- hearsay: did not present the captain himself but the excerpts of the logbook
- BER? Are the contents of the logbook in issue?
- The person who made the entry must be dead or unable to testify
- The entries were made at or near the time of the transaction to which they refer
- The entrant was in a position to know the facts stated in the entries
- The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious
- The entries were made in the ordinary or regular course of business or duty
- Personal knowledge
- Official information
Manalo vs. Robles
F: Taxi hit a boy. 2 writs of execution issued on the driver who was found liable, sheriff was not able to enforce the writ of execution because of the insolvency of the driver. Went after Manalo, the owner of the taxi and employer of the driver who was subsidiarily liable.
-presented the writs of execution and the return of the sheriff.
*relevance of the sheriff's return: the subsidiary liability of the employer would arise only if the judgment would not be satisfied on the person primarily liable
What does the sheriff do? Sheriff would look for the properties of the convicted/liable property - here, the sheriff found no such property!
RETURN: Is that a public document/ official record?
YES. Issued by a public officer of the Philippines in the performance of his duty.
VAA: This is actually Rule 132.19
Issue on hearsay: Did not present the sheriff, just presented the contents of the sheriff's return
H: Section 44 applies, admissible under the exception
-entry in an official record
-made by a publc officer of the Philippines
-in the performance of his duties
(2nd part: prima facie - refers to weight)
Wallem Maritime Services vs. NLRC
F: Wallem dismissed two Filipino sea man for allegedly assaulting a crew member (who was just an "intern"). The said altercation was recorded in the Tanker's Logbook.
-the alleged Logbook was presented before the court in a typewritten excerpt (not the whole logbook)
H:
-The typewritten excerpt not a copy: a copy should be executed at or about the same time with identical contents
Issues in this case (possible objections):
WALLEM vs. NLRC
UF: WON dismissal is illegal - question of law or fact
-how to prove? Support evidence?
INTERIM FP: Altercation (question of fact)
-basis: evidence
FP: excerpts from the logbook
---basta ung excerpts sa logbook is based on the logbook which contains the personal knowledge of the captain
Why the contents of the logbook in issue?
Because the logbook contains the account of the alleged altercation
---BER applies but it is under the exception of the BER: Lost, destroyed, or cannot be produced in court: The logbook of the ship cannot be taken out of the ship!
-NOT A COPY: if a copy, should contain all the contents of the logbook
-RECITAL IN SOME AUTHENTIC DOCUMENT: not the same: it was made during the litigation - NOT AUTHENTIC BECAUSE IT WAS NOT MADE ANTE LITE MOTAM
e.g. of a recital in some authentic document: records in a maritime disaster case, records of the employee (presented for promotion case)
Back on Hearsay:
What if present an affidavit containing the said altercation? Would it be an exception to hearsay?
Not under R130.43?
Elements:
Were the elements complied with?
-the affidavit is NOT AN ENTRY in the course of business!
WHY?
-the maritime proceeding is not an entry in the regular course of maritime business
e.g. of entries in the regular course of a maritime business
>logbook!
Will it fall under R130.44? PEDE
-Ms. Rios: 2nd paragraph: Private individual specially enjoined by law to perform a duty!
*Section 44: not required that the declarant should have personal knowledge
-Under the Code of Commerce: Captain of the Ship enjoined to record the events happening in the ship
*the Logbook (entries of the captain): however, the captain (sabi ni ma'am) had no personal knowledge of the events which happened - VAA: The statement in the facts of the case was taken from the excerpts!
VAA: pede ba un? BER tapos may hearsay?
Example of Private persons specially enjoined by law to perform a duty?
PRIEST: enjoined by law to record the fact of marriage then submit the records to the civil registrar
VAA: the hearsay which falls under R130.44 (1st part) is the copy in the civil registrar. If the copy with the priest is to be presented, it falls under R130.44 (2nd part)
Air France vs. Carrascoso
-relevant: notebook of the purser
-entry in the course of business? NO
>personal note of the purser
>official course of business? No, it was not the duty of the purser
-RES GESTAE?
>the startling occurrence is the altercation between Carrascoso and the racist flight attendant
People vs. Tampus
-res gestae? Sabi ng court oo but sabi ni Ma'am, not startling because the accused/declarants would not have been surprised.
People vs. Tulagan
-res gestae? Court said there was none (1.5 hours between the "startling" occurrence and the statement)
Comment: is it really res gestae?
ANTON: Time should not be the sole basis of res gestae
MS Salazar: Demeanor of the declarant - being calm, etc… - should not be also basis
VAA: but does it really fall under 1st part of the Res Gestae rule
-VAA: as to the time part, this is a correct rule
-VAA: there is no res gestae here, they planned it! (obvious naman…)
e.g. ng res gestae, even if premeditated
A, B and C planned to hog-tie D. C deviated from the plan, killed D. Afterwards, A exclaimed, "Bakit mo naman pinatay?" - res gestae
Not A, B and C planned to kill D, magugulat ba sila pag sinabi, "Bakit ka naman sumunod sa plano natin, nagulat naman ako"
Aballe vs. People
-Tulagan not applied: here, a night already passed after the STARTLING occurrence?
VAA: startling occurrence: nung nahimasmasan na sha, nagulat sya na nakapatay na sha!
"Don't forget the gulat factor!"
Borromeo vs. CA
F: Aznar allegedly lent Rallos money, who allegedly mortgaged the property, but document allegedly show that it was a sale. Borromeo (administrator of Rallos' estate) wanted to reform the documents.
-Notes were made by Borromeo (4 daw na exhibits) allegedly containing the excerpts
TC: sale, no reformation
CA1: Sale, no reformation
CA2: Equitable mortgage
-testimony of Crispina + notes: notes she made were res gestae
SC: NO RES GESTAE
-not explained…
…why she was there
..why she took notes
…WON she was authorized to take down notes
NOTES not hearsay so can't be res gestae: it was a memorandum!
Class discussion (sorry, was not able to follow…)
-2nd part of res gestae?
Elements:
1. Res gestae or principal act be characterized as equivocal
2. Such act must be material to the issue
3. Statements must accompany the equivocal act
4. Statements give a legal significance to the equivocal act
-but was there any equivocal act???
VAA: If the alleged equivocal act is the transaction, the deed of sale which evidenced the alleged transaction is clear on its face SO THERE IS NO EQUIVOCAL ACT HERE! NO RES GESTAE!!!!
Canque vs. CA
Africa vs. Caltex
-Police report + Fire Department Report
…the persons who made report had no personal knowledge of the facts stated in the report
H: but allowed under res ipsa + responsibility of gas station - dangerous
-Not under R130.44: even if public officer, the public officer has no
[Moran, Comments on the ROC]
-sabi ng court: "To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record."
…so PERSONAL KNOWLEDGE + DUTY TO DO SO
VAA: this is what makes it confusing: it is already enough that it be from one with personal knowledge, but here, you must also have a duty to do so…Di sinabi why court gave this parameters… too strict criterion
-but court considered Leandro Flores' statement before a police investigator later: Flores had personal knowledge but no duty to do so! So pano un, point ni Odena, the court did not use its own strict criterion!
Salmon Dexter vs. Wijangco
-Certificate of Director of bureau of agriculture on the average crop of palay produced in 1920-21 in Magalang, Pampanga presented by the defense to show that it was not the fault of the machine why the output of palay was lower than what they claimed the machine could produce. The palay harvest was low! So lower palay harvested, the lower palay threshed!
UF: WON Salmon Dexter breached their warranty
Immediate F: WON the thresing capacity was not reached because of the fault of Salmon Dexter
H: Under R130.44, admissible? YES
Under what part?
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