amendment of information before or after arraignment

Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed after a plea has been entered. The proposition is erroneous and untenable.

As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. ¹¹ Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; ¹² (2) an amendment which does not charge another offense different or distinct from that charged in the original one; ¹³ (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. ¹⁴

We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form and provided that no prejudice is caused to the rights of the accused. ¹⁵ The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. ¹⁶

Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment as to form which is allowed even during the trial of the case.

It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary. ¹⁷

EN BANC

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

The "Dead Man's Statute" provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.⁹ But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:

"1. The witness is a party or assignor of a party to case or persons in whose behalf a case in prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind;

3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind;

4. His testimony refers to any matter of fact of which occurred before the death of such deceased person or before such person became of unsound mind."¹⁰

THIRD DIVISION

G.R. No. 143340       August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,
vs.
LAMBERTO T. CHUA, respondent.

The parol evidence rule is a substantive common law rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract that appears to be whole

The parol evidence rule is a substantive common law rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract that appears to be whole.^[1] The term of art parol literally means "word" and comes from Anglo-French, Anglo-Norman, or Legal French, which in turn is derived from ecclesiastical Latin parabola, which means "speech". It does not directly translate as "oral", which has a different origin in modern English, coming from the Latin oralis, which meant "mouth".

The supporting rationale for this rule is that since the contracting parties have reduced their agreement to a single and final writing, extrinsic evidence of past agreements or terms should not be considered when interpreting that writing, as the parties had decided to ultimately leave them out of the contract. In other words, one may not use evidence made prior to the written contract to contradict the writing. A common misconception is that it is a rule of evidence (like the Federal Rules of Evidence), but that is not the case.^[2]

The rule applies to parol evidence, as well as other extrinsic evidence (such as written correspondence that does not form a separate contract) regarding a contract. If a contract is in writing and final to at least one term (integrated), parol or extrinsic evidence will generally be excluded.^[3] However, there are a number of exceptions to this general rule, including for partially integrated contracts, agreements with separate consideration, to resolve ambiguities, or to establish contract defenses.

To take an example, Carl agrees in writing to sell Betty a car for $1,000, but later, Betty argues that Carl earlier told her that she would only need to pay Carl $800. The parol evidence rule would generally prevent Betty from testifying to this alleged conversation because the testimony ($800) would directly contradict the written contract's terms ($1,000).

In order for the rule to be effective, the contract in question must first be a final integrated writing; it must, in the judgment of the court, be the final agreement between the parties (as opposed to a mere draft, for example).

A final agreement is either a partial or complete integration, provided that it has an agreement on its face indicating its finality.^[4] If it contains some, but not all, of the terms as to which the parties have agreed then it is a partial integration. This means that the writing was a final agreement between the parties (and not mere preliminary negotiations) as to some terms, but not as to others. On the other hand, if the writing were to contain all of the terms as to which the parties agreed, then it would be a complete integration. One way to ensure that the contract will be found to be a final and complete integration is through the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties. However, many modern cases have found merger clauses to be only a rebuttable presumption.

The importance of the distinction between partial and complete integrations is relevant to what evidence is excluded under the parol evidence rule. For both complete and partial integrations, evidence contradicting the writing is excluded under the parol evidence rule. However, for a partial integration, terms that supplement the writing are admissible. To put it mildly, this can be an extremely subtle (and subjective) distinction.

To put it simply, (1) If the parties intend a complete integration of the contract terms, no parol evidence within the scope of agreement is permitted. (2) If the parties intended a partial integrated agreement, no parol evidence that contradicts anything integrated is permitted. And (3), if the parol evidence is collateral, meaning it regards a different agreement, and does not contradict the integrated terms, and are not terms any reasonable person would always naturally integrate, then the rule does not apply and the evidence is admissible.

In a minority of U.S. states, (Florida, Colorado, and Wisconsin), the parol evidence rule is extremely strong and extrinsic evidence is always barred from being used to interpret a contract. This is called the Four Corners Rule, and it is traditional/old. In a Four Corners Rule jurisdiction, there are two basic rules. First, the court will never allow parol evidence if the parties intended a full and completely integrated agreement, and second, the court will only turn to parol evidence if the terms available are wholly ambiguous. The policy is to prevent lying, to protect against doubtful veracity, to enable parties to rely dearly on written contracts, and for judicial efficiency.

In most jurisdictions there are numerous exceptions to this rule, and in those jurisdictions, extrinsic evidence may be admitted for the following purposes. This is called the Admission Rule. It favors liberalizing the admission of evidence to determine if the contract was fully integrated and to determine if the parol evidence is relevant. In these jurisdictions, such as California, one can bring in parol evidence even if the contract is unambiguous on its face, if the parol evidence creates ambiguity. The policy is to get to the actual truth.

The third and final admissibility rule is that under the UCC § 2-202: Parol evidence cannot contradict a writing intended to be the "final expression" of the agreement integrated but may be explained or supplemented by (a) a course of dealing/usage of trade/ course of performance, and by (b) evidence of consistent additional terms unless the writing was also intended to be a complete and exclusive statement of the terms of the agreement.

• The court may first determine if the agreement was in fact totally reduced to a written document. In the case of State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, NSW Court of Appeal, at 191, per McHugh JA, the parol evidence rule has 'no operation until it is first determined' that all the terms of the contract are in writing.
• In Australia, the case of "Saleh v Romanous" [2010] NSWCA 373, it was held that equitable estoppel triumphs common law rules of parol evidence.^[5]
• To prove the parties to a contract. In Gilberto v Kenny [1983] 48 CLR 620, a written agreement to sell land signed by Mrs Kenny at times made reference to Mr Kenny, and the court held that oral evidence was admissible and that she was signing for herself and as an agent for her husband.
• To prove a condition precedent. In Pym v Campbell (1865) 119 ER 903, Pym entered into a written contract with Campbell to sell an interest in an invention. The court allowed Campbell to include the oral terms of acknowledgement that the sale was subject to an inspection and approval by an engineer. The engineer did not approve the invention.
• To prove that the written document is only part of the contract as in Hospital Products Limited v United States Surgical Corporation [1984] 156 CLR 41 where the court found for a written contract to be only part of an agreement. In State Rail Authority of NSW v Heath Outdoor Pty Ltd[1986] 7 NSWLR 170, the court held that the parol evidence rule is persuasive and the evidenciary burden is on the party wishing to rebut the claim that the whole contract was not in writing.
• To prove that an implied term of custom or trade usage or past dealings is part of a contract even if not in a written agreement, as in Hutton v Warren [1836] 1 M and W 466, where the party wishing to add the term bears the evidenciary burden and in this case a lease had to be read in the light of established custom.
• To prove what is true consideration, not something added to avoid taxes.
• To prove the term or promise is part of a collateral contract.^[6]
• To aid in the interpretation of existing terms.^[7]
• To resolve ambiguity using the contra proferentem rule.
• To show, particularly in California, that (1) in light of all the circumstances surrounding the making of the contract, the contract is actually ambiguous (regardless of whether the contract's meaning appears unambiguous at first glance), (2) thus necessitating the use of extrinsic evidence to determine its actual meaning.^[8]
• To disprove the validity of the contract.
• To show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement. Such a claim must be established by clear and convincing evidence, and not merely by the preponderance of the evidence.
• To correct mistakes.
• To show wrongful conduct such as misrepresentation, fraud, duress, unconscionability (276 N.E.2d 144, 147), or illegal purpose on the part of one or both parties.^[9]
• To show that consideration has not actually been paid. For example, if the contract states that A has paid B $1,000 in exchange for a painting, B can introduce evidence that A had never actually conveyed the $1,000.
• To identify the parties, especially if the parties have changed names.
• To imply or incorporate a term of the contract.^[7]
• To make changes in the contract after the original final contract has been agreed to. That is, oral statements can be admitted unless they are barred by a clause in the written contract.^[9]

In order for evidence to fall within this rule, it must involve either (1) a written or oral communication made prior to execution of the written contract; or (2) an oral communication made contemporaneous with execution of the written contract. Evidence of a later communication will not be barred by this rule, as it is admissible to show a later modification of the contract (although it might be inadmissible for some other reason, such as the Statute of frauds). Similarly, evidence of a collateral agreement - one that would naturally and normally be included in a separate writing - will not be barred. For example, if A contracts with B to paint B's house for $1,000, B can introduce extrinsic evidence to show that A also contracted to paint B's storage shed for $100. The agreement to paint the shed would logically be in a separate document from the agreement to paint the house.

Though its name suggests that it is a procedural evidence rule, the consensus of courts and commentators is that the parol evidence rule constitutes substantive contract law.

Additional information on the parol evidence rule may be found in Restatement (Second) of Contracts § 213.

The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made.

The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (a) constitutes a fact in issue³⁶ or (b) is circumstantially relevant to the existence of such fact.³⁷

There are five kinds of independently relevant statements that are circumstantial evidence of the facts in issue:

1. Statements of a person showing his state of mind; that is, his mental condition, knowledge, belief, intention, ill will and other emotions

2. Statements that may identify the date, place and condition as illness and the like

3. Statements of a person from which an inference may be drawn as to the state of mind of another person; i.e., the knowledge, belief, good or bad faith noticed of the latter

4. Statements that may identify the date, place and person in question

5. Statements showing the lack of credibility of a witness

The law applicable to the case at bar may be found in the following provisions of the Code of Civil Procedure, which read as follows:

SEC. 119. Death of party.—In case a party to an action dies while the action is pending, the action shall not abate by reason thereof, but the court on motion may allow the action or proceeding to be continued by or against his executor, administrator, or other legal representative, and the judgment, if it be for the payment of costs and against the executor, administrator, or other legal representative, shall be that he pay in due course of administration: Provided, nevertheless, That if the action is for the recovery of money, debt, or damages against the deceased, it shall be discontinued, and the claim thereafter be prosecuted as provided in section six hundred and eighty-six.

SEC. 686. Committee to be sworn and may administer oaths.—The committee appointed to appraise the estate and to allow claims as herein before provided, shall act under oath, and may administer oaths to parties and witnesses upon the trial questions before them. They may try and decide upon claims, which by law survive against executors or administrators, except claims for the possession of or title to real estate; and may examine and allow claims at their present value, which are payable at a future day, al-though such claims are payable in specific article; and they may set off demands in favor of the estate against demands against the estate, and determine the balance due either way.

SEC. 699. Executor or administrator not to be sued.—When a committee is appointed as herein provided, no action or suit shall be commenced or prosecuted against the executor or administrator upon a claim against the estate to recover a debt due from the estate; but actions to recover the seizin and possession of real estate and personal chattels claimed by the estate may be commenced against him.

SEC. 700. Suits pending against the estate to be discontinued.—All actions commenced against the deceased persons, for the recovery of money, debt, or damages, and pending at the time the committee are appointed, shall be discontinued, and the property, if any, therein attached, shall be discharged from the attachment, and the claim embraced in such action may be presented to the committee, who shall allow the party prevailing the costs of such action to the time of its discontinuance.

SEC. 703. Certain actions survive.—Actions to recover the title or possession of real estate, buildings, or any interest therein, actions to recover damages for an injury to person or property, real or personal, and actions to recover the possession of specific articles of personal property, shall survive, and may be commenced and prosecuted by or against the executor or administrator; but all other actions commenced against the deceased before his death shall be discontinued, and the claims therein involved presented before the committee as herein provided.

The last section specifies what actions survive upon the death of a party in a case, and clearly prescribes that actions other than those enumerated therein should be discontinued and presented as claims to the committee appointed in accordance with section 686. An action for the recovery of money or for the collection of a debt, which is the subject matter of the action in said case is not among those specified by law, consequently, does not survive upon the death of the party and should be presented to the committee on claims.

The provisions of the Code of Civil Procedure contained in the above-quoted sections outline the procedure to be followed when a party dies and the action is for the recovery of a sun of money. They prescribe that the collection of debts to determine within the testamentary or intestate proceedings as a mere incident therein so that the whole matter may be fully terminated jointly with the settlement and distribution of the estate of the deceased. This court sees no sufficient reason to justify a different course. The creditors would be better protected if they agreed with the heirs to the institution of a special proceeding for the purpose of enforcing their rights.

The provisions of sections 119 and 700 to the effect that pending actions for the collection of a debt should be discontinued upon the death of one of the parties, is mandatory in character and confer no discretion upon the court. For this reason mandamus lies when a court refuses to dismiss a pending case of such nature.

The contention that the above quoted sections are not applicable to this case because a judgment has already been rendered therein, is untenable. The action is still pending because the judgment rendered therein has been appealed from and the bill of exceptions is still pending approval. This case is entirely different from that in which the judgment has become final and executory.

Neither is the doctrine of merger applicable to this case. Such doctrine applies only to cases in which final judgment has already been obtained; and the reason is obvious inasmuch as the action in such cases is based not on the concept of creditor but on the judgment rendered in his favor.

The doctrine laid down in the cases of To Guioc-Co vs. Del Rosario (7 Phil., 126), and Azarraga vs. Cortes (9 Phil., 698), and invoked by the respondent, is not applicable to the case at bar because in the former, substitution was denied on the ground that the person who desired to be substituted for the deceased party was a special administratrix, while in the latter case the subject matter was a joint and several obligation contracted by several defendants and, naturally, the death of one of them was not sufficient to cause the total dismissal thereof.

A consideration of the facts and the proceedings set forth above will readily show that the order of the Court of First Instance of Tarlac dismissing the contingent claim is based on incorrect and erroneous conception of a contingent claim. A contingent claim is one which, by its nature, is necessarily dependent upon an uncertain event for its existence or validity. It may or may not develop into a valid and enforceable claim, and its validity and enforceability depending upon an uncertain event. (E. Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 813; 2 Moran, Comments on the Rules of Court, 1957 edition, pp. 425-426.).

A 'contingent claim' against an estate within the statute providing for the settlement hereof, as one where the absolute liability depends on some future event which may never happen, and which therefore renders such liability uncertain and indeterminable. . . It is where the liability depends on some future event after the debtor's death which may or may not happen, and therefore makes Words and Phrases, p. 113.).

A 'contingent claim' against an estate is one in which liability depends on some future event which may or may not occur, so that duty to pay may never become absolute. (In Re Flewell, 276 N. W. 732, 733; 9 Words and Phrases, p. 114.).

Whether or not the heirs of the deceased, Juan C. Laya, would succeed in the action brought in Manila against the administrators of the estate of the deceased spouses Florencio Buan and Rizalina P. Buan, is the uncertain event or contingency upon which the validity of the claim presented in the administration proceedings depends. While the said action has not yet been finally decided or determined to the effect that the petitioners herein, heirs of the deceased Juan C. Laya, have no right of action against the estate of the deceased spouses Florencio P. Buan and Rizalina P. Buan, the contingent claim that petitioners have filed in the Court of First Instance of Tarlac in the proceedings for the administration of the deceased spouses Florencio P. Buan and Rizalina P. Buan, may not be dismissed. The order of the court dismissing the claim and declaring that the same may again be entertained if another valid complaint by the petitioners herein is filed in the Court of First Instance of Manila, is inconsistent with the nature and character of a contingent claim. A contingent claim does not follow the temporary orders of dismissal of an action upon which it is based; it awaits the final outcome thereof and only said final result can cause its termination. The rules provide that a contingent claim is to be presented in the administration proceedings in the same manner as any ordinary claim, and that when the contingency arises which converts the contingent claim into a valid claim, the court should then be informed that the claim had already matured. (Secs. 5. 9, Rule 87.) The order of the court subject of the appeal should, therefore, be set aside.

The first order of the court admitted the claim but denied the petition for the setting aside of a certain amount from the estate to respond therefor. The validity of the contingent claim is apparent; as the driver of the bus belonging to the deceased spouses, Florencio P. Buan and Rizalina P. Buan, was found guilty of negligence, as a result of which Juan C. Laya died, the said deceased spouses—the employers of the driver—can be made responsible, as masters of a servant, for damages for the death of the petitioner's father. A portion of the estate should therefore, be set aside to respond for such damages as petitioners herein may subsequently recover in the action they have brought in the Court of First Instance of Manila. This amount should be fixed in the court below.

For the foregoing considerations, the order of the court dismissing the contingent claim filed by petitioners is hereby set aside. It is hereby ordered that the claim be allowed to continue, and it is further ordered that the court fix an amount that may be set aside to respond for the damages that the petitioners herein may ultimately recover. Costs against the respondents.

EN BANC

G.R. No. L-7593        December 24, 1957
Intestate Estate of the late Florencio P. Buan and Rizalina Paras Buan, deceased. BIENVENIDO P. BUAN and A. NATIVIDAD PARAS, Co-Administrators-appellees,
vs.
SYLVINA C. LAYA, ET AL., petitioners-appellants.

Fraud is never presumed. It must be both alleged and proven. In this case, there is a failure of proof.

"Parties to an action against the estate an executor or administrator, upon a claim or demand against the estate of deceased persons," can not be witnesses. (Blood vs. Fairbanks, 50 Cal., 420.) 

x x x x
 
In the very early history of the common law parties interested in actions and proceedings were prohibited from giving testimony during the trial of said actions, or proceedings. The theory of this original disqualification was that persons interested were likely to bear false witness. Long experience however, has demonstrated that this rule worked greater hardship than good. Liberal rules for cross-examination have made it possible to disclose in the presence of the court whether or not interested witnesses were actually falsifying. However, the original common law rule is still in force in the majority of the states of the United States in actions where the adverse party is deceased. As was said by Brickell, chief justice, in the case of Louis vs. Easton (50 Ala., 471), in discussing this same question, "If death has closed the lips of one party, the policy of the law is to close the lips of the other."

Courts should consider a piece of evidence only for the purpose for which it was offered.[

Counter-Affidavit
Inadmissible in Evidence

Appellant posits that the trial court erred in not admitting the counter-affidavit executed by Eufracio Almocera, who died before the trial. He argues that the counter-affidavit should have been admitted under the doctrine of independently relevant statement; that is, "not to prove the truth of the facts therein but only to prove that such writings were executed."^[35] He further argues that the counter-affidavit "will corroborate xxx a very material fact that indeed Cornelio Valencia [did] not know who the assailants really were as he did not see them."

We do not agree. Courts should consider a piece of evidence only for the purpose for which it was offered.^[36] In this case, appellant argues that the said document should have been admitted for the sole purpose of proving that such counter-affidavit was executed. The counter-affidavit, therefore, should not have been used for the purpose specified by the defense counsel during the trial: to "disprove the testimony of Cornelio Valencia"^[37] or, as he subsequently declared in the Appellant’s Brief, to corroborate the testimony of Defense Witness Santillan.^[38] For the court to consider the substance of the counter-affidavit is to give probative value to the statements of an affiant who could no longer be subjected to cross-examination, in violation of the hearsay rule.^[39]

In any event, even if the counter-affidavit were admitted to disprove the eyewitness account of Valencia, the prosecution’s case would still prosper. The guilt of appellant rests not only on the testimony of Valencia, but also on the more detailed account of Barrun.

[ G.R. No. 123072, October 14, 1998 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CADIZ LAPAY, ANECITO LAPAY, MARIO LAPAY, PANCHITO VILLANUEVA, SEGUNDO OLBES, ROGELIO RETEZA, EMILIANO CRISOSTOMO, BASILIO GENEROSA, RUDY CONSTANTINO AND PAYLITO TORRECAMPO, ACCUSED, CADIZ LAPAY, APPELLANT. 

admissible as part of the res gestae they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed

The trial court was of the opinion that what Ms. Aguilar heard or saw does not merely constitute an independently relevant statement which it considered as an "exception to the hearsay rule, only as to the tenor rather than the intrinsic truth or falsity of its contents."^[18] We will clarify this.  Insofar as the statements of Rufina Alconyes are concerned, they are admissible as part of the res gestae they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same.  The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court.  Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim.

[ G.R. No. 119359, December 10, 1996 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERT CLOUD, ACCUSED-APPELLANT. 

Well-settled is the rule that, unless the affiant is presented as a witness, an affidavit is considered hearsay.

Rule on Independently
Relevant Statement

That witnesses must be examined and presented during the trial,^[50] and that their testimonies must be confined to personal knowledge is required by the rules on evidence, from which we quote:

"Section 36.  Testimony generally confined to personal knowledge; hearsay excluded.  –A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules."^[51]

On this basis, the trial court correctly refused to admit Jesus Cortez's Affidavit, which respondent had offered as evidence.^[52]  Well-settled is the rule that, unless the affiant is presented as a witness, an affidavit is considered hearsay.^[53]

An exception to the foregoing rule is that on "independently relevant statements."  A report made by a person is admissible if it is intended to prove the tenor, not the truth, of the statements.^[54]  Independent of the truth or the falsity of the statement given in the report, the fact that it has been made is relevant.  Here, the hearsay rule does not apply.^[55]

independently relevant statement

In this case, Evangelista's testimony may be considered as an independently relevant statement, an exception to the hearsay rule, the purpose of which is merely to establish the fact that the statement was made or the tenor of such statement. Independent of the truth or the falsity of the statement, the fact that it has been made is relevant.^[19] When Evangelista said that Rubia told her that it was petitioner who requested that the check be exchanged for cash, Evangelista was only testifying that Rubia told her of such request. It does not establish the truth or veracity of Rubia's statement since it is merely hearsay, as Rubia was not presented in court to attest to such utterance. On this score, evidence regarding the making of such independently relevant statement is not secondary but primary, because the statement itself may (a) constitute a fact in issue or (2) be circumstantially relevant as to the existence of that fact.^[20] Indeed, independent of its truth or falsehood, Evangelista's statement is relevant to the issues of petitioner's falsehood, his authorship of the check in question and consequently, his culpability of the offense charged.

[ G.R. NO. 155619, August 14, 2007 ]

LEODEGARIO BAYANI, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Article 256. Intentional abortion. - Any person who shall intentionally cause an abortion shall suffer:

1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman.

2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman.

3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented.

 Article 257. Unintentional abortion. - The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally.

Article 4. Criminal liability. - Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.

impossible crime

Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

xxx

Article 4, paragraph 2 is an innovation ⁴ of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. ⁵

This legal doctrine left social interests entirely unprotected. ⁶ The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, ⁷ and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. ⁹

Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. ¹⁰

That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. ¹¹ There must be either impossibility of accomplishing the intended act ¹² in order to qualify the act an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. ¹³ Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. ¹⁴

The impossibility of killing a person already dead ¹⁵ falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. ¹⁶ One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. ¹⁷

The case at bar belongs to this category. 

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 In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable

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In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.

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 WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs.

SECOND DIVISION

G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner, vs.HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.  

Article 59.Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.

Examples of an impossible crime, which formerly was not punishable but is now under article 59 of the Revised Penal Code, are the following: 

 (1) When one tries to kill another by putting in his soup a substance which he believes to be arsenic when in fact it is common salt; and 

(2) when one tries to murder a corpse. (Guevara, Commentaries on the Revised Penal Code, 4th ed., page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim., 343.

INTENTIONAL ABORTION ELEMENTS

Intentional Abortion

ART.256

ELEMENTS:
1. That there is a pregnant woman;
2. That violence is exerted, or drugs or beverages administered,
   or that the accused otherwise acts upon such pregnant woman;
3. That as a result of the use of violence or drugs or beverages
   upon her, or any other act of the accused, the fetus dies,
   either in the womb or after having been expelled therefrom.
4. That the abortion is intended.


A fetus about six months old cannot subsist by itself, outside
the maternal womb. Abortion usually means expulsion before 6th
month or before term of its viability

Viada: Abortion, as long as fetus dies as a result of violence
used or drugs administered

Infanticide, if: (1) Fetus could sustain independent life after
                             its separation from maternal womb, and
                       (2) it is killed

Fetus survives in spite of attempt to kill it or use of violence:
a. Abortion intended, all acts of execution performed –
   frustrated intentional abortion
b. Abortion not intended, fetus does not die – physical injuries

No frustrated unintentional abortion

Ways of committing intentional abortion
1. Using any violence upon the person of the pregnant woman;
2. Acting, but without using violence, without the consent of
   the woman. (By administering drugs or beverages upon such
   pregnant woman without her consent.)
3. Acting (by administering drugs or beverages), with the consent
   of the pregnant woman.

If the mother as a consequence of abortion suffers death or physical
injuries, you have a complex crime of murder or physical injuries
and abortion.

In intentional abortion, the offender must know of the pregnancy
because the particular criminal intention is to cause an abortion.

If the woman turns out not to be pregnant and someone performs
an abortion upon her, he is liable for an impossible crime if the
woman suffers no physical injury. If she does, the crime will be
homicide, serious physical injuries, etc.

Frustrated abortion is committed if the fetus that is expelled is
viable and, therefore, not dead as abortion did not result despite
the employment of adequate and sufficient means to make the
pregnant woman abort.