Leading Questions 1. State V. Scott (Apg)

EVIDENCE 3A 2013-2014 – ATTY.
ARROYO COMPILATION 8
LEADING QUESTIONS questions, and they and their answers were as follows: (Q and A of the 14 year old
1. STATE v. SCOTT (APG) victim)
State vs. James Scott
‘Q. I will ask you whether or not he said why he had done what he did?
State of Washington
A. He said that why he done that was because he thought that was the only way of
20 Wash.2d 696, 149 P.2d 152
getting me; that he loved me and he wanted to marry me and that he thought that
May 25, 1944
was the only way to get me. He said he thought ‘If I were to go in and touch you then
you would marry me,’ he said, ‘I thought I wouldn't have no one as old as me.’
Summary: Scott was convicted with the crime of rape. He appealed the decision of the court
‘Q. I will ask you whether or not he said on the same occasion, he said anything
alleging the following errors: (1) allowing leading questions to be asked of the complaining
relative to his being the first to touch you?
witness –NO; (2) allowing the testimony of the witness Emily Bergin to be considered by the
A. Yes.
jury - NO; (3) allowing the jury to consider the testimony of the witness Martha Swartz – NO.
‘Q. I will ask you whether or not he ever asked you to get examined by a doctor?
The court held that (1) The questions propounded (Q and A portion) were not leading. In order
A. Yes, he did. I mean yes, I mentioned wanting to get examined by a doctor.’
to elicit the facts, a trial lawyer may find it necessary to direct the attention of a witness to the
specific matter concerning which his testimony is desired, and, if the question does not suggest The principal test of a leading question is: Does it suggest the answer desired?
the answer, it is not leading. Even though the question may call for a yes or a no answer, it is o In order to elicit the facts, a trial lawyer may find it necessary to direct the
not leading for that reason, unless it is so worded that, by permitting the witness to answer yes attention of a witness to the specific matter concerning which his
or no, he would be testifying in the language of the interrogator rather than in his own. (2) The testimony is desired, and, if the question does not suggest the answer, it
court was correct in taking into consideration the testimony of witness Emily Bergin because it is not leading. Even though the question may call for a yes or a no answer,
was not conjectural on her part and arose out of suspicion rather than being based upon any it is not leading for that reason, unless it is so worded that, by permitting
testimonial knowledge she possessed. The testimony of the witness was direct and with the witness to answer yes or no, he would be testifying in the language of
reference to a conversation she had overheard, and what the jurors had to decide was whether the interrogator rather than in his own.
she did overhear the conversation and whether she had sufficient knowledge of the sound of We approve of what is said with reference to the alternative form not being a leading
the voices of the parties as to enable her in this way to identify them (3) The court instructed question in III Wigmore on Evidence (3d Ed), p. 129, §772(2): ‘The alternative form of
the jury not to consider as evidence any question or answer thereto to which the court had question (‘State whether or not you said that you refused,’ ‘Did you or did you not
sustained an objection, and we must assume that the jury followed the instruction and did not refuse?’) is free from this defect of form, because both affirmative and negative
attach any importance to any of the preliminary testimony given by the witness. answers are presented for the witness' choice.
o Nevertheless, such a question may become leading, in so far as it rehearses
Facts: lengthy details which the witness might not otherwise have mentioned,
The appellant, Jack Scott, was tried before a jury upon the charge that he carnally and thus supplies him with full suggestions which he incorporates without
knew a female child of the age of fourteen years, she not then being his wife. any effort by the simple answer, ‘I did,’ or ‘I did not.’
o Accordingly, the sound view is that such a question may or may not be
A verdict of guilty was returned, and, from the judgment entered, this appeal has
improper, according to the amount of palpably suggestive detail which it
been taken.
embodies.
In view of the questions raised by the appellant in his brief, it will not be necessary to
The rulings made by the trial court upon the objections made are further supported
set forth in this opinion a summary of the evidence relating to this unfortunate affair,
by the fact that the answer to the first question is as fully explanatory as would have
and we shall refer to it only in so far as need be in order to discuss the questions
been the case had any other form of question been used, and shows a total lack of
presented.
suggestion by its form.
nd
Issues: WON the trial court erred in: 2 question - The record shows that, after an affirmative answer was given, the
(1) allowing leading questions to be asked of the complaining witness -NO witness was asked what was said, and her answer was ordered stricken by the court,
(2) allowing the testimony of the witness Emily Bergin to be considered by the jury - NO and the inquiry was not pursued further.
rd
(3) allowing the jury to consider the testimony of the witness Martha Swartz - NO 3 question - did not suggest any particular answer, as that given by the witness
clearly so indicates.
Ratio: The trial court has a wide discretion in determining what is a proper form of
1. IMPT! The questions propounded (Q and A portion) were not leading question and as to permitting the asking of a question that is leading.
The questions claimed by the appellant to have been of a leading character, and to o The trial court in this case properly allowed the above-quoted questions to
which timely objections were made, were what is known as the alternative forms of be asked.
Page 1 of 52
EVIDENCE 3A 2013-2014 – ATTY. ARROYO COMPILATION 8
2. The court was correct in taking into consideration the testimony of witness Emily behind the office, were filed in a box, and that this was where she found the card
Bergin because it was not conjectural on her part and arose out of suspicion rather when she went to look for it.
than being based upon any testimonial knowledge she possessed. The card was sufficiently identified to warrant its admission in evidence. The
The substance of the testimony of Emily, as developed by both her direct and cross- evidence was material in that it corroborated the testimony of the prosecuting
examination, was that the family, of which the prosecuting witness was a member, witness that she had occupied a room with the appellant at this hotel on or about the
had an apartment in the house operated by her; that she had seen the appellant go date noted on the card.
to this apartment, particularly a short time before the taking place of the Three of the instructions given by the court to the jury are claimed to be erroneous,
conversation about which she testified; that she had heard appellant talk and was but we will not review them for the reason that they are not set out in appellant's
able to recognize his voice; that, on the occasion in question, she was passing by the brief, as required by Rule 16(5) of this court as amended, 15 Wash.2d. State v.
apartment when she overheard a conversation between the prosecuting witness and Elwood, 193 Wash. 514, 76 P.2d 986; State v. Jensen, 194 Wash. 515, 78 P.2d 600;
the appellant, and this she related to the jury. State v. Kennedy, Wash., 142 P.2d 247. And no sufficient exceptions were taken to
We are of the opinion that it was made to appear from the testimony of the witness them in the trial court, as provided by Rule 10 of the Rules of Pleading, Procedure
that she had sufficient testimonial knowledge as to the identity of the parties to the and Practice prescribed by this court, 193 Wash. 47–a. State v. Eckert, 173 Wash. 93,
conversation to justify the court in refusing to order that her testimony be stricken 21 P.2d 1035; Parton v. Barr, 174 Wash. 314, 24 P.2d 1070.
and in permitting the jury to consider it. The exceptions taken were as follows:
The testimony of the witness was direct and with reference to a conversation she ‘The Defendant excepts to Instruction No. 5 as given by the Court for the reason that it
had overheard, and what the jurors had to decide was whether she did overhear does not accurately portray the law applicable to this case.
the conversation and whether she had sufficient knowledge of the sound of the ‘The Defendant excepts to Instruction No. 6 for the reason that it does not fully explain to
voices of the parties as to enable her in this way to identify them.. the Jury the application of the law therein set forth.
3. Counsel for the state sought to lay a foundation whereby he might ask witness ‘The Defendant excepts to Instruction No. 8 as given by the Court for the reason that it is
Martha Swartz to relate a conversation she overheard between the prosecuting incomplete and does not fully set forth the law
witness and the appellant. applicable to this case.’
But, in the opinion of the court, it was not sufficient, and the witness was not These exceptions were too general to comply with Rule 10, which provides that they
permitted to relate the conversation when counsel asked her to do so. ‘shall be sufficiently specific to apprise the judge of the points of law or questions of
The court instructed the jury not to consider as evidence any question or answer fact in dispute.’
thereto to which the court had sustained an objection, and we must assume that the It may seem that these rules are harsh when applied to a case as serious in its
jury followed the instruction and did not attach any importance to any of the consequences as the one now before us. But they have been in effect for a long time
preliminary testimony given by the witness. and are known, or should be known, to all who seek reviews of judgments of the trial
This must necessarily be so because otherwise an unsuccessful attempt to lay a courts.
foundation for testimony by questions preliminary in character would be ground in Their purpose is in aid of the orderly administration of justice, and, if they are to
all cases for urging error on appeal on account of the possibility that the jury might serve the purpose intended, they must be enforced.
draw some unfavorable inference from the testimony thus far given.
4. NOT IMPT! Certain letters were not erroneously admitted in evidence; but the
prosecuting witness identified all of them as having been written by the appellant to
her and letters which she received through the mails. They contained matters IMPEACHING ONE’S OWN WITNESS
material to the issue involved, and were properly received in evidence. 1. BECKER v. EISENSTODT (AJG)
Error is also claimed in the admission in evidence of a hotel registration card
purporting to show that appellant ‘and wife registered at a certain hotel on a date 158 A.2d 706 | 03/09/1960 | GOLDMANN, S.J.A.D.
within the time involved in this case. The basis of the objection of appellant is that it Supreme Court of New Jersey
was made to appear that, although the witness who identified the card had operated
the hotel on the date the card bears, she did not operate it for several months prior
Plaintiff-Appellant: William Becker, Individually and as Guardian ad litem of Arlene Becker
to the time of giving her testimony, and there was no proof offered as to its identity
by anyone who had had possession of the card during the intervening time. Defendant-Respondent: Lester Eisenstodt
The record, however, does not support this claim. The witness testified that the
registration cards were kept by her while she was operating the hotel in their usual SUMMARY
place in the office of the hotel; that they were also kept in the storeroom directly Lester Eisenstodt performed a successful plastic surgery on Arlene Becker remove a bump on
her nose. However, during one of her visits to the doctor for postoperative treatment, a certain
Page 2 of 52
chemical was applied to her nose which caused intense pain, and eventually, disfigured her Because of severe pain, the receptionist took Arlene inside to lie down. Lester then
face. A case for negligence was filed against Lester. Becker presented Lester himself as their removed the wet pack, and swabbed out the nostril with pieces of cotton coated
witness. During direct examination, Lester was asked by the counsel of Becker as to whether he with some substance. After bandaging, he instructed Arlene to return the next day.
applied 10% cocaine solution to Arlene, and Lester said yes. It was later shown by 2 medical o While going home, Mrs. Becker had to stop driving several times because of
experts presented by Becker that a 10% cocaine solution should produce a soothing sensation Arlene’s great pain.
to the patient. The trial judge ruled in favor of Lester, saying that Becker, by calling Lester as The next day, when Lester removed the bandage, Arlene’s nose and upper lip were
their witness, is bound by his testimony. The Supreme Court of New Jersey reversed this, swollen, the flesh raw and the skin coming off.
The doctor did not explain what had happened, but treated the condition with salve.
saying that Becker has established a prima facie case of negligence against Lester because
o This treatment continued until about mid-February. By this time, the right
Lester could not have applied 10% cocaine on Arlene as evidenced by the injury that Arlene
nostril had contracted so that it was almost closed.
suffered. Instead, a caustic acid might have been applied. Furthermore, even when a party to
Hence, they filed this case for negligence.
the case (e.g. plaintiff) calls the opposing party as his witness (e.g. defendant), the plaintiff is
not at all times bound by the testimony of the defendant because this rule is contrary to THE PROCEEDINGS
human nature and the plaintiff may likewise impeach the defendant as his witness. A party was
Arlene testified that on her last visit the doctor made a cut in her nostril and inserted
‘not obliged to receive as unimpeached truth everything which a witness called by him may a hard rubber object. She said that when she cried he told her to get out of his office.
swear to. If his witness has been false or mistaken in his testimony, he may prove the truth by Pictures taken shortly after this show the right nostril almost closed, a vertical scar
others.’ running from the nostril to the right upper lip, and the edge of the lip drawn upward
where the scar met it. The appearance of the lip approximated that of a harelip.
FACTS IMPORTANT FACT!! - After Arlene had testified at some length, her counsel called
This is an action brought by William, on behalf of her daughter Arlene Becker (19 yo), Lester Eisenstodt to the stand and asked him the following questions (Note – so the
against a surgeon, Lester Eisenstodt, on ground of alleged negligence in plaintiff made the defendant their own witness!):
administering caustic (a kind of acid which destroyed the face of Arlene) during o ‘Q. Doctor, on December 27, 1957, when Arlene Becker came to your
postoperative treatment following rhinoplasty (a plastic surgery procedure for office, you inserted into her nose, the right nostril of her nose, a pledget or
enhancing the nose), thereby severely burning and disfiguring her. a piece of cotton saturated with a ten percent solution of
Arlene went to see Lester in October 1957 because she wanted to have the shape of cocaine? A. That's right, sir.
her nose changed to eliminate a bump. o ‘Q. And nothing else? A. That's right.’
Lester performed a plastic operation on her successfully without incident in a o There was no cross-examination.
hospital in Newark, New Jersey on December 1957. She was discharged 2 days later, The counsel further called 2 medical experts. One is Dr. Ehrlich, an ear, nose and
wearing bandages and cast on her face and nose. throat specialist for 33 years.
2 days after discharge, Arlene, accompanied by her mother, went to Lester’s office o He saw Arlene 2 days after the incident. He testified he saw an apparent
for post-operative treatment, on which occasion he removed some of the bandages burn due to a caustic and of recent origin, covering the whole
and cleaned her nose inside and out. Nothing happened here yet hehe. circumference of the skin inside the right nostril, and vertically down the
They returned 4 days after the first post-operative treatment. This time, defendant upper lip, then slightly inside the mouth, then horizontally along the lip to
1
took a pledget of cotton and with a tweezer dipped it into one of the bottles the left side.
standing on a nearby tray (hmmm baka dito nakuha yung caustic). o The area was inflamed and denuded of epithelium, the skin having been
o He then pushed the liquid-saturated pledget all the way up Arlene's right burned away.
nostril. o He said that in his 33 years of practice, he often used a 10% solution of
o When she complained that it hurt, the doctor said, ‘Don't be a baby; I have cocaine in the nostril, and that such a solution could not have reasonably
other people to take care of.’ produced Arlene’s condition (you will see later that this solution should
o The mommy was present during this incident. ease the pain of Arlene. Since Arlene experienced severe pain, there is a
They went out to the reception room and sat down, with the cotton still in the nose high probability that Lester negligently applied a caustic acid instead of the
of Arlene. Mommy noticed that a silvery liquid ran down the girl's nostril and wet her 10% solution of cocaine, as he claimed in his testimony).
upper lip. o Dr. Ehrlich was made to apply 10% solution of cocaine to Arlene in front of
the jury. Arlene testified that the only sensation she experienced was a
soothing one.
The other medical expert is Dr. Peer, a doctor specializing in plastic surgery.
1
a compress or small flat mass usually of gauze or absorbent cotton that is laid over a wound or into a cavity
to apply medication, exclude air, retain dressings, or absorb the matter discharged
Page 3 of 52
o He examined Arlene roughly 2 months after the incident. He said that the Today, the notion that a party is morally bound by what his witness says, no longer
injury could have been caused by a knife cut, a hot object, or by a chemical finds defenders.
such as an acid or caustic. o Alexander vs. Gibson - If a witness is called on the part of the plaintiff, who
o He was asked the same question as to WON a 10% Solution of cocaine swears what is palpably false, it would be extremely hard if the plaintiff's
inserted in the nose could have caused the injury, and he answered that he case should for that reason be sacrificed; but there is no rule of law by
had never seen that happen because the only function of cocaine would be which the truth is on such an occasion to be shut out and justice is to be
to deaden pain in the mucous membrane. perverted.
o Apparently, Dr. Peer performed restoration operations on Arlene’s nose, o Brown vs. Bellows - A party was ‘not obliged to receive as unimpeached
and obtained a good result. He removed the scar tissue and covered the truth everything which a witness called by him may swear to. If his
defect with a skin graft taken from behind Arlene’s ear. witness has been false or mistaken in his testimony, he may prove the
Lower court (Called “Law Division Judge”) granted Lester’s motion to dismiss truth by others.’
because negligence had not been proved. The judge said that plaintiff (Arlene), by Wigmore on Evidence: To say that the first party guarantees the opponent's
calling defendant as a witness, established by his testimony that the solution used credibility is to mock him with a false formula; he hopes that the opponent will speak
was, in fact, 10% Cocaine (sinasabi nya na bound na si Arlene dun sa sinabi ni Lester truly, but he equally perceives the possibilities of the contrary, and he no more
kasi tinawag sya as their witness. But this is erroneous as you will see later). Since it guarantees the other's credibility than he guarantees the truth of the other's case
was demonstrated that cocaine does no harm, then no case of negligence may and the falsity of his own.
prosper. o To say, furthermore, that the first party, if he could impeach at will, holds
the means of improperly coercing the other is to proceed upon a singular
ISSUE WN Lester Eisenstodt negligently applied caustic acid to Arlene, causing facial interpretation of human nature and experience, and to attribute a power
deformity - YES which the former may perhaps wish that he had but certainly cannot be
clothed with by this or any other rule. There is therefore no reason why the
HELD: Judgment reversed. Case remanded for new trial. rule should apply at all. (So it’s all about human nature. The paragraph may
imply that it is because of human nature that the opposing party may
testify adverse to the interest of the party presenting him as a witness)
RATIO
McCormick on Evidence: The situation we are considering is to be distinguished from
one where a party is permitted to neutralize unexpectedly adverse testimony given
DOCTRINE: IMPEACHMENT OF WITNESS (Copy pasted most of the relevant paragraphs since
by his own witness, damaging to his case.
isang case lang tayo for impeachment of witness) o There must be actual surprise.
Respondent and the trial judge in his oral ruling (take note may oral ruling pala!) o On accepted principles, a party so surprised may be permitted by the trial
places great stress on the fact that plaintiff called defendant**711 as his own court, in the sound exercise of its legal discretion, to show that the witness
witness, and argues he is therefore bound by his testimony. had made prior statements inconsistent with, or contradictory of, the
o They relied on the case of Carluccio vs. Winter - generally, a party, by testimony presently given.
calling a witness, represents him to be worthy of some credit, and is
therefore bound by his testimony. PLAINTIFF WAS ABLE TO PRIMA FACIE ESTABLISH NEGLIGENCE
(Be ready for a lil history lecture) Such a rule, so broadly stated, ill serves the cause of
Note Arlene charged defendant on the ground that the defendant negligently and
justice. It is a relic of the earliest system of trial, where those who attended on behalf carelessly treated her with caustic. He does not charge defendant with lack of
of the parties were not witnesses, as we understand the word, but ‘oath-helpers,’
professional skill, discretion or judgment, in which case the question of whether the
whose mere oath, when taken by the prescribed number of persons and in the doctor followed standards recognized by the medical profession would be material.
proper form, determined the issue.
(This distinction is crucial because it lays the basis of the jury’s appreciation of the
o Ordinarily, these persons were relatives and adherents of either party, testimony of the medical experts)
clearly partisan. As Wigmore observes, so long as this traditional notion of a
Plaintiff's medical experts were not called for the purpose of establishing a standard
witness persisted, it was inconceivable that a party should gainsay his own
of care. They only said that a cocaine solution could not have produced Arlene’s
witness. If a witness failed to swear for him, it was his loss-he should have
injury.
chosen a better person for his purpose. Accordingly, a party was not
This a medical error on which a layman is competent to pass judgment and conclude
allowed to dispute what his witness said.
from common experience that such things do not happen if proper skill and care
This ‘primitive’ concept of the role of witnesses persisted long after the time when
have been used.
their function had ceased to be that of mere oath-taker and had become that of a
Situations like these speak for themselves even without the need of any expert
testifier to the facts.
Page 4 of 52
testimony as to any departure from standards of care (remember res ipsa loquitur?) Respondents: IAC; Adelaida Trinidad; Felicitas de Leon; Evangeline Tansingco; Conrado, Cesar,
The testimony of Dr. Ehrlich and Dr. Peer, added to that of Arlene and her mother, Poncianito, Antonio and Jaime (all surnamed Santos, like Roselee)--they are all heirs of Loreto
justifies the inference that Arlene was burned by a chemical of a caustic nature, and de la Paz, except the IAC of course
that her injuries were not the consequence of an infection of some kind, as
defendant implies. Because of this, plaintiff was able to establish a prima facie case Recit ready version: Basically, there is a lot in Rizal which Loreto said was hers, pursuant to a
of negligence against Lester. partition submitted by the heirs of Ponciano. But the heirs, Petitioners herein, deny her claim
Loveland vs. Nelson, a case very similar to the case at bar – a dentist injected a because the lot was not part of the probate proceedings. During trial, the Petitioners’ counsel
supposed anesthetic fluid into the plaintiff’s gum. Instead of relief, plaintiff was cross-examining Loreto, but it was not finished. But unfortunately the cross-examination
experienced burning sensation. There was expert testimony from which the jury was postponed due to the absence of Petitioners and their counsel. Then it was postponed
could have concluded that Lysol was injected. Defendant was in the habit of keeping again. And again. Then Loreto died. Petitioners now filed a motion to strike off her testimony
his needle suspended in Lysol when not in use. The court held that negligence could from the record. But the SC said that this cannot be done. The mere fact that the witness died
be established by circumstantial evidence, and ‘where the circumstances are such as after giving his direct testimony is no ground in itself for excluding his testimony from the
to take the case out of the realm of conjecture and within the field of legitimate record so long as the adverse party was afforded an adequate opportunity for cross-
inference from established facts, at least a Prima facie case is made.’ Accordingly, the examination but through fault of his own failed to cross-examine the witness. The right to
jury could properly conclude that defendant negligently injected Lysol instead of cross-examine Loreto was waived by Petitioners through their repeated absence and motions
anesthetic. to postpone the cross-examination. Where a party has had the opportunity to cross-examine a
witness but failed to avail himself of it for reasons attributable to himself alone, he necessarily
RES IPSA LOQUITUR DOCTRINE (Not Important) forfeits the right to cross-examine and the testimony given on direct examination of the
witness will be received or allowed to remain in the record.
Plaintiff argues that the case should have gone to the jury under the res ipsa loquitur
doctrine.
Facts
Res ipsa loquitur implies an absence of knowledge or information on the part of the
Loreto de la Paz (she's a girl) filed a complaint against the Petitioners (heirs of Ponciano de la
plaintiff, through sources other than those within defendant's peculiar knowledge, as
Paz) in Rizal RTC for a judicial declaration of ownership of a 43k-square meter lot in Rizal,
to what caused the injury.
registered in the name of Ponciano de la Paz. She alleged that that lot was adjudicated to her
But the court says that there was no need for this because she was able to show a
and her mom as a result of a partition submitted by the heirs of Ponciano.
prima facie case of negligence through her expert witnesses.
Petitioners denied that the lot was adjudicated to Loreto. They said that it was not accounted
for in the probate proceedings, but is actually part of their community property. After failure to
CROSS-EXAMINATION reach an amicable settlement, the trial proceeded.
Loreto gave a direct testimony, and was subjected to cross-examination after. The cross-
1. DE LA PAZ v. IAC (JT) examination, however, was not completed [not mentioned why]. So, the Petitioners' lawyer
Sept. 17, 1987 | GR No. 71537 moved to continue the cross-examination because he still had to conduct a lengthy cross-
Gutierrez, J. examination. Meanwhile, Loreto's lawyer filed a motion for correction of transcript, because of
some unmentioned stenographic errors. Motion granted.
Petitioners: The petitioners are all heirs of Ponciano de la Paz, as follows:
Emilio Jr., grandson (child of Emilio) Because of that motion, the Petitioners ' lawyer moved to postpone the cross examination so
Manuela, recognized natural child he can go through the corrections. Motion granted. When the trial resumed, he asked for
Natividad, granddaughter (child of Emilio) postponement again, which was granted. Again.
Margarita, granddaughter (child of Wenceslao)
Zenaida, granddaughter (child of Augusto) On the date of the rescheduled trial, the Petitioners and their lawyer were absent. So Loreto
Enrique, grandson (child of Ponciano Jr.) filed a motion to present evidence ex parte before a commissioner. Motion granted. She
o NOTE: Emilio, Wenceslao and Augusto are all recognized natural submitted evidence and the case was submitted for decision.
children of Ponciano. Enrique's status as compulsory heir was
contested by Loreto de la Paz. Despite this development, the Petitioners, upon their motion, were allowed to cross examine
Loreto. However, on the date of the cross examination, the Petitioners' counsel was absent,
and the cross examination was postponed for the fourth time. But finally--seven months after
the first cross examination which was ended abruptly--the heirs' lawyer finally cross examined
Page 5 of 52
Loreto. BUT, guess what! The cross examination was cut short and rescheduled on motion of o Until such cross-examination has been finished, the testimony of the witness
the Petitioners ' lawyer. cannot be considered as complete and may not, therefore, be allowed to form part
of the evidence to be considered by the court in deciding the case.
One month later, Loreto died. [Ayan kasi, postpone nang postpone!] An amended complaint HOWEVER, THIS RIGHT IS NOT ABSOLUTE!
was filed to substitute Respondents (heirs of Loreto). A month later, Petitioners moved to strike o The right is a personal one which may be waived expressly or impliedly by conduct
off the entire record of Loreto's testimony. Motion denied. amounting to a renunciation of the right of cross-examination.
Thus: where a party has had the opportunity to cross-examine a witness
The Petitioners now filed a petition with the IAC to prohibit the trial court from further but failed to avail himself of it for reasons attributable to himself alone, he
proceeding with the case. Notwithstanding such petition, the trial court rendered judgment, necessarily forfeits the right to cross-examine and the testimony given on
declaring Respondents [Loreto's heirs] as the true owners of the subject lot. Thereafter, the IAC direct examination of the witness will be received or allowed to remain in
denied the Petitioners' petition. the record.
The conduct of a party which may be construed as an implied waiver of the
In the present case, one of the contentions of the Petitioners is that the IAC committed grave right to cross-examine may take various forms.
abuse of discretion when it sanctioned the trial court’s orders in not allowing the striking off of o In the Savory Luncheonette case, as cited by the Supreme Court, what happened
Loreto’s testimony. was—
Private respondents, through their counsel, Atty. Amante, were given not
Issue/Held: only one but five opportunities to cross-examine the witness [the witness in
1. W/N the IAC erred in affirming the trial court's order to deny the striking out of that case was one named Amabe]
Loreto's testimony—NOPE! But despite the warnings and admonitions of respondent court for Atty.
2. W/N the trial court’s decision, which declared Respondents to be the owner of the Amante to conduct the cross-examination or else it will be deemed waived,
lot in controversy, is void—YES. [Like, wtf right haha] and despite the readiness, willingness and insistence of the witness that he
be cross-examined, said counsel by his repeated absence and/or
Dispositive portion: WHEREFORE, the amended petition is partly DENIED in that the unpreparedness failed to do so until death sealed the witness' lips forever.
questioned decision and resolution of the Intermediate Appellate Court, now court of Appeals By such repeated absence and lack of preparation on the part of Amante,
in AC-G. R. SP No. 05472 are AFFIRMED. The petition is GRANTED in part. The questioned the Private Respondents lost their right to examine the witness, and they
decision of the then Court of First Instance of Rizal in Civil Case No. 164-A is SET ASIDE as null alone must suffer the consequences.
and void. The successor Regional Trial Court is directed to conduct further proceedings and to The mere fact that the witness died after giving his direct testimony is no
receive the evidence of the petitioners in Civil Case No. 164-A. ground in itself for excluding his testimony from the record so long as the
adverse party was afforded an adequate opportunity for cross-
Ratio examination but through fault of his own failed to cross-examine the
What is the nature of a motion to strike off testimony? witness.
It is an interlocutory order, which may not be the subject of a petition for certiorari ^ Does that sound familiar? OH YES, that’s EXACTLY what happened in the
unless issued in patent abuse of discretion present case!
But there is NO grave abuse of discretion on the part of the trial court when it issued the Application of the above doctrines to the case at bar
assailed order. The Petitioners’ failure to cross-examine Loreto was through no fault of the
Citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino: Respondents.
o The right of a party to confront and cross-examine opposing witnesses in a judicial o Loreto was available for cross-examination from the time she finished her direct
litigation, be it criminal or civil in nature, or in proceedings before administrative testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of
tribunals with quasi-judicial powers, is a fundamental right which is part of due the case before her death on December 1, 1984.
process. o The petitioners not only kept on postponing the cross-examination but at times
o The right of a party to cross-examine the witness of his adversary in invaluable as it failed to appear during scheduled hearings.
is inviolable in civil cases, no less than the right of the accused in criminal cases. o While the postponement due to the correction of stenographic notes may be
o The express recognition of such right of the accused in the Constitution does not justified, the other postponements cannot be justified.
render the right thereto of parties in civil cases less constitutionally based, for it is o Absent nang absent eh, anong magagawa ng korte?
an indispensable part of the due process guaranteed by the fundamental law. o Under these circumstances, we rule that the petitioners had waived their right
to cross-examine Loreto. Through their own fault, they lost their right to cross-
examine Loreto. Her testimony stands.
Page 6 of 52
Next is the issue of the contradicting orders of the trial court Judge Benedicto SUMMARY: Fulgado, a man approaching the twilight of his life filed a case for annulment of
Trial court Judge Benedicto issued an order on Feb 11 1985 [which the case refers to as certain contracts of sale against respondents. Respondents failed to appear on time at the pre-
the Feb 11 Order]. The signed order was apparently contradictory to the order the trial and were declared in default. Respondents filed motion to lift order of default, MR,
judge dictated in open court. petition for relief which were all denied. Fulgado was allowed to present evidence and the case
What was the contradiction in the first place? was decided in his favor. However, on appeal in the CA, respondents were found to have been
o The order dictated in open court allows the Petitioners ten days to file their deprived of their day in court. So CA ordered that the case be remanded with right to cross-
objections, after which the case will be submitted for resolution examine the witnesses presented by Fulgado. This CA decision became final and executory in
o The signed order, however, declared that the case was already submitted for 1974. Due to postponements and leave of the presiding judge at the trial court where the case
resolution was supposed to be remanded, the hearing was moved to 1976. In the meantime Fulgado died.
It is this signed order that the trial court used as justification for its His other witness presented at the first trial also moved to the US. At the trial of 1976,
promulgation of its decision, which declared Respondents to be the owners respondents moved to strike out the testimonies of Fulgado and Jose for alleged deprivation of
of the lot in controversy their right to cross-examine them. The trial court agreed with them. The appeal to the SC now
Check the full text for a full text of the two orders. focuses on the propriety of the exclusion of the testimonies of deceased Fulgado and his
The signed version was issued without knowledge of the parties witness, Jose Fulgado, which resulted in the dismissal of the case. SC reversed such decision
o This signed version was to the prejudice of the Petitioners, as they were deprived and held that although the right to cross-examine is a vital part of due process, the right is a
of the right to present evidence in their behalf personal one which may be waived expressly or impliedly by conduct amounting to a
o Consequently, the decision of the trial court was declared null and void. renunciation of the right of cross-examination. Where a party has had the opportunity to cross-
#swertsforPetitioners examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness will be received or
Trial court did not err in proceeding with the case, notwithstanding the pendency of the allowed to remain in the record. The principle requiring a testing of testimonial statements by
petition filed in the IAC cross-examination has always been understood as requiring, not necessarily an actual cross-
It must be remembered that the Petitioners petitioned the IAC to prohibit the lower examination, but merely an opportunity to exercise the right to cross-examine if desired.
court from proceeding with the case. Yet, the lower court proceeded with the case.
The SC said that the lower court did not commit error. You can read just the underlined parts.
o It is within its sound discretion to either proceed with the case in the absence of
the prayed-for restraining order to refrain from acting on the case until the higher FACTS:
court decides the matter elevated to it. On September 9, 1967, Ruperto Fulgado, a man approaching the twilight of his life ,
undertook the arduous task of filing an action in the CFI of Rizal, Pasig branch against
Lastly, on the issue on damages... Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael Porciuncula and Dominga
The trial court awarded to Respondents the following types of damages: actual, moral, Macarulay for the annulment of certain contracts of sale and partition with
exemplary damages, and attorney’s fees accounting.
The questioned decision [which had already been voided by the SC] was silent as to After several deferments, the pre-trial conference was finally set for February 1, 1968
how the trial court arrived at these damages. at 8:30 in the morning.
o Nowhere in the decision did the trial court discuss the merit of the damages Private respondents and their counsel failed to appear on time at the pre-trial and
prayed for by the petitioners. were subsequently declared as in default.
There should be clear factual and legal bases for any award of considerable damages. o Plaintiff Fulgado was then allowed to present his evidence ex parte before
the Deputy Clerk of Court.
Meanwhile, private respondents immediately filed a motion to lift the order of
default on the same day it was issued.
2. FULGADO v. CA (AD) o The trial court denied said motion. Their MR was also denied.
G.R. No. L-61570 February 12, 1990. Persistently, respondents filed a petition for relief from the default order. Once
more, denied.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all The trial court rendered a decision in favor of plaintiff Ruperto Fulgado.
surnamed FULGADO, petitioners, On appeal, however, the Court of Appeals found that private respondents had been
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, deprived of their day in court by the unjust denial of their motion to lift the order of
ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents. default. The Appellate Court, in no less than explicit terms, said:
Page 7 of 52
o WHEREFORE, the decision of the court a quo is hereby set aside and the been granted the right of cross-examining them and they are not available
case is remanded to the court of origin for trial on the merits, granting to at this stage, Your Honor.
the defendants the opportunity to present their evidence, provided, o (P’ff) Atty. Dollete: We will submit Your Honor. We maintain, Your Honor.
however, that the evidence already presented before the commissioner Our opposition is that it hinges on the fact that defendants committed
shall stand, but with the right of the defendants to cross-examine the laches in their failure to cross-examine the witness.That is our opposition.
witness who had already testified and with the right of the plaintiff to o Court: Why?
present additional evidence that then he may decide. Without costs. o (P’ff) Atty. Dollete: There were several opportunities for them to cross-
The Court of Appeals' decision became final and executory on June 27,1974 and the examine especially the witness Ruperto Fulgado, Your Honor. They are with
records of the case were remanded to the trial court. full knowledge of the age of this witness. They could have taken steps to
The case was set for hearing on September 16,1975. Unfortunately, the presiding assert their right granted by the Court of Appeals. Notwithstanding their
judge went on official leave and the hearing was postponed anew to January 15 and knowledge about the age, the advanced age and health condition of this
February 15, 1976. witness Ruperto Fulgado, then we maintain, Your Honor, that defendants,
In the meantime, plaintiff Ruperto Fulgado died on November 25,1975 and was in a way, have committed laches in the assertion of their right to cross-
substituted by his children as party plaintiffs. examine.
Fulgado's witness, Jose Fulgado, referred to in the dispositive part of the Appellate o (Def) Atty. Tuangco: The records will show Your Honor, that it was the
Court's judgment, had earlier migrated to the United States on September 16, 1974. defendants who moved to set this case for hearing upon the remanding of
When the case was heard on May 4, 1976, the following proceedings transpired: the records from the Court of Appeals.
o (P’ff) Atty Dollete: For the plaintiff, Your Honor. If your Honor please, may I o Court: You make a written motion and I will grant you a period of ten (10)
inform this Honorable Court that this is a remanded case from the Court of days within which to file an opposition and then another additional period
Appeals for cross-examination or presentation by the plaintiff of any of ten (10) days within which to reply. Then this matter shall be deemed
additional evidence. But we have no further evidence in this case ... except submitted for resolution. But the fact is clear now that plaintiff has no
those evidence already adduced in the lower court before it was appealed more additional evidence.
in the Court of Appeals. It is up for the defense now to cross-examine the o (P’ff) Atty. Dollete: Yes, Your Honor.
witnesses. o Court: So that in case the court favorably grants the motion of defendants
o Court (To Atty. Tuangco): You are through with the cross-examination? and orders the striking out of the testimonies of Ruperto Fulgado and the
o (Def) Atty. Tuangco: Not yet, Your Honor, we were granted by the Court of other witness, together with the documentary evidence, the plaintiff had
Appeals the right to cross-examine the witnesses. The last time this case no more evidence to offer.
was called for hearing by this Honorable Court, the Presiding Judge tried to o (P’ff) Atty. Dollete: Yes, Your Honor. We stand on the evidence on Record.
make the parties come to a settlement, but it seems that they could not On June 30, 1976, the trial court issued an order dismissing the case. It decreed:
come to such settlement. I advised my clients to try to meet them. So now, o For reason stated in the defendants' motion filed on May 18, 1976, which
this is the stage where they could not agree and so we will be proceeding the Court finds meritorious, the testimonies of plaintiffs witnesses Ruperto
with the cross-examination of the witnesses. Fulgado and Jose Fulgado, who were not presented by the plaintiff so that
o (P’ff) Atty. Dollete: There were only two witnesses. Two witnesses were the defendants could cross-examine them on May 4, 1976, are stricken off
presented, one is Ruperto Fulgado and he died already. Your Honor, the the record and, as a consequence, in view of the manifestation of
other witness was Jose Fulgado who is now abroad for almost a year, Your plaintiffs counsel that he had no more witnesses to present, the above-
Honor. entitled case is dismissed without pronouncement as to costs.
o (Def) Atty. Tuangco: I understand that the other witness was here on a CA affirmed.
visit, Your Honor. He came back.
o Court: So, what shall we do now? ISSUE: The propriety of the exclusion of the testimonies given by the now deceased Ruperto
o (Def) Atty. Tuangco: So, I move to strike out the testimonies of the Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted
witnesses who testified on the ground that we were deprived of our right in the dismissal of the complaint.
to cross-examine them.
o (P’ff) Atty. Dollete: We will submit, Your Honor, for resolution the motion
HELD: The testimonies should not have been excluded. Appeal is meritorious.
of the defendants.
o Court (To Atty. Tuangco): So, what do you want?
o (Def) Atty. Tuangco: That the whole testimonies of the two witnesses who RATIO:
were presented ex parte be stricken off the record because we have not
Page 8 of 52
Arguments: DOCTRINE AS APPLIED IN THE CASE

Private respondents (defendants in the lower court) maintain that such testimonies Private respondents (defedants) had enough opportunity to cross-examine plaintiff
are wholly inadmissible for being hearsay, because respondents were not able to Ruperto Fulgado before his death, and Jose Fulgado before his migration to the
cross-examine the witnesses. United States.
Petitioners, (plaintiffs in the lower court) on the other hand, contend that while the Conceding that private respondents lost their standing in court during the time they
right to cross-examination is an essential part of due process, the same may however were in default, they were no longer in that situation on June 6, 1974 when the Court
be waived as the private respondent have done when they allowed an unreasonable of Appeals set aside the default judgment in CA-G.R. No. 42590-R and remanded the
length of time to lapse from the inception of the opportunity to cross-examine case to the court of origin for trial on the merits, "granting to the defendants the
before availing themselves of such right and likewise when they failed to exhaust opportunity to present their evidence."
other remedies to secure the exercise of such right. o This was a positive signal for them to proceed with the cross-examination
of the two Fulgados, a right previously withheld from them when they were
SC: (DOCTRINE ALERT!) considered in default.
The appeal is well-taken. o But despite knowledge of Ruperto's failing health (he was then 89 years of
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, the Court, speaking age) and Jose's imminent travel to the United States, private respondents
through Justice Muñoz Palma, has provided us with a concise overview of the right to did not move swiftly and decisively. They tarried for more than one year
cross-examination as a vital element of due process. Thus: from the finality of the Appellate Court's decision on June 27, 1974 to ask
o The right of a party to confront and cross-examine opposing witnesses in a the trial court on July 3, 1975 to set the already much delayed case for
judicial litigation, be it criminal or civil in nature, or in proceedings before hearing "in any date of August and September.”
administrative tribunals with quasi-judicial powers, is a fundamental right Such inaction on the part of private respondents cannot be easily dismissed by the
which is part of due process. However, the right is a personal one which argument that it is the duty of the plaintiff to always take the initiative in keeping the
may be waived expressly or impliedly by conduct amounting to a proceedings "alive." At best, the argument is fatuous.
renunciation of the right of cross-examination. Thus, where a party has The task of recalling a witness for cross examination is, in law, imposed on the
had the opportunity to cross-examine a witness but failed to avail himself party who wishes to exercise said right. This is so because the right, being personal
of it, he necessarily forfeits the right to cross-examine and the testimony and waivable, the intention to utilize it must be expressed. Silence or failure to
given on direct examination of the witness will be received or allowed to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel
remain in the record. for the opposing party who should move to cross-examine plaintiffs witnesses.
o The conduct of a party which may be construed as an implied waiver of the It is absurd for the plaintiff himself to ask the court to schedule the cross-
right to cross-examine may take various forms. But the common basic examination of his own witnesses because it is not his obligation to ensure that his
principle underlying the application of the rule on implied waiver is that the deponents are cross-examined. Having presented his witnesses, the burden shifts to
party was given the opportunity to confront and cross-examine an his opponent who must now make the appropriate move. Indeed, the rule of placing
opposing witness but failed to take advantage of it for reasons attributable the burden of the case on plaintiffs shoulders can be construed to extremes as what
to himself alone. happened in the instant proceedings.
The principle requiring a testing of testimonial statements by cross-examination Having had the liberty to cross-examine and having opted not to exercise it, the case
has always been understood as requiring, not necessarily an actual cross- is then the same in effect as if private respondent had actually cross-examined. We
examination, but merely an opportunity to exercise the right to cross-examine if therefore hold that it was gross error for both the trial court and the Appellate Court
desired. to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there
Thus the resolution of the present case would hinge on whether or not this was an was an alleged failure of cross-examination.
opportunity for cross-examination. o The wholesale exclusion of testimonies was too inflexible a solution to the
There is no disputing that where there was no such opportunity (to cross examine) procedural impasse because it prejudiced the party whose only fault during
and the want of it was caused by the party offering (plaintiff), the testimony should the entire proceedings was to die before he could be cross-examined.
be stricken out. However, where the failure to obtain cross-examination was o The prudent alternative should have been to admit the direct examination
imputable to the cross examiner's fault, the lack of cross-examination is no longer a so far as the loss of cross-examination could have been shown to be not in
ground for exclusion according to the general principle that an opportunity, though that instance a material loss. And more compellingly so in the instant case
10
waived, will suffice. where it has become evident that the adverse party was afforded a
reasonable chance for cross-examination but through his own fault failed
to cross-examine the witness.
Page 9 of 52
Where death prevents cross-examination under such circumstances that no In 1926 the lots were purchased by Jose Benares, who later mortgaged them to the
responsibility of any sort can be ascribed to the plaintiff or his witness, it seems a Philippine National Bank. The mortgage having been foreclosed, the Bank bought the
harsh measure to strike out all that has been obtained in the direct examination. lots at a foreclosure sale and had transfer certificates of title issued to it in 1934.
As to the witness Jose Fulgado who is reportedly abroad, private respondents could In 1935 the Bank signed a contract agreeing to sell the lots to Carlos Benares for
have resorted to the various modes of discovery under the Rules of Court to cross- P400,000, payable P30,000 down and the balance in ten equal installments, the title
examine Jose. During the hearing of May 4, 1976, counsel for private respondents to remain in the Bank until the price had been fully paid.
unwittingly or wittingly disclosed that they knew that Jose was in the country "for a In an instrument signed on the same date, Carlos Benares, on his part, assigned to
visit" but they did not exert any effort to have him subpoenaed. the Subdivision the rights acquired by him under his contract with the Bank.
Altogether, the acts of private respondents constitute a waiver, and consequently, With the payment of the last installment in 1949, a deed of absolute sale was
a forfeiture of their right to cross-examination. And having failed to make use of executed by the Bank in favor of the Subdivision, and as a result the latter was issued
this right, the consequences should rightfully fall on them and not on their the corresponding transfer certificates of title for the lots, of which transfer
adversary. certificate of title No. 1798 pertains to lot No. 378, the one here in question.
WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated FACTS:
June 30, 1982 is SET ASIDE. The trial court is ordered to REINSTATE Civil Case No. 10256 and to The Provincial Hospital of Occidental Negros, located in the City of Bacolod, capital
allow the direct testimonies of plaintiff Ruperto Fulgado and his witness Jose Fulgado to remain of the province, was built in 1924 at a cost of about P200,000. But subsequent
in the record. The court is further ordered to give priority to the hearing of said case in view of improvements brought the total cost to more than half a million pesos.
the length of time that it has remained unresolved on account of procedural differences. This The Hospital was erected on a parcel of land of more than 22,000 square meters
judgment is immediately executory. No costs. identified as lot No. 378 of the Bacolod Cadastre and claimed by the province of
Occidental Negros as its property by virtue of a deed of sale with donation
executed in its favor by Jose Benares, former owner, as a result of expropriation
3. CAPITAL SUBDIVISION v. NEGROS OCCIDENTAL (KL) proceedings.
GR Nos. L-6204 | 07/31/1956 | Reyes, A., J. It does not appear that a transfer certificate of title has been issued to the province.
But the lot has for many years stood in the records of the assessment office as the
Petitioner/s: CAPITOL SUBDIVISION, INC. , plaintiff-appellee property of the Province or the Hospital and enjoyed exemption from the realty tax
Respondent/s: PROVINCE OF NEGROS OCCIDENTAL, defendants-appellant as such.
In 1949, the Capitol Subdivision, Inc., a real estate company, claiming to be the owner
SUMMARY of the lot, questioned the right of the Hospital to occupy it, and when its claim of
ownership was rejected, thus, this petition which originated from the CFI of
Capitol Subdivision is claiming ownership of a land, where the provincial hospital of Occidental Occidental Negros.
Negros is located, claiming that they acquired the land from Carlos Benares. The Province o On May 1950, before filing the petition, Petitioners declared the lot in its
claims that they acquired the land through Jose Benares and they have already settled the name for assessment purposes.
issue through a previous civil case, however, the records were destroyed by WWII. Given the Province of Negros Occidental’s defense:
prior settled case, the Province claims that Capitol is not an innocent buyer. The CFI ruled in st
1 defense: The Province put up the defense that it had acquired the lot in question
favor of the petitioner. The SC remanded the case back for further trial. The CFI incorrectly from its former owner, Jose Benares, and that the subdivision was aware of that fact
disallowed the Province’s presentation of secondary evidence to prove their defenses. More when it bought the hacienda.
important to our class, the CFI disallowed the cross-examination of a witness presented by The Province instituted condemnation proceedings, in 1924 or 1925 against Jose
Capitol since he was the witness of Capitol. The SC held that the adverse party may cross- Benares for the acquirement of the lot in question, took possession of the same and
examine a witness for the purpose among others, of eliciting all important facts bearing upon began the construction of the hospital; that pending trial the case was amicably
the issue. From this provision it may clearly be inferred that a party may cross- examine a settled, with the Province paying to Benares the assessed value of the lot and
witness on matters not embraced in his direct examination. But this does not mean that a Benares donating to the Province so much of the purchase price as was in excess of
party by doing so is making the witness his own. the assessed value; that to give effect to the settlement Benares executed a deed of
sale with donation in favor of the Province, which deed was delivered to the clerk of
ANTECEDENT FACTS: (I recommend reading this AFTER reading the facts) court and attached to the record of the case; that as a result of this transaction the
It would appear that the lot in question was part of a large tract of land known as the lot became the property of the province.
Hacienda Mandalagan, formerly owned by Agustin Amenabar and Pilar Amenabar. However, the records of that case were destroyed during the last war (WWII).
Page 10 of 52
nd
2 defense: The subdivision had constructive notice of those facts and was therefore o The court reasoned that Mr. Montelibano was then on the stand as
not an innocent purchaser, knowing fully well that at the time it bought the lot this Plaintiff’s own witness and could not be questioned in such a way as to
was already occupied by the Hospital and the Hospital had been in full operation as a make him to the Defendant’s witness.
public institution for many years prior to the date of the alleged acquisition; o But the fact alone that Mr. Montelibano was then testifying as Plaintiff’s
and that Mr. Alfredo Montelibano, the controlling stockholder and president and witness is no justification for not permitting the fiscal to cross-examine
general manager of the subdivision, had knowledge of those facts because during him on any matter that would elicit all important facts bearing on the
his incumbency as first city mayor of Bacolod, the city was contributing a large sum issue.
yearly for the support, operation, and maintenance of the Hospital. The adverse party may cross-examine a witness for the purpose among others, of
eliciting all important facts bearing upon the issue. From this provision it may
Lower courts’ ruling: clearly be inferred that a party may cross- examine a witness on matters not
The CFI of Negros Occidental ruled in favor of plaintiffs. The CA automatically sent it to the SC embraced in his direct examination. But this does not mean that a party by doing
due to the involvement of more than P50,000. so is making the witness his own.
The trial court refused to allow the witness Jose Marco, a former deputy clerk of
ISSUE: court, to say anything about the expropriation proceeding in question on the excuse
W/N the Defendant had already acquired right or title to the lot as a result of the that his testimony on this matter would be immaterial and incompetent. The loss of
alleged expropriation proceedings and deed of sale with donation. the records of said expropriation proceeding had already been established, and
W/N Plaintiff had actual or constructive knowledge of such fact (deed of sale with section 51, Rule 123, expressly permits proof by secondary evidence.
donation) at the time it bought the property. The trial court, after thus preventing Defendant from proving the existence of the
expropriation case through the testimony of Jose Marco, willingly acceded to the
HELD: presentation in rebuttal of a witness who testified to the non-existence of the said
Wherefore, the judgment appealed from is set aside and the case ordered remanded to the expropriation case, thus permitting Plaintiff to prove in rebuttal what he had refused
court of origin for further trial in order that the Defendant may have an opportunity to fully Defendant to substantiate in defense.
prove its case, with equal opportunity to the Plaintiff to meet such further evidence as the The trial court appears to have had no justification in refusing to admit most of the
Defendant may present, it being understood that the evidence already taken need not be exhibits offered in evidence for the Defendant. Those exhibits have direct bearing on
reintroduced. the issue of ownership.
RATIO:
We do not feel that those questions could be justly decided on the somewhat limited
evidence actually admitted by the trial court. With the record of expropriation 4. US v. MARSHALL (RC)
proceedings destroyed together with the deed of sale and donation attached
thereto, secondary proof of such proceedings and deed should have been allowed. 762 F.2d 419 | 05/30/1985| TATE
But presentation of that proof was effectively barred when the trial court refused
Petitioner/s: United States of America, plaintiff-appellee
to give the provincial fiscal sufficient time to resubpoena two important witnesses,
who had failed to come on the day of the continuation of the trial for lack of notice. Respondent/s: Richard Charles Marshall, defendant-appellant
o Those witnesses were Mr. Jose Benares (the person from whom the
Province allegedly acquired the lot) and Mr. Ildefonso Coscolluela, who, as SUMMARY (sorry super long, daming testimony)
former treasurer of the Province, had knowledge of such acquisition.
o Considering the amount of the public funds and the public interest Please read the facts because the case was pretty detailed about it. The gist is that Marshall
involved, the trial court should have granted the fiscal sufficient time to was charged and convicted of theft of a lawn mower. Cast of characters na lang muna:
produce the said witnesses. MARSHALL– alleged thief of the Lawn Boy mowers, assistant manager/supervisor of the store
On the question of the subdivision’s good or bad faith, Mr. Montelibano, the
president and general manager and controlling stockholder of the Subdivision, LEE– the manager who allegedly saw Marshall unloading the stolen merch one day while he
pretends that the Subdivision had no knowledge of the expropriation or deed of sale was driving around off-duty
with donation at the time it bought the land.
o The fiscal’s efforts to cross-examine him on those matters were frustrated MS. STANLIN – investigator who inspected the records of the store that there were missing
by Plaintiff’s counsel’s objections and the trial court’s rulings sustaining merchandise; contested testimony
those objections.
BITLIN – record keeper who said that Marshall signed for keys
Page 11 of 52
McLain – employee who helped Marshall load the van, answered Lee’s call To counter the government's case, Marshall relied at trial upon his own testimony,
that of his co-supervisor, Mrs. Boersema, and that of an employee at a service station
Ms. Boersema – co-supervisor who said Marshall was back at the store by 11am (who confirmed Marshall's whereabouts at a location far from Frederick Street
during his absence from the base from 10:00 a.m. to shortly after 11:00 a.m.).
Jarzabek – the prosecutor for the government
Mrs. Boersema had to leave at 12, so Marshall decided to do some store errands
McMichael – defense attorney while she was still in the shop (to get a gas cap key made and to pick up a lawn
mower part). He unloaded the mowers in the van and left to run the errands. Mrs.
However this case was remanded because the Federal Court found that the testimony Boersema would testitfy to this and that Marshall had returned to the store at about
establishing that the mower was property of the US government was inadmissible as hearsay, 11am (she had glanced at the watch when that happened).
which was PROPERLY OBJECTED to (the court kase discussed it on 2 levels, first as to propriety Marshall also relies upon his cross- examination of the government investigator
of the objection and then on the fact that was hearsay). Marshall had never waived his (Ms. Stanlin) and of a government witness (Bitner; the Four Seasons manager and
objection to Stanlin’s testimony (after Jarzabek asked her were there missing mowers, the custodian of its records-although he was not called upon by the government to
McMichael objected, and there was a bench conference), even though Stanlin was cross- authenticate the Four Seasons lawn mower records) as showing the unreliability of
examined such examination was only to show just how full of discrepancies her testimony was, Ms. Sandlin's opinion that three (or any) lawn mowers were actually missing, as she
bale, she was crossed to impeach her testimony. Further, the evidence was hearsay for three had testified on the basis of her deductions from the (incomplete) Four Seasons
reasons: (1) based on statements in records outside the evidence (the missing tapes) and (2) an records. (the testimony is in the RATIO).
admission of evidence as to the contents of a record without production of the document itself Marshall also argued that Lee’s ‘positive’ identification of him could not have been so
into evidence (altered 1 to 3 by Mrs. Newell), with moreover a (3) failure to authenticate the positive in light of the latter’s actions. He did not, for instance, drive up and query the
record by showing that it was what the proponent claims (Bitlin never testified). driver, whom he allegedly thought was his valued and trusted supervisory assistant.
Also, within minutes, he called the store to ask if Marshall was there, and he did not
FACTS
confront Marshall with his suspicions until some 9 days later.
Marshall was the supervisor/assistant manager of the Four Season Retail Store of the Lower court Marshall was convicted of theft
Army and Air Forces Exchange Service in Barksdale Air Force Base near Shreveport,
Louisiana. He had been working there for about 10 years when the incident occurred. ISSUE
Marshall was described as the “best supervisor that he had” and “that he was
(minor) WN Marshall was entitled to acquittal or to a new trial – New Trial.
extremely competent manager and I thought a great deal of him” by LEE, the
manager of the whole store who accused him of the theft. WN the testimony of Mr. Terri Stanlin, a safety and security investigator of military
post exchange service, is admissible – NO.
The lawn mower stolen was park of an end-of-summer sale of “Lawn Boy” lawn
o The fact that Marshall cross-examined her on the accuracy of her
mowers ($449, ngayon $335.95! big savings!). At around 11am one day, Lee had
testimony, did not make it admissible.
been off duty when he saw the Post Exchange van, curious (chimoso siya) he
HELD:
followed the van until in back into a driveway on Frederick Street. He saw someone
who looked like Marshall bring out 2 boxes from the van, one box he could see was Meritorious
marked as “Lawn Boy”, he had been ½ block away. For the reasons assigned, we REVERSE the conviction of the defendant Marshall, and
Lee then went to a nearby convenience store and called the shop to ask if Marshall we REMAND to the district court for a new trial in accordance with law.
was there. He wasn’t the employee, McLain, would corroborate this.
McLain testified that on that day, he helped Marshall load 2 “Lawn Boy” mowers into RATIO
a van destined for B-Bay storage. McLain also said that he got a call from an
unidentified caller at around 11:15 asking about Marshall (Lee’s call). He told the NEW TRIAL (NOT SO IMPORTANT I THINK)
caller (Lee) that Marshall was in B-Bay as far as he knew. Government contends that even if Ms. Stanlin’s testimony is inadmissible, the error
Another employee (unnamed in decision) said that he saw Lee exiting the base inside was harmless, arguing that the OTHER evidence overwhelming proves Marshall’s
the van. guilt.
Also, there was a key control record (logbook, kept by Bitner, another witness for o COURT FOUND THIS WAS NOT THE RIGHT ARGUMENT BECAUSE IT WAS
gov’t) introduced into evidence that showed Marshall initialed an entry for the key to STANLIN’S TESTIMONY THAT WAS SUPPOSE TO PROVE THAT THE MOWERS
that van but it didn’t indicated who got the key. WERE FROM FOUR SEASONS (an element of theft, that property of the
Testimony of Ms. Terri Stanlin, an investigator, said that 3 lawn mowers were claimant was stolen)
unaccounted for during the Four Season’s promo sale. (this is the evidence that Marshall argues that because the government failed to prove an essential element,
would later be found to be hearsay). dapat acquittal agad.
Page 12 of 52
Court held on this point that NEW TRIAL was proper, saying: W e consistently “have afforded Marshall's counsel access to all these records prior to trial, it overruled the
reversed convictions for introduction of inadmissible evidence and remanded for defense objection and permitted full examination of Ms. Stanlin of her deductions
new trial even when the only evidence in the record on an essential element was that from her (non-expert) examination of the records.
excluded.” (US v. Sarmiento-Perez) o Marshall correctly urges that, under the circumstances, this overruling of
When we reverse in such instance, the reversal is “considered a reversal for a trial his timely specific exception, was a continuing objection that need not be
error,” id., and “ ‘[i]t is axiomatic that the fifth amendment Double Jeopardy Clause repeated to preserve the objection to subsequent evidence admitted
does not prohibit the Government from retrying a defendant whose conviction has within the scope of the ruling.
been set aside on procedural grounds.’ ” (US v. Houltin) o Further, in such instance, the cross- examination of a witness as to the
inadmissible evidence, or the introduction by the ruling's opponent of
rebutting evidence, does not waive the vitality of his continuing
ADMISSIBILITY OF STANLIN TESTIMONY! objection, for the party is entitled to rely upon the trial judge's ruling as the
First, Stanlin’s testimony: law of the case, without waiving his rights under the continuing objection
o She was asked my Lee to determine if there were missing mowers. She to question
looked into the “reports, promotional merchandise worksheets, key control o Thus, the defendant Marshall did not waive his continuing objection to
records, price change vouchers, cash register journal tapes” testimony within the scope of the district court's ruling of admissibility by
o It should be emphasized that she testified as a lay fact witness as to her cross- examining Ms. Stanlin with regard to some of the documents she
deductions from the business records of the post exchange. While the relied upon in testifying as a fact that the records showed that three lawn
records were examined on suggestion of Bitner (the custodian), she was mowers were missing, or by introducing these documents in connection
not offered as an expert nor could she be have been qualified to give with this cross- examination-in order to show how unreliable was her
expert testimony. Bitlin was never called to the stand for this purpose. He estimate that any lawn mowers at all were missing from the store.
was called to authenticate the post exchange motor vehicle records (key o The situation would, of course, be different had Marshall introduced the
records to show Marshall borrowed a car), but not called or asked on direct documents for some purpose other than rebutting inadmissible evidence
to authenticate the store records with regard to the lawn mowers. improperly admitted over objection
o On direct examination by Prosecutor Jarzabek, he asked: “Q. Based on a OPINION TESTIMONY BY LAY WITNESS: If the witness is not testifying as an expert, his
review of those documents, did you determine how many lawnmowers testimony in the form of opinions or inferences is limited to those opinions or
were missing?”. BEFORE Stanlin replied, McMichael OBJECTED! The judge inferences which are (a) rationally based on the perception of the witness and (b)
had a Bench conference with both before he allowed her to answer. Stanlin helpful to a clear understanding of his testimony or the determination of a fact in
replied: Yes. There were 7 missing mowers. issue.
o Jarzabek then asked if there were any discrepancies indicating that fewer o On cross, Stanlin said: because of the absence of inventory records except
mowers were missing. Stanlin replied yes there are 2 discrepanicies: at the close of a year, “you could not determine at any given time exactly
The first discrepancy was in a journal tape from the register what was in the Four Seasons.” She admitted that, ordinarily, one would
which by taking closing and opening readings determined have to know how many lawn mowers were on hand at a given time in
approximately nine hundred and sixty dollars value of order then to determine, by counting subsequent sales and by physical
merchandise that could have been sold, the maximum. And that count of those still on hand, whether any lawn mowers were missing.
would be two lawnmowers sold that we would not have a record o Further: since the lawn mowers were a promotional item, she could
of. determine how many were on hand on August 1, 1983, before the
The second discrepancy was on the promotional merchandise promotional sale, because a special form called a Promotional Merchandise
worksheet which a figure was not accurate which could have also Worksheet was prepared for these promotional sales, telling how many on
accounted for two lawnmowers. hand at the beginning, how many sold, and how many remaining at the end
o So in the end, Stanlin testified na SURE at least 3 mowers were definitely of the sale.
missing, mowers priced at $449 but on sale at $335. o In response to above, defense should her the worksheet showing 15
o She/the government also admitted that the records wer “GIBBERISH” and mowers at the start and 15 mowers were sold. (So saan yung missing?)
could not be understood without explanation (see the bullet point on o Stanlin: one entry of a 1 was changed to a 3 by a certain Mrs. Newell
opinion testimony by lay witness) (ngayong lang siya namention), who was never brought to testify, that’s
In a bench conference, the trial court overruled the defense objection and permitted why she said it was 17.
Ms. Stanlin to testify as a fact that the store records showed that at least three lawn o Thus, to establish her beginning count, Ms. Stanlin did not rely on the
mowers were missing. Although the bench conference was untranscribed, both actual record of the store showing only 15 lawn mowers on hand at the
parties agree that during it, when the district court learned that the government had start of the period (and all accounted for by subsequent sales). Instead, she
Page 13 of 52
relied upon her own out-of-court investigation, including hearsay admissibility of extrinsic evidence to show bias, this evidence is otherwise covered by 402’s
information received by a declarant (Mrs. Newell) who did not testify, to allowance of “relevant” evidence. Proof of bias is relevant, and thus admissible. The District
conclude that the record should have shown 17 lawn mowers on hand- Court did not abuse its discretion in admitting Ehle's full description of the prison gang and its
from which “corrected” total tenets, since the type of organization in which a witness and a party share membership may be
ANOTHER FLAW IN STANLIN’S TESTIMONY, her count of mowers sold was also relevant to show bias. The attributes of the prison gang bore directly not only on the fact of
flawed. bias but also on the source and strength of Mills' bias. The tenets of this group showed that
o To determine how many mowers were sold, she counted the cash register
Mills had a powerful motive to slant his testimony towards Abel, or even commit perjury
tapes and counted the $335 figures that appeared (wow!). These tapes do
outright.
not describe what was sold. It only contained figures.
o To add on to the flaws, she said that not only 2 tapes were missing, but 7 It was not error under Federal Rule of Evidence 608(b) to cross-examine Mills about the prison
OR 8! (wow this place didn’t keep records). gang to show, in addition to Mills' bias, his membership in the gang's past conduct bearing on
o She further admitted that it was possible that these $335 figures could
his veracity. It is true that, because of the gang's tenets described, the testimony might also
have been meant to denote the sale of slightly defective merchandise sold
have impeached Mills' veracity directly. But there is no rule of evidence that provides that
at a discount. She did not have time to examine the ‘price change vouchers’
that would have reflected this. testimony admissible for one purpose(to prove bias) and inadmissible for another purpose(to
o Ito pa! according to Bitner (the custodian/crappy record-keeper), the sale impeach witness veracity) is thereby rendered inadmissible.
of defective goods was common and that everal of the tapes were missing
FACTS:
from the period of the promotional sale, perhaps because the clerks
sometimes forgot to change the tapes after they ran out, and that it was District Court Proceedings:
possible that “there could have been sales made during this period of time
on cash registers that did not have a tape properly placed on them.” John Abel (“Abel”) and two cohorts were indicted for robbing a savings and loan in
ADMISSIBILITY OF THE TESTIMONY Bellflower, Cal.
o Even with all the glaring flaws… it must be remembered that: The cohorts elected to plead guilty, but Abel went to trial.
o Hearsay nature of Ms. Stanlin's testimony when (1) based on statements in One of the cohorts, Kurt Ehle (“Ehle”), agreed to testify against Abel and identify him
records outside the evidence (the missing tapes) and (2) an admission of as a participant in the robbery.
evidence as to the contents of a record without production of the Abel sought to counter Ehle's testimony with that of Robert Mills (“Mills”).
document itself into evidence (altered 1 to 3 by Mrs. Newell), with Mills was not a participant in the robbery but was friendly with Abel and with Ehle,
moreover a (3) failure to authenticate the record by showing that it was and had spent time with both in prison.
what the proponent claims (Bitlin never testified). Mills planned to testify that after the robbery Ehle had admitted to Mills that Ehle
intended to implicate Abel falsely, in order to receive favorable treatment from the
Government.
The prosecutor in turn disclosed that he intended to discredit Mills' testimony by
IMPEACHMENT BY BIAS calling Ehle back to the stand and eliciting from Ehle the fact that Abel, Mills, and
2
1. US v. ABEL (KF) Ehle were all members of the "Aryan Brotherhood" .
No. 83-935 | December 10, 1984 | Rehnquist, J. Defense counsel objected to Ehle's proffered rebuttal testimony as too prejudicial to
Abel.
SUMMARY: Abel and two others were arrested for bank robbery. One of his alleged cohorts, District Court: The probative value of Ehle's rebuttal testimony outweighed its
Ehle, pled guilty and promised to testify against Abel in return for a light sentence. At trial, Abel prejudicial effect, but Abel might be entitled to a limiting instruction if his counsel
produced a witness, Mills, who testified that Ehle had told him that he was going to falsely would submit one to the court.
accuse and frame Abel. The trial court allowed the prosecution to put Ehle back on the stand to At trial Ehle implicated Abel as a participant in the robbery. Mills, called by Abel,
testify that Mills, Ehle and Abel were all part of the secret prison gang “Aryan Brotherhood”, testified that Ehle told him in prison that Ehle planned to implicate Abel falsely.
one of whose tenets was to lie for each other. CA reversed, holding that the testimony unduly When the prosecutor sought to cross-examine Mills, the District Court conferred
prejudiced Abel because mere membership in an illegal organization does not have any again with counsel outside of the jury's presence, and ordered the prosecutor not to
probative value with regard to veracity. use the term "Aryan Brotherhood" because it was unduly prejudicial.
HELD: The membership of Mills in the prison gang was sufficiently probative of Mills’ possible 2
A secret prison gang that required its members always to deny the existence of the organization and to
bias towards Abel to warrant its admission. Even though the rules do not expressly refer to the
commit perjury, theft, and murder on each member's behalf.
Page 14 of 52
Accordingly, the prosecutor asked Mills if he and Abel were members of a "secret evidence having any tendency to make the existence of any fact that is of consequence to
type of prison organization" which had a creed requiring members to deny its the determination of the action more probable or less probable than it would be without
existence and lie for each other. the evidence.
When Mills denied knowledge of such an organization the prosecutor recalled Ehle. o Rule 402 provides that all relevant evidence is admissible, except as otherwise
Ehle testified that they were indeed members of that org whose tenets required its provided by the United States Constitution, by Act of Congress, or by applicable
members to deny its existence and "lie, cheat, steal [and] kill" to protect each other. rule. A successful showing of bias on the part of a witness would have a
The jury CONVICTED Abel. On his appeal a divided panel of the Court of Appeals tendency to make the facts to which he testified less probable in the eyes of the
REVERSED. Hence, this CERTIORARI to the SC. jury than it would be without such testimony.
We think the lesson to be drawn from all of this is that it is permissible to impeach a
CA: witness by showing his bias under the Federal Rules of Evidence just as it was
permissible to do so before their adoption.
The contested evidence was admitted also to show that, because Mills belonged to a
perjurious organization, he must be lying on the stand. Probative Value of Ehle’s Testimony:
o This suggestion of perjury, based upon a group tenet, was impermissible.
It is settled law that the government may not convict an individual merely for belonging to Ehle's testimony about the prison gang certainly made the existence of Mills' bias towards
an organization that advocates illegal activity. Abel more probable. Thus it was relevant to support that inference.
o Rather, the government must show that the individual knows of and personally Bias is a term used in the "common law of evidence" to describe the relationship between
accepts the tenets of the organization. Neither should the government be a party and a witness which might lead the witness to slant, unconsciously or otherwise,
allowed to impeach on the grounds of mere membership, since membership, his testimony in favor of or against a party.
without more, has no probative value. It establishes nothing about the o Proof of bias is almost always relevant because the jury, as finder of fact and
individual's own actions, beliefs, or veracity." weigher of credibility, has historically been entitled to assess all evidence which
Ehle's testimony implicated Abel as a member of the gang; but since Abel did not take the might bear on the accuracy and truth of a witness' testimony.
stand, the testimony could not have been offered to impeach him and it prejudiced him Mills' and Abel's membership in the Aryan Brotherhood supported the inference that
"by mere association." Mills' testimony was slanted or perhaps fabricated in Abel’s favor.
o A witness' and a party's common membership in an organization, even without
ISSUE: Whether the admission of evidence tending to show bias on the part of a witness is proof that the witness or party has personally adopted its tenets, is certainly
inadmissible if it also tends to show that the defendant (Abel) was lying. - NO! It is admissible. probative of bias.
We do not read our holdings in Scales v. United States and Brandenburg v. Ohio because
HELD: The evidence showing Mills' and Abel's membership in the prison gang was sufficiently those cases dealt with the constitutional requirements for convicting persons under the
probative of Mills' possible bias towards Abel to warrant its admission into evidence. Thus it Smith Act for belonging to organizations which espoused illegal aims and engaged in
was within the District Court's discretion to admit Ehle's testimony, and the CA was wrong in illegal conduct.
concluding otherwise. o Mills' and Abel's membership in the Aryan Brotherhood was not offered to
convict either of a crime, but to impeach Mills' testimony. Mills was subject to
RATIO: no sanction other than that he might be disbelieved.
o Under these circumstances there is no requirement that the witness must be
What the Rules Provide Re: Impeachment for Bias: shown to have subscribed to all the tenets of the organization such as those
involved in Scales and Brandenburg.
The Rules do not by their terms deal with impeachment for "bias" but before the present For purposes of the law of evidence the jury may be permitted to draw an inference of
Rules were promulgated, the admissibility of evidence in the federal courts was governed
subscription to the tenets of the organization from membership alone, even though such
in part by statutes or Rules, and in part by case law. an inference would not be sufficient to convict beyond a reasonable doubt in a criminal
Case law: A trial court must allow some cross-examination of a witness to show bias. The prosecution under the Smith Act.
Confrontation Clause of the Sixth Amendment requires a defendant to have some
opportunity to show bias on the part of a prosecution witness. No Abuse of Discretion in Admitting Ehle’s Testimony
One commentator, recognizing the omission of any express treatment of impeachment
for bias, observes that the Rules "clearly contemplate the use of the above-mentioned Abel contends that the District Court abused its discretion because the prejudicial effect
grounds of impeachment." Other commentators treat bias as a permissible and of the contested evidence outweighed its probative value. He contends that the District
established basis of impeachment under the Rules. Court should not have permitted Ehle's precise description of the gang as a lying and
We think this conclusion is obviously correct. Rule 401 defines as "relevant evidence" murderous group.
Page 15 of 52
o This argument ignores the fact that the type of organization in which a witness 2. US v. HARVEY (CG)
and a party share membership may be relevant to show bias. The attributes of 547 F.2d 720 | 11/24/1976 | Kelleher, District Judge (United States CA, Second Circuit)
the Aryan Brotherhood bore directly not only on the fact of bias but also on the
source and strength of Mills' bias. The tenets of this group showed that Mills had Appellee: United States of America (US)
a powerful motive to slant his testimony towards Abel, or even commit perjury
Appellant: Ronald William Harvey (“Harvey”)
outright.
o In an attempt to avoid undue prejudice to Abel the court ordered that the name
"Aryan Brotherhood" not be used. The court also offered to give a limiting SUMMARY: In April 1975, Marine Midland Bank was robbed by a man dressed as a woman.
instruction concerning the testimony, and it sustained defense objections to the Mrs. Strickland, a teller, described the robber in full detail but was not able to make a positive
prosecutor's questions concerning the punishment meted out to unfaithful identification. The sole identification witness was Mrs. Martin, who testified that while passing
members. These precautions did not prevent all prejudice to Abel but they did by on a bus, she observed a man identified as Harvey walk down the steps of the Salvation
ensure that the admission of this highly probative evidence did not unduly Army and touch one of the two doors of the Main-High branch of the said bank. Mrs. Martin
prejudice respondent. first learned of the robbery of the on the news the same evening as that of robbery. Appellant
We hold there was no abuse of discretion under Rule 403 in admitting Ehle's testimony as sought to introduce testimony of Mrs. Harvey, which would have shown that Mrs. Harvey was
to membership and tenets. a long-time acquaintance of Mrs. Martin. Mrs. Harvey would have testified that during this
encounter Mrs. Martin accused appellant of fathering her child and refusing to support it and
that Mrs. Martin further explained that when her husband learned of this he beat her and
Re: Admissibility of Ehle’s Testimony under Rule 608(b)
broke her leg, necessitating the hospital treatment. However, the Trial Court refused to proffer
Abel cited the following errors under Rule 608(b) :
3 this testimony, and instead, convicted the appellant with bank robbery and bank larceny. The
o The prosecutor cross-examined Mills about the gang not to show bias but to issue is WON the Trial Court committed reversible error in excluding evidence proffered by the
offer Mills' membership in the gang as past conduct bearing on his veracity. defendant as to possible bias on the part of the government’s chief identification witness –
This was error because the mere fact of Mills' membership, without more, was YES. The law of evidence has long recognized that a cross-examiner is not required to "take the
not sufficiently probative of Mills' character for truthfulness. answer" of a witness concerning possible bias, but may proffer extrinsic evidence, including the
o Ehle's rebuttal testimony concerning the gang was extrinsic evidence offered to testimony of other witnesses, to prove the facts showing a bias in favor of or against a party.
impugn Mills' veracity, and extrinsic evidence is barred by the Rules. Because the testimony of Mrs. Harvey would have impeached Mrs. Martin's credibility by
It seems clear to us that the proffered testimony sufficed to show potential bias in favor of bringing before the jury prior inconsistent statements as well as demonstrate a possible bias on
Abel; because of the tenets of the organization described, it might ALSO impeach his Mrs. Martin's part, Rule 613(b), in effect at the time of trial, required that a proper foundation
veracity directly.
be laid by appellant's counsel. And this Court rules that it has been sufficiently established by
o But there is NO rule of evidence which provides that testimony admissible for
the defense counsel. Although the scope of a defendant's right to introduce evidence of bias is
one purpose and inadmissible for another purpose is thereby rendered
inadmissible. It would be a strange rule of law which held that relevant, not limitless, and may be restricted as the trial court in its sound discretion deems proper, it is
competent evidence which tended to show bias on the part of a witness was rarely proper to cut off completely a probative inquiry that bears on a feasible defense. Since
nonetheless inadmissible because it also tended to show that the witness was a Mrs. Martin was the sole identification witness at the trial, we cannot say that her testimony
liar. was not critical to the government's case against appellant. With identity as a principal issue in
We intimate no view as to whether the evidence of Mills' membership would be a specific the trial, appellant was denied an important opportunity to raise a reasonable doubt about his
instance of Mills' conduct which could not be proved against him by extrinsic evidence participation in the bank robbery by undermining the credibility of Mrs. Martin. Although
except as otherwise provided in Rule 608(b). It was enough that such evidence could Federal Rule of Evidence 403 vests trial courts with discretion to exclude evidence if its
properly be found admissible to show bias. probative value is substantially outweighed by the danger of prejudice, confusion, or delay, the
The judgment of the Court of Appeals is Reversed. trial court apparently did not exclude Mrs. Harvey's testimony on the basis of this
consideration. There is no indication in the record that Mrs. Harvey's testimony posed a
realistic possibility of confusion or prejudice, or would have caused a significant delay in the
3
proceedings.
"(b) Specific instances of conduct. -- Specific instances of the conduct of a witness, for the purpose of
attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may NOT
be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of FACTS
truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his On the afternoon of April 22, 1975, the Main-High branch of the Marine Midland Bank-
character for truthfulness or untruthfulness. . . ." (emphasis supplied) Western was robbed by a man dressed as a woman.
Page 16 of 52
Mrs. Florida Strickland, a teller at the bank, described the robber as a medium ISSUE: WON the Trial Court committed reversible error in excluding evidence proffered by the
complexioned black male in his early twenties, 5'11 to 6' in height, 160 lbs., slender build defendant as to possible bias on the part of the government’s chief identification witness – YES
with broad shoulders, five o'clock shadow and a prominent Adam's apple.
According to Mrs. Strickland, the robber was wearing a straight-haired wig pulled back into HELD: Reversed appellant’s conviction and remanded for new trial.
a bun, a blue denim hat, which did not obstruct a full view of the robber's face, gold wire
framed dark glasses, lipstick, rouge, a dark coat, and was carrying a 10 wide red print cloth RATIO
shoulder bag.
The law is well settled in this Circuit, as in others, that bias of a witness is not a collateral
Mrs. Strickland was not able to make a positive identification of the robber, and much of issue and extrinsic evidence is admissible to prove that a witness has a motive to testify
the evidence against appellant at the trial consisted of her description of the robber's falsely.
personal features and bank surveillance photos, which the jury was asked to compare to
The law of evidence has long recognized that a cross-examiner is not required to "take the
appellant.
answer" of a witness concerning possible bias, but may proffer extrinsic evidence, including
The sole identification witness at the trial was a Priscilla Martin who testified that on the the testimony of other witnesses, to prove the facts showing a bias in favor of or against a
afternoon of April 22, while passing by on a bus, she observed a man she identified as party.
appellant walk down the steps of the Salvation Army and touch one of the two doors of the
Special treatment is accorded evidence, which is probative of a special motive to lie "for if
Main-High branch of the Marine Midland Bank.
believed it colors every bit of testimony given by the witness whose motives are bared."
Mrs. Martin described the man as wearing red pants, a black coat, black platform shoes
This Circuit follows the rule, applicable in a number of other Circuits, that a proper
and a black floppy hat whose brim obstructed a view of his face from the nose up. She
foundation must be laid before extrinsic evidence of bias may be introduced. Prior to the
described his hairstyle as a frizzled bush, "an afro," but could not say whether it was a wig.
proffer of extrinsic evidence, a witness must be provided an opportunity to explain the
Mrs. Martin stated that the man was not wearing glasses and that she could not recall
circumstances suggesting bias.
lipstick but did remember seeing rouge.
Federal Rule of Evidence 613(b), which applies to extrinsic evidence of prior inconsistent
Mrs. Martin first learned of the robbery of the Main-High branch on the six o'clock news
statements, similarly requires that a witness be "afforded an opportunity to explain or
the evening of the 22nd. A week and a half later, she telephoned the bank to find out the
deny" the prior inconsistent statement.
time of the bank robbery, but did not leave her name or reveal any information about the
Because the testimony of Mrs. Harvey would have impeached Mrs. Martin's credibility by
robbery. She eventually spoke about the robbery with the FBI, which had learned of her
bringing before the jury prior inconsistent statements as well as demonstrate a possible
involvement through a friend of Mrs. Martin's husband.
bias on Mrs. Martin's part, Rule 613(b), in effect at the time of trial, required that a proper
Mrs. Martin had been acquainted with appellant for a number of years. She testified that
foundation be laid by appellant's counsel. Rule 613(b), however, relaxes the traditional
she knew the appellant for nineteen years and at one time had lived in the same house
foundation requirement that a witness's attention on cross-examination be directed
with him. On cross-examination, defense counsel questioned Mrs. Martin on whether she
specifically to the time and place of the statement and the person to whom made.
had ever had any trouble with appellant or ever had any arguments or disagreements with
The Rule provides, as has this Court in prior decisions concerning extrinsic bias testimony,
him, and specifically whether she ever accused appellant of fathering her child and then
that the witness be provided an "opportunity to explain or deny a prior inconsistent
failing to support this child.
statement."
Mrs. Martin denied these charges and further denied that appellant visited her in the
In cross-examining Mrs. Martin, defense counsel clearly asked her whether she had ever
hospital after birth of the child. Mrs. Martin also denied that she confided in appellant's
accused defendant of fathering her child, whether she had ever stated she would "take
mother, Mrs. Catherine Harvey, that appellant was the father of the child or that she stated
revenge" on the defendant and whether she had confided in Mrs. Harvey that defendant
that she would "take revenge" on appellant for not "owning up" to this child.
was the father of her child.
Following Mrs. Martin's testimony, appellant sought to introduce testimony of Mrs.
To each of the questions, Mrs. Martin answered no. Thus, on at least three occasions, the
Harvey, which would have shown that Mrs. Harvey was a long-time acquaintance of Mrs.
witness was afforded an opportunity to explain or deny circumstances suggesting
Martin, and that while Mrs. Harvey was on duty as a nurse in a Buffalo hospital, she
prejudice.
encountered Mrs. Martin, who was there for treatment of a broken leg.
Since Mrs. Harvey would have testified that all statements heard by her were made at the
Mrs. Harvey would have testified that during this encounter Mrs. Martin accused appellant
same identifiable time and identified place, the reference to Mrs. Harvey as the other party
of fathering her child and refusing to support it and that Mrs. Martin further explained that
to the conversation should have obviated any surprise to the government as to the when
when her husband learned of this he beat her and broke her leg, necessitating the hospital
and where of the proffered testimony. While defense counsel could have been more
treatment.
expansive in establishing his foundation, we find that it was sufficiently established.
Trial Judge -> refused this proffer of testimony, considering it "collateral" and inadmissible
Although the scope of a defendant's right to introduce evidence of bias is not limitless, and
under Federal Rule of Evidence 613(b). A verdict of guilty was found as to each of the two
may be restricted as the trial court in its sound discretion deems proper, it is rarely proper
counts of the indictment, the first charging appellant with bank robbery and the second
to cut off completely a probative inquiry that bears on a feasible defense.
with bank larceny.
Page 17 of 52
"(A) defendant should be afforded the opportunity to present facts which, if believed, Sons. Villalon, in a disbarment case filed against him, claimed that the said land was his
could lead to the conclusion that a witness who has testified against him either favored the contingent fee for successfully handling a civil case of the respondents’ family. The disbarment
prosecution or was hostile to the defendant. Evidence of all facts and circumstances which case is still pending. Petitioners introduced in evidence the testimonies of Neval, Ebuiza and
'tend to show that a witness may shade his testimony for the purpose of helping to Justina from the disbarment case to impeach their testimonies to the Civil Case. The TC granted
establish one side of a cause only,' should be received. (US v. Haggett) the Motion to Strike of respondents. The IAC affirmed the decision. The SC held that these
Since Mrs. Martin was the sole identification witness at the trial, we cannot say that her should not be impeached as it is a defense under Rule 132, Secs. 15 and 16. By Ordering the
testimony was not critical to the government's case against appellant. With identity as a Strike, the TC deprived the petitioners their right to impeach the credibility of the witnesses.
principal issue in the trial, appellant was denied an important opportunity to raise a
They were not allowed by the TC to prove that the respondents’ witnesses made inconsistent
reasonable doubt about his participation in the bank robbery by undermining the
testimonies in the two proceedings, thus putting to question their credibility. Petitioners be
credibility of Mrs. Martin.
given sufficient latitude to present and prove their impeaching evidence for judicial
Although Federal Rule of Evidence 403 vests trial courts with discretion to exclude evidence
if its probative value is substantially outweighed by the danger of prejudice, confusion, or appreciation.
delay, the trial court apparently did not exclude Mrs. Harvey's testimony on the basis of
FACTS
this consideration. There is no indication in the record that Mrs. Harvey's testimony posed
a realistic possibility of confusion or prejudice, or would have caused a significant delay in On May 16, 1979, Civil Case No. 2799 for "Annulment of Deed of Absolute Sale,
the proceedings. Indeed, given the importance of the bias testimony to the defense, Recovery of Possession and Damages" was filed by private respondent Catalina
whatever confusion or delay may have resulted from its admission would have to have NEVAL Vda. de Ebuiza, mother of the other private respondents all surnamed Ebuiza,
been overwhelming to satisfy Rule 403's balancing test. against petitioner Atty. Roman R. Villalon, Jr. and his sons, before the CFI of La Union,
The right to "place the witness in his proper setting and put the weight of his testimony for the recovery of a parcel of land located at Urbiztondo, San Juan La Union.
and his credibility to a test" is an essential safeguard to a fair trial. Exercise of this right is The land was also the subject of a Disbarment Case previously filed on July 22, 1975
particularly crucial where the witness offers damaging identification testimony, for in the in the SC by Francisco EBUIZA, charging Villalon with falsification of a deed of
absence of independent contrary evidence, a defendant must rely upon impeachment of absolute sale of that property in his and his sons' favor.
the witness's credibility. o Villalon claimed the land to be his contingent fee for the professional
The record reveals that appellant's conviction rests on the testimony of Mrs. Strickland as services he had rendered to EBUIZA's parents for successfully handling a
to a description of the robber, bank surveillance photos which the jury had an opportunity Civil Case (Paulino Ebuiza, et all vs. Patrocinio Ebuiza, et al.)
to review and compare to appellant's appearance, and the identification of Mrs. Martin. o The Disbarment Case was referred to the OSG for investigation, report and
We are not convinced that Mrs. Martin's testimony was an insignificant part of the case recommendation where testimonial evidence was received. The case still
against appellant and therefore find that denial of the opportunity to raise a reasonable pends thereat.
doubt as to identification by showing possible bias was prejudicial to appellant's right to a Petitioners introduced in evidence the testimonies of some of the respondents,
fair trial. namely, NEVAL, EBUIZA, and Justina Ebuiza in the Disbarment Case for the purpose of
impeaching their testimonies in the Civil Case.
Respondents filed a Motion to Strike from the records of the Civil Case all matters
relating to the proceedings in the Disbarment Case.
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT TC granted the Motion to Strike.
1. VILLALON v. IAC (RL) o TC opined that the admission of the contested evidence would violate
GR 73751 | 09/24/1986 | MELENCIO-HERRERA, J. Section 10, Rule 139 ROC providing that "proceedings against attorneys
shall be private and confidential".
Petitioner/s: ROMAN R. VILLALON, JR., ROMAN R.C. III, ROMAN F.C. IV, ROMAN A.C. V., JOSE o It maintained that Villalon "is not at liberty to waive the privilege of
CLARO C. and ARSENIO ROY C., all surnamed VILLALON confidentiality" of the proceedings in the Disbarment Case considering the
th
public interest involved "even if it would serve his interest," and that
Respondent/s: HON. IAC (4 SPECIAL CASES DIVISION), HON. INOCENCIO D. MALIAMAN Section 10, Rule 139 provides no exception.
(PRESIDING JUDGE OF RTC, BRANCH 29 AT SAN FERNANDO, LA UNION), CATALINA NEVAL VDA. Petitioners’ MR was denied. They filed a Petition for Certiorari, Prohibition, and
DE EBUIZA, CHILDREN OF PATROCINIO EBUIZA (JUSTINA, MARIANO, FELICIDAD, FRANCISCO, mandamus before IAC for the allowance of the testimonies.
EUGENIA, MARIA, MARCIANA, and SIMEON, all surnamed EBUIZA), IAC denied. "rulings of the trial court on procedural questions and admissibility of
evidence during the course of the trial are interlocutory in nature and may not be the
SUMMARY: Private Respondents filed a Civil Case to annul the deed of absolute sale and subject of separate appeal or review on certiorari."
recover the possession of a parcel of land in San Juan, La Union against Atty. Villalon and his
Page 18 of 52
o Even assuming that the TC erred, the recourse is to make a formal offer of issue raised in the Civil Case wherein the annulment of the said deed of
the evidence under Rule 132, Section 35. absolute sale is sought.
Even if the Order is interlocutory, it was issued in patent abuse of discretion. Hence,
ISSUE: W/N the testimonies of some of the respondents in the Disbarment Case should remain certiorari lies.
in the records of the Civil Case—YES. o Certiorari may be availed of to contest an interlocutory order to correct a
patent abuse of discretion by the lower Court in issuing the same.
HELD: o It may also be applied for when the broader interests of justice so require
or when ordinary appeal is not an adequate remedy. (applicable to case)
Meritorious The offer of evidence, while procedurally correct, would be inadequate and
ACCORDINGLY, the Court hereby SETS ASIDE respondent Appellate Court's Decision ineffective for purposes of impeachment.
and directs the RTC of La Union to allow the testimonies of private respondents, The broader interests of justice would require that petitioners be given sufficient
more specifically those of Catalina Neval Vda. de Ebuiza, Francisco Ebuiza and Justina latitude to present and prove their impeaching evidence for judicial appreciation.
Ebuiza San Juan, given in Administrative Case No. 1488 and all other references While proceedings against attorneys should be private and confidential (except for
thereto to remain in the records of the Civil Case. the final order which shall be made public), that confidentiality is a privileged/ right
TRO lifted. which may be waived by the very lawyer in whom and for the protection of whose
personal and professional reputation it is vested, pursuant to the general principle
that rights may be waived unless the waiver is contrary to public policy, among
RATIO
others.
Petitioners introduced the testimonies of respondents' witnesses in the Disbarment In fact, respondents' counsel also touched on some matters testified to by NEVAL in
Case for purposes of impeaching their credibility in the Civil Case. the disbarment proceedings and which were the subject of cross-examination.
Petitioners claim that respondents' witnesses "have given conflicting testimonies on
important factual matters in the disbarment case, which are inconsistent with their
present testimony and which would accordingly cast a doubt on their credibility." 2. PEOPLE v. RESABAL (QN)
That is a defense tool sanctioned by Sections 15 and 16 of Rule 132 providing: GR 26708 | 09/29/1927 | Villamor, J.
o Sec. 15. Impeachment of adverse party's witness.-A witness may be
impeached by the party against whom he was called, by contradictory Petitioner/s: People of the Philippines, plaintiff-appellee
evidence, by evidence that his general reputation for truth, honesty, or
Respondent/s: Alejo Resabal, defendant-appellant
integrity is bad or by evidence that he has made at other times statements
inconsistent with his present testimony, but not by evidence of particular SUMMARY
wrongful acts, except that it may be shown by the examination of the
witnesses, or the record of the judgment, that he has been convicted of an Alejo Resabal was accused and convicted of murdering Primo Ordiz in the deceased’s own
offense. home in the morning of April 25, 1926. On appeal, the defense alleges that one of the
o Sec. 16. How witness impeached by evidence of inconsistent statements. - witnesses, Glicerio Orit, made inconsistent statements before the justice of the peace (during
Before a witness can be impeached by evidence that he has made at other preliminary investigation) and the CFI (during trial) and must thus be ignored for not being a
times statements inconsistent with his present testimony, the statements credible witness. This apparent contradiction is not sufficient to discredit his testimony for the
must be related to him, with the circumstances of the times and places and
simple reason that this witness was not given ample opportunity, by a reading to him of his
the persons present, and he must be asked whether he made such
declarations before the court of the justice of the peace, to explain the discrepancies noted by
statements, and if so; allowed to explain them If the statements be in
writing they must be shown to the witness before any question is put to counsel for the accused. The mere presentation of Exhibit 1, without said declaration having
him concerning them. been read to the witness while he testified in the Court of First Instance, is no ground for
The TC deprived petitioners their right to impeach the credibility of the impeaching his testimony. Conviction was affirmed, but since there were not enough votes for
respondents’ witnesses through the Order to strike. the death penalty, the punishment was reduced to cadena perpetua.
They were not allowed to prove that the statements of such witnesses were
FACTS
inconsistent with the statements made during the trial and that such statements are
material to the issues in the Civil Case.
In the early morning of April 25, 1926, Primo Ordiz was shot inside his own home in
o The subject matter involved in the disbarment proceedings i.e., the alleged
Bogo, Maasin, Leyte. He was hit in his left lung and died.
falsification of the deed of absolute sale in petitioners' favor, is the same
Page 19 of 52
An Information for murder was filed against defendant Alejo Resabal in the CFI of GLICERIO ORIT IS A CREDIBLE WITNESS.
Leyte.It reads as such: o The defense argues that Orit is not a credible witness because he was
o “That on or about April 25, 1926, in the municipality of Maasin, Province of excluded from the Information.
Leyte, Philippine Islands, the said accused, willfully, unlawfully and o The mere fact of having been excluded from the information to be used as
criminally, with treachery and evident premeditation, conspiring amongst a witness for the Government, does not prevent this witness from telling
themselves and acting in common agreement and taking advantage of the truth in this case, especially in the absence of proof showing the
nocturnity, mutually aiding each other, opened the window and killed interest he might possibly have in testifying against the accused.
Primo Ordiz by means of a shot from a 'Smith' 38 caliber revolver, inflicting THE APPARENT CONTRADICTIONS IN ORIT’S TESTIMONY IS NOT ENOUGH TO DISCREDIT HIM.
a wound in the upper part of the left nipple, which produced the instant o The defense argues that there were inconsistencies between his
death of said Primo Ordiz. declarations before the justice of the peace (during preliminary
investigation) and before the CFI (during trial). (It was never explained in
Contrary to law.” the case what the contradiction was.)
Glicerio Orit, witness, testified that he was with the accused on the morning of April o DOCTRINE: This apparent contradiction is not sufficient to discredit his
25, 1926 at the house of the deceased Primo Ordiz. Accused Resabal invited him testimony for the simple reason that this witness was not given ample
there to kill Primo Ordiz. When they arrived, Resabal went into the ground, but Orit opportunity, by a reading to him of his declarations before the court of the
left the place. At a distance of 15 brazas, he heard an explosion. justice of the peace, to explain the discrepancies noted by counsel for the
Jose Ordiz, nephew of the deceased, testified that he also heard the explosion and accused. The mere presentation of Exhibit 1, without said declaration
was awakened by it. He saw his uncle Primo vomiting blood and unable to speak. having been read to the witness while he testified in the Court of First
(Corroborates Orit’s testimony.) Instance, is no ground for impeaching his testimony.
Carmelo Ordiz, witness, testified that the accused told him that the revolver used in THE DEFENSE DID NOT IMPEACH CARMELO ORDIZ’S TESTIMONY.
the crime was hidden in Carmelo’s property. Out of fear, Carmelo transferred it to a o The defense argues that it is improbable that Resabal invited Carmelo to kill
neighboring lot. With his directions, the chief of police was able to find the gun Primo because Carmelo is a cousin of Primo.
wrapped in two pieces of cloth. These pieces of clothing, together with some other o Under normal circumstances, the invitation would seem improbable, but
torn pieces found in the accused kitchen, formed a complete pair of drawers (kind of not if it is considered that the accused thought that Carmelo was still
underwear). It was torn up to wrap the revolver. Primo’s enemy.
The motive, as shown by the evidence presented, was resentment by Resabal against Resabal’s subsequent conduct of visiting the deceased’s family and helping prepare
Primo Ordiz. Some 20 days before the incident, the accused had a disagreement with his burial is not incompatible with his being a criminal, as the defense argues. it was
the deceased because a carabao under the care of Resabal caused damage to Primo’s done to avoid suspicion of guilt.
coconut trees. Resabal asked Primo to return the carabao but Primo refused to do so The evidence shows that Resabal is indeed guilty, but there were not enough votes to
before he was paid the value of the trees destroyed. affirm the death penalty so the penalty was reduced to cadena perpetua.
The CFI convicted him of murder, with the aggravating circumstances of evident
premeditation, nocturnity and dwelling, and imposed the death penalty.
ISSUE W/N Resabal’s conviction must be affirmed - YES 3. US v. WEBSTER (CP)
United States Court of Appeals, Seventh Circuit.
HELD: In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of the UNITED STATES of America, Plaintiff-Appellee, v. Clinton WEBSTER, Defendant-Appellant.
crime of murder, committed with treachery, on the person of Primo Ordiz, and with the 734 F.2d 1191, 15 Fed. R. Evid. Serv. 885
modification of the judgment on review, the penalty of cadena perpetua is imposed on the
accused, with the accessories of Article 54 of the Penal Code, the judgment of the trial court SUMMARY: Webster was of aiding and abetting robbery of a federally insured bank and
being affirmed in all other respects, with the costs against the appellant. So ordered. receiving stolen bank funds, and he appealed. The Court held that: (1) impeachment by prior
inconsistent statement may not be permitted where it is employed as a mere subterfuge to get
RATIO before the jury evidence not otherwise admissible, and (2) where prosecutor, before she called
witness to the stand, asked judge to allow her to examine him outside presence of jury,
RESABAL’S DEFENSE OF ALIBI IS NOT SUFFICIENT because she didn't know what he would say, but defense counsel objected and voir dire was
o He alleges that he was sleeping in his house when the crime occurred. not held, it could not be said that prosecutor was engaged in a subterfuge to get inadmissible
However, his house is just a short distance from the deceased’s house. He evidence before jury by calling witness and then using his out-of-court statements, which
could have easily gone out unnoticed. would otherwise have been inadmissible hearsay, to impeach him, since prosecutor would not
Page 20 of 52
4
have offered to voir dire witness, as voir dire would have provided a foundation for defense to object, under Morlang , to the admission of King's prior inconsistent
counsel to object to admission of witness' prior inconsistent statements. statements.
Webster urges us, on the authority of Graham, Handbook of Federal Evidence Sec.
FACTS 607.3 (1981 and Supp.1983), to go beyond the good-faith standard and hold that the
government may not impeach a witness with his prior inconsistent statements unless
Webster, was convicted of aiding and abetting the robbery of a federally insured it is surprised and harmed by the witness's testimony.
bank and receiving stolen bank funds, was sentenced to nine years in prison, and But we think it would be a mistake to graft such a requirement to Rule 607,
appeals. even if such a graft would be within the power of judicial interpretation of
The government called the bank robber, King (who had pleaded guilty and been given the rule. Suppose the government called an adverse witness that it thought
a long prison term), as a witness against Webster. would give evidence both helpful and harmful to it, but it also thought that
King gave testimony that if believed would have exculpated the defendant, the harmful aspect could be nullified by introducing the witness's prior
whereupon the government introduced prior inconsistent statements that inconsistent statement. As there would be no element of surprise,
King had given the FBI inculpating Webster. Professor Graham would forbid the introduction of the prior statements.
Although the court instructed the jury that it could consider the statements only for Yet we are at a loss to understand why the government should be put to
purposes of impeachment, Webster argues that this was not good enough. the choice between the Scylla of forgoing impeachment and the Charybdis
Webster argues that the government should not be allowed to get inadmissible of not calling at all a witness from whom it expects to elicit genuinely
evidence before the jury by calling a hostile witness and then using his out-of-court helpful evidence.
statements, which would otherwise be inadmissible hearsay, to impeach him. The good-faith standard strikes a better balance; and it is always open to
the defendant to argue that the probative value of the evidence offered to
ISSSUE: Whether the conviction should be affirmed - YES. Here, impeachment evidence was impeach the witness is clearly outweighed by the prejudicial impact it
not used to place otherwise inadmissible evidence before the jury because the prosecution did might have on the jury, because the jury would have difficulty confining use
not know that the co-defendant would not give useful evidence. of the evidence to impeachment.
The conviction was affirmed.
RULING
Rule 607 of the Federal Rules of Evidence provides: "The credibility of a witness may
be attacked by any party, including the party calling him." But it would be an abuse of IMPEACHMENT BY OTHER MEANS
the rule, in a criminal case, for the prosecution to call a witness that it knew would
not give it useful evidence, just so it could introduce hearsay evidence against the
defendant in the hope that the jury would miss the subtle distinction between 1. MOSLEY v. COMMONWEALTH (RR)
impeachment and substantive evidence--or, if it didn't miss it, would ignore it. 420 S.W.2d | 11/10/1967 | WADDILL, Comissioner.
The purpose would not be to impeach the witness but to put in hearsay as
substantive evidence against the defendant, which Rule 607 does not contemplate or Petitioner/s: TOMMY LOU MOSLEY, appellant.
authorize. We thus agree that "impeachment by prior inconsistent statement may Respondent/s: COMMONWEALTH OF KENTUCKY, appellee.
not be permitted where employed as a mere subterfuge to get before the jury SUMMARY: 27y.o. Geraldine Eden was employed by the Ashers as a full-time babysitter. One
evidence not otherwise admissible." time, while the family was away, the accused, 54y.o. Tommie Lou Mosley, visited the Asher
GOOD FAITH STANDARD. But it is quite plain that there was no bad faith here. Before home. Geraldine alleges that she was then raped by the latter. The issue in this case is the
the prosecutor called King to the stand she asked the judge to allow her to examine lower court’s refusal to permit the jury to consider the expert testimony of Dr. Gay, a clinical
him outside the presence of the jury, because she didn't know what he would say. psychologist. Dr. Gay is of the opinion that Geraldine is schizophrenic and is an immature
The defendant's counsel objected and the voir dire was not held. individual, and the defense wants to use this opinion to impeach Geraldine’s testimony. Court
We do not see how in these circumstances it can be thought that the ruled that the testimony of Dr. Gay is relevant, competent, and should have been received, not
prosecutor put King on the stand knowing he would give no useful in extenuation of rape, but for its bearing upon the question of the weight to be accorded
evidence. If she had known that, she would not have offered to voir dire Geraldine’s testimony. Generally a witness may be impeached only as specified in our Rules of
him, as the voir dire would have provided a foundation for defense counsel Civil Procedure. However, the modern trend is to permit the jury to consider expert testimony
in the field of mental disorders and relax the rule in sex offense cases.
4
Morlang was decided before the Federal Rules of Evidence became effective. However, the limitation on
the prosecutor's rights under Rule 607 has been accepted in all circuits that have considered the issue.
Page 21 of 52
(Short case. It was written concisely so I included almost everything ) readmitted for treatment on a voluntary basis during 1964
has been treated by Doctor Gay since September 1965
FACTS He believed that Geraldine was in a state of remission at the time of the
The record reflects that for several months prior to May 11, 1966, the date of the alleged rape, but it was his opinion that she is schizophrenic and is an immature
alleged offense, Geraldine Eden, the prosecuting witness, had been staying in the individual
home of Elihu Asher where she was employed as a full-time baby-sitter. She could not tolerate frustration, was easily disturbed and had a
Geraldine, 27 y.o., testified that during the evening of May 11, 1966, the Ashers had guilt complex
left their residence to go bowling. Schizophrenia, a complex condition, is a disturbance of behavorial
Appellant, an acquaintance of Geraldine and a relative of Asher entered the Asher effect and thinking which has not been found to be caused or related
home to stay overnight. to any physical or organic condition, but it has a psychiatric origin, i.
e. an emotional basis
Geraldine’s version:
schizophrenia is manifested, among others, through fantasies
- after the Asher children went to bed, appellant tried to make love to her
when asked whether Geraldine's fantasies extend to the area of sex,
- when she resisted, he forcibly tied her hands behind her back, pushed her down he answered, "In this particular case I think it does."
on a couch, removed her underclothing and raped her.
Appellant’s version: ISSUE WN the lower court (note: no mention of court of appeals) erred in not permitting
- Appellant, age 54, testified that upon his arrival at the Asher residence the jury to consider the testimony of Dr. Gay – YES
Geraldine informed him that she wanted to talk with him before he retired.
- He had waited only a short time when Geraldine came over and sat beside him HELD:
on a couch where they immediately began making love and Geraldine We conclude that the jury was entitled to hear and consider the testimony of Doctor
voluntarily submitted to sexual intercourse with him as she had on several Gay and that its exclusion constituted prejudicial error in the case.
previous occasions. The judgment is reversed with directions to grant appellant a new trial.
- After intercourse they went to the kitchen and Geraldine prepared a snack for
them. RATIO
- To his surprise, when they were later questioned that night as to their conduct, The Commonwealth relied upon the uncorroborated testimony of Geraldine to
Geraldine said he raped her. (Note: it was not mentioned bakit sila establish its case against appellant. Thus, Dr. Gay's testimony may have had an
pinagdudahan at tinanong haha) important impact on the jury as it tended to impeach Geraldine's credibility.
Lower court refused to permit the jury, for the purpose of impeaching Geraldine’s It is our opinion that the proffered testimony of Doctor Gay was relevant and
credibility, to consider the testimony of Dr. Gay concerning Geraldine’s mental competent and should have been received, not in extenuation of rape, but for its
condition. bearing upon the question of the weight to be accorded Geraldine's testimony. For
Stuff about Dr. Gay and Geraldine’s condition: this reason the court should admonish the jury that the expert testimony should be
- has obtained a Ph D degree in psychology and has been licensed by the state of considered by it only for the purpose of affecting the credibility of this witness, if it
Kentucky as a clinical psychologist. does so.
(***Clinical psychology as defined by a Kentucky statute includes the Generally a witness may be impeached only as specified in our Rules of Civil
administration of tests for the purpose of psychological diagnosis, classification Procedure.
and evaluation and recognizes services involving the reeducation, guidance or However, the modern trend is to permit the jury to consider expert testimony in the
readjustment of the patient.) field of mental disorders and relax the rule in sex offense cases.
- is a member of the American and Kentucky Psychological Associations McCormick (in his treatise on Evidence): “Naturally, the use of psychiatric testimony
- is presently the psychologist in charge of the Fayette County Program, a special as to mental disorders and defects suggests itself as a potential aid in determining
program at Eastern State Hospital for outpatient treatment the credibility of crucial witnesses in any kind of litigation. In one type of case,
- is the one who is in charge of the treatment of Geraldine's mental disorder namely that of sex offenses, the indispensible value of this kind of testimony has
- he testified, by way of avowal out of the presence of the jury, that: been urged by Wigmore, and other commentators, and such testimony has been
Geraldine had entered a state hospital for mental treatment during October widely received by the courts.”
1961 Also, Wigmore’s book on Evidence includes a thorough compendium supporting the
that time she was complaining that her father and brothers had view of admitting in evidence expert testimony.
molested her sexually during her adolescence State v. Armstrong:
she was discharged from the hospital in January 1962 - It is always open to a defendant to challenge the credibility of the witnesses
Page 22 of 52
offered by the prosecution who testify against him. FACTS

- What could be more effective for the purpose than to impeach the mentality or
the intellectual grasp of the witness? If his interest, bias, indelicate way of life, While the parties were married to their former wives, the 2 couples belonged to the
insobriety and general bad reputation in the community may be shown as same social group; frequently met at card parties, dances, other social diversions
bearing upon his unworthiness of belief, why not his imbecility, want of [Roaring ‘20s peg]
understanding, or moronic comprehension, which go more directly to the point? Coles contended that, in 1923, he noticed that Harsch was developing a propensity
United States v. Hiss: for wrestling with his wife and engaging in other similar play with her [Gatsby
- The existence of insanity or mental derangement is admissible for the purpose peggers]
of discrediting a witness. o Harsch’s propensity grew more pronounced; he employed it for winning
- Evidence of insanity is not merely for the judge on the preliminary question of the affections of Cole’s wife. Wife divorced Coles, then married Harsch.
competency, but does to the jury to affect credibility. Coles sued Harsch for alienating of wife’s affections. Trial Court ruled for Coles.
Note also Giles v. State of Maryland which concerns itself with the prosecution's Harsch appealed to the Oregon SC.
suppression of evidence relating to the credibility of the prosecution's witnesses.
(nothing was said further) HELD: Reversed and remanded.
*In Issues/Ratio(SC) format; I phrased the issues based on an online brief of the case.
W/N A PROPER FOUNDATION WAS LAID FOR COLES’ IMPEACHMENT OF THE DEFENSE WITNESS, MR. THOMPSON. –
2. COLES v. HARSCH (RS) NO. [relates to §13, R132 on impeachment]
276 P.248 (1929) | Rossman, J. | SC of Oregon
Plaintiff: Oliver Coles | Defendant: Chester Harsch MR. JAMES THOMPSON Harsch’s witnesses; Thompson spouses – members of
*Really long, untidy opinion; added notes in the body of the digest; see summary for relevant Harsch’s social group
issues. o His testimony covered the wrestling encounters, and the relationship
between Harsch and Mrs. Coles.
o If his testimony was accepted as truthful by the jury, Harsch’s conduct
SUMMARY
towards Mrs. Coles was the same as his conduct towards other women
Coles and Harsch and their wives were part of the same social group. Harsch had a propensity friends, and was proper and harmless.
for engaging Coles' wife in 'wrestling matches'. Coles did not approve of this behavior. o Nothing developed upon cross-examination which obviously discredited
Eventually Coles' wife left him and filed for divorce, then married Harsch. Coles sued Harsch, this witness; but, upon rebuttal, Coles was permitted over objection to
allegint that Harsch had maliciously shown "improper affection" to Coles wife, resulting in her testify that, “at the time I was in the garage where he works,” Thompson
becoming alienated and leaving him. At trial, Harsch called a guy named Thompson as a told him that, at a picnic held on the banks of the Pudding river, the
witness. Thompson testified that Harsh wrestled with a lot of people's wives and it was totally conduct of Harsch and Mrs. Coles towards each other was disgraceful.
harmless. Later, Coles testified that Thompson once told him that Harsch's behavior was o Harsch objected to the question, but Cole’s counsel stated that the purpose
disgraceful. Harsch objected on the grounds that the testimony was hearsay. Coles argued that of the contemplated answer was to “go to the credibility of Thompson.”
the testimony was meant to impeach the credibility of Harsch as a witness, not to prove the Objection overruled.
truth of the matter asserted. Harsch argued that Coles never asked Thompson about the o GIST: Thompson testified that Harsch’s conduct towards Mrs. Coles was the
same as his conduct towards other women and is, therefore, harmless.
incident while cross-examining him, and therefore it was improper to introduce Coles'
Subsequently, Coles, upon a question posed by his counsel, testified that
testimony to impeach Thompson. The Trial Judge admitted the testimony. TC ruled for Coles.
Thompson told him in a previous conversation that Harsch’s and Mrs.
Harsch appealed. The Oregon SC reversed. W/N a proper foundation was laid for Coles’ Coles’ conduct towards each other was disgraceful. Coles’ counsel
impeachment of the defense witness, Thompson. – NO. The Oregon SC looked to Oregon State explained that the contemplated answer was intended to impeach the
rules of evidence and found that in order to introduce a prior statement impeaching a witness, Thompson. Harsch objection to the question was obviously
witness, you must ask the witness about the alleged prior statement during cross- overruled.
examination, and give them the opportunity to explain the prior statement. W/N Coles could o [DOCTRINE] SC essentially said that objection should have been sustained.
introduce an impeaching question on a collateral matter, or additional evidence of collateral Harsch’s objections to the questions, which elicited the above
matters. – NO. Coles inquired as to what his former wife had told Harsch about her intention to answer, were specific and were reiterated; they were to the
return to Oregon. Coles said that said question was to be used as an impeaching question. SC effect that if Coles sought this information to substantiate the
said that if the plaintiff sought this information merely for the purpose of catching the charges of his complaint, the inquiry was in violation of the
defendant in an untruth, the objection should have been sustained. hearsay evidence rule: That if Coles sought the answer for the
Page 23 of 52
purpose of impeaching Thompson, he had not laid the proper It may be that Thompson was untruthful, but before Coles could
foundation by making a similar inquiry of Thompson avail himself of such an argument, he should have prepared the
accompanied with the details of time, place, and persons necessary premise by submitting to Thompson the alleged
present. statement accompanied by the identifying circumstances.
Section 864, Or. L. [§13, R132] provides: “A witness may also be impeached by Since this was not done, error was committed when the
evidence that he has made, at other times, statements inconsistent with his present impeaching witness [Coles] was permitted to answer.
testimony; but before this can be done, the statements must be related to him, with
the circumstances of times, places, and persons present; and he shall be asked W/N COLES COULD INTRODUCE AN IMPEACHING QUESTION ON A COLLATERAL MATTER, OR ADDITIONAL EVIDENCE
whether he has made such statements, and if so, allowed to explain them. If the OF COLLATERAL MATTERS. – NO.
statements be in writing, they shall be shown to the witness before any question is
put to him concerning them.” Upon cross-examination of Harsch, Coles was permitted to inquire over the former’s
o Thus, it is necessary to examine the inquiries propounded to Thompson objection as to what the latter's former wife had told him [Harsch] about her
and determine whether a similar question was put to him which complied intention to return to Oregon.
with this statutory rule. Coles stated his purpose as follows: “I am going to use this as an impeaching
o This requirement does not invoke an idle ceremony, but is intended to question.”
serve a useful purpose Every witness, whose testimony is shown in SC says, however, that the inquiry was upon a collateral matter.
conflict with a previous statement made by him, is not necessarily [DOCTRINE] TEST OF COLLATERALNESS: “Could the fact, as to which the prior self-
revealed thereby as a dishonest person; the impeachment, in many contradiction is predicated have been shown in evidence for any purpose
instances, may uncover only a faulty memory in the discredited witness. independently of the self-contradiction?”
o The requirement that the identifying circumstances of time, place, those o If the plaintiff sought this information merely for the purpose of catching
present, and the statement that the witness then made shall be related to the defendant in an untruth, the objection should have been sustained.
him, is founded upon the experience that a witness, who has stoutly denied Coles was permitted, over Harsch’s objections, to read in evidence an affidavit
having made an alleged statement, may finally blushingly and [signed by Harsch] which averred the non-presence in Oregon of his wife; this was
apologetically admit it, when the questioner throws into association with it employed as the basis for publication of summons in the latter's suit for a divorce.
identifying circumstances. Coles contends that this evidence showed that Harsch was planning to get rid of his
o It is a common observation that associated ideas, as they are related, one wife so as to be in a position to marry his [Coles’] wife.
after another, not infrequently succeed in upturning a fact which previously Complaint alleged, and the answer admitted, that prior to January 1926, Harsch was
had defied all efforts of recollection. married to Coles’ sister, and that in that month his [Coles’] wife obtained a divorce
o This rule of evidence is intended to reveal not only the dishonest witness, from him upon a cross-complaint in a suit filed by him.
but is also intended to afford all witnesses ample opportunity to recall a SC: Inquiries into the intricacies of that suit would merely import into this case an
fact before they may be assailed as dishonest. unnecessary collateral issue. The objection should have been sustained.
o The requirement also tends to reduce to the minimum a confusion of issues
by eliminating unnecessary impeachments [Wigmore].
On direct examination, Thompson was asked concerning a conversation he had had W/N IT WAS HARMLESS ERROR TO EXCLUDE EVIDENCE THAT RELATED TO THE CONDUCT OF THE WRESTLING SOCIAL
with Coles at the Bybee Avenue Garage. CIRCLE. – YES, IT IS HEARSAY. [Relates to doctrine of verbal acts; irrelevant]
o He said that the conversation occurred so long ago that his recollection had
become somewhat vague, but he recalled that, at that time, Coles said that Harsch next argued that it was error for Coles to be permitted to testify to matters
his wife was going to get a divorce. inadmissible for the purpose of offering testimony to prove the state of feeling
o No further questions were asked him on direct examination concerning between him and his former wife, but which he employed to the disadvantage of the
that conversation. defendant. The ff. are some of the instances from which Harsch’s assignment of error
o The time of this conversation was not fixed, nor were those present arose.
st
mentioned, and he was asked nothing concerning the Pudding river 1 instance: Mrs. Coles came to the shop where plaintiff was employed.
incident. o The latter asked her whether she came by streetcar [trams] or by
o On cross-examination he was asked whether he recalled “talking to Mr. automobile.
Coles about that trip to the Pudding river.” o He was permitted, over objections, to testify that she replied that she had
He said no This was the only foundation laid for the come by the streetcar and not by automobile.
impeaching question; SC said it was insufficient. o Mrs. Coles' reply, as related by the plaintiff, had no tendency to show that
state of feeling between husband and wife.
Page 24 of 52
o Plaintiff does not seem to claim that it possesses any such quality, but the influence of the physical or mental feeling in question, and disclosing his
argues that this evidence was very important, “as it shows that Harsch subjection to it, are not hearsay, but are original evidence. ”
brought plaintiff's wife over to the shop and he kept at a safe distance.” SC: the declarations made by the one to the other concerning their property rights,
o SC: Hearsay evidence rule was violated when the statement was used for while they were conferring upon that subject, could not be said to constitute the
this purpose. natural and spontaneous verbal manifestations of emotion.
nd
2 instance: Mrs. Coles left plaintiff's home; thereafter, he endeavored to persuade o The plaintiff had previously detected a cooling off of his wife's affections;
her to return; when his efforts proved fruitless, he consulted an attorney so as to on prior occasions the two had discussed some burdensome debts, which
arrange for a divorce suit on behalf of his wife. had recently been incurred. When it seemed necessary to employ an
o Mrs. Coles and plaintiff held a conference concerning the adjustment of attorney for the divorce suit, their financial condition again was mentioned,
their property rights. and its unsatisfactory condition caused the plaintiff to employ an attorney
o Over Harsch’s objections, plaintiff was permitted to narrate what occurred whom he believed would be fair to both, rather than for each to secure an
at this conference as follows: individual attorney. Under these conditions, we believe it is evident that
“During the time between the separation and the divorce, while when the two finally met to divide their small estate, the bartering did not
the papers were being drawn up, we got to talking one night consist of spontaneous declarations revealing affection or its absence, but
about the place that we owned. We owned it jointly. And I asked that their proposals and counter proposals were the product of calculation,
her how much she figured was hers. She says she didn't know. I deliberation, and reflection. Such declarations do not have their
says, ‘Well, if I sell the place and pay off what I owe, doctor bills promptings in the emotions of the heart, nor in the rancor of the spleen,
and so on, there will be about $700.00 left.’ I says, ‘How much of but find their inception in the business acumen of the parties. Such being
that do you think you are entitled to?’ Well, she says, ‘I don't their nature, these declarations were not admissible as verbal acts.
know.’ She says, ‘All I want is enough to live on for about six Harsch argues in his brief alleged errors predicated upon the denial of his motions for
months' and I says, ‘Well, I will tell you what I will do, I will give a nonsuit and a directed verdict. We have carefully read the testimony covering over
you $500.’ But I says, ‘I cannot pay you all at once, I will pay you 500 pages. We deem it unnecessary to set forth a review of the evidence. The court
so much a month;’ I says, ‘Will fifty a month be enough’--which I did not err when these motions were denied.
had already agreed to pay her fifteen dollars a month for the We have carefully considered all other assignments of error. Believing that upon a
child--and I says, ‘That will make you sixty-five a month.’ I says, new trial, the situations which constitute the basis for these assignments are not
‘Will that be enough?’ She said, ‘Yes,’ she could get along very likely to present themselves, we do not deem it necessary to comment upon them.
nicely on that for about six months.'' Reversed and remanded.
And still later he was permitted to add that he discharged the
installment payments faithfully month by month. *Other doctrines:
All of this evidence was received for the purpose of showing “just what attitude or
frame of mind the parties were in in this matter, or the frame of mind the plaintiff's Harsch assigns error predicated upon the refusal of the court to permit him to show
former wife was in towards the defendant.” that others in their social group engaged in similar acts of wrestling, and that none
Pugsley v. Smyth the admissibility of verbal acts to prove the state of feeling of complained.
one to another is carefully explained in an exhaustive opinion written by former o Harsch wanted to show that he had complied with that dubious code of
Justice Harris. We quote: “The doctrine which sanctions the admission of verbal conduct which is indicated by the formula, “When in Rome do as the
utterances constitutes an exception to the hearsay rule rather than a violation of it. Romans do,” and that therefore his repeated acts of roughing Coles’ wife
The exception arises out of the ultimate fact, which is disclosed in the final analysis, could not constitute the foundation for this action [asus].
that the utterance is in truth a natural and spontaneous verbal manifestation of an o But, SC says: An ordinary juror can readily determine the probable result
emotion, just as a facial expression or a gesture is the wordless manifestation of an of a man wrestling with another's wife, rolling upon her on the floor,
emotion; and it matters not whether we call the vocal utterance a verbal act or a part tearing her clothes, and engaging in similar acts of buffoonery.
of the res gestæ or original evidence, for it is within the knowledge of all persons that o Hence, no error was committed when this evidence was excluded
a vocal utterance may be indicative of the feeling that inspired it just as a suddenly On privileged communication:
flushed check may be indicative of shame or surprise, or just as shattered nerves or o Communications between husband and wife in presence of third parties
trembling hands or a whitened face may be the natural and uncontrollable are not privileged.
manifestations of fear. When, therefore, the state of a person's mind is the subject of o In action for alienation of affections of wife subsequently wedded to
inquiry, it is ofttimes competent to consider verbal utterances made by that person.” defendant, defendant cannot claim privilege where plaintiff testified as to
Roesner v. Darrah the court expressed the rule thus: “When the inquiry involves communications made to him by former wife.
the existence of a bodily or mental state, the declarations of the party, when under
Page 25 of 52
3. US v. MEDICAL THERAPY SERVICES (DU) ISSUES: w/n trial court erred in permitting the Government to present character evidence in its
Plaintiff-Appellee: UNITED STATES of America rebuttal case to support Barbara Russell's credibility?
Defendants-Appellants: MEDICAL THERAPY SCIENCES, INC., and Stanley Berman HELD: NO! Introduction of character evidence was proper.
Aug. 2, 1978; 583 F.2d 36 United States Court of Appeals, Second Circuit
RATIO
SUMMARY: PURJURY CASE (IRRELEVANT)
Berman was shown to have devised a scheme to wrongfully obtain payments from both the though Berman admits having been informed that he was the "target" of the grand
Connecticut and New York insurance carriers for the same transaction. Berman also claimed jury investigation, he argues that the Assistant United States Attorney who conducted
more expensive equipment than what was actually provided to patients. He also claimed the proceedings failed to sufficiently inform him of the substantive nature of the
supplies which were not used by the patients. Barbara Russel, a former trusted employee, inquiry.
testified against Berman. US introduced Russell’s prior convictions. Then Trial Court, allowed FALSE! Berman was informed that the investigation involved possible abuse of the
introduction of character evidence to bolster Russell’s credibility. Jury convicted Berman. Medicare program, and that he could consult with an attorney outside of the grand
Berman, on appeal, questioned TC’s order allowing the introduction of Character evidence. jury room if he had any questions. We do not believe him so unsophisticated that he
According to Berman, Russell’s credibility was not attacked by him. In fact it was the was misled in any way by the Assistant's failure to discuss each statutory provision
prosecution (US) who attacked the credibility of their own witness. The cross examination being considered by the grand jury.
made by Berman was just to show that Russell was biased since she had a competing business CONSPIRACT (IRRELEVANT)
with him. USCA said that US did not attack the credibility of Russell. However, Berman, on Berman contends that no "agreement" was proved that both Russell and the other
cross, attacked Russell’s credibility, when he accused Russell of being the one who committed alleged co-conspirator, another employee of Medical Therapy who also testified
the fraud/embezzled the money. Being so, the introduction of Character evidence to bolster against Berman, testified only that they had knowingly submitted false claims after
Russell’s credibility was proper. having been "directed" by Berman to commit those acts which were alleged to have
been a part of the conspiracy.
FACTS: USCA: The law does not require proof of a formal agreement, and the proof in this
Berman's medical equipment supply company, Medical Therapy, was a Connecticut case of conversations regarding, Inter alia, billing practices and insurance rules
company, which had a branch, Respiratory Specialties, that operated out of New York. provided ample circumstantial evidence from which an agreement could have been
Under the Medicare program, Medical Therapy was to be reimbursed, ultimately by found
the Department of Health, Education and Welfare, for a certain percentage of the Both Berman and Russell, who supervised much of the billing, had been briefed as to
cost of supplies to Medicare patients. Medicare policy and the insurance carriers' rates, rules, and regulations. Russell's
o Under the rules, if Berman's Connecticut company supplied equipment to a testimony provided evidence that she and Berman had discussed the rules and the
Connecticut Medicare patient, the claim should have been submitted to the "questionable" practices on many occasions. Both knew that the result of their
Connecticut insurance carrier, not to the New York carrier independent practices would be to obtain Medicare funds that, under the rules,
Berman was shown to have devised a scheme to wrongfully obtain payments from should not have been forthcoming
both the Connecticut and New York carriers the jury was entitled to infer from the actions of Russell and Berman that the two
o Aside from double billing the two companies for the same patients, shared an understanding to defraud the Medicare system.
Berman's fraud also consisted of claiming for more expensive equipment CHARACTER EVIDENCE (RELEVANT)
than had actually been provided to patients and billing for supplies neither Berman does not challenge the sufficiency of the evidence as to the substantive
delivered nor needed by the patients. counts. Rather, his final claim is that his convictions should be reversed because error
After a jury trial, appellants Stanley Berman and his company, Medical Therapy was committed when, over defense objection, the trial judge permitted the
Sciences, Inc. ("Medical Therapy"), were convicted of having filed false claims to Government to present character witnesses to bolster Russell's credibility.
obtain Medicare payments during the period of 1971-1976 o Berman claims that a new trial is required in view of the fact that Russell's
o Conspired with unindicted co-conspirators, including one Barbara Russell, credibility was crucial under the defense theory of the case I. e., that it was
formerly a trusted employee and personal intimate of Berman Russell alone who had perpetrated the frauds.
1
o Berman was also convicted of perjury in connection with the grand jury's Rule 608(a) of the Federal Rules of Evidence provides that character evidence may
investigation of Medicare abuses be used to support a witness, but limits its use so that "evidence of truthful character
Berman claims error with respect to the conspiracy and perjury counts, and he is admissible only after the character of the witness for truthfulness has been
argues that the trial court erred in permitting the Government to present character attacked by opinion or reputation evidence or otherwise."
evidence in its rebuttal case to support Barbara Russell's credibility o I think the relevant counterpart provision in our rules of court is section 14,
rule 132 which states:
Page 26 of 52
Evidence of the good character of a witness is not admissible until been addicted to the drug for weight control purposes (interchange covered 5 pages
such character has been impeached. of transcript)
Basically Rule 608 (one cited above) does not prohibit a party impeaching his own Judge Carter could have properly characterized the defense's treatment of Russell as an attack
witness. But such rule will become effective (meaning, a party may introduce within the meaning of Rule 608(a).
character evidence) only once there is an attack on the witness’s veracity cross examination of Russell included sharp questioning about her prior convictions,
USCA does not think that Rule 608(a) should make supporting character evidence which were predicated on activities characterized as fraudulent.
available to a party who elicits impeachment material on direct examination for Russell's character was also attacked by "specific act" evidence,
impeaching purposes, o allegations that she had embezzled money and stolen patients
but they do believe that, when the tenor of the direct examination does not suggest Berman argues that attacking Russell’s character bore solely on her bias against him
an "attack" on veracity, and when cross examination Can be characterized as such (because she was setting up a competing business), as such did not constitute an
an attack, the trial judge should retain the discretion to permit the use of character attack on character.
witnesses. BIAS
o His (TC judge’s) proximity to the situation allows him to make the evidence of bias can take many forms
determination of when, and by whom, an attack is made. o for example bias stemming from a relationship with a party, do not
o Were the rule to be otherwise, a party would have to choose between necessarily involve any issue relating to the moral character of the witness,
revealing, on direct, the background of a witness and its right to use but suggest only that the witness' testimony may perhaps unwittingly be
character evidence if the witness' veracity is subsequently impugned slanted for reasons unrelated to general propensity for untruthfulness
Arguments of the Parties as to rule 608 I guess, argument ni Berman is that yung testimony of Russell is
Berman's claim is that the foundation for character evidence was not present in this biased. Since she has a competing business, she just testified to
case because Russell's character for truthfulness had not been attacked within the bring Berman down?
meaning of the Rule. Being so, Government should not thereafter have been allowed o On the other hand, alleged partiality based on hostility or self-interest may
to bolster her credibility. assume greater significance if it is sought to be proven by conduct rising to
o cross examination elicited only matters of Russell's bias (remember this the level of corruption
bias) in favor of the Government and against Berman and "(e)vidence of corrupt conduct on the part of a witness should be regarded as an
o that, in any event, the Government itself initially brought to the jury's attack on his truthfulness warranting supportive evidence . . . ."
attention, on its direct examination of Russell, the facts that she had had o embezzlement and theft of which Russell was accused can be said to fall
two prior convictions and that she had been accused by Berman of having within the category of corrupt conduct
embezzled money from Medical Therapy. remember what Berman’s argument is that Russell was the sole
The Government's arguments were: person who committed fraud/theft
o in questioning Russell on direct as to her prior convictions, the prosecutor o Russell consistently denied the larceny that was ascribed to her by the
was only anticipating defense impeachment, as it had the right to do, so defense attack
that the jury would not gain the impression that the Government was o rehabilitating evidence should be allowed in the judge's discretion if he
attempting to hide information from them finds the witness' denial has not erased the jury's doubts
o Berman waived any objection on the ground that the Government had been
the first to elicit the "impeachment facts," defense counsel did interpose an
objection to the character witnesses (from footnotes)
o Russell's truthfulness was "attacked" on cross examination, so Rule 608 is 4. STATE v. NEWTON (VG)
applicable 147 71, 127 A. 123| December 4, 1924 | OFFUTT, J.
the Government did not put Russell's veracity in issue
Russel was simply asked whether, when she left Medical Therapy to establish a This case involves Corporation and Securities Law. The facts are in the ratio. Read summary to
business which was in competition with Berman's, she had taken patients from know the facts.
Berman's operation ( She answered no) – covered one page of Transcript
The prosecutor also elicited the fact that at a time when relations between the two Doctrine: In impeachment of witness by showing previous conviction of crime, counsel should
were strained, Berman had accused Russell of taking $70 from him, and that she had ask witness the question directly, and not by indirect question, as to whether he had not given
denied the charge (claiming, in fact, that Berman had owed her and her husband for same testimony during previous trial at which he had been convicted.
past loans), but had repaid the money to avoid any further problem
she admitted her two prior convictions for obtaining amphetamines by fraudulent SUMMARY. Emory M. Newton was tried and convicted in the criminal court of Baltimore city
practices, but explained that she had committed the acts at a time when she had of a criminal conspiracy for which he had been indicted jointly with William A. Gillespie and
Page 27 of 52
Harold R. Dickey, Jr., who were public accounts. It appears that Gillespie and Dickey had as that to which he testified in this case, and that the three judges before whom
audited the books of the Union Finance Company (acting as Newton). As a result of their he was tried discredited that statement and convicted him.
examination a letter signed “William A. Gillespie & Co.” was addressed to the Union Finance - The obvious purpose was to induce the jury to believe that, as the
Company wherein they certified that the Union Finance has enough money to purchase and testimony of the witness as given before them had already been
sell listed securities. Such statement was apparently false. Further, the public accountants discredited by three judges sitting in the same court in another case,
valued some oil stocks bought at 20 cents a share and offering them for 50 cents a share for it. therefore they should discredit it in this case, a wholly unwarranted
The state's theory was that that letter was a collusive device written for the purpose of conclusion unsupported by any authority with which we are familiar.
giving a fictitious value to the stock, and that the stock had no such value. In sum, it was a
prosecution for conspiracy to defraud customers of Newton who was operating blind pools, in FACTS
which it was claimed that coconspirators as public accountants gave fictitious value to certain Emory M. Newton was tried and convicted in the criminal court of Baltimore city of a
stock in the audit of Newton's business. The bulk of the discussion is presentation of several criminal conspiracy for which he had been indicted jointly with William A. Gillespie
witnesses stating their opinion regarding the solvency of the company. and Harold R. Dickey, Jr., and from the judgment on the verdict in that case he has
Newton was jointly indicted with Dickey and Gillespie but was tried separately. taken this appeal.
Newton called Dickey as a defense witness. The State cross-examined Dickey as to whether he Demurrers to the indictment filed by each defendant were overruled, and Gillespie
had not given the same testimony at his own trial and at Gillespie’s trial. When Dickey and Dickey were tried before the court, and convicted. Months after, Newton filed a
responded affirmatively, the State said, “And you were convicted, were you not?” The State suggestion and affidavit for removal which was also overruled. He then pleaded not
further asked Dickey whether he was convicted in his trial in the same court as Newton’s trial guilty, and was tried by a jury with the result stated above.
rd
was being held. (*Transcript of the questions is at the discussion of the 3 issue) The facts of the case were not really discussed as it was already stated in Gillespie v.
State and Dickey v. State (Md.) 127 A. 727, the ratio however, will give you a run-
Issues in the case: through of what happened.
1. WON the conviction of Gillespie and Dickey in another would affect the conviction ISSUE
or acquittal of Gillespie? * No
- We do not think that the fact that two persons jointly indicted with him for the
same conspiracy were convicted of that crime by three judges of the supreme 1. WON the conviction of Gillespie and Dickey in another would affect the conviction
bench of Baltimore city compels the conclusion that the traverser (one who or acquittal of Gillespie? – No
opposes the plaintiff, Newton in this case) in this case could not secure a fair 2. Issues involved in the indictment of Newton: (Not important but somewhat gives
and impartial jury in that city. We cannot assume that either judges or jurors will the facts of the case)
be influenced by considerations which under their official oaths they are bound 1. Was the Union Finance Company solvent and capable of meeting all obligations
to disregard, and the statements made by the jurors in this case tend to confirm and contracts entered into with its clients;
that view. 2. Did it buy and sell listed securities in large volume; and
2. Was there an intention to cheat and defraud? *differing opinions, case remanded 3. Did its inventory of securities “at the market” at close of business August 15,
for new trial 1922, show a substantial surplus over and above its obligations.
- Much of the discussion would point that the company was insolvent. The errors Was there an intention to cheat and defraud? *differing opinions, case
in the prosecution of the case however have compelled the court to remand the remanded for new trial
case for new trial. 3. WON it is proper to cross-examine a witness as to whether he had not given the
3. WON it is proper to cross-examine a witness as to whether he had not given the same testimony during previous trials at which he was convicted – (important!) No
same testimony during previous trials at which he was convicted – (important!) No
- The method of cross–examining the witness was highly objectionable. If the HELD: Because of the errors indicated above it follows that the judgment appealed from must
purpose of the examiner was to impeach the credibility of the witness by be reversed and the case remanded for a new trial. Judgment reversed and case remanded for
showing that he had been convicted of crime, he should have asked him that a new trial.
question directly, or, if he had intended to show that he had in some other case
sworn to statements contrary to his testimony in the instant case, he could have RATIO
been asked whether he had made such conflicting statements. I. WON the conviction of Gillespie and Dickey in another would affect the conviction or
- In addition to intimidating the witness, their only apparent purpose was to acquittal of Newton? – No
bring to the attention of the jury the fact that he had made in his own case That suggestion was based upon the theory that, since Gillespie and Dickey had been
when he was tried for the same crime, not a different but the same statement tried and convicted by three judges of the supreme bench of Baltimore city of the
same crime with which Newton is charged in this case, any jury in Baltimore city
Page 28 of 52
would inevitably be affected by that fact, and that no jury could be impaneled Prudential Securities Corporation offering 50 cents a share for it, valued it at that
(enlisted) in that circuit “which would have the courage to override the conclusions price. The state's theory was that that letter was a collusive device written for the
reached by these judges and determine the law and the fact of this case as by the purpose of giving a fictitious value to the stock, and that the stock had no such
Constitution of this state they are empowered to do.” value.
Evidence showed that the opinion of the three judges who sat in the Gillespie and State presented several witnesses to testify against the solvency of the Union
Dickey cases was published in the daily papers of Baltimore city. Finance Company:
If the traverser's (one who denies the plaintiff’s contention) contention is sound, - Harlan Johnson, an expert accountant, testifying for the state, said that on
then in nearly every case in which two or more persons are jointly indicted for the August 15th, valuing the oil stock at cost, the liabilities of the trust exceeded its
same joint offense, and where there is a severance for any reason, and one of the assets by $21,955.67. But, if that stock had appreciated 30 cents a share in
defendants has been tried and convicted, the untried case against the others must be value, it would have been worth $41,400 more than the valuation placed upon it
removed as a matter of course, because all the judges and all persons eligible for jury by that witness.
service in that jurisdiction would be so much affected by the conviction in the first - It is apparent, therefore, that the value of the oil stock was of vital importance
case that they would be unable to fairly and impartially try the other cases. to the defendant, because, if it was actually worth the price at which it was
Such a contention in our opinion goes too far. We do not think that the fact that two valued in the Gillespie audit (50 cent/share), the trust was solvent according to
persons jointly indicted with him for the same conspiracy were convicted of that the audit of the state's own expert. The only testimony offered by the state as
crime by three judges of the supreme bench of Baltimore city compels the conclusion to the value of this stock was that of the witness Johnson referred to above,
that the traverser in this case could not secure a fair and impartial jury in that city. who in his audit placed it at cost because he had no idea what its value was, and
We cannot assume that either judges or jurors will be influenced by considerations who said that he could not learn it from the brokers he consulted, because it
which under their official oaths they are bound to disregard, and the statements was an unlisted stock; that is, it was not listed on any stock exchange.
made by the jurors in this case tend to confirm that view. For the purpose of showing its value, the defendant attempted to prove by
competent witnesses the nature of its business, the value of its property, the price at
II. Issues involved in the indictment: which its stock sold, and the reasons why its stock could have been worth 50 cents a
1. Was the Union Finance Company solvent and capable of meeting all obligations share on August 15th and only 20 cents a share when purchased about a month
and contracts entered into with its clients; before, in a series of questions.
2. Did it buy and sell listed securities in large volume; and The contention of the state appears to be that no evidence as to the value of the
3. Did its inventory of securities “at the market” at close of business August 15, stock was relevant at all because it was unlisted stock and ipso facto had no market,
1922, show a substantial surplus over and above its obligations. and that, having proved that it was unlisted, there arose an irrebuttable presumption
Was there an intention to cheat and defraud? that it had no value “at the market,” because in the Gillespie letter the writer
certified that the securities owned by the trust “at the market” exceeded its
Gillespie and Dickey had audited the books of the Union Finance Company, and as a liabilities.
result of their examination a letter signed “William A. Gillespie & Co.” was addressed But that position is untenable for several reasons:
to the Union Finance Company (acting as Newton), in which the writer stated: First, because it is charged in the indictment that the statement in the letter that the
“We find your company to be solvent and capable of meeting all trust was solvent and capable of meeting all obligations entered into with its clients
obligations and contracts entered into with your clients. We was false. Obviously, the defendant was entitled to meet that charge, if he could, by
further certify that your company purchases and sells listed showing that the market value of the trust's assets did enable it to meet those
securities in large volume, and your inventory of securities at the obligations.
market at the close of business August 15, 1922, shows a Second, because even in connection with the ascertainment of its value at the
substantial surplus over and above your obligations.” market it was permissible to show the nature and character of the property to which
The state charged in the indictment that those statements were false, so that the such value related, and that term did not as a matter of law carry the implication that
issues were: (1) Was the Union Finance Company solvent and capable of meeting all the securities referred to were listed or that they had an immediate market;
obligations and contracts entered into with its clients; (2) did it buy and sell listed Third, the term “at the market” in the case of an unlisted stock did not necessarily
securities in large volume; and (3) did its inventory of securities “at the market” at mean that the market referred to meant the stock exchange market, or daily
close of business August 15, 1922, show a substantial surplus over and above its quotations, for it could not be assumed as a matter of law that because it was
obligations. There were, of course, other issues, such as the existence of an intent to unlisted it had no market value, since property may have a market value, though it is
cheat and defraud. not fluid and cannot be instantly exchanged. The expression “at the market,” as used
In connection with the first and third issues, much of the testimony offered related to in the letter, postulates two things: (1) that there is a market for the securities, and
the value of the common stock of the California Oil Mining Corporation. It had been (2) that in that market they had the value given them.
bought at 20 cents a share, but Gillespie and Dickey, relying upon a letter from the
Page 29 of 52
On the part of the state the only affirmative and direct testimony concerning the An objection to the question was sustained, and in passing upon that ruling this court
value of the oil stock was that of Mr. Johnson, who, after having said that he said, speaking through Judge Alvey:
consulted two brokerage firms as to the value of the stocks, summarized the result of - “To have answered the question as proposed to be asked it would have required
his investigations as follows: of the witness to form a conclusion as to the matter of inquiry that the jury
“In making the statement that the Union Finance Company was insolvent I was alone were competent to determine. He would have been required to respond
governed entirely by the amount of the assets and the amount of the liabilities. I do to a question of law as well as of fact. * * * This he was incompetent to do. * * *
not know what the California Oil Mining stock was worth on August 15th. I could not He should have been asked simply his knowledge of fact pertinent to the issue
find the value and I stated it at cost. Subject to the examination of the California Oil joined, without being required to form an opinion respecting the very point
Mining stock and the Mexican Jockey Club stock it might very well be that the Union which the jury were to determine.”
Finance Company was entirely solvent on August 15th.”
Under such circumstances it was permissible to show that the stock did have a III. WON it is proper to cross-examine a witness as to whether he had not given the
market value, even though it was not a listed stock, through such testimony as that same testimony during previous trials at which he was convicted? No
offered by the defendants and referred to in these exceptions.
Harlan Johnson, a public accountant on the staff of Haskins & Sells, produced on The important issue on evidence relates to the action of the court in permitting
behalf of the state, testified that he had examined the books and papers of the certain questions to be asked in the cross–examination of Harold R. Dickey, Jr., a
Union Finance Company and Emory M. Newton, and gave in some detail the results witness for the defense.
of his examination of the books of account, stock, inventories, etc., but did not testify After having testified at some length as to the preparation of the Gillespie audit and
as to the terms of any contracts between the trust and its clients. He was then asked the result of his examination of the resources and liabilities of the trust, he was
this question: “Tell the court and the jury whether the books of Newton, trading as asked:
the Union Finance Company, showed that company to be capable of meeting all - “You testified concerning these transactions in the case of the state against
obligations and contracts as of August 15, 1922.” Dickey and the state against Gillespie, giving then the same explanations that
The witness was allowed over objection to answer this question, and said: “I would you have given us here, did you not?”
say no. The books of the Union Finance Company show that they were not capable of - A: “Well, I can't remember exactly all that I said in the last case.
meeting their liabilities on August 15th. According to these books I found a difference - Q. Now, don't split hairs with me. Did you testify in this same way in the trial of
or a loss of $21,955.69.” your own case?
During the trial of the case it developed that different constructions had been placed - A. I can't remember all of those things, Mr. Leach.
upon that language. That of the state appeared to be that under it the trust was - Q. Didn't you make substantially the same explanation then that you are making
obliged to return upon demand to the depositor the amount of his deposit intact, here now, to–day?
and that is the theory upon which the accountants for the state and the defense xxxx
acted in making up their audits. - Q. (By Mr. Leach). In your own trial?
Newton, on the other hand, construed it to mean that he was only obliged to return - A. Practically.
to the depositor 70 percent of his deposit, and that the remaining 30 percent was to - Q. And you were convicted were you not?
be retained for operating expenses including compensation to him. And there was a - Q. (By Mr. Leach). Go on and answer me? You were convicted in your trial
third possible theory. before Judge Gorter and Judge Bond and Judge Stanton, were you not?”
In the contract referred to the trust did not undertake to return the whole deposit, - In answer to the last question the witness replied that he had been so convicted.
but the “account.” The trust had no existence aside from the deposits. Together they This method of cross–examining the witness was, in our opinion, highly
constituted a pool which was the “trust.” Aside from them it had no resources or objectionable. If the purpose of the examiner was to impeach the credibility of the
revenue except possible profits accruing from the manipulation of the deposits. witness by showing that he had been convicted of crime, he should have asked him
If there were profits, naturally the expenses would be paid from them; if there were that question directly, or, if he had intended to show that he had in some other case
losses exceeding the profits, and the trust was not entitled to retain 30 per cent for sworn to statements contrary to his testimony in the instant case, he could have
operation, necessarily they with the expenses would fall on the depositors in been asked whether he had made such conflicting statements.
proportion to the amount of their respective deposits, and in that case the “account” But these questions had no such object. In addition to intimidating the witness, their
of such depositor would represent his entire deposit, less his share of the losses and only apparent purpose was to bring to the attention of the jury the fact that he had
expenses incurred whilst it was a part of the pool. made in his own case when he was tried for the same crime, not a different but the
In Wheeler v. State, 42 Md. 563, the appellant had been convicted of keeping a same statement as that to which he testified in this case, and that the three judges
gaming table. In the trial of that case the defendant asked a witness whether he “had before whom he was tried discredited that statement and convicted him.
any knowledge of the traverser keeping or having kept a gaming table, or of his The obvious purpose was to induce the jury to believe that, as the testimony of the
keeping or having kept any room or place for gambling,” etc. witness as given before them had already been discredited by three judges sitting in
Page 30 of 52
the same court in another case, therefore they should discredit it in this case, a Portland; he was acquainted with the Oswalt, as a fairly regular patron of
wholly unwarranted conclusion unsupported by any authority with which we are the restaurant; Oswalt was in the restaurant at such times on July 14, 1961,
familiar. as to render it impossible, as a practical matter, for Oswalt to be in Seattle
at the time of the offense charged; and he remembered this occasion
because Oswalt had accompanied a restaurant employee to work, assisted
in a part of her work, and escorted her home.
5. STATE v. OSWALT (MB) o On cross-examination by the State, Mr. Ardiss said Oswalt was in the
Respondent: The State of Washington restaurant everyday for the last couple of months. He did not miss
Defendant-Appellant: Roy Earl Oswalt occasional periods of 3-4 days as asked by the State.
Co-Defendant: Donald Michael Gilman State’s rebuttal:
o Police detective --- testified, over defense objections, that he saw and
62 Wn.2d 118 (1963) talked to Mr. Oswalt in the City of Seattle. During their conversation, Mr.
381 P.2d 617 Oswalt said that he had arrived in Seattle a couple days before they talked.
Hamilton, J. Mr. Oswalt said he came from Portland, Oregon.
Trial court admitted police detective’s testimony and convicted Oswalt.
SUMMARY: o During colloquy between the trial court and counsel relative to the
Oswalt (defendant) was charged with robbery and burglary due to an incident in Seattle. At admissibility of the detective's testimony, the trial court commented that
trial he asserted a defense of alibi. In presenting that defense, he called Mr. August Ardiss the "There is no claim by Oswalt he wasn't in Seattle, Gilman [a co-Defendant]
owner of a restaurant in Portland who testified that Oswalt had been in the restaurant in claims that, but Oswalt doesn't."
Portland every day for the previous couple of months, including the day the burglary occurred. Oswalt contends the police detective’s testimony constituted impeachment on a
To rebut this evidence, the prosecution introduced the testimony of a police detective who collateral matter.
stated that he saw and talked to Oswalt in Seattle about one month prior to the burglary. He The State, in response, contends such testimony was admissible not only because it
also testified that Oswalt told him that he had been in Seattle for a couple of days. Oswalt challenges the credibility of witness Ardiss, but also establishes Oswalt's presence in
objected to this testimony, but the trial court admitted it and convicted him. Oswalt appealed. Seattle preparatory to the offense.
Issue: W/N the police detective’s testimony is admissible. --- NO. o According to the State, Ardiss’ testimony, as elicited by its cross-
(1) A witness cannot be impeached upon matters collateral to the principal issues being examination, carries with it an inference that Oswalt could not have been
tried. in Seattle sufficiently in advance of July 14, 1961, to have participated in
(2) For purposes of impeaching this witness, whether Oswalt was in Seattle on a given necessary planning of and preparation for the offense. Therefore, the
occasion one month prior to July 14th, was irrelevant and collateral. questioned testimony becomes material and admissible independently of
(3) State’s argument of inference has no merit absent effort to obtain a more complete its contradictory nature.
record. o The State supports this argument by testimony elicited from the police
(4) The error in admitting the police detective’s testimony was prejudicial because such detective to the effect that Oswalt admitted, in the interview of June 12,
testimony is not trivial, formal, academic, or harmless, and it affected the outcome of 1961, that he had purchased some adhesive tape.
the case.
ISSUE: W/N the police detective’s testimony is admissible. --- NO
FACTS:
Oswalt appeals, upon a short record, from a conviction of robbery and first degree HELD: The judgment is REVERSED and the cause REMANDED for new trial.
burglary.
The short record before the court (testimony of two witnesses): RATIO:
o On July 14, 1961, two armed men entered the King County residence of
Frank L. Goodell. 1. A witness cannot be impeached upon matters collateral to the principal issues being tried.
o One man stood guard over a number of people at the home. The other man The purpose of the rule is basically two-fold:
took Mr. Goodell to a Tradewell store and forced him to open the safe and (1) avoidance of undue confusion of issues, and
turn over the money therein. (2) prevention of unfair advantage over a witness unprepared to answer concerning
o Oswalt was identified as one of the two men. matters unrelated or remote to the issues at hand.
Oswalt’s defense of alibi: Test of collateralness: Could the fact, as to which error is predicated, have been
o Mr. August Ardiss (restaurant owner in Portland, Oregon) --- on direct shown in evidence for any purpose independently of the contradiction?
examination testified that his wife and he operated a restaurant in
Page 31 of 52
2. For purposes of impeaching this witness, whether Oswalt was in Seattle on a given *The case discusses in length a background of hypnosis and the approaches the court used to
occasion one month prior to July 14th, was irrelevant and collateral. determine its admissibility. I excluded some of the very detailed and technical discussion on the
Court is handicapped by the limited record in evaluating the relationship of the background of hypnosis. I tried my best to filter the things I think Sir might ask in class. I do
contradictory evidence in question to the general issues presented in the trial. advise you to try to skim through the original if you can. The case can be viewed online. I
So far as appears by record, the sole issue raised by Oswalt's defense of alibi, through apologize for the lengthy digest.
the direct testimony of witness Ardiss, was whether or not Oswalt was or could have
been in Seattle at the time of the offense on July 14, 1961. Oswalt did not contend or SUMMARY:
seek to prove by this witness that he had not been in Seattle prior to such date.
Elmer Leroy Peoples was convicted for armed robbery and conspiracy to commit armed
Thus, for purposes of impeaching this witness, whether Oswalt was in Seattle on a
robbery of the Borden Chemical Plant. Along with Bruce Miller and Robert Peele, Peoples
given occasion one month prior to July 14th, was irrelevant and collateral.
allegedly stold $90,000 worth of silver from the Plant.
While a cross-examiner is, within the sound discretion of the trial court, permitted to
inquire into collateral matters testing the credibility of a witness, he does so at the
risk of being concluded by the answers given. Miller was arrested for a different case of robbery. Pursuant to a plea agreement, he agreed to
testify on matters regarding the robbery of the Borden Chemical Plant (see the digest for the
3. State’s argument of inference has no merit absent effort to obtain a more complete record. matters he divulged). Detective Sessoms conducted hypnosis on Miller to seek additional recall
Admittedly, relevant and probative evidence of preparations by an accused for the of matters which Miller cannot recall in an ordinary state. During hypnosis, Miller related facts
commission of a crime is admissible. which were consistent with his previous testimonies and testified that he did not believe he
Based upon the limited record before us, however, the state's argument requires us was hypnotized by Sessoms.
to speculate that Oswalt could not readily commute between Portland and Seattle,
and that his presence in Seattle and acquisition of adhesive tape, upon an isolated The issue: W/N hypnotically refreshed memory is admissible. NO. Given the problems inherent
occasion approximately a month before the offense in question, constituted in the hypnotic process, such as the enhanced suggestibility of the subject, his tendency to
significant evidence of planning and preparation for the offense in question, the confabulate when there are gaps in his recollection, his increased confidence in the
particular mechanics of which are unrevealed by the record. truthfulness and accuracy of his post-hypnotic recall which may preclude effective cross-
This the Court declines to do, absent effort upon the part of the state to obtain a
examination, and the inability of either experts or the subject to distinguish between memory
more complete record.
and confabulation, hypnotically refreshed testimony is simply too unreliable to be used as
4. The error in admitting the police detective’s testimony was prejudicial because such evidence in a judicial setting. The scientific community has not recognized hypnosis as a
testimony is not trivial, formal, academic, or harmless, and it affected the outcome of the case. generally reliable method of enhancing a witness's recollection to the extent that it should be
State v. Britton --- A harmless error is an error which is trivial, or formal, or merely used in judicial proceedings.
academic, and was not prejudicial to the substantial rights of the party assigning it,
and in no way affected the final outcome of the case. A prejudicial error is an error The testimony by Detective Sessoms regarding the hypnotic session and the video tape of
which affected the final result of the case and was prejudicial to a substantial right of Miller during the session are inadmissible under the new rule pronounced by the court. Yet
the party assigning it. they constituted a major portion of the state's case. Miller was, by his own admission, an
In the instant case, the State's charge apparently rested upon an identification of accomplice of defendant. His testimony, after undergoing hypnosis for the purpose of
Oswalt by witnesses at the scene of the crime. The defense apparently rested upon refreshing his recollection, was in large part responsible for defendant's conviction. Since
alibi. The state seemingly considered the testimony of witness Ardiss sufficiently Miller's statement made before the hypnotic session was not proffered at trial nor is it
credible to require this attack. Oswalt was convicted. contained in the record on appeal, none of his testimony was admissible under the rules we
The testimony was prejudicial because it is not trivial, formal, academic, or harmless, today announce. The video tape of the hypnotic session strengthened the credibility of his
and it affected the outcome of the case.
testimony in the eyes of the jury. It gave an unwarranted aura of reliability to his testimony.
These erroneous admissions taken together constitute reversible error because a reasonable
possibility exists that a different result would have been reached had this evidence not been
REFRESHING RECOLLECTION admitted at defendant's trial.
1. STATE v. PEOPLES (JM)
STATE of CALIFORNIA v. ELMER LEROY PEOPLES, Sr. FACTS:
319 S.E.2d 177 (1984) | 08/28/1984 | Exum, J. Crux of the case: admissibility of testimony by a witness who undergoes hypnosis
prior to testifying.
Page 32 of 52
The Robbery/Conspiracy to Commit Robbery CA affirmed.

Early morning on 26 May 1980, Bruce Crockett Miller participated in armed robbery Peoples filed a petition for discretionary review with the SC.
of the Borden Chemical Plant in Fayetteville, North Carolina. Along with two other
men, he took several buckets of almost pure silver (used by the plant in ISSUE: W/N hypnotically refreshed testimony is admissible. NO.
manufacturing formaldehyde) valued at $90,000. Defendant (Elmer Leroy Peoples,
Sr.) was arrested on 29 April 1981 in connection with the robbery. HELD: The court reversed the decision of the Court of Appeals and remanded the case to that
An eyewitness to the roberry, a shift supervisor at the company, identified the court for further remand to the superior court where defendant will be given a new trial to be
Peoples as one of the perpetrators. conducted under the new rules promulgated in this decision.
Pursuant to a plea agreement in an unrelated case, Miller testified against Peoples
and Robert Peele (the third man in the robbery). Miller outlined, with considerable
RATIO:
detail, the planning and robbing of Borden Chemical Plant in which he and Peele
participated. He said that he has known Peoples since high school and that they
saw each other occasionally. He also said that Peoples called him in April or May of Background
1980 and asked him if he was interested in making “some easy money”. Peoples In the case of State v McQueen, the court ruled that “the circumstance that this
also arranged the meeting with a third man—Peele. The trio met a number of times witness was hypnotized prior to trial would bear upon the credibility of her testimony
to plan the robbery. concerning the occurrences at the Norris house at the time the two women were
According to Miller, Peoples called him in his house in Raleigh on 24 May 1980 and killed, but would not render her testimony incompetent. The jury was fully advised
told him to come back to Fayetteville. Miller went to the house of Peoples and was that the witness had been so hypnotized. Her credibility, as a result of this
told that there was a large amount of silver at the plant and that the number of circumstance, and of other matters bearing thereon, was for the jury.
people at the plant after the shift changed on Sunday evenings. Peoples also During this time, the court was not apprised of problems inherent in hypnosis.
allegedly said that guns were not allowed on the premises, that the supervisor’s In the present case, the court overrules the doctrine in McQueen insofar as it permits
name is Steve and that once the alarm sounded, the police could arrive at the plant the admission of hypnotically refreshed memory.
after no less than five to sevcn minutes (well, ang galing niya mag research).
On Sunday evening, the trio went to the plant. After the shift changed, Miller, armed The new view of the court:
with a gun went to the supervisor’s office and asked the latter where the silber was Given the problems inherent in the hypnotic process, such as the enhanced
kept. After prying open a second door and triggering the alarm, they loaded a suggestibility of the subject, his tendency to confabulate when there are gaps in his
number of black buckets containing silver into the car. They left the premises. They recollection, his increased confidence in the truthfulness and accuracy of his post-
were able to sell some of the silver and divided the proceeds and the remaining silver hypnotic recall which may preclude effective cross-examination, and the inability of
among themselves. either experts or the subject to distinguish between memory and confabulation,
Miller was arrested on 27 March 1981 in connection with an armed robbery hypnotically refreshed testimony is simply too unreliable to be used as evidence in
different from the instant case. On 15 April, he gave the police a statement a judicial setting.
concerning the robbery of Borden Chemical Plant, implicating Peoples and Peele.
That statement was neither introduced at Peoples’ trial nor included in the record on Three Schools of Thought
appeal. 1. The Credibility Approach—In the case of Harding v State, the victim of rape testified
that she had been hypnotized in order to recall the event. She explained that she was
The HYPNOSIS testifying from her own recollection. A hypnotist testified as an expert and supported
On 8 October 1981, Detective Sessoms conducted a hypnotic session with Miller. the testimony of the victim saying that hypnosis is reliable and not unduly suggestive.
Sessoms attended trainings in hypnosis from the North Carolina Justice Academy. The Maryland court concluded that the fact of hypnosis went to the witness’
Prior to hypnotizing Miller, Sessoms read none of Miller’s statements concerning the credibility and not to the admissibility. This approach viewed the challenged
case. The attempted hypnosis was to seek additional recall of the robbery which testimony as a present recollection of past events merely refreshed by the
Miller did not have in a normal state. During the session, Miller related facts which hypnosis, much as it might have been refreshed by any stimulus. Accordingly, the
corresponded with his subsequent testimony. Miller also testified that he did not fact that a witness had been hypnotized went only to his credibility as a witness.
believe he had been hypnotized by Sessoms. 2. The Safeguards Approach—The case of State v Hurd adopted a middle ground by
explaining that "Hypnotically-induced testimony may be admissible if the proponent
Lower Court and CA Rulings can demonstrate that the use of hypnosis in the particular case was a reasonably
LC convicted Peoples for Armed Robbery and Conspiracy to commit armed robbery of reliable means of restoring memory comparable to normal recall in its accuracy."
the Borden Chemical Plant. These decisions recognize the general problems associated with hypnosis, including
Page 33 of 52
extreme suggestibility, loss of critical judgment, tendency to confabulate, and disclose the fact of this hypnosis to the court and counsel, outside the presence of
increased confidence in one's recall. In an effort to reconcile these scientifically the jury and before the testimony of the witness.
established problems associated with hypnosis with the recognition that rendering In this case, the testimony by Detective Sessoms regarding the hypnotic session and
hypnotically refreshed testimony inadmissible may result in the potential loss of the admission and playing before the jury of the video tape of the witness Miller
important evidence, these cases carve out a middle ground between admissibility during the hypnotic session were inadmissible under the rules we today announce.
and inadmissibility. (The court prescribed a set of procedural guidelines. Please see Yet they constituted a major portion of the state's case. Miller was, by his own
the original text of the case. Theoretically, adherence to the procedural guidelines will admission, an accomplice of defendant. His testimony, after undergoing hypnosis
increase the reliability of hypnotically refreshed testimony). for the purpose of refreshing his recollection, was in large part responsible for
3. The Inadmissibility Approach—Many court decisions elect to preclude the admission defendant's conviction. Since Miller's statement made before the hypnotic session
of hypnotically refreshed testimony because the indices of unreliability inherent in was not proffered at trial nor is it contained in the record on appeal, none of his
normal memory reappear in more extreme forms when the witness is hypnotized. testimony was admissible under the rules we today announce. The video tape of
The safeguards approach is deemed inadequate and impractical in alleviating this the hypnotic session strengthened the credibility of his testimony in the eyes of the
unreliability. In reaching the judgment that hypnosis, as a scientific method for jury. It gave an unwarranted aura of reliability to his testimony. These erroneous
improving a witness's recollection, is unreliable, many courts have determined that admissions taken together constitute reversible error because a reasonable
the scientific community has not recognized hypnosis as a generally reliable possibility exists that a different result would have been reached had this evidence
method of enhancing a witness's recollection to the extent that it should be used in not been admitted at defendant's trial.
judicial proceedings. In the case of Frye v United States, the court ruled that expert
testimony on a new scientific technique can only be admitted when that technique
has “gained general acceptance in the particular field in which it belongs.”
Basically, the courts that follow this approach question whether hypnosis has RECALLING WITNESSES
already reached a point where experts in the field widely share the view that
1. PEOPLE v. DEL CASTILLO (KB)
results are scientifically reliable as accurate. Courts which adopt the view that
G.R. No. L-16941 | October 29, 1968 | ANGELES, J.:
hypnotically refreshed testimony is inadmissible reject both the notion that a
Plaintiff-appellee: THE PEOPLE OF THE PHILIPPINES
witness's having been hypnotized goes only to his credibility and the belief that the
Defendant-appellants: MATEO DEL CASTILLO, ET AL. JOSE ESTRADA
unreliability inherent in hypnosis can be eliminated or sufficiently curbed by
Assistant Solicitor General Esmeraldo Umali and Solicitor Ceferino P. Padua for plaintiff-
following certain procedural safeguards.
appealee.
Jose W. Diokno for defendant-appellant.
Further explanation on the ruling:
In addition to holding that hypnosis has not reached a level of scientific acceptance SUMMARY: Elvira Tanada de Principe was kidnapped by a band of Hukbalahaps and was
which justifies its use for courtroom purposes, we further conclude that no set of released upon payment of a ransom of P50,000. 33 people were charged with Kidnapping for
procedural safeguards can adequately remedy this unreliability. ransom but only the accused Estrada appealed. Case of the Prosecution was established by the
“We are persuaded that the inability of either an expert or the hypnotized witness testimonies of 12 people and one of those witnesses was tried to be recalled by the defense in
to distinguish between the witness's confabulation and true memory is sufficient order that he could explain why he allegedly had testified falsely against accused Estrada
for us to conclude that adopting a series of procedural safeguards would not be when he testified for the prosecution in this case, but the court below did not allow the
effective in combating the dangers we see in hypnotically refreshed testimony. We defense to put back the witness. Appellant charges that the trial court had abused its
hold, therefore, that hypnotically refreshed testimony is inadmissible in judicial discretion when it denied the defense the right to call back witness Ceribo who, it is claimed,
proceedings. Our cases to the contrary are overruled.” was then ready to retract his previous testimony for the prosecution, and then testify for the
Our rule of inadmissibility does not, however, render all testimony of a previously defense.
hypnotized witness inadmissible. A person who has been hypnotized may testify as
to facts which he related before the hypnotic session. The hypnotized witness may
This, it is pointed out, was a denial of herein appellant's right to due process. We cannot agree.
not testify to any fact not related by the witness before the hypnotic session.
Section 14, Rule 132 of the Rules of Court explicitly provides that the court may grant or
Investigators, attorneys, and other parties who might have occasion to induce
withhold leave to recall a witness, in its discretion, as the interests of justice may require;
potential witnesses to be hypnotized are cautioned to make every effort to preserve,
and We believe that it was the better part of discretion and caution on the part of the trial
in writing or otherwise, this pre-hypnotic information. When a party attempts to
court to have denied as it did, the request of the defense to recall Ceribo. The record is loaded
offer testimony by a person who has been hypnotized, that party will bear the
with circumstances tending to show insidious attempts, too obvious to be overlooked, to
burden of proving that the proffered testimony was related prior to hypnosis. A party
tamper with the witnesses for the prosecution. Under the circumstances, to allow such a
proffering the testimony of a previously hypnotized subject is under a duty to
Page 34 of 52
procedure would only encourage the perversion of truth and make a mockery of court o The case against Buenaventura Miel was dismissed on March 19, 1957, for
proceedings. insufficiency of evidence.
o The case against Gonzalo Mallare alias Commander Romy was dismissed on
FACTS: December 5, 1957, for insufficiency of evidence.
o On February 25, 1958, the case against Doroteo Edungan was dismissed upon
petition of Special Prosecutor Victor Santillan and Artemio Alejo and of Assistant
Background of the Case
Provincial Fiscal Eufemio A. Caparros for insufficiency of evidence.
o On February 26, 1958, the accused Quirino Ravela alias de Leon pleaded guilty
o In the afternoon of February 27, 1956, Mrs. Elvira Tañada de Principe, a young, prominent as accessory after the fact in the crime of kidnapping for ransom of Elvira
patron of Gumaca, Quezon, a member of the rich, well known Principe family, was Tañada and was sentenced accordingly.
kidnapped by a band of Hukbalahaps, headed by one Commander Pepe Alcantara. She o On February 1, 1960, the accused Clodualdo Camacho pleaded guilty as
was detained for 18 days in the Huk lairs deep in the mountains of the Bondoc Peninsula, accessory after the fact and was sentenced accordingly.
and was released only upon payment of a ransom of P50,000.00. o Isidro Alpay alias Commander Bulaklak, Domingo America alias Laguimay, Ireneo
o On account of the kidnapping, three(3) cases, filed one after another, were instituted by Capisonda alias Erning alias Lope, Benjamin de Jesus @ Amin, Ben Ramirez @
the Government against the known suspects. We are presently concerned only with the Ben, Pedro Martinez @ Pedro, Santiago Napoles @ Nomver, @ Jaime @ Jimmy
last of these cases, which has culminated in this appeal. @ Jimay, @ Gelacio @ Elioso, @ Liwayway, @ Berna, @ Timoteo, @ Juan, @ De
o The First Case. — Criminal Case No. 137-G. Guzman, @ Torres, @ Valencia, @ Bayas and @ Ladres have not yet been placed
o The first charge was a complaint initiated on March 11, 1956, by Lt. Lucas B. in the custody of the law. On February 27, 1958, the case against those who are
Apolonio with the justice of the peace court of Gumaca for the complex crime still at large was dismissed provisionally.
of rebellion with kidnapping o The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco @ Commander
o Later on and after the Luis Taruc case was decided by the Supreme Court to the Emy, Rodrigo @ Commander Tony, Victoriano Dayunot @ Torio and Panfilo
effect that there was no such complex crime of rebellion with kidnapping, Rosales @ Predo @ Banaag are all reported dead.
Fiscal Villafranca moved the Court to permit him to amend his information and o For all purposes therefore, Case No. 164-G may be considered a terminated
to charge the accused separately case.
o On June 26, 1956, a second amended information in was filed by Fiscal o The Third Case. — Crim. Case No. 213-G, for Kidnapping for Ransom.
Villafranca charging all the accused headed by Arcadio Talavera alias Lt. o On October 10, 1956, a third case was filed by a special prosecutor from the
Alcantara with the simple crime of rebellion. Department of Justice, Antonio O. Capilitan, after the surrender of some of the
o On August 26, 1956, a third information was filed by Fiscal Villafranca Huks who participated in the kidnapping of Elvira Tañada de Principe. In this
eliminating Arcadio Talavera from the information but adding Lt. Alcantara as third case, the special prosecutor accused Mateo del Castillo, Jose Estrada and
one of the accused. The crime charged was still for the crime of rebellion. Julio Ceribo and several others under assumed names or aliases of kidnapping
o The record shows that this third amended information was provisionally for ransom and this case was docketed as Crim. Case No. 213-G. This is now the
dismissed by the Court on October 16, 1956, on the petition of Fiscal Villafranca case under consideration of the Court in which the accused Jose Estrada was the
and Special Prosecutor Capilitan on the ground that the evidence against the only accused tried by the Court.
two accused Doroteo Edungan and Buenaventura Miel, who were then the only o The accused Jose Ceribo was discharged from this case to be utilized as witness
accused placed in the custody of the law for rebellion, were not sufficient to for the government.
convict them of rebellion. o The accused Mateo del Castillo has been reported dead.
o The record further shows that the entire case was provisionally dismissed on the o The accused Romaguerra Doe @ Romaguerra was identified as Francisco Rabi
ground that the rest of the accused had not yet been arrested, subject to the and Heling Doe @ Heling was identified as Angel Veran. They both pleaded
proviso that any time the case may be revived for rebellion against those that guilty upon their arraignment on February 1, 1960, as accessory and were
might be arrested later. This Case No. 137-G is therefore a closed case, at least sentenced accordingly.
provisionally as a case for rebellion. o The accused Pete Doe @ Pete and William Doe @ William were identified as
o The Second Case.— Criminal Case No. 164-G, for Kidnapping for Ransom. Francisco Lisay and Quintin Magdaong. They also both pleaded guilty as
o On June 26, 1956, Assistant Provincial Fiscal Villafranca filed a separate accessory and were sentenced accordingly.
information for the kidnapping for ransom of Elvira Tañada de Principe, naming o The accused Carding Doe @ Carding is reported dead.
the thirty-three accused as defendants. o As to the other accused, Teddy Doe @ Teddy, Nato Doe @ Nato, Mike Doe @
o The accused Antonio Campaniero alias Nelson de Rosas was discharged from Mike, Inso Doe @ Inso, Essi Doe @ Essi, Kaloy Doe @ Kaloy, Loring Doe @
thisinformation to be utilized as witness for the government in Crim. Case No. Loring, and John Doe, they are still at large and have not yet been placed under
213-G. arrest.
Page 35 of 52
o During the trial of this case the defense of Estrada asserted that the accused Lt. o Col. Francisco del Castillo, Provincial Commander of Quezon at the time the information in
Alcantara was already in the custody of the Philippine Constabulary and was this case was filed in court. Stripped of unessential details, the testimonies of the principal
subpoenaed as witness for the defense but notwithstandingthe efforts of the witnesses may individually be summarized as follows:
Court this accused has not been produced by the authorities. He is still charged
in Crim. Case No. 213-G but his case has not yet been set for hearing. TESTIMONY OF ELVIRA TAÑADA DE PRINCIPE:
o The foregoing statement of the genesis of Criminal Case No. 213-G explains why the
decision appealed from concerns only Jose Estrada (herein appellant).
o Elvira Tañada de Principe was inside her store on the ground floor of the house of her
o Accused Jose Estrada was tried alone by the court below under the corresponding
father-in-law in Gumaca, Quezon, at about 4: 00 o'clock in the afternoon of February 27,
information, alleging as follows:
1956. She was busy estimating her laundry bills. Three (3) men wearing uniforms similar to
o That on or about the 27th day of February, 1956, in the municipality of Gumaca,
those worn by soldiers in the army arrived and entered her store. One of them first
Province of Quezon, Philippines and within the jurisdiction of this Honorable
inquired for the price of a pack of "Chelsea" cigarettes, and then asked for one. As Elvira
Court, the aforementioned Accused, together with X X X, under the same facts
reached for the pack of cigarettes, the other two suddenly grabbed her hands and pointed
herein charged, conspiring and confederating and mutually helping each other,
their pistols to her. They pulled her out of the store and dragged her towards the bodega
did then and there wilfully, unlawfully, and feloniously through force, threats
of her father-in-law, Marciano Principe, and then on to the railroad track going to the
and intimidation, kidnap ELVIRA TAÑADA DE PRINCIPE and CARMEN NOCETO,
direction of the elementary school of the town. The two uniformed men were later
take and carry them away from their dwellings to an uninhabited far distant
substituted by two others in civilian clothes who, after holding Elvira by the hand on each
forest in the mountain of Bondoc Peninsula for 18 days confinement under their
side, continued running with her through the coconut plantations toward the mountains.
custody and control for the purpose of demanding ransom in the amount of
There were gun fires that followed, but the men continued running, taking Elvira Tañada
FIFTY THOUSAND PESOS (P50,000.00) Philippine currency, which the said
de Principe along with them. They told her not to be afraid, as they were just making a
Accused did in fact receive on the 16th day of March 1956 in consideration of
"show". They stopped running, however, when the firing ceased; and soon other persons
which amount said kidnapped persons were released to the damage and
came running towards them and joined their group. One of them gave Elvira a pair of
prejudice of the said offended parties in the said amount.
shoes and stockings. She put them on before they continued their way, deeper into the
o That the following aggravating circumstances are present in the commission of
mountain. The leader ordered two of his men to buy bread for Elvira, but they were not
the offense:
able to buy any. Instead, she was given candy. Then they continued walking all through
o Superior strength; (2) in band; (3) use of unlicensed firearms; (4) in an
the night stopping only at midday of the 28th of February when they reached a sawmill
uninhabited place; and (5) use of Army uniforms and other insignias for disguise.
site. From there, they continued walking again at dawn of the following day until they
o Upon arraignment on November 27, 1956, accused Jose Estrada refused to make any plea
came upon a copra kiln; and there the men prepared food. Thereafter, they continued
to the information against him; hence, the trial court entered for him a plea of "not
hiking once again until they reached the Huk lairs. There were five huts at the place, all
guilty." His petition for bail had been denied; and since then, Jose Estrada has remained in
without walls. Elvira Tañada de Principe and Carmen Noceto were kept in the one located
confinement.
at the center for two weeks.
o There were sixteen (16) men in the group that took Elvira and Carmen to the mountains,
Testimonies (Note: Meron summary of testimonies for the prosecution to establish guilt of including the three (3) who originally took Elvira out of her store in Gumaca. Elvira came
Estrada sa latter part. I recommend you still read testimonies of Nelson and Ceribo) to know their names because they had nameplates on their breasts. The leader — who
earlier asked for a pack of "Chelsea" cigarettes at her store — was Lt. Alcantara, while
o Our own examination of the record revealed that the case of the People was established those who dragged her out of the store were Gomez and Mendoza. Not long after their
thru the testimonies of 12 prosecution witnesses, namely: arrival at the place of the huts, the kidnappers divided into two groups. Lt. Alcantara soon
o Elvira Tañada de Principe and Carmen Noceto, the kidnap victims; left the place with seven (7) men, leaving the eight (8) others to guard Elvira Tañada de
o Reynaldo Principe, Elvira's husband; Marciano Principe, Reynaldo's father; Petra Mañego, Principe and Carmen Noceto. These men left behind were Ladres, Bayas, Gomez, Torres,
Basilio Angulo, Beato Glinoga and Jesus Letargo who all had something to do with the De Leon, Villazar, Delgado and Mendoza. Lt. Alcantara and Julio Ceribo came back to the
negotiations between the kidnappers and the family of the victims, which led to their place every now and then, bringing food and letters from Elvira's husband.
subsequent release of the kidnapped victims; o After the lapse of about two weeks, Lt. Alcantara finally told Elvira that she would be
o Antonio Campaniero and Julio Ceribo who were both discharged from the information to released. He showed her letters from her husband, her father and her brother. And on
be utilized as state witnesses; March 15, they left the huts at about 11:00 o'clock in the morning, with Carmen Noceto
o Gonzalo Mallare, as against whom the case was dismissed for insufficiency of evidence; and others. They moved to another place where they waited for Lt. Alcantara's other
and companions. In due time, they arrived, and Elvira and Carmen Noceto were then taken to
another place which they reached after about an hour's walk. There they met Angulo,
Letargo, Erea and Francia who had come all the way from Gumaca and brought the
Page 36 of 52
P50,000.00 ransom money. Elvira counted the money, then delivered the same to Lt. where Lt. Alcantara would meet them later, for according to the letter, Estrada knew what
Alcantara. Thereafter, Elvira and Carmen Noceto were released. They were not it is all about. Glinoga was warned further, that should he fail to contact Estrada, he
accompanied by anyone of the kidnappers. Lt. Alcantara merely instructed them to follow should not tell anybody about it, but should proceed directly to the house of the
the course of a river until they could see a house, and there to find one who could guide Principes in Gumaca, and then meet him (Lt. Alcantara) later in the mountains.
them to Barrio Magisian, Lopez, Quezon. They followed these instructions and reached o Pursuant to such instructions, Glinoga left Villa Tañada early the following morning and
the road in said barrio, where they were picked up by a station wagon which took them proceeded to the town of Gumaca, to deliver Lt. Alcantara's letter to the Principes. He
back to Gumaca at about 5:00 o'clock in the afternoon of March 16, 1956. tried to locate Estrada when he reached the town, but he was not able to find him; so,
Glinoga went directly to the house of Marciano Principe and delivered the letter to the old
TESTIMONY OF CARMEN NOCETO: man in the presence of the other members of the family. Marciano Principe immediately
prepared a letter in answer to Lt. Alcantara's note. He then gave it to Basilio Angulo who
was at the house of the Principes at the time, requesting Angulo to go with Glinoga back
o In the afternoon of February 27, 1956, Carmen Noceto was at the house of her sister near
to Villa Tañada and see Lt. Alcantara. Angulo agreed. He went with Glinoga to the
the elementary school in Gumaca. She saw two persons running on the railroad track,
mountains in Villa Tañada. They reached the Huk lairs at about 7:00 o'clock in the evening
leading Elvira Tañada de Principe by the hands. Suddenly, a "soldier", also on the railroad
of that same day, and they were met by Lt. Alcantara after Glinoga had signalled three
track and called her out of the house. Pointing his gun at her, the "soldier" pulled her by
times with his flashlight. Basilio Angulo then had a conference with the Huk leader. Asked
the hand and dragged her along, telling her that she would just accompany Elvira Tañada
by one of Lt. Alcantara's men where accused Estrada was, Glinoga gave the information
de Principe. She could not refuse; she was greatly terrified. Her father who was then
that he was not able to find him in town.
present was stunned for the "soldier" also pointed his gun at him. She was taken, along
with the group of Elvira Tañada de Principe, to the far away mountains she had never
reached before. They walked all night, then for two days more, resting only when they TESTIMONY OF ANTONIO CAMPANIERO @ NELSON DE ROSAS:
took their meals. They finally stopped walking, only when they reached a place where
there were five huts without walls. She and Elvira Tañada de Principe were kept in one of o Antonio Campaniero joined the Hukbalahap organization on August 25, 1952, under the
these huts together during the eighteen days that they were held in captivity by their Huk name @ Nelson. He served under various Huk Commanders in the field. From 1955
kidnappers. They were allowed to go home only after the arrival of the P50,000.00 up to the time of his surrender on July 18, 1956, he was under the command of Huk
ransom money which was brought by Manoling Letargo, Basilio Angulo and two others Comdr. Teddy Corazon, head of the Organizers Brigade (OB), operating near the
whom she did not know. Before their release, they were guarded by several men, among mountains of Gumaca, Quezon.
them De Leon, Angelo Veran @ Villazar, Antonio Campaniero @ Nelson and Julio Ceribo o Sometime during the first week of February, 1956, Comdr. Teddy ordered Nelson and
@ July. another Huk, @ Fredo, to contact the accused, Councilor Jose Estrada of Gumaca, and
o Carmen Noceto did not know Elvira Tañada de Principe before the kidnapping. She came inform the latter that Huk Lt. Alcantara (head of the "Tadtad Unit or G-Men") and Comdr.
to know her only when they were kept together in one hut in the mountains. They Teddy Corazon wanted to meet him (Estrada) in Barrio Biga. Nelson and Fredo complied
became intimate with one another later, and Elvira allowed her to read the letters sent to with the order; Fredo talked with Estrada in Gumaca, as Nelson stood guard. Estrada
her by her husband while she and Elvira were held captives. showed up in Barrio Biga, three days later, at about 2:00 o'clock in the afternoon. Aside
from Lt. Alcantara and accused Jose Estrada, there were other Huks present during the
TESTIMONY OF BEATO GLINOGA: meeting, among them, Comdr. Teddy, Comdr. Emy, @ Romy, @ Fredo, @ July, @ Sonia
and @ Nelson. Estrada was asked by Lt. Alcantara who the richest man in Gumaca was,
and the former answered that "he would suggest the Principe family" (ang
o Beato Glinoga was asleep in his house in Barrio Villa Tañada, Gumaca, on the night of
maimumungkahi ko po ay ang pamilya Principe). Asked by Lt. Alcantara if he was referring
March 4, 1956, when he was awakened by his barriomate, Leon Calvelo. The former was
to Reynaldo Principe, Estrada answered that if Reynaldo Principe were the one to be
informed by the latter that some soldiers wanted to see him. Glinoga obliged, and went
kidnapped, it would be difficult for the family to ransom him for the reason that most of
with Calvelo to the latter's place which was about half a kilometer away, to meet the
the properties of the Principes were in his name. Instead, accused Estrada recommended
soldiers referred to by Calvelo. He did meet them at the place which was dark; so much so
his wife, Elvira Tañada de Principe, who could easily be ransomed. Lt. Alcantara agreed
that altho he spoke with one of the supposed "soldiers", Glinoga was not able to recognize
to the suggestion of Estrada saying, "if that is the case, yes, and you will be informed
any of them. Nevertheless, the person with whom Glinoga spoke introduced himself as Lt.
when the kidnapping will take place," to which Estrada answered: "All the time you can
Alcantara, at the same time identifying himself and his companions as the ones who had
depend upon me." Estrada then left the place that same afternoon at about 5:00 clock,
kidnapped Elvira Tañada de Principe. Lt. Alcantara then asked Glinoga if he could deliver
after he and Lt. Alcantara had talked about politics.
a letter to the Principes in Gumaca, to which Glinoga consented. Lt. Alcantara warned
o Sometime thereafter, Comdr. Teddy informed Nelson that the latter, together with others
him not to reveal that he had seen them to anybody. He also instructed Glinoga to see
in their Unit, would be "borrowed" by Lt. Alcantara to supplement the men of the "Tadtad
accused Jose Estrada first before delivering the letter, so that he (Estrada) could
accompany him to the house of the Principes, and then to the mountains in Villa Tañada
Page 37 of 52
Unit" and join them in the execution of the plan to kidnap Elvira Tañada de Principe. And appears to be requesting Antonio Nieva also for "cigarette money" and for his letters to
thenceforth, Nelson began receiving orders directly from Lt. Alcantara. be returned to him). Nelson wrote another letter on the same date, which he signed with
o In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio the name of Pedro Masilungan. (This letter, Exh. 1, purports to show that Pedro
Biga and entered the town proper of Gumaca, Quezon. Alias Essi, @ Loring and @ Nelson Masilungan had also been forced to sign his "statement" and to testify against Estrada by
stood guard near the railroad station. After taking Elvira Tañada de Principe, they fled and Capt. Zita). Nelson explained that he wrote to Estrada because he had been coerced by
went through the mountains for three days and three nights, with short stops to rest at two insular prisoners who were allowed to enter his cell, warning him that his life would
some points on the way. They hid Elvira Tañada de Principe in Barrio Laguio between the be in danger, should he fail to do so. He wrote Exh. 3 only after the said prisoners had
municipalities of Lopez, Gumaca and Macalelon. Carmen Noceto was also taken by them talked to him and to Melchor Gregana and Julio Ceribo who were with him in the same
to the mountains with Elvira that same day. cell at the time.
o On July 18, 1956, @ Nelson surrendered to the authorities. He did not know then what o A few days thereafter, probably on January 31, 1957, Nelson, along with Julio Ceribo, @
the penalty for kidnapping for ransom was. He was investigated in Camp Natividad on Sonia, Pedro Masilungan, Antonio Batanes and others, was taken by Col. Castillo before
July 22. Having just surrendered then, he was afraid to be implicated in the Principe Col. Yan at Camp Crame. He then affirmed the truth of the contents of his statements
kidnapping therein. Later, he was investigated again in Lucena. He then decided to tell the (Exh. X) before the said official. He did the same when he was taken before General Cabal
truth and did not mind anymore the consequences. He gave his statement (Exh. X) who examined him on the said statement. He, likewise, affirmed the truth thereof before
wherein he revealed his participation in the Principe kidnapping case and the role played President Ramon Magsaysay before whom he was seen in the office of Secretary Balao at
therein by accused Jose Estrada, on September 5, 1956. Having known the truth from the Camp Murphy. He did not mention the letters he had written to Estrada then, because
said statement, both the investigator and the prosecutor then told Nelson that he would the contents of said letters were false and he was afraid to tell any lies before the
be a witness against Estrada after his discharge from the information. He was later highest authority of the land. He stated in those letters that he did not know Estrada,
arraigned on November 20, 1956. because he merely wanted to make Estrada believe that he would really make a "turn
o In the month of January, 1957, Antonio Nieva, brother of then Chief of Police, Ricardo about". But the same is false; it was only the idea of Antonio Nieva. Nieva had told them
Nieva of Pasay City, met @ Nelson near the house of Col. del Castillo, Provincial that Estrada was ever willing to give them help, that is why Nelson and his companions
Commander of Quezon. They had a sort of conference. Nieva promised Nelson to work agreed to mulct him. Thus, in one of the said letters, Nelson had asked Estrada for
out his case with Malacañang, should he agree not to testify against Estrada in court. "cigarettes money".
Nieva urged him to deny the truth of his statement (Exh. X) when the trial comes, and to o Nelson had been discharged from the information on March 20, 1957; but he was still
testify that he had executed it only because he had been maltreated, rewarded and given under PC custody because he had demanded such protection pending the termination of
promises. Nieva gave him P20.00 on that occasion. the case.
o Nelson at first denied having written Exhibit 2 (a letter signed by Nelson addressed to
Estrada, on January 24, 1957), wherein Nelson appears to be telling Estrada that they TESTIMONY OF JULIO CERIBO: (Note: Defense tried to Recall him)
were then in a bad fix; that Col. Castillo had come to know that Congressman Roces of the
CAFA was coming to see them, and he believed that Estrada was the one who had written
o Julio Ceribo testified that he was a surrendered Huk; he joined the Hukbalahaps in 1946;
the congressman, and then caused Nelson and his companions to make a "turn about;"
he served under various Huk Commanders in the field; in 1953, he was assigned as a
that because of that suspicion of Col. Castillo, they were no longer permitted to talk with
member of the unit — headed by Lt. Alcantara — with the old man Mateo del Castillo,
any visitors; that Nelson, Gregana and Pedro Masilungan — Estrada's former adversaries
the highest in command; he knew about the kidnapping of Elvira Tañada de Principe
in the Barretto case — have all agreed to make a "turnabout", and that the Fiscal had
because he was with Lt. Alcantara when they kidnapped her; but even before the actual
been informed that they really did not know Estrada. Later, however, he admitted that he
kidnapping, he already knew about it because there was a conference in Barrio Biga
was the one who wrote it. On January 25, 1957, Nelson sent Estrada another letter,
where it was agreed to kidnap her because she was the one pointed to by Estrada; first,
Exhibit 3 (Nelson appears to be urging Estrada to write and complain to the CAFA; to give
Lt. Alcantara approached Comdr. Teddy Corazon, and then the latter ordered Huks Nelson
them help so that they may be able to deny the truth of their "statements" which the PC
and Fredo to contact Estrada in the poblacion; three days after, Estrada came to Barrio
investigations had forced them to sign; and to request Nieva to intercede in their behalf in
Biga and conferred with Lt. Alcantara, Comdr. Teddy Corazon, Comdr. Emy and others;
Malacañang in order to put an end to the doings of the Provincial Commander in Quezon).
Estrada was asked by Lt. Alcantara then as to who was the richest in Gumaca, and
On January 27, 1957, Nelson wrote another letter, Exhibit 10 (styled "to whom it may
Estrada suggested Elvira Tañada de Principe because she could easily be ransomed;
concern," Nelson appears to be declaring here that he and his companions knew nothing
Estrada explained that if it were her husband to be kidnapped, it would be hard for the
about the kidnapping of Elvira Principe, much less, the alleged conference with Estrada
family to ransom him because the properties of the Principes were in the name of Elvira's
regarding the same; that they signed their "statements" only because they have been
husband, Reynaldo Principe; Lt. Alcantara agreed, and about one week after that
threatened, the investigators telling them that they would be prosecuted if they would
conference, they came down to Gumaca and took Elvira; he stood guard in one of the
not cooperate with the Government; that they had been required to drink plenty of
streets in the town during the kidnapping; one of his companions took along Carmen
water; that they had been made to testify against persons like Estrada, with the promise
Noceto on the way so that Elvira Tañada de Principe would have a companion; it was
of a bright future and of money; and that Col. Castillo was really mad at Nieva. Nelson
Page 38 of 52
about 5: 00 o'clock in the afternoon of February 27, 1956, when they kidnapped Elvira; he (Nelson) was sign their names on the letters, but Nelson never showed the letters to
there were 16 of them who executed the said kidnapping, among them, Lt. Alcantara, him; he came to know the letters to accused Estrada only when the said letters were later
Nato, Mike, Heling, Nelson, Emilia, Carding, Payat, Efren, another Efren and Del Moro; discovered; he knew Col. Yan, he was taken before him at Camp Crame; Col. Yan asked
they took Elvira and Carmen to the mountains between Macalelon and Lopez, Quezon; him whether or not his declarations in his statement (Exh. H) were true, and he confirmed
they hid them there for two weeks in one of five huts they built; Elvira was later ransomed them; he was next taken before Gen. Cabal, before whom he declared that he had
by her husband; Basilio Angulo and three other persons brought the ransom money of executed Exh. H voluntarily, i.e., that he was not maltreated by the PC; later he was taken
P50,000.00, after which both Elvira and Carmen Noceto were released; they kidnapped before the late President Magsaysay in the office of the Secretary Balao, and there, he
Elvira Tañada de Principe because they were in need of a large sum of money; on August also affirmed the truth of his statement before the President.
7, 1956, he was with the Huks that had an encounter with the government forces in
Usiwan Lucban, Quezon; there he was wounded in the right foot, and soon, unable to TESTIMONY OF GONZALO MALLARE:
withstand the deprivations anymore, he decided to have a "new life"; he proposed to
surrender to the Mayor of Majayjay, Laguna, thru the intercession of Juan Cuates of
o Gonzalo Mallare testified that he was a former Huk, he surrendered to the
Barrio Botocan; he had no chance to talk with the Mayor, however, because when they
authorities on March 20, 1957; he joined the Huks in Manila, as early as April, 1948;
came to get him, the BCT soldiers were the ones who got hold of him first, and they took
in December of that year, he was apprehended by the PC, and was maltreated; they
him directly to their headquarters in Majayjay Laguna; from there, he was taken to
released him, later, however, because the Communist Party had then not yet been
Canlubang where he was questioned as to when he first joined the Huks; then he was
declared illegal; but after that he went up the mountains, and from the position of
transferred to Lucena City where he was investigated by Eddie Recuenco; after that he
mere clerk in the Manila office of the Huks, he rose to higher positions; he was again
was brought to the Court of First Instance of San Pablo where he was charged of
apprehended by the PC in 1949, and again he was released in February, 1950;
rebellion; but later he was discharged from the information thru the efforts of his
thereafter, he rejoined the Huks in the mountains; in 1955, he was educational
brother who secured the services of Atty. Ribong; his brother showed to him his discharge
chairman of RECO 4 — charged with the duty of indoctrinating the people with the
papers, but he was still kept in the stockade at Lucena City with Nelson, he was not
tenets of the HMB, which he learned from Dr. Jesus Lava — with jurisdiction in the
released; and when he was investigated there in connection with the kidnapping of
province of Rizal, half of Laguna, and the whole province of Quezon; about May 1,
Elvira Tañada de Principe, he had to admit; at first he wanted to deny it, but when Nelson
1954, as he and his men were passing thru Barrio Labnig Gumaca, Quezon, he was
pointed to him, he was frightened and had to tell the truth — that he was with the group
introduced to accused Estrada by Huk Comdr. Tony who was then operating in the
that kidnapped Elvira — that is why he was included in the information in this case; but
Bondoc Peninsula; Estrada told him then that he was a friend of the Huks and the
when he was arraigned, he pleaded "not guilty", assisted by one Atty. Gonzales; he
civilians, and that he was influential with the Army; Estrada told him further, that if
pleaded "not guilty" to the charge because he knew that kidnapping is a very serious
he could be of help to him, he would do it; remembering that he was in need of a
crime, for even up in the mountains they had been told; that the penalty for kidnapping
typewriter and a mimeographing machine then, he asked Estrada if he could help
was severe and "we had better be dead than caught alive;" but the truth is he was really
him procure them for him, and Estrada promised to do so; in the afternoon of that
with the kidnappers who took Elvira Tañada de Principe; he knew Atty. Franco, the latter
same day, he gave P650.00 — P500.00 coming from him, and P150.00 coming from
introduced himself to him and told him that he was his counsel; they first met in Lucena
Comdr. Onoy — to Comdr. Matta, for delivery to Estrada; he knew that Estrada
City, then for a number of times later in Gumaca, Quezon where they talked about his
received the money for, soon, he received the typewriter and the mimeographing
case; he told him (Atty. Franco) that he could not deny the circumstances because they
machine, Comdr. Matta informing him then that Estrada had sent him (Matta) a
were all true; they met again after that in the stockade in Lucena when Atty. Franco
letter stating that the amount given was P43.00 short of the cost of the typewriter
brought some typewriter papers which he was asked to sign; the papers (Exh. 16) was
and the mimeographing machine, aside from the expenses of the two persons who
shown to him, but he would hardly read it because it was held by Atty. Franco far from his
had brought them; this typewriter and mimeographing machine he acquired thru
face; they were in the kitchen of the stockade then, and Atty. Franco told him to sign it at
Estrada's help, was delivered by him to the 26th BCT when he surrendered; he met
once because the soldiers might come; he insisted that he should sign it because he was
Estrada in about a week before February 23, 1956, at noon, in Barrio Biga, Gumaca,
his lawyer, and it was for his benefit — for his acquittal; but he had no hand in the
Quezon; he was with Comdr. Teddy then, in his way to contact a certain teacher who
preparation of that document, and its contents are not true; he met Atty. Franco again in
had previously promised to help him buy some supplies; he failed to contact the
Majayjay later when he was granted leave; Atty. Franco instructed him to go to Manila
teacher, and as he approached Lt. Alcantara to bid him goodbye, he heard the
because he would prepare an affidavit, but he did not go there, he left Majayjay
conversation between Lt. Alcantara and accused Estrada; Lt. Alcantara asked
immediately even if he had not fully enjoyed his 19-day leave; he later told Capt. Alejo
Estrada if Elvira Tañada de Principe was the richest woman in Gumaca who could
(government prosecutor) that Atty. Franco had made him sign Exh. 16; its contents,
be kidnapped, and Estrada answered that she was; that was all that he heard; Lt.
except for his age, are not true; for the truth is that he knew everything about the
Alcantara then borrowed some of his men and firearms; and when his men rejoined
kidnapping of Elvira Tañada de Principe; the document was already prepared when it
him later, they reported to him that they had participated in the kidnapping; he
was shown to him by Atty. Franco, and the latter compelled him to sign it; when he was
recalled that he came from Barrio Malimatik, Lopez, when he went to Barrio Biga,
at the stockade in Lucena with Nelson, he knew that Nelson was writting letters, and that
Page 39 of 52
Gumaca; he was with Comdr. Emy; those present in that meeting in Barrio Biga, most of the properties were in his name." Lt. Alcantara then asked, "whom can
Gumaca, Quezon were Estrada, Lt. Alcantara, Comdr. Teddy Corazon, Emy, Fredo and we kidnap?" Estrada suggested Elvira Tañada Principe who "could easily be
others; on March 20, 1957, he surrendered the following day his affidavit was taken ransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if that is
by an investigator; it was a very long one, but he purposely did not make any the case, yes, let us kidnap Elvira Tañada Principe, it will be good for us to
mention about the meeting in Biga, Gumaca, where he saw and heard the kidnap Elvira Tañada Principe." The huk lieutenant told Estrada further: "you will
conversation during the meeting between Estrada and Lt. Alcantara, because he did be advised when the kidnapping will take place;" and Estrada answered: "all the
not want his name linked with the latter; he wanted to avoid any mention about the time you can depend upon me."
kidnappings in the Bondoc Peninsula, because he feared that he would be included in o In the afternoon of February 27, 1956, Lt. Alcantara and his men came down
it; that is why, when he was taken before Secretary Balao in Camp Murphy, he told from Barrio Biga to Gumaca and kidnapped Elvira Tañada Principe from the
him not to ask him about the kidnapping; but when he later met Antonio Campaniero store on the ground floor of the house of her father-in-law, Marciano Principe.
@ Nelson, Melchor Gregana @ Rony and Julio Ceribo @ July who have knowledge of They took her, together with Carmen Noceto whom they picked up along the
the secrets of these kidnappings, and the purchase of the typewriter and the way, to the mountains near the boundaries of the towns of Gumaca, Lopez and
mimeographing machine thru Estrada, and after knowing that Nelson, Ceribo and Macalelon. The Huks kept them there for about two weeks. Thereafter, Lt.
Angel Veran were already accused of the kidnapping, he decided to reveal the Alcantara and some of his men went to Barrio Villa Tañada, Gumaca, and
matter; and he believed that if the government were to be convinced of his loyalty contacted the barrio lieutenant, Beato Glinoga, on the night of March 4, 1956.
they would realize that he had nothing to do with all the kidnappings in the Bondoc o Identifying himself and his companions, as the kidnappers of Elvira Tañada
Peninsula; that is why, since his surrender, he had been helping the Army, in its Principe, Lt. Alcantara asked Beato Glinoga to deliver his letter to the Principes.
campaign for peace and order; he had contacted his former companions in the He instructed Glinoga to see Councilor Estrada first in the town, so that the
Bondoc Peninsula so that they may return and live peacefully; on November 27, latter could accompany him to the house of the Principes, and then to the
1957, about 92 of them surrendered. mountains where he (Lt. Alcantara) would later meet them. The chosen courier
o Other witnesses testified for the prosecution, but their testimonies deal largely on followed the orders of the Huk Commander. He went to the poblacion of
how the ransom money of P50,000.00 was finally agreed upon and delivered to Lt. Gumaca the following morning. He looked for Estrada, but he failed to contact
Alcantara thru couriers. Thru them, the letters of Lt. Alcantara to the Principes and him. So, he went directly to the house of Marciano Principe and personally
vice versa (Exhibits A to E) and the photograph of Lt. Alcantara (Exh. F) were delivered the letter of Lt. Alcantara entrusted to him. Marciano Principe read
identified. This picture and other exhibits, where admitted as evidence for the the letter of the Huk Commander, and then wrote an answer. He gave the same
prosecution. to Basilio Angulo, a compadre of his who was at the house at the time, and
requested him to join Beato Glinoga back to Lt. Alcantara in Barrio Villa Tañada.
SUMMARY of testimonies of witnesses for the prosecution to establish the guilt of accused Jose The courier and the emissary went together and met Lt. Alcantara that same
Estrada evening, in the mountains of Villa Tañada?
o Basilio Angulo and Lt. Alcantara then had a conference. As they did, one of the
huks present nudged Glinoga and inquired from him where Estrada was, and
o The Hukbalahaps in and around the mountains of the Bondoc Peninsula were
Glinoga explained that he was not able to see him.
the friends of accused Jose Estrada. With and through his help, the chairman of
the educational committee of the HMB in the region, acquired a typewriter and
a mimeographing machine on May 1 or 2, 1954. Defense
o About the first week of February, or about a week before the actual kidnapping
of Elvira Tañada de Principe on February 27, 1956, Huk Lt. Pepe Alcantara met Accused Jose Estrada denied his complicity in the commission of the kidnapping of Elvira
with other Huk Commanders in Barrio Biga, Gumaca, Quezon. Lt. Alcantara gave Tañada de Principe in the afternoon of February 27, 1956.
some instructions to Comdr. Teddy Corazon then, and the latter ordered huks @ He swore that he had never been to Barrio Biga, Gumaca, in the month of February, 1956,
Nelson and @ Fredo to contact councilor Estrada of Gumaca in much less ever conferred with any Lt. Alcantara for the alleged purpose of pointing to
the poblacion and to tell him to see Lt. Alcantara in Barrio Biga. Elvira Tañada de Principe as the best kidnap victim in Gumaca.
o Alias Nelson and @ Fredo were able to talk with Estrada in the town, and His testimony may be reduced as follows:
three days later, Estrada met with Lt. Alcantara and his companions in Barrio o he knew Elvira Tañada de Principe; her family was his neighbors, and his
Biga. During that meeting between them, Lt. Alcantara asked Estrada who (for younger brother, Fernando, was the godson of Elvira's father;
purposes of kidnapping) was the richest man in Gumaca, and Estrada o he was elected councilor of Gumaca from 1948 to 1951; again he was elected
answered in Tagalog, "ang maimumungkahi ko sa inyo ay ang mga Principe." councilor for the term 1956-1960;
Lt. Alcantara inquired if it was Reynaldo Principe, to which question Estrada o he was a recognized guerrilla and a pensioner of U.S. Government; he belonged
answered "no" because "it would be difficult for the family to ransom him for to the following civic organizations: President, Gumaca Club 37; Worshipful
Page 40 of 52
Master of the Masons; Chairman, Boy Scouts Organization; President, PTA cases in the Bondoc Peninsula — the kidnapping of Ex-Mayor Yumul of Lopez, of
District league; President (twice), Purok Castillo; Vice President, Jaycees of Wee King of Catanauan, of the Barrettos of Gumaca, of De Leon of Catanauan
Gumaca; Chairman, Civilian Affairs Organization; and Vice Chairman, Red Cross and of Elvira Tañada de Principe of Gumaca; he (Estrada) had not been the
Campaign in 1951 for Quezon Province; the barracks of the 8th BCT in Gumaca victim of kidnapping. Asked by the court whether kidnappings disappeared in
was constructed through him; he was the moving spirit in the construction of Gumaca after his arrest, accused Estrada refused to answer.
Camp Natividad in 1948, which now houses the 38th PC Company; he joined the
pacification campaign in the towns of Quezon which brought about the Testimonies for the defense
surrender of several firearms; he exerted efforts for the construction of the
Army Officers Quarters of the 26th BCT in Calauag, Quezon; he is an informant
o ELISEO RAMOS, a detained prisoner for rebellion in the provincial jail of Lucena City,
of the Philippine Army; as such informant, he had caused the arrest of several
testified that he knew prosecution witness Julio Ceribo; they were both Huks, and had
persons; and he was commended by Col. Baltazar for his effort and cooperation
occasion to meet each other in the mountains; the last time he met Ceribo was on
with the Army;
November 25, 1956, when Ceribo was also confined in the provincial jail of Lucena; he
o he came to know prosecution witness Antonio Campaniero alias Nelson only in
asked him (Ceribo) then why he was detained, and the latter answered that he was being
court, and it is not true that he and Huk Fredo came to his house to deliver the
used as witness against accused Estrada; there were many detention prisoners at the time
message of Lt. Alcantara; Nelson sent him letters during his confinement in the
they talked to each other, among them were Hilarion Gutierrez, Juanito Bautista, Cenon
provincial jail of Quezon, and he had sent them, to Congressman Roces of the
Entiosco and Pedro Masilungan; during the course of their conversation, accused Estrada
CAFA;
appeared, and he asked Ceribo if he knew him; Ceribo then told Estrada that he did not
o he did not know also Huk Comdr. Teddy Corazon, for he came to know him
know him; asked why he was going to testify against Estrada when according to him he
only in court; Teddy Corazon told him in jail than that it was not true that he had
did not know the said accused, Ceribo answered that the investigators had promised to
instructed Huk Nelson and Fredo to see him before; on November 25, 1956, he
discharge him from the complaint, and that was the only way he (Ceribo) could save
met prosecution witness Julio Ceribo in jail, and the latter confessed to him that
himself; and Ceribo told him: "Ikaw ang tumayo sa aking kalagayan kulang lamang akoy
he (Ceribo) did not know him (Estrada), and that Ceribo said he merely
patayin sa bugbog;" Ceribo further confided to him that had he known such treatment
implicated him because the PC had forced him to include him; detained
would happen to him, "he would not have surrendered."
prisoners Gutierrez and Mangubat were present when Ceribo told him so;
o PEDRO MANGUBAT, a co-accused of Estrada in the Barretto kidnapping case; CENON
o he likewise did not know Huk Gonzalo Mallare (prosecution witness) before the
ENTIOSCO, a prisoner serving sentence for robbery with rape and physical injuries, and
trial, and it is not true that they met each other before; there is no truth in
also for illegal possession of firearm; and HILARION GUTIERREZ, another detention
Mallare's testimony that he (accused) purchased a typewriter and a
prisoner on charges of murder and robbery of which he was later convicted — testified
mimeographing machine for him; in fact, when he learned that the said
that they were all in the provincial jail of Quezon when prosecution witness Julio Ceribo
typewriter and a mimeographing chine was loaded in one of his trucks for
was brought in there; that they all heard the conversation between Ramos and Ceribo
delivery to the Huks, he informed Captain Daza of the Army about it, only that
on the one hand, and between Ceribo and accused Estrada on the other hand, and that
Capt. Daza happened not to be there at the time; there is also no truth in the
they knew that Ceribo had told accused Estrada then that he (Ceribo) did not know
testimony of Beato Glinoga; this prosecution witness, as a matter of fact,
Estrada.
begged his forgiveness after testifying against him, when they met in the office
o Col. ESTANISLAO BALTAZAR testified that in 1952, he was commanding officer of the 26th
of the Chief of Police of Gumaca; at the time, Col. Castillo came along, and
BCT, stationed in Calauag, Quezon; in one of the meetings he held in the town hall of
finding them together, threw out Beato Glinoga and then challenged him
Gumaca, asking the people to cooperate with the Army in its campaign against the
(Estrada) and his brother to a fight; in fact, Beato Glinoga became his own
dissidents, one of those present stood up and said, "How can you expect the people to
witness after the relief of Col. Castillo as provincial commander of Quezon; he
help the Armed Forces when they do not treat the barrio people well, they are taken to
was combat officer in the guerrilla forces; charges of murder were filed against
the headquarters of the Army and there they are maltreated and compelled to admit
him after liberation, but he had been given the benefits of the guerrilla amnesty;
crimes which they did not commit?"; he knew later on that that man who had spoken was
he was also accused in the Barretto kidnapping case, but his participation there
Councilor Estrada; and soon he solicited his help; Estrada rendered valuable services to
was only that he had contacted the kidnappers at the behest of the family of the
the Army then, for he had extensive connections with the barrio people and he supplied
victims, for purposes of reducing the amount demanded by the Huks;
valuable information as to the movements of the Huks in the place; and in recognition of
o on the day of the kidnapping of Elvira Tañada de Principe, he was at home;
his services, he gave Estrada a written commendation (Exh. 18). Col. Baltazar admitted tho
upon learning about it, he helped the family in raising the ransom money, he
that the Huks were very active in the place during his stay there as BCT Commander, and
was the largest copra dealer in Gumaca; his customers owed him not less than
that they (the Huks) had an upper hand. He admitted further that the information
P60,000.00; Elvira Tañada de Principe's father-in-law, Marciano Principe, was
supplied by Estrada was always late, that was why they had no encounter with the
also one of the largest copra dealers in the town, but there were other large
dissidents. They almost caught up with the Huks in a barrio when they went to the place
copra dealers there; he knew, thru the newspapers, about the other kidnapping
Page 41 of 52
to verify the report made by Estrada, for the residents informed them that the Huks had house of the Principes, without mention whatsoever of the name of Estrada; that he
left only about an hour before their arrival. made mention of and implicated Estrada, upon orders of the PC investigators that he
o Major FELIPE BRUAN declared that he was formerly stationed in Gumaca, and there he should mention Estrada in his affidavit, and which orders he followed, because they would
came to know Estrada. The latter gave the PC then valuable information regarding the not stop maltreating him; that on his way to the house of the Principes, he met Federico
movements of the Huks. In May, 1954, Estrada reported to them the presence of Huks Caparros and another man, and together they boarded a truck going to the poblacion of
near the boundary of Lopez and Gumaca, and they went to the place to verify the report; Gumaca; that he even showed to them the letter he was to deliver to the Principes when
unluckily, the Huks had left the day before when they reached the barrio they had visited. they asked him where he was going; and that he alighted right in front of the house of
He was in command of the PC Detachment in Gumaca when Elvira Tañada de Principe was Marciano Principe when the truck reached the town.
kidnapped. Estrada did not make any report then about the presence of the Huks in o FEDERICO CAPARROS and TOMAS SOMBILLA both testified and corroborated the
Gumaca before the incident. But after the incident, he (Bruan) received news about it and statement of Glinoga that they met Glinoga on March 5, 1956; that they asked him where
he immediately pursued the kidnappers. There was an encounter that ensued when they he was going then, and Glinoga told them that he was going to the poblacion, showing to
had contact with the Huks at about 6:00 or 7:00 o'clock in the evening. There was firing them a letter which he pulled out of his pocket; that Glinoga did not stop at any other
for about 30 minutes, after which they returned to the town because they soon lost place, but went directly to the house of Marciano Principe.
contact with them. o ATTY. ANDRES FRANCO, upon permission of Julio Ceribo, declared that he was the
o Capt. JUAN DAZA testified that he was once stationed in Gumaca as commanding officer counsel of Julio Ceribo in this case, and another case for rebellion in Laguna; that he
of Love Company, 26th BCT; even before he was stationed at the place, he already had prepared Ceribo's statement (Exh. 16) at the instance of Julio Ceribo who had supplied the
news about the valuable services of Estrada to the Army; so, he sought Estrada's help facts contained in the said statement; that he prepared the statement first and then took
when he moved to the place; and as expected, Estrada rendered valuable services; one it to his place of confinement, asking him to sign it only after he had read the statement
time, Estrada informed him that there were three (3) amazons who were willing to and understood its contents; and that Julio Ceribo swore to it before Notary Public
surrender, and he soon brought them — Huk Amazons Liwayway, Leonor and Amy — to Rodolfo Garduque whom he (Franco) had requested to come along. (The trial court
his camp; these amazons were all wives of Huk Commanders; in 1954, they were able to appears to have commented, after examining Exh. 16, that the same was not necessary in
kill a Huk named Absalon at Barrio Sastre thru the information supplied by Estrada; on the defense of Julio Ceribo in the present case, considering that Julio Ceribo had already
May 2, 1954, they received information from Estrada that the Huks had loaded some been discharged from the information when Atty. Franco secured the said statement of
things on one of his trucks, for delivery to Barrio Labnig; he sent men to verify the report Ceribo).
and there was an encounter; they did not catch up with the Huks, however; and according o The testimony of Atty. Franco was substantially corroborated by Atty. Rodolfo Garduque
to Estrada, the things loaded on his truck were a typewriter and a mimeographing who declared that he ratified Ceribo's statement only after he was sure that Ceribo
machine. understood it; and that there were witnesses (brought along by Atty. Franco) who
o The defense later placed the victim, Elvira Tañada de Principe, on the witness stand. From witnessed the signing of the document.
her testimony, the defense elicited the fact that during her confinement in the mountains, o ANTONIO NIEVA testified that he was a former Army Officer stationed in Pitogo, Quezon;
Lt. Alcantara inquired from her, if she was the wife of Teodosio Principe. Upon her answer Estrada was their informer when he was stationed there, and Estrada helped in the
that she was not the wife of Teodosio Lt. Alcantara then asked her if she was the wife of surrender of many Huks; ha approached Col. Castillo regarding the case of Estrada
Reynaldo Principe, to which question, she gave an affirmative answer. because he believed that Estrada was innocent; he met Col. Castillo several times
o QUIRINO RAVELA, one of the companions of Lt. Alcantara in the kidnapping of Elvira, and regarding the matter, and he told him that he was wrong in prosecuting accused Estrada;
who had been sentenced already in this case upon a plea of "guilty" testified that while in but Col. Castillo confided to him that his career was at stake in this case, for he had been
the mountains, he overheard the conversation between Lt. Alcantara and Elvira Tañada, instructed to get the "big shots" from the second district of Quezon; later, Col. Castillo
wherein Lt. Alcantara asked the victim if she was "Doctora". To this question, Elvira also confided to him that he was interested in monetary considerations which he itemized
answered that she was not the doctora; she cried then and said, "I am the poorest among as follows: for Estrada's involvement in the Barretto case, P20,000.00; in this case,
the Principes." P20,000.00; and for eight (8) other murder cases, P2,000.00 each; Col. Castillo then told
o MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes, testified that him that if he could give him P50,000.00 he would still be economizing by P16,000.00; he
he was in the house of Marciano Principe when Elvira arrived from the mountains after then immediately went to see the President and asked for the relief of Col. Castillo as
her release. He then heard Elvira talk to her sister Consuelo and exclaim in Tagalog: "Ako Provincial Commander of Quezon, and President Magsaysay then gave him a note,
pala Ate Consuelo ay pinagkamalan, at ang akala pala ay ako ang asawa ni Dosio." addressed to Gen. Cabal; when he met Gen. Cabal, however, accompanied by Gov.
o In September, 1958 (after about one year and three months after he had testified for the Santayana, Jardin and his (Antonio Nieva's) brother, then Chief of Police of Pasay City, he
prosecution), BEATO GLINOGA was placed on the stand by the defense. He then made a received the same answer as Col. Castillo's from Gen. Cabal, who told him further that "as
complete turn about regarding the previous instructions of Lt. Alcantara for him to see long as he was Chief of the Philippine Constabulary, Col. Castillo will not be touched in
first accused Estrada before delivering the ransom note to the Principes for the reason Quezon Province;" he never expected to hear from Gen. Cabal the same words which Col.
that Estrada knew all about it. This time, he declared that he was not so instructed by Lt. Castillo had confided to him, and in exasperation he exclaimed: "it seems to me that I am
Alcantara; that the truth is, that he was directed by Lt. Alcantara to proceed to the not talking to the General;" in the note given by the President to Gen. Cabal, the President
Page 42 of 52
told the General that the Nieva brothers knew more of the peace and order conditions in Basically, Estrada's defense is that the charge against him is but a pure concoction.
Quezon, and should be left alone; he was told by the President to report to him the o Naturally, he vehemently denied the truth of the above inculpatory facts
following Monday, but unluckily, the President died on the Sunday before their proven by the prosecution, by showing that he could not have been in Barrio
appointment; he recalled that he used to be in good terms with Col. Castillo before, but Biga, Gumaca, nor conferred with Lt. Alcantara at the place in February, 1956,
he became indifferent to him when he (Castillo) failed to stop him from taking interest in because he never left the town of Gumaca during the said month, but once —
the Estrada case telling him that P20,000.00 was not enough; he insisted on his demand when he went to Lucena City to renew the plates of his trucks.
for P50,000.00. o He sought to destroy the credibility of the witnesses for the prosecution. He
tried hard to convince the trial court that a man of his stature and character —
(IMPORTANT) With the offer of various exhibits, including a copy of the decision of Court of an elective official of social prominence and with substantial income, and
First Instance of Quezon in the Barretto case, wherein accused Estrada and all his co-accused commended by a ranking PC officer for "his exploits and undertakings" as an
were acquitted, the defense rested its case. It appears that before the defense did so, they "informer" of the Army — could not have been in league with the Huks in the
made an attempt to put back prosecution witness Julio Ceribo on the witness stand in order mountains, and propose to them a neighbor and family friend as an object of
that he could explain why he allegedly had testified falsely against accused Estrada when he the heinous crime of kidnapping for ransom.
testified for the prosecution in this case, but the court below did not allow the defense to put His version, however, failed to convince the trial court of his innocence of the crime
back the witness. The trial appears to have been delayed also for a considerable time because imputed to him.
the defense had made attempts to produce Lt. Alcantara in court, in which attempt they failed.
Gen. Yan testified that a certain Pepe Alcantara working with the Army was still operating in Accused Jose Estrada has appealed from the decision.
the field, and that his whereabouts was unknown.
ISSUE
In rebuttal, the prosecution placed on the witness stand Col. Francisco del Castillo, who
testified as follows: o W/N Estrada is guilty —YES
o he was Provincial Commander of Quezon from May 2, 1956 to July 7, 1958; he o W/N Trial court abused its discretion in denying defense the right to call back
was on a mission then — the prosecution of all the kidnapping cases in the witness Ceribo - NO
Bondoc Peninsula, namely: the case of Wee King of Catanauan (1954); of
Saturnino Barretto and his children of Gumaca (1952); of Ex-Mayor Yumul of Held:
Lopez (1955); of Rosita de Leon of Catanauan (1955); and of Elvira Tañada
Principe (this case, 1956); WHEREFORE, appellant is hereby rentented to reclusion perpetua. With this modification,
o he had no personal grudge against Estrada, for even before he came to Quezon decision is affirmed by way of ordering appellant to pay the civil liability and the costs. On
as provincial commander, Estrada was already accused in the kidnapping case of equitable considerations, no costs in this instance.
Saturnino Barretto and his children;
o Antonio Nieva and many other persons came to him and asked that the case
against Estrada be quashed, but he refused; he turned down the immoral Ratio:
proposals of Antonio Nieva; he did not prosecute him, however, on those
immoral proposals because it was hard to prove, as there were no witnesses; Credibility of Testimonies of Nelson, July, Mallare and Commander Romy
Nieva used to approach him during the time of his rest near his house; later, he
learned that Antonio Nieva had tampered with the witnesses for the o Appellant contends that the trial court had fallen into grave error in giving faith and
prosecution; so, he ordered his men to put Nieva "off limits" in his camp; Nieva credit to the testemonies of huks Antonio Campaniero @ Nelson, Julio Ceribo @ July,
complained to higher authorities in Quezon City, that was why said higher and Gonzalo Mallare @ Commander Romy. Attention is called to the fact that Nelson and
authorities called him there to the PC Headquarters; he then brought along the Ceribo — former co-accused turned state witnesses — had no choice but to testify against
witnesses of the government against Estrada, and they were investigated by the appellant in consideration of the prosecution's promise to discharge them from the
said higher authorities: these witness were the ones who revealed the information and save their skin, while the case as against witness Mallare was apparently
participation of Estrada in this case; and dismissed, on motion of the prosecution for alleged insufficiency of evidence, purposely to
o he never demanded P50,000.00 as consideration for the quashing of the cases make him testify against herein appellant. Under the circumstances, it is argued, these
against Estrada. witnesses had no option but to testify as the prosecution desired — to secure the
conviction of the appellant at all cost.
Summary of the defense o There should be no quarrel that Nelson and Ceribo must have testified as state witnesses
in consideration of the prosecution's promise to discharge them from the information in
Page 43 of 52
this case; but that is not true with respect to witness Gonzalo Mallare, who appears to yellow suits entered their cell in the stockade and asked who were the witnesses against
have testified long after the case against him had been dismissed for insufficiency of Estrada in this case; and the witnesses pointed to one another. One of the said prisoners
evidence. But these circumstances alone — short of any showing that in consideration of then told Nelson that if he still valued his life, he should prepare a letter to Estrada and
the State's leniency, these witnesses had been ordered and had agreed, not only to testify make him believe that they will not testify against him. Nelson explained that he believed
for the prosecution but also to prevaricate in their espousal of the People's cause — this to be a threat on their lives, for he thought that they might have been bribed to
cannot detract from their credibility. We have examined the testimonies of these liquidate them. So, he wrote the letter, in the presence of the said prisoners. With respect
witnesses with painstaking solicitude, in our sincere desire to find the usual signs of to a portion of another letter (Exh. 10), dated January 27, 1957 (letter was styled "to
wavering and wobbling in declarations of lying witnesses, and We note that whom it may concern"), Nelson asked Estrada to give him some amount for cigarettes,
notwithstanding the fact that they have been subjected to extraordinarily long and and herein appellant would capitalize on this apparent weakness of character of Nelson
searching cross-examinations — lasting several days of trial — by the brilliant lawyers for to destroy his credibility. We are more inclined, however, to disregard this theory
the defense, they never fell into serious contradictions in their long declarations, which because We found that the witness had frankly admitted that he did it because Antonio
could reasonably be expected if they were merely concocting lies. On the contrary, they Nieva had assured them that Estrada was willing to help them, and while confined in jail
withstood the ordeals of the lengthy cross-examinations, explaining every point on which they (the witnesses) had agreed to milk him. In fact, in another portion of the said letter,
the counsels for the defense dwelled, in a straight-forward and satisfactory way. The Nelson had asked Estrada to return his letter; and Nelson explained in court later that he
above contention of appellant, therefore, cannot be accepted. wanted to destroy the letter because if Col. Castillo should come to know about the lies he
o Much emphasis is placed by appellant upon the circumstance that during his confinement had told therein the more they would suffer (lalo kaming mahihirapan). Thus, he
in the provincial jail in Lucena City, prosecution witness Nelson (then confined in the PC explained to the court below:
stockade) had written several letters addressed to him and his witness, Antonio Nieva, o Ang ibig ko pong sabihin ay lalo kaming kukulungin sa loob ng "stockade" kung
altogether purporting to show that Nelson had been telling them that he and his malalaman kami'y sumulat kay Estrada at magpapanday ng kasinungalingan.
companions who had previously given statements implicating herein appellant in the Yayamang kami na-stockade at kami halos incomunicado pa ay dahil nga sa
commission of the crime, before the government investigators, did not really know him pangyayari ng kami kausapin ni Tony Nieva na gawin namin ang lahat ng paraan
(Estrada); and that they implicated herein appellant in their said statements because sa pagsisinungaling, tanggihan namin ang mga "statement" na nilagdaan naming
they were maltreated by the investigators into signing them. It is our considered opinion, kusangloob. Nangangahulugang babaligtad kami sa katotohanan tungo sa
16
however, after considering the surrounding circumstances under which the letters kasinungalingan.
adverted to were written, that their contents are false. Nelson declared that Antonio o This jibes with the other evidence of the prosecution of record, and admitted by the
Nieva talked with him before he wrote the letters. Nieva explained to him that by witness for the defense concerned, that Antonio Nieva, for having shown extraordinary
testifying as state witness, he cannot be relieved of his responsibility in the commission of interest in this case, had thereafter been ordered "off limits" inside the PC camp. Finally,
the crime. Pointing out that he (Nelson) was not just a witness but an accused (Nelson had there is another circumstance that adds a ring of truth to the testimony of Nelson. Col.
not been discharged from the information at the time), Nieva warned Nelson that he Castillo testified that Antonio Nieva had complained to higher authorities about him.
would also be punished like Estrada, and perhaps go to the electric chair. With assurance This is admitted by defense witness Nieva who declared that he went to see the late
of his close connection with Malacañang, Nieva promised Nelson that he could do President Magsaysay and General Cabal, and asked for the relief of Col. Castillo as
something about this case in Malacañang, and Estrada would be willing to help them, provincial Commander of Quezon province by reason of his actuations in this case. As a
provided they would not testify against the latter, otherwise, something bad would result of Nieva's Complaint, Col. Castillo was called by higher authorities to Quezon City;
happen to them. And with this idea brought out to him by Nieva, Nelson wrote a letter and Col. Castillo brought along the witnesses of the government before Col. Yan, General
(Exh. 2) to Estrada on January 24, 1957. The witness explained as follows: Cabal, and then to the late President Magsaysay. Nelson testified that when he was
taken to Col. Yan in Quezon City, the said official asked him if the contents of his
Sinabi po sa akin ni Tony (Antonio Nieva) na huwag lamang kalabanin si Jose Estrada affidavit (Exh. X, wherein he had implicated appellant Estrada) were true, and he
ay siya ang bahalang humango sa aming mga testigo at kung kakalabanin namin ay affirmed the content thereof. The witness also declared that he was cross-examined
mapapasama kami, at binigyan po kami ng P20.00 suhol. At sinabi pa niyang siya ang (binabaligtad ng tanong sa aming"statement") on his statement by General Cabal, before
bahalang lumakad sa Malacañang at sa panahong kami ay bibistahan gaya nito ay whom he, likewise, affirmed the truth thereof, explaining to the General that he was not
tanggihan namin at sabihin na kung kaya kami nakapagsabi ng sa aming "statement" threatened, harmed, or promised any reward when he voluntarily affixed his signature on
ay kami sinaktan at ginantingpalaan at pinangakuan. the document. Nelson made the same affirmation before President Magsaysay on the
same occasion.
o And when asked why he did not mention about the letters (Exhibits 2, 3, 10, 11 & 12) now
Exhibit 3
heavily relied upon by herein appellant, Nelson declared outright in court that the
contents of the said letters were not true, and he was afraid to tell any falsehood to the
o Regarding his letter (Exh. 3), Nelson declared that he did not write it voluntarily. About highest authority of the land. Such explanations, considered in the light of the
noontime of January 25, day after he had written the first letter, two prisoners wearing
Page 44 of 52
surrounding circumstances, leave no iota of doubt that the witness had told the truth in circumstances, to allow such a procedure would only encourage the perversion of truth
court. and make a mockery of court proceedings.
o *Note: yan na lahat ng recall part sa ratio
Contradicting Statements
Identity of the Kidnapped victim
o Again herein appellant would capitalize upon the circumstances that both witnesses
Ceribo and Mallare have made apparently contradictory statements (affidavits) at o A certain alleged statement attributed to Lt. Alcantara, is here also relied upon by
different times during their confinement. More specifically, it is pointed out that Mallare appellant to show that he (appellant) did not really suggest Elvira Tañada Principe to be
had disclaimed any knowledge about the kidnapping in the Bondoc Peninsula in his the kidnap victim. It appears that soon after Elvira was taken to the mountains, she was
statement (Exh. 17) which is contrary to his later declaration in court that he heard the asked by Lt. Alcantara if she was the wife of Teodosio Principe. Elvira answered the
conversation between Lt. Alcantara and herein appellant in Barrio Biga, Gumaca, question in the negative. Thereafter, Lt. Alcantara asked her if she was the wife of
regarding the kidnapping of Elvira Tañada Principe. This witness explained that he did not Reynaldo Principe, and this time she answered in the affirmative. We believe not much
mention in exhibit 17 about the participation of Estrada, because he did not want his may be made out of this circumstance, for it merely shows that Lt. Alcantara was not
name linked with the name of Lt. Alcantara. At the time, he had not met Nelson, Ceribo even sure if the woman they had kidnapped was the wife of Teodosio or Reynaldo. It
and Gregana. He learned later, however, that these persons were already accused in this does not necessarily follow, however, that herein appellant did not really make the
case, and knowing that they knew all the secrets of the kidnapping, he decided to reveal suggestion to kidnap Elvira, in the light of positive evidence that he did so.
his knowledge thereof. At any rate, it will be noted that Mallare's testimony regarding the
involvement of appellant in this case was merely cumulative in nature, a disregard of Suppresion of Evidence
which would not affect at all the testimonies of Nelson and Ceribo regarding the same
point. And so with the alleged contradiction between the statement of Ceribo before the
o Alone of the circumstance that the highest authorities of the Army had failed to produce
PC on September 12, 1956, and his subsequent affidavit prepared by his counsel on April
Lt. Alcantara in court, as desired by the defense. It is true that the prosecutor in this case
16, 1957. It is true that in the one (Exh. H) Ceribo had inculpated Estrada, while in the
was a captain in the Army, but it cannot be denied that he had prosecuted this case not as
other (Exh. 16) he had exonerated him; but Ceribo explained that the contents of the
such officer, but as a special prosecutor under the Department of Justice; nor do We find
latter are false. He declared that when the said document was taken to him inside the PC
any evidence of record that will justify an inference that he had prevailed upon his
stockade, it was already prepared. His counsel had manifested to him that it was
superior officers in the Armed Forces not to obey the orders of the trial court to produce
necessary for his acquittal, for which reason he signed it without first reading its contents.
Lt. Alcantara. Herein appellant claims that Lt. Alcantara was already in the custody of the
We believe this explanation of the witness is sufficient, for We find no reason for his
Army at the time. Col. Yan testified, however, that the Lt. Alcantara in the service of the
counsel to prepare the latter affidavit when We consider the fact that Ceribo had long
PC was at the time "in the field of operation and his whereabouts was unknown." We see
been discharged from the information before it was prepared. And as the trial court had
no reason then why the blame should be attributed to the prosecution.
aptly observed, the said affidavit was no longer necessary for the acquittal of the witness.
Add to this suspicious character of Exh. 16 the unshaken testimony of the witness that its
contents are false and the fact that he had affirmed the truth of his other statement not Conslusions
only before the highest officers of the Army, but also before the Chief Executive of the
land, that the value of Exhibit 16 soon fades into nothingness. o We have to sustain the finding of the court below that herein appellant is guilty of the
crime imputed to him in this case. There could be no question that appellant had
Recall (EVIDENCE PART FINALLY) knowledge of the criminal intention of Lt. Alcantara and his men to kidnap somebody
from Gumaca for ransom.
o It seems, however, that they had no definite person in mind in the beginning. So much so,
o But appellant charges that the trial court had abused its discretion when it denied the
that they had to call for herein appellant, a councilor and prominent citizen of the place,
defense the right to call back witness Ceribo who, it is claimed, was then ready to
for his cooperation in the matter of selecting and pointing to the prospective victim.
retract his previous testimony for the prosecution, and then testify for the defense.
Appellant suggested the Principes as the most suitable object of their criminal design,
o This, it is pointed out, was a denial of herein appellant's right to due process. We cannot
pinpointing Elvira, wife of one of the Principes, as the ideal victim, with the explanation
agree. Section 14, Rule 132 of the Rules of Court explicitly provides that the court may
that the Principe family would not meet with any difficulty in producing the ransom
grant or withhold leave to recall a witness, in its discretion, as the interests of justice
money for her release. Lt. Alcantara and his men became convinced of appellant's
may require; and We believe that it was the better part of discretion and caution on the
suggestion and reasoning, and then and there they decided to kidnap Elvira Tañada
part of the trial court to have denied as it did, the request of the defense to recall Ceribo.
Principe.
The record is loaded with circumstances tending to show insidious attempts, too
obvious to be overlooked, to tamper with the witnesses for the prosecution. Under the
Page 45 of 52
o The Huk leader told appellant that he (appellant) would be informed accordingly when the This is a petition to review the decision of the Director of Patents denying the petition to
kidnapping was to be effected and the latter answered that Lt. Alcantara could count cancel the certificate of registration issued by the Philippines Patent Office in favor of Ong
upon him all the time. Su for the trademark “VALENTINE” and design used on refined sugar
o Appellant knew, and must have realized the frightful consequences of being kidnapped by Petitioner, Victorias Milling Company, Inc., (VMC) engaged in the manufacture and sale
the Huks. He was not unaware of previous other kidnappings of prominent citizens in the of refined granulated sugar, is the owner of the trademark “VICTORIAS” and diamond
Bondoc Peninsula — the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of design registered in the Philippines Patent Office on November 9, 1961.
Catanauan, of the Barrettos of Gumaca, and of De Leon of Catanauan — which had Respondent Ong Su, engaged in the repacking and sale of refined sugar , is the owner of
invariably resulted in either the loss of honor of the victims, payment of huge amounts for the trademark “VALENTINE” and design registered in the Philippines Patent Office on June
ransom by their families, or the horrible deaths of the victims. 20, 1961.
o With that knowledge, nevertheless, herein appellant agreed and conspired with Lt. VMC filed a petition to cancel the registration of Ong Su trademark “Valentine”
Alcantara and his men in the kidnapping of Elvira Tañada Principe, who was not only o It alleged that its trademark “Victorias” and diamond design has become
detained by Lt. Alcantara and his men in the mountains for eighteen (18) days, but was distinctive of its sugar long before Ong Su used its trademark
only released after the payment of a P50,000.00 ransom. These circumstances, to the o That it will cause great damage to petitioner by reason of mistake, confusion, or
mind of the Court, altogether show that appellant enjoyed such ascendancy of the mind deception among the purchasers because it is similar to its “Victorias”
over that of Lt. Alcantara to the extent that his suggestion was the efficacious trademark;
inducement which led the latter and his men to proceed with the criminal design, thus Both trademarks have the same diamond design with the slight
making herein appellant a principal by inducement. However, for failure to obtain the modification that the lines of the “VALENTINE” diamond design are a
necessary number of votes to affirm the death sentence in the decision appealed from, little protruding at the ends.
the penalty next lower should be imposed. The lines forming the diamond design in both trademarks consist of
two lines, namely, the outer portion and the inner portion.
Concepcion, C.J., Reyes J.B.L., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano, The outer portion of the diamond design of both trademarks has the
JJ., concur. color black .The inner line of the diamond design in both trademarks
Zaldivar, J., is on leave. has the color red.
In both trademarks, the word “PURE” in black print appears inside of
the upper portion of the diamond design.
2. VICTORIAS MILLING CO. INC. v. ONG SU (IE) In trade marks, the word “VICTORIAS” and the word “VALENTINE”
GR. No. L-28499|September 30, 1977| FERNANDEZ placed within the diamond design are conspicuously colored red.
The letter “V” in Victorias and the letter “V” in Valentine are
PETITIONER: VICTORIAS MILLING COMPANY, INC. identically placed.
The word “VICTORIAS” and the word “VALENTINE” are identically
RESPONDENTS: ONG SU AND THE HONORABLE TIBURCIO S. EVALLE, IN HIS CAPACITY AS
arranged, the same containing the same number of letters.
DIRECTOR OF PATENTS
Immediately below the words “VICTORIAS” and “VALENTINE” appears
SUMMARY: the words “REFINED”
Underneath the diamond design in both trademarks are the words
Victorias Milling Company filed a petition for cancellation of the certificate of registration “FINE GRANULATED” and below said phrase are the words “CANE
issued by the Philippines Patent Office. It alleged that their trademark “Victoria” and the SUGAR” with a small diamond design.
trademark of Ong Su “Valentine” is similar and could cause confusion to its consumers. The Both trade marks are used on refines sugar.
Director of Patent denied their petition since the literal designation are different and the The words “PURE”, “VALENTINE”, “VICTORIAS”, “FINE GRANULATED”
diamond shape did not acquire any secondary meaning and that the trademark of Ong Su was and “CANE SUGAR” in both trade marks are similarly arranged and
registered earlier. So the issues are W/N the Director erred in its decision and W/N the court printed.
erred in preventing the testimonies of respondent Ong Su and witness Ernesto Duran as o that registration was fradulently obtained by respondent Ong Su;
rebuttal witnesses for petitioner. Both are answered in the negative because the court o “Valentine” falsely suggests a connection with Saint Valentine or with an
affirmed the decision of the Director of Patent that there were no similarities as regards the 2 institution or belief connected therewith
trademarks and as to the recalling of the witness, once a witness has been subjected to In his answer Ong Su, averred that
extensive cross-examination, the motion to recall him as rebuttal witness may be denied. o he is doing business under the name and style “Valentine Packaging” and has
registered the trademark “Valentine” with a design for sugar and was issued a
Certificate of Registration
FACTS:
o that the trademark “Victorias” with diamond design and the trademark
Page 46 of 52
“Valentine” with a design are two different marks; and there is absolutely no TRADEMARK ISSUE
likelihood of confusion, mistake or deception to purchasers through the
concurrent use of the petitioner’s mark o The contention of petitioner that the diamond design in its trademark is an index of origin
The petitioner’s only witness, Pacifico V. Vijandre, its vice-president and stockholder, has no merit. The petitioner has not shown that the design portion of the mark has been
testified that Victorias Milling Company, Inc. has used since 1947 the trademark so used that purchasers recognize the design, standing alone, as indicating goods coming
“Victorias” and diamond design with colors of red and black on sacks of sugar having from the registrant.
variable weight and size of (5,10,25,50 and 100 lbs.) o There is no evidence that the diamond design in the trademark of the petitioner has
o that the company had transactions on or sales of sugar with local dealers such acquired a secondary meaning with respect to its sugar business. The word “Victorias” is
as Kim Kee, Chu Yu & Co., Limouan & Co., Luzon Merchandising Corp. and ARCA; what identifies the sugar
o that the average sale from 1958 to 1962 was P30,000,000 and for the whole o The evidence is that Ong Su has been using his trademark since prior to the last World
year of 1962 the sale was P46,000,000; War and he obtained the registration thereof on June 20, 1961
o that except for the words “Valentine” and “Victorias”, the design and wordings o Vijandre declared that the petitioner started to use its trademark only in 1947. Said
of the bags are practically the same. trademark was registered on November 9, 1961.
The respondent, Ong Su, declared that he adopted and began using his trademark o Ong Su did not imitate the trademark of the petitioner.
“Valentine” and design before and continuously after World War II in the Philippines, o It seems clear that the words “Valentine” and “Victorias” and the names and places of
particularly on paper bags used as containers for starch, coffee and sugar; and that since business of Victorias Milling Company, Inc. and Ong Su are the dominant features of the
January 1955 he continued using said trademark on repacked sugar. trademarks in question. The petitioner has not established such a substantial similarity
Arturo Chicano, a witness for the respondent, testified that he was a distribution agent of between the two trademarks in question as to warrant the cancellation of the trademark
Ong Su; that he travelled a lot but he never came across an instance when the respondent “Valentine” of the respondent Ong Su.
Ong Su’s product was mistaken for the petitioner’s product;
o that he found the diamond design to be quite common in combination with RECALLING OF WITNESSES
other words used as trademarks as a background or to enhance their
appearance, and that such designs (Diamond, Eagle, Sunrise) are also used on o The refusal of the Director of Patents to allow respondent Ong Su and witness Ernesto
repacked sugar by various sugar dealers; and that said designs and the color of Duran to testify on rebuttal is not a reversible error.
the lines on which drawn had not been regarded as trademarks but mere o Once a witness has been subjected to extensive cross-examination, the motion to recall
ornamentation. him as rebuttal witness may be denied
The Director of Patents denied the petition to cancel the certificate of registration o The only purpose of the petitioner in proposing to call Ong Su as a witness on rebuttal is
because: to ask the latter if he had judicial authority to use the alias “Mariano Ang”. It appears,
o Literal designations of the trademarks are different (Valentine and Victorias) however, that the counsel of petitioner had already extensively cross-examined Ong Su as
o That the diamond design is a common geometric shape same with circles, ovals, to his citizenship, alien certificate of registration and the other name Mariano Ang. It
squares, triangles, and the like, that when used as vehicles for display of word seems immaterial whether or not Ong Su has judicial authority to use Mariano Ang as an
marks, ordinarily are not regarded as indicia of origin for goods to which the alias. There is evidence that even before the last World War, the trademark
marks are applied, unless of course they have acquired secondary meaning “Valentine”and design had been used under the name of either Ong Su or Mariano Ang.
o As regards the colors black and red used, it is fundamental in trademark o The petitioner sought to present Ernesto T. Duran as rebuttal witness to prove that there
jurisprudence that color alone, unless displayed in a distinct or arbitrary design, was a confusion among consumers or buyers of sugar caused by the alleged similarity of
does not function as a trademark, the “Victorias” and “Valentine” trademarks. The presentation of Ernesto T. Duran as
o The allegations that the registration of VALENTINE was obtained fraudulently; rebuttal witness was objected to by counsel of the respondent on the ground that the
that it falsely suggests a connection with St.Valentine have no basis in law and evidence sought to be elicited from Duran did not directly contradict the testimony of
fact. witness Chicano.
o The objection was sustained by the hearing officer whose ruling was subsequently
ISSUE: confirmed by the Director of Patents. Counsel for the petitioner made the following
formal offer of proof:
o ATTY. GONZALEZ:Your Honor please, in view of the ruling of the Honorable
W/N the Director of Patents erred in denying the petition of cancellation. (NO)
Director your Honor please on the admissibility of certain items of evidence,
W/N the Director of Patents erred in preventing the testimonies of respondent Ong Su and which resolution dated February 21, 1966 was received by undersigned counsel
witness Ernesto Duran as rebuttal witnesses for petitioner (NO) for the petitioner on February 22, 1966, said resolution was setting the hearing
of this case for this morning, I wish to state, I wish to register my exception, my
RATIO: respectful exception to said resolution. In view of the resolution not permitting
Page 47 of 52
me to present Mr. Ernesto Duran, my proposed witness whom I attempted to particularly identified material points were not covered in the cross-examination, or that
present at the last hearing, I wish to offer as proof the following items of the particularly described vital documents were not presented to the witness whose recall is
testimony of witness Duran. Now as he would go shopping with his parents and prayed for, or that the cross-examination was conducted in so inept a manner as to result in a
that sometime in the month of February 1963 he went to the Aranque market, virtual absence thereof.
and while he was buying groceries he saw a shelf with five (5) lbs. bag of sugar
with the bag and package he thought was VICTORIAS. Witness Duran will further FACTS
testify that he went to the shelf and pointed to the bag of sugar and he said Accused Wilfredo L. Sembrano (Sembrano) was charged with arson in this case for
nd
“Isang supot ng Victorias nga.” That the sugar was taken by the shopkeeper and willfully caused the fire which burned in the early morning of May 21, 1987, the 2
rd
when he went home he found out that the sugar was markedVALENTINE. He and 3 flr of “I Love You Restaurant and Sauna Bath” owned by Juanito L. Tan (No. 2
went on again on another time later and saw that the shelf was still filled with Bustamante St., Kalookan City)
five (5) pounds (lbs.) bag VALENTINE sugar. The shelf also has bags of VICTORIAS Among the witnesses presented by the prosecution was Benjamin Lee (Lee), a room
sugar side by side with VALENTINE sugar, that the package of VALENTINE looked boy of the establishment:
so much alike with VICTORIAS sugar that he was misled into pointing to o Dec. 8, 1987, On direct examination—testified that Sembrano ran out of
VALENTINE and asked for VICTORIAS. the VIP room where the fire started and refused to heed his (Lee’s) call to
o Counsel of Petitioner made an offer of proof for purposes of putting on record what he stop
would have testified to on record in accordance with the Rules of Court o Apr. 26, 1987 (siguro ’88 talaga), He was cross-examined and then he gave
o Having made the foregoing formal offer of proof, the petitioner cannot complain that it additional evidence on redirect examination and then again questioned on
was denied procedural due process. recross-examination, and thereafter allowed to step down
o The testimony of Duran was not sufficient evidence that the two trademarks are so similar Prosecution completed presentation of its evidence-inchief in due course. But before
that buyers of sugar are confused. The words “Victorias” and “Valentine” are not similar in it could rest its case, and two (2) months or so after Benjamin Lee had completed his
spelling and do not have a similar sound when pronounced. Even the diamond designs are testimony, the defendant’s original counsel, Benjamin Formoso, withdrew his
different. The diamond design of the trademark “Valentine” has protruding lines at the appearance and was substituted by another attorney, Eduardo S. Rodriguez.
corners. Even an illiterate person can see the difference between the two diamond The latter then filed a motion to recall Lee on the ground that after he reviewed is
designs. testimony, “there seems to be many points and questions that should have been
o The record and evidence show that Ong Su had also used in his business the name asked but were not profounded (sic)” and citing grounds of “the gravity of the offense
Mariano Ang. Hence the licenses and permits in the name of Ong Su and/or Mariano Ang charged” and “to afford full opportunity to defend himself”
were correctly admitted as evidence. Over prosecution’s objections, Court granted
o WHEREFORE, the decision of the Director of Patents sought to be reviewed is hereby Efforts were then exerted to cause Lee to appear again, to no success and the trial
affirmed, without pronouncement as to costs. was postponed several times. It appears that Lee had terminated his employment
and moved elsewhere without indicating his new address
3. PEOPLE v. RIVERA (MR) Prosecutor filed “Manifestation and Motion” drawing attention to the inability to
GR 98376 | 08/16/1991 | NARVASA, J. procure the re- appearance of witness Lee for which “the prosecution could not be
held liable,” and to the fact that “Lee has already been thoroughly examined by the
Petitioner/s: PEOPLE OF THE PH, petitioners former defense counsel,” and praying upon these premises “that the further
Respondent/s: HON. BAYANI S. RIVERA, Judge, Branch 129, Regional Trial Court of Kalookan examination of Benjamin Lee be dispensed with and xx the prosecution xx allowed to
City, terminate the presentation of its evidence.”
and WILFREDO L. SEMBRANO, respondent. Lower court denied the motion and in fact, ordered “the testimony of Benjamin
Lee for the prosecution xx stricken off the record for lack of complete cross-
examination” because witness cannot be found and “the failure of counsel for the
SUMMARY accused to further cross-examine the witness is not the fault of the defense.” MR
nd
Accused was charged with arson for allegedly burning the 2 and 3 floors of an
rd denied.
establishment. One of the witnesses for the prosecution was Benjamin Lee, who was subject to This special civil action for certiorari instituted by Sol Gen
direct, cross, redirect and recross examination. However, before the prosecution could rest its
case, counsel for the defense changed and the new counsel filed a motion to recall witness Lee ISSUE
because former counsel failed to ask a lot of questions and due to the gravity of the offense WN the writ of certiorari will issue—YES
and interests of justice. LC granted. SC said this was improper because the discretion to recall a o Trial court abused its discretion in granting leave to recall witness
witness may not be exercised on whimsical grounds, but must come out of a clear showing that
Page 48 of 52
o Trial court erred in completely striking off Lee’s testimony from the that it was the prosecution that placed the witness beyond the reach of the Court,
record much less of the expected nature or tenor of his additional testimony which, because
not presented, would necessarily cause the evidence earlier given by Lee to become
HELD: hearsay or otherwise incompetent, and therefore, amenable to being stricken from
Meritorious the record.
WHEREFORE, the petition is GRANTED and the respondent Court’s challenged Order
dated October 2, 1990 is NULLIFIED AND SET ASIDE, with costs against private
respondent.
EXCLUSION OF WITNESSES
RATIO 1. PEOPLE v. SANDAL (NO)
G.R. Nos. 32394 and 32395 || September 5, 1930 || AVANCEÑA, C.J.
TRIAL COURT ABUSED ITS DISCRETION IN GRANTING LEAVE TO RECALL WITNESS
The trial court has discretion to grant leave for the recall of a witness, sec.9 Rule 132: Petitioner: THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
“After the examination of a witness by both sides has been concluded, the witness Defendants: SANDAL, ARIMAO, LONSING, MAMA, and PAMPANG, defendants-appellants.
cannot be recalled without leave of the court. The court will grant or withhold leave
in its discretion, as the interests of justice may require.” SUMMARY:
But that discretion may not be exercised in a vacuum (maybe in a stove it’s okay). Defendants were convicted for the murder of Eleno Lamorena. Inambar, a moro woman,
It is not properly exercisable by an applicant’s mere general statement that there is a witnessed the scene wherein while Eleno was conversing with Sandal, Pampang suddenly
need to recall a witness “in the interest of justice,” or “in order to afford a party full struck the deceased with a hammer from the back. It appears that the said incident occurred
opportunity to present his case,” or that, as here, “there seems to be many points due to a complaint filed against them by Permites and Eleno as its principal witness. The
and questions that should have been asked” complaint was based on the injuries inflicted into the carabaos of Permites by defendants while
This would make the recall of witness no longer discretionary but ministerial. Eleno was in charge of his buffalos. Defendant wanted to present a witness but it was rejected
Something more than the bare assertion of the need to propound additional by the CFI. They were convicted of murder. Issue: Whether or not the court erred in excluding
questions is essential before the Court’s discretion may rightfully be exercised to the witness. No.
grant or deny recall.
There must be satisfactory showing on the movant’s part for instance: An assignment of error alleged by the appellants in this instance deals with the trial court's
o That particularly identified material points were not covered in the cross- refusal to admit a certain witness presented by the defense. The court took this stand for the
examination, or reason that this witness had been present during the hearing notwithstanding the court's order
o that particularly described vital documents were not presented to the that all witnesses leave the courtroom. Under such circumstances it lies within the court's
witness whose recall is prayed for, or discretion to admit or reject the testimony of the witness. And although we are of opinion that
o that the cross-examination was conducted in so inept a manner as to result the court below should have admitted the testimony of this witness, especially when he stated
in a virtual absence thereof. that he did not hear what the other witnesses testified, yet there is nothing to show that this
Here, the TC granted the defendant’s motion for recall on nothing more than said error has affected the appellants' defense. There is nothing to show what this witness would
movant’s general claim that certain questions—unspecified, it must be stressed—had have testified if admitted, and so it cannot be held that his failure to testify has materially
to be asked. affected the appellants' defense.
TRIAL COURT ABUSED ITS DISCRETION IN STRIKING OUT THE ENTIRE TESTIMONY OF LEE FACTS:
The Court acted unilaterally, without motion, and without according the prosecution On February 18, 1929, in Abaga, District of Monungan, Province of Lanao, Inambar, a
prior opportunity to show why the striking out should not be decreed Moro woman, heard the appellant Sandal call the deceased, Eleno Lamorena, and
The order was directed without any showing whatever by the defense of the later saw them engaged in conversation.
indispensability of further cross-examination, what it was that would have been While the two were talking, appellant Pampang went up to them and with a hammer
elicited by further cross-examination rendering valueless all that the witness had struck the deceased on the back of the neck, felling him to the ground. Sandal and
previously stated. the rest of the appellants, Lonsing, Arimao, and Mama, then closed in on the fallen
Lee was subject to both cross and recross. Obviously, the former defense counsel man beating him to death.
was satisfied there had been sufficient cross of the witness Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the
Absence of cross-examination may not therefore be invoked as ground to strike out deceased, in Tomas Permites' warehouse, while the appellants were nearby
Lee’s testimony (as being hearsay). And there is no showing whatever in this case
Page 49 of 52
constructing a house. However when he returned to the warehouse the deceased And although we are of opinion that the court below should have admitted
and appellants were not there anymore. the testimony of this witness, especially when he stated that he did not
On that night, Dimaponong testified that saw appellants near a sawmill, carrying the hear what the other witnesses testified, yet there is nothing to show that
corpse of Eleno, which they threw into the river. this error has affected the appellants' defense.
During the inquiry made by the Constabulary lieutenant into Eleno's disappearance, There is nothing to show what this witness would have testified if
Dimaponong testified to this effect, and the corpse was found in that part of the river admitted, and so it cannot be held that his failure to testify has materially
indicated by him. affected the appellants' defense.
Doctor Pablo Hamoy in the post-mortem examination found the following lesions: Failure to exhibit the testimonies of other witnesses during preliminary
The right side of the neck and the right shoulder were bruised; the neck was investigation is not a fatal error.
fractured and the right shoulder dislocated; the right eye was bruised; marked The appellants also assign as an error the fact that the trial court failed to
cyanosis and acute hemorrhage of both eyes which were somewhat sunken; marked require the fiscal to exhibit the testimony given by the witnesses during the
cyanosis of the lips with the incisors jutting forward and loose cyanosis and preliminary investigation conducted by the justice of the peace.
hemorrhage of the gums, and hemorrhage of the nose; cyanosis of the whole face, a But the only effect of this failure was to entitle the defense to adduce
wound in the left arm and forearm, and a contusion on the breast and abdomen. secondary evidence touching the testimony of said witnesses, for the
The following facts of record explain the motive of the assault: When Tomas Permites purpose of attacking their veracity, should they have been presented as
went to Manila to he left Eleno in charge of his interests in Monungan. During that witnesses during the trial.
time, the appellants caused some injuries to his carabaos, as a result of which Eleno Neither did the trial court commit an error in refusing the defense an
had a dispute with them. extension of time to present Doctor Feliciano, for this is a matter wholly
Eleno sent word of what had happened to Permites in Manila, and when within the court's discretion, the abuse whereof has not been shown,
the latter returned to Monungan, he verified the facts and filed a complaint especially in view of the fact that it was not informed of the nature of this
against the appellants. Eleno was to be the principal witness, and the witness's testimony.
defendants knew it.
A case was filed in the CFI of Lanao.
Defendants set up the defense of alibi. Defendants wanted to present a witness but it
was excluded by the court. 2. STATE v. BISHOP (HQ)
The CFI, however convicted them of murder. Hence, this present petition. 492 P. 2d 509 (1972)
ISSUE: Respondent: State of Oregon

Whether or not the court erred in excluding the witness. No. Appellant: Joe Berry Bishop
HELD: SCHWAB, Chief Judge.

Wherefore, the judgment appealed from is affirmed, with costs against the appellants. So
ordered. SUMMARY:
The trial court convicted Bishop of sale and possession of dangerous drugs. When the case was
RATIO: called for trial, defense counsel requested that ALL witnesses be excluded. The prosecutor
Upon consideration of the evidence for both sides, we agree with the conclusion of stated that most of his witnesses were police officers, and the trial court denied the motion for
the trial court that the appellants killed Eleno in the manner described above. The exclusion.
court below did not err in weighing the evidence. W/N the trial court was correct in refusing the exclusion of the witnesses? NO
The admission or rejection of the testimony of a witness lies at the discretion of the The Court found that the trial court abused its discretion because it gave inadequate grounds
court. to explain its refusal to exclude the witnesses. The trial court wanted the police officers who
Another assignment of error alleged by the appellants in this instance deals would be witnesses to be able to view the trial as an educational experience and see the fruits
with the trial court's refusal to admit a certain witness presented by the of their labor, but these reasons were not relevant to determination of whether Bishop was
defense guilty of the crime which he was charged. The Court concluded that, because most of the
The court took this stand for the reason that this witness had been present State’s witnesses testified to the same events and occurrences, prejudices to Bishop could be
during the hearing notwithstanding the court's order that all witnesses presumed.
leave the court room. Under such circumstances it lies within the court's
discretion to admit or reject the testimony of the witness. FACTS:
Bishop was convicted of sale and possession of dangerous drugs.
Page 50 of 52
When the case was called for trial, defense counsel requested all witnesses be o A few Courts concede that sequestration (exclusion of witnesses) is
excluded. demandable as of right. But, the remainder, following the early English
During the brief discussion that followed, the prosecutor stated that most of his doctrine, hold it grantable only in the trial Court's discretion; declaring
witnesses were police officers. usually, however, that in practice it is never denied, at any rate for an
Counsel for the defendant argued his client would be prejudiced by allowing the accused in a criminal case.
officers to remain (in the courtroom). He said that: o There is no reason for a distinction between civil and criminal cases;
o The only advantage for them being in the courtroom is to hear the cross successful perjury is an equally deplorable result, in whatever form it
examination by defense counsel, to determine what the theory of the overwhelms its victims.
defense is in this case and to determine these things instead of coming in o But when all allowances are made, it remains true that the expedient of
on the questions cold. sequestration is (next to cross-examination) one of the greatest engines
that the skill of man has ever invented for the detection of liars in a court
The trial judge DENIED the motion and explained his action in these terms: of justice. Its supreme excellence consists in its simplicity.
o Now, it was apparent in yesterday's trial that some of the practices of the
police in connection with the custody of evidence could be questioned. These authorities mean that when one party moves to exclude witnesses and the
o It seems highly desirable from the public standpoint that officers have an other party voices no objection, the motion should always be granted.
opportunity to learn what it is about their police practices that is being
questioned, and to give careful thought to their own practices. JUDICIAL DISCRETION COMES INTO PLAY WHEN THE MOTION IS OPPOSED
The judge further explained that some of the police officers were involved in motions In this context, as others, judicial discretion does not mean that the question of
to suppress in "this group of cases" and should be allowed to see the trials "that whether to exclude witnesses is left to the trial court's whim or grace.
involve the efforts that they've made." Instead, judicial discretion is "to be exercised in conformity with the spirit of the law
and in a manner to subserve and not defeat the ends of justice.
ISSUE: Whether the trial court erred in refusing to grant a request for the exclusion of Specifically, the trial court must weigh the good cause shown for not excluding
witnesses as authorized by ORS 45.510 (Oregon Statute)? YES witnesses against the policy favoring exclusion.
HELD: Appeal Granted. Trial Court’s order (refusing exclusion of witnesses) REVERSED. Case WHAT CONSTITUTES GOOD CAUSE NOT TO EXCLUDE WITNESSES
REMANDED. Schneider v. Haas: The case makes it clear that a party to a proceeding who will later
be called as a witness cannot be excluded.
RATIO: Trotter v. Town of Stayton: Suggests by implication that when a corporation is a
THE MATTER OF GRANTING A MOTION TO EXCLUDE WITNESSES IS WITHIN THE DISCRETION party, it may be inappropriate to exclude a principal officer of the corporation who
OF THE TRIAL COURT (but always granted when there is no objection, as if demandable as a possesses some special knowledge and whose presence is necessary to protect the
right) corporation's interests.
ORS 45.510 (Oregon Statute) provides: State v. Ede: Held it was not error to exclude all witnesses, except a Department of
“If either party requires it, the judge may exclude from the courtroom any witness Agriculture official who was assisting the prosecution in a trial for larceny of a cow.
of the adverse party not at the time under examination, so that he may not hear the
testimony of other witnesses." Examples of Denying exclusion without good cause shown:
The Oregon Supreme Court cases, which have interpreted this statute, suggest that a State v. Duffen: No sound reason for the denial was shown.
motion to exclude normally should be granted. People v. Dixon: Trial judge merely said, "Well, I don't like to do that."
State v. Ede: The court interpreted the statute not as permissive, but, rather, as State v. Williams: The defendant's witnesses were chain gang prisoners who were
directory in form. serving under the prosecution's witnesses — their guards.
Williamson v. US: The practice of excluding witnesses from the courtroom except
while each is testifying is to be strongly recommended, particularly where the Bottomline:
testimony of the witnesses is in any measure cumulative or corroborative. Thus, if the record contains some showing of good cause for not excluding the
Taylor v. US: The exclusion of witnesses from the courtroom during trial is a time- witnesses, and if the trial court made a reasonable choice between the good cause
honored practice designed to prevent the shaping of testimony by hearing what shown and the policy favoring exclusion, its decision will not be disturbed on appeal.
other witnesses say. But if the record contains no reason for not excluding witnesses, or an insufficient
reason, then the trial court has abused its discretion.
Wigmore favors making exclusion a matter of right:
Page 51 of 52
APPLYING THE PRINCIPLES IN THE CASE AT BAR: NO GOOD CAUSE SHOWN FOR THE TRIAL
COURT’S REFUSAL TO EXCLUDE WITNESSES
The Court found the reasons advanced by the trial court to explain its refusal to
exclude to be inadequate.
As noted above, the trial court wanted the police officers who would be witnesses to
be able to view the trial as an educational experience, and wanted them to be able
to see the fruits of their labor.
These reasons, while undoubtedly salutary as an educational device, were not
relevant to the purpose of the trial — namely, the determination of whether the
defendant was guilty of the crime charged.
Balanced against the danger that the witnesses' memories might be confused by
other testimony, and the other reasons for the rule of sequestration, the reasons
advanced by the court were insufficient.
Other Matter (but still related to exclusion)

Whether defendant was prejudiced by the failure to exclude witnesses?
Resolution of this issue turns on whether it should be the defendant's burden to
prove actual prejudice or the state's burden to prove lack of prejudice.
The latter is the better rule (State has the burden to prove lack of prejudice)
The practice of excluding witnesses is designed to prevent one witness being

influenced, consciously or unconsciously, by hearing the testimony of prior
witnesses.
It would be difficult, if not impossible, for a litigant to establish that the presence of
prospective witnesses in the courtroom during the trial resulted in the testimony of
any one of them being influenced by what he heard before called to the witness
stand.
Thus, when a trial court has abused its discretion by not excluding witnesses, the
Court must assume prejudice unless the record affirmatively reflects the contrary.
The best example of a record that would establish no possible prejudice is one in
which the witnesses all testified to totally unrelated events.
o But in this case, most of the state's witnesses testified to the same events
and occurrences.
o Their testimony was cumulative and corroborative.
o On this record, the Court cannot say that defendant Bishop was not
prejudiced.
Page 52 of 52

Leading Questions 1. State V. Scott (Apg)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Leading Questions 1. State V. Scott (Apg)

Uploaded by

Copyright:

Available Formats

EVIDENCE 3A 2013-2014 – ATTY.

Arguments: DOCTRINE AS APPLIED IN THE CASE

offered by the prosecution who testify against him. FACTS

The Robbery/Conspiracy to Commit Robbery CA affirmed.

ISSUE: Respondent: State of Oregon

HELD: SCHWAB, Chief Judge.

Other Matter (but still related to exclusion)

The practice of excluding witnesses is designed to prevent one witness being

You might also like