dissenting]- An examination of the indorsement, or contract showsthat the Fidelity and Surety Company acknowledgesthat it has received value for placing its signature onsaid indorsement, thereby nominally obligating itself to

hold that Laguna Coconut Oil Co. (sic?) harmlessagainst loss for having discounted the note. Althoughthe mistake is not obvious to the superficial reader, thewords used make an impossible situation andcompletely frustrate the manifest intention of theparties. It is proved as a fact that the Laguna CoconutOil Co. was debtor to the Philippine Vegetable Oil Co.and that the note to which the indorsement of guarantyis appended was given for that indebtedness. That anerror was made in the wording of the indorsement isobvious and undeniable. The intention of thecontracting parties could only have been that theFidelity and Surety Company should hold harmless theperson or entity discounting the note. The plaintiff did

in fact discount said note on the faith of thisindorsement, and the instrument should be reformed soas to give expression to the liability of the defendantcompany to the bank.- By the decision of the court, the Fidelity and Surety

Company is entirely free from the obligation ofguaranty in respect to this note, although it receivedvalue for that very undertaking. We therefore dissent.

LECHUGAS v. CA (LOZAs)G.R. No. L-39972 & L-40300

GUTIERREZ, JR; August 6, 1986(ricky)

NATUREPetition for review

FACTS

- Victoria Lechugas filed a complaint for forcible entrywith damages against the Lozas, alleging that the latterby means of force, intimidation, strategy and stealth,unlawfully entered lots A and B, corresponding to themiddle and northern portion of the property owned byher known as Lot No. 5456 which she allegedly boughtfrom Leoncia Lasangue as evidenced by a Deed ofAbsolute Sale registered in the Office of the Register ofDeeds (Exhibit A). She alleged that they appropriatedthe produce for themselves, and refused to surrenderthe possession of the land despite demands. Thecomplaint was dismissed. She appealed to the then CFIof Iloilo. While the above appeal was pending, sheinstituted another action before the CFI of Iloilo forrecovery and possession of the same property against

the Lozas. The two cases were tried jointly. Both caseswere dismissed. The CA sustained the dismissal.- Leoncia Lasangue, testifying for defendants declaredthat she inherited 12 hectares from her parents, beingthe only child and heir and that on December 8, 1950,she sold 6 hectares of her inherited property to VictoriaLechugas under a public instrument (Exhibit A) whichwas prepared at the instance of Victoria Lechugas andthumb-marked by herself (the vendor was illiterate).Refuting Lechugas' contention that the land sold to heris the very land under question, vendor LeonciaLasangue was able to specifically point out that theland which she sold to Lechugas was the lot in thesouth known as Lot No. 5522 and not Lot. No. 5456

which was to the north and which was sold by herfather in 1941 to the predecessor-in-interest of theLazos. [Read the original testimony to see how thedefense lawyer, using a piece of paper and the sun'smovement as a reference, skillfully obtained this fact

from an illiterate witness.]- On the basis of the testimony of vendor LeonciaLasangue, the CA upheld the CFI's decision but alsodeclared Exhibit A as NOT null and void ab initio insofaras Lasangue was concerned because it could passownership of the lot in the south known as Lot No. 5522which she intended to sell and actually sold toLechugas.

ISSUEWON the CA erred in considering parol evidence overthe objection of the petitioner in order to vary thesubject matter of the Deed of Definite Sale (Exhibit A)although the land therein is described and delimited bymetes and bounds and indentified as Lot No. 5456 of

the Lambunao Cadastre.

HELDNO.RatioThe parol evidence rule does not apply, and maynot properly be invoked by either party to the litigationagainst the other, where at least one of the parties tothe suit is not party or a privy of a party to the writteninstrument in question and does not base a claim onthe instrument or assert a right originating in theinstrument or the relation established thereby.Reasoning The petitioner's reliance on the parolevidence rule is misplaced. The rule is not applicablewhere the controversy is between one of the parties tothe document and third persons. The deed of sale was

executed by Leoncia Lasangue in favor of VictoriaLechugas. The dispute over what was actually sold isbetween Lechugas and the Lazos. Through thetestimony of Leoncia Lasangue, it was shown that whatshe really intended to sell and to be the subject ofExhibit A was Lot No. 5522 but not being able to readand write and fully relying on the good faith of her firstcousin, the petitioner [walang hiyang pinsan ito ah. Tsk.], she just placed her thumb mark on a piece of paperwhich petitioner told her was the document evidencingthe sale of land. The deed of sale described thedisputed lot instead. [Note: Lechugas was alsooccupying Lot. No. 5522 and contended that shebought it from a certain Leonora Lasangue but couldnt

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present such person or any evidence to support thisclaim.]- From her testimony, there can be no other conclusionbut that Lasangue did not intend to sell, as she couldnot have sold, a piece of land already sold by her father

to the predecessor-in-interest of the Lazos.- The fact that vendor Lasangue did not bring an actionfor the reformation of Exhibit A is of no moment. Theundisputed fact is that the Lazos have timelyquestioned the validity of the instrument and haveproven that, indeed Exhibit A does not reflect the trueintention of the vendor.Disposition Petition is hereby DISMISSED.

CRUZ V. COURT OF APPEALS192 SCRA 209

CRUZ; December 10, 1990(chriscaps)

NATUREPetition to review the decision of the CAFACTS- Salonga filed complaint for collection and damagesagainst Cruz alleging that Cruz borrowed fr himP35,000 evidenced by a receipt.- Cruz claimed that only P20,000 was pd, leavingbalance of P15,000. He said that he and Salongaagreed that Salonga would grant him exclusive right topurchase the harvest of certain fishponds leased byhim in exchange for certain loan accommodations.- Salonga delivered to Cruz various loans totalingP15,250 evidenced by 4 receipts and P4,000 receipt ofw/c was lost. Cruz failed to comply by refusing to

deliver the alleged harvest of fishpond and hisindebtedness.- Cruz denied contracting any loan; he alleged that hewas a lessee of fishponds owned by Yabut and that heagreed w/ Salonga that Salonga would purchase fish frthe fishpond. Salonga would also sublease the samefishpond.- Cruz admitted having received P35,000 but said thesewere received not as loans, but as consideration for thepakyaw agreement and payment for the sublease.- Cruz and Salonga entered into a partial stipulation offacts.

- Salonga claimed that aside fr the P35,000, etc., healso delivered P28,000 w/c is the consideration for thepakyaw agreement, evidenced by receipt.- Cruz testified that out of the P35,000 he received,P28,000 covered full payment of the pakyaw

agreement while P7,000 is advance payment forsublease.- TC ruled in favor of Cruz. CA reversed and orderedCruz to pay Salonga. CA also found that the amountswere not payments for pakyaw and sublease, but forloans extended by Salonga to Cruz.ISSUES1. WON Exhibit D is covered by the parol evidence rule2. WON Exhibit I is covered by the parol evidence ruleHELD1. NO.- The reason for the rule is the presumption that whenparties have reduced their agreement to writing theyhave made such writing the only repository andmemorial of the truth, and whatever is not ofund in the

writing is deemed waived or abandoned.- The rule is not applicable because it is predicated onexistence of doc embodying terms of agreement.Exhibit D doesnt contain an agreement. It is only areceipt; not the sole memorial of the agreement. Atmost, it is a casual memorandum.- Wigmore: A receipt will in general fall without the lineof the rule. Usually a receipt is merely a writtenadmission of a transaction, independently existing.2. NO.- Exhibit I doesnt make categorical declaration that theP28,000 was received by Cruz on the same date. Thedate then cant be conclusive.- A distinction should be made between STATEMENT OFFACT expressed in t

Documents

32642468 Evidence Digests Part 2