PEOPLE vs. DUMADAG (2011) (sweetheart defense)

One of my loftiest ambitions when I was a child was to throw an egg at an electric fan.

(alright, let me do a cross)

Atty. Clavecilla: "Ginoong Dumadag sinabi mo na ayaw mong labagin ang sinumpaan mo sa batas ng tao at sa batas ng diyos.. tama ba ako?"
Dumadag: "Opo tama po"
Atty. Clavecilla: "Ginoong Dumadag.. sinabi mo na may relasyon kayo ng babaing umaakusa sayo?"
Dumadag: "Opo"
Atty. Clavecilla: "Ngayon, dahil kayo ay may relasyon.. masasabi mo ba Ginoong Dumadag na ito ay nababase sa tinatawag nating pagmamahal?"
Dumadag: "Opo attorney"
Atty. Clavecilla: "Ang ibig mo bang sabihin na ang pagmamahal na ito ay maituturing na.. pagibig?"
Dumadag: "Opo"
Atty. Clavecilla: "At ang iyo bang pagibig sa babaing ito ay WAGAS, DALISAY at MATATAG??" (nak ng.. LOL)
Defense Counsel: "Objection your honor, immaterial.."  (Hahahahaha!)
Judge: Atty. Clavecilla.. is there really a need to sound condescending?
Atty. Clavecilla: Your honor I am just trying to determine the intensity of the alleged love relationship in connection with the motive of the crime
Judge: Well in that case counsel, objection overruled .. you may proceed. 
Atty. Clavecilla: Thank you your honor...  Ginoong Dumadag.. iyo bang masasabe na Intensity 5 kayo nung isinagawa mo ang krimen? (HAHAHAHA) 

I think I learned something from the House Deputy Speaker at the latest Congressional Inquiry.. how to appear and sound condescending in criminal litigation... I'll keep that in mind and use it someday...  

(Alright let's get to a real case.. this is a rape case)

The Criminal Case of Rape.. here's the facts.

Information was filed with the Manila RTC against Carlo DUMADAG of the crime of Rape, defined and penalized under Article 335  of the Revised Penal Code, as amended by Section 11, of Republic Act No. 7659.

(So here's what happened..)

Above-named accused, armed with a knife, with lewd design, by use of force or intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of a woman (name withheld) below eighteen (18) years of age, all against her will and consent. During his arraignment appellant, with the assistance of his counsel de officio, entered a negative plea to the charge and so trial ensued.

(Alright, let's get to this quick.. after the direct, cross, redirect and re-cross..)

Version of the Prosecution

That the girl a young barrio lass, 16 years of age at the time she testified declared that in the early morning of  December 25, 1998, she was on her way home after hearing the midnight mass. She was a little bit behind Thelma, Carlos and Clarence, all surnamed Dumadag. All of a sudden, appellant approached her from behind and poked a Batangas knife on her threatening to stab her if she shouts. He pulled her towards the house of Joel Boyet Ursulum (Boyet). Once inside, she was forced to remove her pants and panty because of fear. Appellant also removed his pants and brief and pushed her on a bamboo bed. Pointing the knife at the left portion of her abdomen, appellant ordered her to hold his penis against her vagina. Appellant succeeded in having carnal knowledge of her. After appellant was through, they stayed inside the house until 6 in the morning. All this time, appellant continued to hold the knife. Pleading that she be allowed to go home, appellant finally let her go after threatening to kill her if she reports the incident to her parents. The girl decided not to disclose what transpired because of fear. Nevertheless, the girl's uncle, learned from appellant himself that the latter had sexual intercourse with her. Her uncle relayed the information to her father who confronted her about the incident. After confirming the same from they decided to report the matter to the police where she was investigated and her sworn statement taken. Physical examination on the girl indicated that there was laceration on her hymen.

Version of the Defense

On the other hand, appellant does not deny having had sexual intercourse with the girl. Instead, he claimed that it was voluntary and without the use of force since they were lovers. To support his claim that she was his girlfriend, appellant presented Boyet and Nieves Irish Oandasan (Nieves Irish) who both corroborated his sweetheart defense.

RTC Ruling

RTC declared appellant guilty beyond reasonable doubt of the charge lodged against him after finding the girl's testimony to be credible  as it was given in a candid and straightforward manner. It rejected appellants sweetheart defense holding that a sweetheart cannot be forced to have sex against her will. Consequently he was condemned to suffer the penalty of reclusion perpetua and payment of damages.

Appellant filed a Notice of Appeal with the trial court. The records of this case were transmitted to the Supreme Court. Both parties filed their respective Briefs. Consistent however to the Supreme Court's pronouncement of a decision laid in People v. Mateo (the anti-direct appellate review case) the case was referred to the CA for appropriate action and disposition. 

In his brief, appellant assigned the following errors.

1. The trial court erred in giving weight and credence to the testimony of  private complainant that accused poked a knife at the left side of her abdomen after she came out from the church.

2. The trial court erred in not acquitting accused-appellant on the ground of reasonable doubt.

The CA Ruling 

Resolving jointly the foregoing imputations against the trial court, the CA affirmed with modification the appealed judgment of conviction. The CA ruled that there is nothing on record which shows that the trial court had overlooked, misunderstood or misapplied a fact or circumstance of weight and substance which would have affected the case. The CA junked appellants contentions that he and the girl were lovers; that no force or intimidation was employed on the girl; and that there was contradiction as to which of his hands was placed around her neck. The CA further held that the girl's simple account of her ordeal evinces sincerity and truthfulness. 

ISSUE:

Did the lower court erred in giving weight and credence to the testimony of  private complainant and finding no reasonable doubt on the part of the accused.   

RULING:

The appeal is bereft of merit.

The gravamen of the offense of rape is sexual intercourse with a woman against her will or without her consent.  On the basis of the records, the Court finds the girl candidly and categorically recounted the manner appellant threatened her and succeeded in having sexual intercourse with her against her will. She consistently testified on all points raised by the presiding judge.  Therefore the Court, just as the courts below, is convinced of the truth and sincerity in the account of the girl. It bears to stress that AS A RULE, TESTIMONIES OF CHILD VICTIMS OF RAPE ARE GIVEN FULL WEIGHT AND CREDIT, FOR YOUTH AND IMMATURITY ARE BADGES OF TRUTH. 

Neither is it improbable for appellant to employ such criminal design in the presence of his  own family especially when overcome by lust. It is a common judicial experience that rapists are not deterred from committing their odious act by the presence of people nearby. Lust is no respecter of time and place.  As established, the girl was silenced by appellants threat of killing her with a knife. Thus, the reason for her failure to shout or cry for help is because she was overcame by fear. It has been held that minors,  could be easily intimidated and cowed into silence even by the mildest threat against their lives. 

The fact that there is no evidence of resistance on the part of the girl DOES NOT CLOUD HER CREDIBILITY. The failure of a victim to physically resist does not negate rape when intimidation is exercised upon her and the latter submits herself, against her will, to the rapists assault because of fear for life and physical safety. In this case, the girl was dragged by appellant with a knife pointed on her neck and warned not to shout or to reveal the incident to anyone or else she would be killed. That warning was instilled in her mind such that even when appellant was just holding his weapon after the intercourse, she did not attempt to flee. The intimidation made by the appellant are sufficient since it instilled fear in her mind that if she would not submit to his bestial demands, something bad would befall her.

Well-settled is the rule that where the victim is threatened with bodily injury, as when the rapist is armed with a deadly weapon, such as a pistol, knife, ice pick or bolo, such constitutes intimidation sufficient to bring the victim to submission to the lustful desires of the rapist. 

There is no question that the girl underwent sexual intercourse as admitted by appellant himself and as shown by the medical findings. However, appellant denies having raped her and instead, claims that he and the girl were lovers and the act of sexual intercourse was a free and voluntary act between them. In short, he interposes the sweetheart theory to exculpate himself from the rape charge filed against him.

Appellants claim that they are lovers is untenable. For one, such claim was not substantiated by the evidence on the record. The only evidence adduced by appellant were his testimony and those of his relatives Boyet and Nieves Irish. According to Boyet, he knows of their relationship because they were conversing and writing each other while Nieves Irish saw them once walking in the street. To the mind of the Court, these are not enough evidence to prove that a romantic relationship existed between both of them. In People v. Napudo where the accused likewise invoked the sweetheart defense, this Court held that:

"The fact alone that two people were seen seated beside each other, conversing during a jeepney ride, without more, cannot give rise to the inference that they were sweethearts. Intimacies such as loving caresses, cuddling, tender smiles, sweet murmurs or any other affectionate gestures that one bestows upon his or her lover would have been seen and are expected to indicate the presence of the relationship."

Other than Dumadag's self-serving assertions and those of his witnesses which were rightly discredited by the trial court, nothing supports appellants claim that he and the girl were indeed lovers. A sweetheart defense, to be credible, should be substantiated by some documentary or other evidence of relationship such as notes, gifts, pictures, mementos and the like. Appellant failed to discharge this burden.

Besides, even if it were true that appellant and the girl were sweethearts, this fact does not necessarily negate rape. Definitely, a man cannot demand sexual gratification from a fiance and worse, employ violence upon her on the pretext of love. LOVE IS NOT A LICENSE FOR LUST. But what destroyed the veracity of appellants sweetheart defense were the credible declaration of the girl is her categorical denial that he is her boyfriend. 

With the credibility of the girl having been firmly established, the courts below did not err in finding appellant guilty beyond reasonable doubt of rape committed through force and intimidation. The sweetheart theory interposed by appellant was correctly rejected for lack of substantial corroboration.

  

PHILIPPINE AIRLINES vs. CIR

I just killed a spider crawling on the wall. Any thoughts? Any sentient reader who has tendency for grievance clamoring for spider rights may do so first thing in the morning.

Lemme tell you somethin'.. I just finished watchin' two horror flicks. "Wrong Turn"? (those fu-kin inbreds?).. ugh! gross. I dunno, its always the girlfriend who'd say "just drive off!!, uhhgh step on the gas please!!" and the boyfriend saying "Well, somebody's gotta help him!!".  And believe me.. it's always the girl who usually got the right hunch and eventually ends up getting killed... the guy survives the whole balogney.. until 2 seconds before the end credits  what seems to be dead slashes him into dark blank screen Lol.. fuck whats up with that?

Oh!.. the case yeah...

Caltex imports jet-fuel and sells them to PAL, alright? So the commodity is a petroleum product, so pursuant to existing trade laws may excise tax na babayaran.  

Now what Caltex did actually was it avoided and shifted the burden of paying the Excise Tax to PAL thinking that in so doing will therefore also shift their claim for the Tax Refund from the BIR to PAL.

So parang sinabe ng Caltex sa PAL "O kayo na magbayad ng excise tax ang mahal ng freight-in eh, tutal maco-convert nyo naman yan monetary loss na yan into gain sa Tax Refund eh, medyo kapos kami ngayon eh" (haha dialogue ba?)  Eto naman si PAL "Walang problema!" not knowing that there's such thing as "Statutory Tax Payer" (which is Caltex, the one who imported the goods and by provision of law is the one bound to pay the excise tax) agreed to the arrangement. 

Comes the time to claim for the tax refund. Here comes PAL attempting to get a tax refund from the BIR but the CIR refused stating that the only person qualified to request for a tax refund is the Statutory Tax Payer which is the only one legally required by law to pay the taxes directly to the government. (E may batas pala eh.. Is it an expressed provision? I wonder if its strictly construed)

So were talking about legal personality to claim a tax refund here.  Patay na!  Moreso the Court of Tax Appeal (CTA) upheld the BIR ruling.

ISSUE:

So the question is: Can PAL claim for a tax refund even if it is not the  "Statutory Tax Payer" and therefore not possessing any legal personality for the claim.

HELD:

Answer:  YES.

Court said, while it is true that only Statutory Tax Payer may ask for a tax refund, however the rule does not apply when the law GRANTS EXEMPTION from DIRECT / INDIRECT TAXES.

PAL's CHARTER allows it to be exempted from both direct and indirect taxes. Therefore PAL has Legal Personality to claim the said Tax Refund. (e nasa exemption pala eh)

Lusot.. 

So PAL eventually wins this case. 

ABRA VALLEY COLLEGE vs. AQUINO

"Ang kamahalan ng tao ay wala sa pagka-hari, wala sa tangos ng ilong at puti ng mukha, wala sa pagka-pari na kahalili ng Diyos, wala sa mataas na kalagayan sa balat ng lupa: wagas at tunay na mahal na tao, kahit laking gubat at walang nababatid kundi sariling wika, yaong may magandang asal, may isang pangungusap, may dangal at puri, yaong di nagpapa-api at di nakiki-api; yaong marunong magdamdam at marunong lumingap sa bayang tinubuan." - Emilio Jacinto

Naku naku naku!! mag ki-Christmas na..

(this is a re-post from 12/3/2015)

Ika 30 ng Nobyembre. Araw ng Supremo. But I’m watching the movie I’ve missed Heneral Luna through a dirty cheap-copied dvd. Well at least its hi-tech, you didn’t have to dim the lights, the copy is auto-dim lighted,  complete with background talks. laughs, fanfare and a remastered can-of-pork-&-beans sound. 

Well they can all make an effin movie about all the historical heroes they want, but still, it’s the brains of Emilio Jacinto I am intrigued about. 

And if they’re gonna make a movie out of his secretive life, the person to portray this must do ultimate justice to it. They need to put an equally intelligent human being to match the dude’s clever psyche as what is portrayed about him in history books. 

Thing is, nothing much is written about the dude, that’s why a lot of people are intrigued.. well, okay just me. 

Aside from being tagged as the Utak Ng Katipunan, mostly a brief biography is all you’d find in the internet. 

This is endearing:

"...tatag na ang kanyang pagka-tao: tahimik subalit walang takot lumaban. 

Dahil sa hikahos, napilitan siyang ilipat ng ina sa pagaaruga ng kanyang kapatid, si Jose Dizon, upang ipagpatuloy ang pag-aaral sa colegio. Sa tustos ng tio, nakatapos si Emilio ng bachelor of arts (licenciado) sa Colegio de San Juan de Letran, matapos ng araw-araw na kutya at libak ng mga mayamang ka-clase dahil sa kanyang pagka-dalita. 

Pumasok siya sa Universidad de Santo Tomas upang mag-aral ng abogasiya. Nabanggit ng mga kakilala niya sa Santo Tomas nuon na tahimik pa rin siya, hamak pa rin ang damit, at wala pa ring takot makipag-suntukan. 

Ang nadagdag, sa ulat nila, ay ang sagad niyang hangad na maging malaya ang Pilipinas. Dala marahil ng tukso at paghamak na tinanggap mula pagka-bata, o ang mga pag-api ng Español na nabasa niya sa kumakalat nuong propaganda ng mga ilustrado. Anuman ang dahilan, sa murang gulang na 19 “hinog” na si Emilio sa papalapit na himagsikan."

I think I felt his spirit once when I was studying in the same school (LETRAN), while peeing in our toilet I was struck face to face with this strong rallying, life determining, pentel-penned wordings on the cubicle wall “Ang kinabukasan ng himagsikan ay nakasalalay sa iyong hinahawakan – Emilio jacinto”.

Me and my classmates would always laugh whenever we’d pee, “Dude this is a masterpiece hahaha”.  Whoever the fuckin dude who wrote that vandalism on the wall must have just read the Cartilla as supplementary reading to his Philippine History class. Of course it reached the office of the father rector, and immediately they sent the janitors to paint over it.

So.. we were jam packed outside cussing the janitor “Tang na naman oh manong o?” “Manong bat binura mo?” “Utos ni father yan” "Utos puro utos puro utos!" LOL “Lagot ka kay Emilio Jacinto, mumultohin ka nun dito” “Si father lang yon eh, eto galing sa utak at kamay ng rebolusyonaryong bayani” IPAGLABAN ANG HIMAGSIKAAAN!!!” “IPAGLABAAN!!” LOL “MABUHAY ANG KATIPUNAAAN!!!” “MABUHAAAY!!!” LOL.

We were watching the opening of the big canned paints parang ang sarap hawakan yung brush. "O yosi ka muna manong..." "Huy yosi ko yan!!" "Manong.. punta ka ke Aling Bising.. kunin mo isang pack ng sigarilyo, on the house.. kami na gagawa nyan okey?" So tinatry naming utuin. "Mga batang ito umalis kayo dyan, malalagyan mga uniporme ninyo ng pintura"  "Opo!" Pinakialaman eh. Sarap kasi tumulong sa kapawa mo... weh! actually.. sarap kasi subukan yung mag paint. 

The case...

FACTS:

Abra Valley College rents out the ground floor of its college building to Northern Marketing Corporation while the second floor thereof is used by the Director of the College for residential purposes. The municipal and provincial treasurers served upon the College a “notice of seizure” and later a “notice of sale” due to the alleged failure of the College to pay real estate taxes and penalties thereon. The school filed suit to annul said notices, claiming that it is tax-exempt.

ISSUE:

Whether or not the tax imposition on the College is violative of the Constitutional prohibition against taxation of religious, charitable, and educational entities.

HELD:

While the Court allows a more liberal and non-restrictive interpretation of the phrase “exclusively used for educational purposes,” reasonable emphasis has always been made that exemption extends to facilities which are incidental to and reasonably necessary for the accomplishment of the main purposes. 

While the second floor’s use, as residence of the director, is incidental to education; the lease of the first floor cannot by any stretch of imagination be considered incidental to the purposes of education. 

The test of exemption from taxation is the use of the property for purposes mentioned in the Constitution. 

Abra Valley College loses this case insofar as the commercial aspect is concerned. The residential incident however is lawful and was given weight.

CIR vs. BRITISH OVERSEAS AIRWAYS CORPORATION (BOAC)

"Presentation of answers that are not only good but logical, full of substance and supported by law and other authorities, 

are gems to the examiner, whether he has a good or black heart"

Well I'm trying to train my self  to answer questions during exams in at least one paragraph only.  But it's not that easy. To be able to do that you have to have that keen eye for detecting brevity. If you don't know how to do it you're good as dead meat. You're answer will just look like a long quote without coherence and substance. But if you know what it takes, then the world is yours. If you know it, you can exude it.

I mean just take a look at how I answered in the first inset image. It's long, thoughts were jumbled, everything's going berserk, and I even wrote on a page not intended to be written on. And that penmanship.. ewe!  looks like either so pressed for time or didn't bring the right pen at all. I think both.

I think I have managed to cut down my answers in my recent final Criminal Law Review examination into a 1 responsive sentence that address the immediate question and a paragraph of about 3 to 5 sentences which includes all my logical reasoning and my legal basis.

But I'm not satisfied with it. I wanted to be able to cut it in a 2 compact sentence that has it all. More like that in the 2nd inset image. Would you kindly take a look at my answer in that post. It's a mere paragraph consisting of 2 sentences and I'm surprised it perfectly did the job. I got a perfect score for that number, whereas compared to the former, I was short of 3 points. Indeed brevity is the soul of wit. And that's what I'm talking about.

I think it's in the presentation of your answers that should not only be good but logical, full of substance and supported by law and other authorities, they say these are gems to the examiner, whether he has a good or black heart. 

Most importantly that it can be at least short and straight to the point co'z mind you these examiners are also engaged in their respective practice in the field of law, that means they don't have all the time in the world to decipher your answer and if they see your answer's beating around the bush like that of the 1st inset image then the more they'll get the impression you have no strong grasp of what you're saying more so of the applicable provisions needed and you're just inventing your answer. 

I think it's in the sentence construction how you can put everything into a compact and substantive paragraph that has it all. And the way how you concoct and present your thoughts, as well as how you choose your words. You must choose your words well, co'z the right words used in their right meaning brings intensity to the whole sentence which displays substance when being read from the whole paragraph.

And if I would be able to train my self to continually present an answer like that then that could impress those who will handle my paper. And impressive answers showing your reasoning faculty and your legal know-how coupled with a good command of the English language and with the right over-all visual structure is what the examiners want to read in your examination notebooks.

Well then let's all practice to have that keen eye for brevity and I think the only way to have this is mastery of the subject matter and an overall view of  life and law so you can manipulate the lengthiness or shortness of your answers in your own hands.

Anyway, let's get to the case..

British Overseas Airways Corp. (BOAC) is a British government owned corporation. It's an international airline business. 

This is the British Airways nowadays. I think about around 1970s (yup, you got that right, the setting of Conjuring2, London 1972) when a British parliament act merged BOAC with another state-owned airline, the British European Airways (BEA) and formed what is now known as the British Airways...

Although I'm not sure if British Airways today have landing rights for traffic purposes in the Philippines co'z BOAC from 1959 to 1972 had no landing rights and thus did not carry passengers and/or cargo to or from the Philippines... 

Meaning no direct flights. Well since the dates had been stated exclusionary then I infer that British Airways have landing rights in Manila these days. Well correct me if I'm wrong airport people, I'm afraid I'm not much of a traveler, and unfortunately not even one of those wonderful cosmopolitan souls. Although I doubt if there are direct flights from Manila to London. And I'm too lazy to call some travel agencies to verify my claim..

Moving right along, the thing with BOAC was it was a bonafide member of the Interline Air Transport Association (IATA) and as such mean it can operate air transportation service and sell transportation tickets over the routes of other airline members.

What happened was using its IATA privilege it maintained a general sales agent in the Philippines through Warner Barnes & Co. Ltd., and later, Qantas Airways.  These sales agents were selling for BOAC airline tickets covering passengers and cargoes.

So simply put.. that is income being generated within Philippine territory where the BIR naturally had to come in... 

And so the Commissioner of Internal Revenue (CIR) assessed deficiency income taxes against BOAC.

Thereby BOAC protested.

ISSUE:

Whether the revenue derived by BOAC from ticket sales in the Philippines for air transportation, while having no landing rights in the Philippines, constitute income of BOAC from Philippine sources, and accordingly, taxable.

RULING:

Court said..

The source of an income is the property, activity or service that produced the income.  For the source of income to be considered as coming from the Philippines, it is sufficient that the income is derived from activity within the Philippines.

In this case, the sale of tickets in the Philippines is the activity that produced the income. The tickets exchanged hands here and payments for fares were also made here in Philippine currency. The SITUS of the source of payments is the Philippines. The flow of wealth proceeded from, and occurred within, Philippine territory, enjoying the protection accorded by the Philippine Government.

So court said, in consideration of such protection, the flow of wealth should share the burden of supporting the government.

(PD 68, in relation to PD 1355, ensures that international airlines are taxed on their income from Philippine sources. The 2 1/2 %tax on gross billings is an income tax. If it had been intended as an excise or percentage tax, it would have been placed under Title V of the Tax Code covering taxes on business.)

BOAC lost this case.

ANG vs. TEODORO (1942) (Ang Tibay Case)

"Talent alone cannot make a writer.  There must be a man behind the book"  

                                                 -Ralph Waldo Emerson

Mr. Toribio Teodoro
(Courtesy of Philippine Shocking History)
(anu ba yung buhok ni Mr. Toribio?.. shocking ;p)

Sometimes we all need midnight walks. That is if we can't make it in day-time due to the tightness of our own schedules. Especially us men. To tell us what the day is about. Just to keep things under a clear perspective, bring it into focus.

I've learned that from my grandfather. Of course that's ahm.. the province were talkin about, at summer vacation when we were kids. He loved taking walks. Not to mention the time when people were what they really were, never any ill-intent even in the wee hours of the night. Unlike today when crimes proliferate.

It's all about that man's compelling shadow against the moon that's what they say, that masculine penumbra. A real man thinks.. ponders.. life is like chess moves. It's always touch move. But to the thinking man.. he always retrace back his steps.. the errors he's committed, because he knows there is no better way to move forward.  

Sometimes I don’t understand children. You ask them what piece they want to play and almost uniformly they choose the white piece. There’s a beauty in handling the black piece. All you need to do is defend and defend until you reach that point where your defense becomes an attack. Interesting right? The black piece has a built-in challenge, a challenge for you to rise above everything.  

People don’t realize the chess game is actually a battle of two kingdoms in a form of a siege. It’s the black that raises their draw bridge and it’s the white that draws their catapults. So what do you do when you are under siege? When your enemy is ready to cut your food and water supply? You have to act quickly while there’s enough storage, or your army will soon fail for lack of sustenance. But not too quick, remember you have the upper hand, you occupy a higher ground, you can see everything from where you stand, every slight movement on the ground. Your archers have the trajectory advantage. You act quick, but not too quick for in your quickness you have to wait. You wait for what? You wait for your opponent to commit a mistake. 

That’s the beauty of playing the black piece, it builds patience. And reality reveals in a hundred different chess moves, it is impossible not commit a single mistake. And so you rely on your opponent’s error. A mistake you patiently await even all throughout the game just in case your long learned well established strategies of old had proved to be lacking in order to out-wit him.  It all boils down to your manner of reading. If you don’t know how to read her mistakes as the white queen attacks, you’ll end up a defeated black king and a conquered kingdom.  

Honesty is not weakness. You can read better than that.  Or maybe learn back the basics. The basics of my grandfather, a virtuous honest man.

Well whatever it takes, I guess we just have to do our manly midnight walks in safety and with-in the bounds of our back or front yard for all I care. As long as we thinking men get our paths straightened and regain our focus. There is no better silent teacher than solitude. 

This is trademark infringement. Here's the case.. 

Respondent TORIBIO TEODORO, at first in partnership with JUAN KATINDIG and later as sole proprietor, has continuously used "ANG TIBAY," both as a trade-mark and as a trade-name, in the manufacture and sale of slippers, shoes, and indoor baseballs since 1910. 

He formally registered it as trade-mark and as trade-name. The growth of his business is a thrilling epic of Filipino industry and business capacity. Starting in an obscure shop in 1910 with a modest capital of P210 but with tireless industry and unlimited perseverance it grew into one of the early 100% Filipino owned firms. 

wow.. hats off to the Filipino ingenuity..

Petitioner ANA ANG registered the same trade-mark "Ang Tibay" for pants and shirts on 1932, and established a factory for the manufacture of said articles in the year 1937. 

Good thinking. Very apt you know?.. apelyido nya 'ANG', and just insert 'TIBAY' as kind of suffix and.. it says it all. The problem is may nauna ng nagregister before her.. and I don't think she's unaware of it.. the product was well known all over Philippine islands in those days... 

So parang sinabi nya lang kay Mr. Teodoro... "Ako ang talagang may karapatang gumamit ng 'ANG TIBAY' e ang pangalan ko 'Ang' eh 'Ang' ba pangalan mo? your last name starts with T pero 'Teodoro' naman di naman 'Tibay"  LOL (joke lang ah don't quote me on that)...

ANG was sued by TEODORO for trademark infringement. 

TRIAL COURT FAVORED ANG

The trial court absolved the defendant from the complaint, with costs against the plaintiff, on the grounds that 1. the two trademarks are dissimilar and are used on different and non-competing goods  2. that there had been no exclusive use of the trade-mark by the plaintiff; and 3. that there had been no fraud in the use of the said trade-mark by the defendant because the goods on which it is used are essentially different from those of the plaintiff. 

CA REVERSED

The Court of Appeals, however reversed that judgment, holding that BY UNINTERRUPTED AND EXCLUSIVE USE SINCE 1910 in the manufacture of slippers and shoes, RESPONDENT'S TRADE-MARK HAS ACQUIRED A SECONDARY MEANING; that the goods or articles on which the two trade-marks are used are similar or belong to the same class; and that the use by petitioner of said trade-mark constitutes a violation of sections 3 and 7 of Act No. 666. The defendant Director of Commerce did not appeal from the decision of the Court of Appeals.

ISSUE:  

Is the subsequent registration of existing trade name registrable due to its difference and non-competing products?

RULING:

The court said..

In the present state of development of the law on Trade-Marks, Unfair Competition, and Unfair Trading, THE TEST EMPLOYED BY THE COURTS TO DETERMINE WHETHER NONCOMPETING GOODS ARE OR ARE NOT OF THE SAME CLASS IS CONFUSION AS TO THE ORIGIN OF THE GOODS OF THE SECOND USER. 

Although two noncompeting articles may be classified under two different classes by the Patent Office because they are deemed not to possess the same descriptive properties, THEY WOULD, NEVERTHELESS, BE HELD BY THE COURTS TO BELONG TO THE SAME CLASS IF THE SIMULTANEOUS USE ON THEM OF IDENTICAL OR CLOSELY SIMILAR TRADE-MARKS WOULD BE LIKELY TO CAUSE CONFUSION AS TO THE ORIGIN, OR PERSONAL SOURCE, OF THE SECOND USER'S GOODS. 

They would be considered as NOT FALLING UNDER THE SAME CLASS ONLY IF THEY ARE SO DISSIMILAR OR SO FOREIGN TO EACH OTHER AS TO MAKE IT UNLIKELY THAT THE PURCHASER WOULD THINK THE FIRST USER MADE THE SECOND USER'S GOODS.

Such construction of the law is induced by cogent reasons of equity and fair dealing. The COURTS HAVE COME TO REALIZE THAT THERE CAN BE UNFAIR COMPETITION OR UNFAIR TRADING EVEN IF THE GOODS ARE NON-COMPETING, AND THAT SUCH UNFAIR TRADING CAN CAUSE INJURY OR DAMAGE TO THE FIRST USER OF A GIVEN TRADE-MARK, FIRST, BY PREVENTION OF THE NATURAL EXPANSION OF HIS BUSINESS AND, SECOND, BY HAVING HIS BUSINESS REPUTATION CONFUSED WITH AND PUT AT THE MERCY OF THE SECOND USER. 

The original owner is entitled to the preservation of the valuable link between him and the public that has been created by his ingenuity and the merit of his wares or services. Experience has demonstrated that WHEN A WELL-KNOWN TRADE-MARK IS ADOPTED BY ANOTHER EVEN FOR A TOTALLY DIFFERENT CLASS OF GOODS, IT IS DONE TO GET THE BENEFIT OF THE REPUTATION AND ADVERTISEMENTS OF THE ORIGINATOR OF SAID MARK, TO CONVEY TO THE PUBLIC A FALSE IMPRESSION OF SOME SUPPOSED CONNECTION BETWEEN THE MANUFACTURER OF THE ARTICLE SOLD UNDER THE ORIGINAL MARK AND THE NEW ARTICLES BEING TENDERED TO THE PUBLIC UNDER THE SAME OR SIMILAR MARK. 

In the case at bar, petitioner seems to make a frantic effort to retain the use of the mark "Ang Tibay." Her counsel suggests that instead of enjoining her from using it, she may be required to state in her labels affixed to her products the inscription: "NOT MANUFACTURED BY TORIBIO TEODORO."

Ahm.. "With your permission your honors we suggest to the honorable court that instead of enjoining petitioner from its use that she may be required for the least to affix distinguishing marks inscribed in her labels in fine prints the words  "NOT MANUFACTURED BY TORIBIO TEODORO." anu daw? whatdu fuck..

ehehe.. real funny.. imagine that label carrying your competitor's name plastered on all your products?... well If I'm Mr. Toribio I'd have no qualms with that I'd opt to tolerate it... negative publicity is still publicity... let's see the response of the court...

We think SUCH PRACTICE WOULD BE UNETHICAL AND UNWORTHY OF A REPUTABLE BUSINESSMAN. To the suggestion of petitioner, respondent may say, not without justice though with a tinge of bitterness: "Why offer a perpetual apology or explanation as to the origin of your products in order to use my trade-mark instead of creating one of your own?" On our part may we add, without meaning to be harsh, THAT A SELF-RESPECTING PERSON DOES NOT REMAIN IN THE SHELTER OF ANOTHER BUT BUILDS ONE OF HIS OWN.

The judgment of the Court of Appeals was affirmed.

Mr. Toribio Teodoro wins this case. 

USON vs. DEL ROSARIO (Legal Wife vs. Common-Law Wife)

   

No cases today! we're just gonna do some rambling stuff.. yes I just feel like doin' lengthy and confused or inconsequential writing today.... kidding.. yeah that free style free flowing kinda thing. (I'm always free flowing)

Just the other day I was at the optometrician. And she was doin' some measurements and eye tests. Yup, I need a reading glasses. Yeah! Blame it on those sturdy thick law books.. na walang patawad. You know the irony of it all is that I even hated reading when I was a kid. I remember my mother forcing me to read my school books everyday right after lunch for an hour coz grade school classes were in the morning. And I hated it. If I'd be the boss I'd rather use my in-between-lunch-and-nap time 'Playing' rather than reading. I've always thought that 'playing' is God's gift to mankind when I was in those age. But one thing that my mom instilled in me during those times of my ordeal. She always made it a point for me to understand what I'm reading. She probably have realized that I was not the geeky type so she had to make it quick that I get the essence of it. 

But you know? I never thought I'd wear glasses. I was built with excellent 20/20 vision from childhood to adult that I swear I would have passed as an airline pilot. I wasn't even wearing one back in my previous law school. Wasn't until last year that I really had to wear one. Well, maybe the age is catching up, that's why. That cold inevitable crucial fact of life.. the one that you always want to stare in the eye and give it that proverbial fuckin' middle finger and say.. 'suck iiiit!!!'.

The good thing is the doctor said it's strictly for reading, I'm far sighted. I musn't wear them when I drive or walk the streets or I'll ram every car or sideswipe any kid if I did. The doctor said it again "they're strictly for reading purposes". Geez after years of 20/20 vision then this.. I just wonder what happened somewhere along the way. My getting kicks out of reading fine prints on excellent wine bottles must have taken its toll.. WTF. 

Believe me I never dreamt of this, like wearin' one?... but.. oh well bite my tongue, actually I did once, even went over board wearing one just to impress my girlfriend way back in college. I didn't want to be laughed at wearing ungraded glasses for nothin' but style. I wanted the real thing co'z she's very nosy. She's a university scholar so believe me she'd know. I wanted somethin' that'd really impress her. Somethin authentic. Actually hindi ako makabili ng fake eyeglasses kase punta lahat sa matrikula & libro (grin). Kaya sabe ko.. baka pede magimprovise. 

Yeah.. I remember.. I tried to pull one off for her. I never told her anything about it, I just surprised her one day wearing graded glasses in class. And she smiled, she felt elated her boyfriend's the sensitive and sensible type the way she wanted it. But actually she didn't know I just took it from my dad's drawer from one of those seldom used Hemingway glasses of his and told her with a serious tone, well, "kelangan na kaseng magsalamen eh" like mr. phony as hell. And she loved it. Well.

Actually it was cool stuff way back then in college if you're wearing reading glasses, co'z science was the in thing then, as in most kids worship Albert Einstein. Specially if you tend to carry books and reading them on book stands even if you're just mixing peanut butter with jelly sandwich behind the book for cries sake. I mean it was a sure gate pass for a mature romantic manly look that sends the girls crazy daydreaming for that one great love. Funny were the old times really.

But my girlfriend then she didn't even look anything like your typical thick graded glassed scholar, in fact she never wore glasses, she's the sexy type..tsk..lakas ng sex appeal grabe. Worked for a semi-huge jewelry store as an apprentice, they cut diamonds and design neat authentic stuff. So the next day she brought me this small pad of special kind of paper. Parang matchpad na onion skin ang itchura. While were seated in class she reached for my bag and took my dad's gla... I mean MY pair of eyeglasses and so I asked "Uh what's that?" "Its a special kind of paper I took from the office, this is what we use to clean diamonds, jewels and glasses" and she showed me how. So I said "great!" And she said "now try it on" And I said "wow malinaw nga"  "see?". Actually malinaw nga, malinaw na malabo.. kase wala talagang grado mata ko tinitiis ko lang para masabe nya lang na "ang talino talaga ng boyfriend ko" the fuck Lol, pero actually hilong-hilo na ako.. ganon pala yon.. di ka dapat magsuot ng di mo grado, ang sakit sa ulo grabe lalo pag tumingin na ako sa doble vista ng tatay ko LOL grabe!!! hilong-hilo akoo.. di ko na maties sasabihin ko na talaga! suko na ako!! LOL

One day di ko na sinuot..  I went to class the usual self.. without it. Sabe nya "O nasaan na eyeglasses mo?" Pati mga barkada ko nagtanong. "Anong eyeglasses wala naman akong eyeglasses ah?"  "Eh kaninong glasses yon?" "Di akin yon sa tatay ko yun no hahaha" She laughed kinurot ako ang tagal "Sabi ko na nga ba eh.. kaya pala hilong-hilo ka no Mr. Clavecilla?" "Ouch!" "Hmp!"  "Tsk.. lika nga dito.."

Pero mas grabe yung sa recitation di nya na-gets. Akala nya talaga tutoong nagaral ako. We had this Math teacher in Algebra.. of course  everybody knew that were a pair, even the teachers, kase they have this scholars list, and I guess somehow tinitingnan nila kung matalino din yung partner, so the teacher tested her in oral recitation. I think the test wasn't actually for her, it was actually for me.

He wrote the equations on the board but he bombarded my girlfriend with questions to solve with her mind, and I couldn't just take it sitting down.  I was seated at the back of her chair together with my pals. And the teacher was checking my reactions each time. And it looked to him like there's nothing I can do to be of help to her. Her previous calculations in her workbook were correct but she was saying a totally wrong totaled answer.

The teacher was going like "Your previous answers are correct Ms. Diaz, your  calculations are correct but your answer to the whole equation is wrong.. again your answer Ms. Diaz?" "9 sir" "Wrong!.. calculate it again while standing up" "...12?" "Again your answer is wrong" And he was looking at me.  Everyone was helping her pitching in the answer but they're shouting wrong answers.

The teacher was gazing at me trying to see what I will do. I took a quick look at my workbook leaned forward discreetly and whispered "6". Di sya naniwala sabe nya "8 sir"... I said whut the fuck... "6" lumalakas na boses ko, narinig ng teacher and boy the teacher quickly stopped the whole class and we're all puzzled because he's suddenly displaying this big smile. Then he laughed and clapped his hand 'clap-clap-clap' "And the knight in shinning armor comes to the rescue for his lady in distress ha ha ha... magnificent.. beautiful.., what is the answer Mr. Clavecilla?" "ehem.. 6 sir"  "There you go!  Listen to me ladies, when you get a man you don't get some weakling na pakuyakuyakoy lang dyan sa tabe... you get a strong man who can take you out of that situation you're in... you hear me?.. sit down Ms. Diaz.. good job Mr. Clavecilla... I am totally impressed, this is such a good day... something special has just transpired today and I am glad to have witnessed such glory of love... hahaha... chivalry after all is not dead". Class was dismissed.

She caught me at the doorway having fist-bumps with my buddies. "Galing mo pare!!". Then I heard her "Eyy wait up!" she pulled my belt holder to make me notice she's at my back, she's the only one who does that, and I know it's her.  She slipped to my side, my arm goes around her. "You didn't listen" I said.  "Soooryyy". "Let's go get some ice cream" "Shoot!!". Pero actually di ako nag-aral talaga, may kodigo lang talaga ako. LOL. Actually pakuyakuyakoy lang talaga ako sa tabi-tabe LOL. Kakahiya tuloy, dami pa sinabi ni sir HA HA HA. Nakaka guilty hahaha.

I'll let you in in a little secret. She may have found out quickly about the glasses thing co'z she's all intelligent and smart like that. But she never found out about the recitation thingie. Reason my answer was correct is because I bought an upperclassman's old Algebra workbook under the same teacher for just 200 bucks. Reason I bought it is because  it was corrected and graded by the same teacher. I thought if his answers were wrong at least I could infer from that.  And it just so happened that  his answer in that particular section was correct. Isa pa ayoko nga mag-xerox. Well mostly his answers were correct. I slipped it under my workbook that day for the graded recitation. Thanks to the fella. And thing was she never found out about it, neither did the teacher, nor the class. Oh but don't get me wrong. I still believe in true chivalry.

Let's get to the case.. ay may case ba tayo? sorry..

This is ahh.. a  Succesion case.. laban to ng Legal Wife & a Common-Law Wife. 

If  you read this case it starts with an ACTION FOR RECOVERY & POSSESSION.

The subject of recovery? A five (5) parcels of land situated in Pangasinan. The two parties opposing each other are two women (at parehong Maria pa pangalan). This is a court battle between a LAWFUL WIFE (Uson)  vs. a COMMON LAW WIFE (Del Rosario).

If you will look closely you’ll see that the subject lands are in the Common-Law Wife’s possession. And that’s where the conflict starts. The Legal Wife wants it back. (Tsk tsk tsk)

Maria Uson plaintiff in this case was the lawful wife of Faustino Nebreda who died leaving the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson.  However, the widow claims that soon as her husband died, his common-law wife Maria del Rosario took possession illegally of the said lands thus depriving her of their possession and enjoyment. 

Defendant’s defense centered on the fact that Uson and her husband executed a public document whereby they agreed to separate as husband and wife and, in consideration of which Uson was given a parcel of land and in return she renounced her right to inherit any other property that may be left by her husband upon his death. 

The lower court decided in favor of the legal wife. Defendant common-law wife appealed.

ISSUE:

1. Does the legal wife have a right over the lands in litigation from the moment of death of her husband?

2. Does the illegitimate children of the deceased and his common-law wife have successional rights?

HELD:

1. YES. 

There is no dispute that Maria Uson, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. 

There is likewise no dispute that Maria del Rosario, was merely a common-law wife with whom she had four illegitimate children with the deceased. 

It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the New Civil Code. 

With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Art777 NCC).

As the Court aptly said, "The property BELONGS TO THE HEIRS AT THE MOMENT OF DEATH of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death". 

From that moment, therefore,the rights of inheritance of Maria Uson over the lands in question became vested. 

So.. the claim of the defendant that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property  her husband may acquire and leave upon his death in the deed of separation, CANNOT BE ENTERTAINED for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced.

2.  NO. 

The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation ONLY IF NO VESTED RIGHTS ARE IMPAIRED. 

Hence, since the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband, the new right recognized by the New Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

The Legal Wife wins this case. 

LAURO VIZCONDE vs. CA

"A wife of noble character who can find?  She is worth far more than rubies.

Her husband has full confidence in her and lacks nothing of value.

She brings him good, not harm, all the days of her life."  

- Proverbs 31:10-12

In the midst of all talks of change and the advent of modern technology and fast pace life that contribute to daily stress cutting down our attention span with all the upsurge of media and all sorts of information and the virtual social life we live, wouldn't it be soothing and reassuring to have with you something that is constant.    

Constant as that which have been placed up there that even if you can't see it there is this small voice deep inside you telling you that you will still find it exactly at the same place you have left it, unaffected and uncorrupted by the world outside. Like a place, a tree, a house and home, something immovable. A memory perhaps. An affection or a deep feeling beyond description in the core of your heart that never goes away and you intend to keep for the longest of time because identified with it are the unconscious profound intense state that carries your whole being and all the unspoken meaning of who you are. 

If you will find a wife. Seek all the attributes you want to find in her. Beauty, intelligence, breeding, success. But never forget one word. And seek this incessantly, Seek for the word CONSTANT. Constant as the northern star. Constant as a tree that yield its fruits in its season. Constant as the sun that rises in the morning and comes down at night, looking at the world outside and celebrating life yet unaffected and never forgetting their own meaning. That is what a wife should be. Constantly there for you from the beginning up to the time you're both having your own children and even in their absence their memories are constantly there for you. Something that signifies strength, of faithfulness and dedication.   

Here's the case.. 

Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children Carmela and Jennifer. 

Petitioner's wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. Estrellita purchased from his father, Rafael, a parcel of land located at Valenzuela, Bulacan at a price of P135,000 and then sold such to Spouses Chiu, for P3,405,612.00. 

So generally we are talking of transfer of ownership here. But take note, this is the kind of transfer of ownership by the parent to the child. It's usually gratuitous in nature. And the parent can do it either by a Deed of Donation or a Deed of Absolute Sale. Usually nangyayari to pag yung parents medyo tumatanda na although malakas pa and little by little they are transferring the ownership of their immovable properties to their children para wala nang masyadong hassle pa pagdating sa successional rights pag wala na sila. So wala nang ico-court probate pa because evenly distributed na yun properties nya sa mga anak nya, aanuhin mo pa yung 'will'. The advantage of this is, habang buhay pa sya makikita nya kung sino yung mga discontented sa mga nkuha nila so that he could make another arrangement para everybody happy...  

Mind you this is not Donation Inter Vivos, Estrellita purchased from her father a parcel of land located in Valenzuela Bulacan at a price of P135,000 and then sold such to Spouses Chiu, for P3,405,612.00. My hunch is it was a gratuitous sale, it may appear as a Deed of Absolute Sale (were talking about the previous sale not the subsequent sale)  but it's in the amount of consideration that a Deed of Sale can be deemed as gratuitous...  siguro nagusap sila ng tatay nya na eto na yung mana nya. "O bilhin mo nalang yung malaking lupa dun sa Bulacan para may matirahan kayo ni Lauro.. pag idodonate ko kasi sayo yan di na magiging conjugal property nyo ni Lauro yan, pagaari mo sarili yan"  (LOL don't quote me on this ah.. nananahi lang ako ng storya)...  I have no idea as to the real interpretation of the deed and the true intent of the contracting parties here.. so.. choz lang...

So binili ni Estrellita. The thing was iba nasa isip nya.. nakikita nya yung magagandang bahay sa BF Homes Paranaque, and so naisip nya siguro.. ibenta nalang kaya nya sa Intsek. Which was a good idea if you ask me and a great number of people would surely concur. P135K to 3.5 M  wasn't just a good deal, that was a jackpot move...  

So using a portion of the proceeds of sale of the Valenzuela property, she bought a new parcel of land with improvements situated at Vinzon St., BF Homes, Parañaque. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank. Very prudent. My applause. 

Sadly, not knowing that it would later be the central venue of the Vizconde Murder Case, the place for the gruesome murder and the cause of their own demise. And may I quote the Newspapers: 

"The case which had been colloquially known as the Vizconde Massacre, A multiple homicide of members of the Vizconde family that happened on the 30th of June 1991. Estrellita, 49, had suffered thirteen stab wounds; Carmela, 18, had suffered seventeen stab wounds and had been raped before she was killed; and Jennifer, 6, had nineteen stab wounds. Lauro Vizconde, Estrellita's husband, and the father of Carmela and Jennifer, was in the United States on business when the murders took place."

Take note of this.. the 6 year old who cannot even defend herself and doesn't even take much to kill got the most number of stab wounds... only a criminal who is out of his mind can do that.. and what could be more to make a man lose his human sense and the uprightness of his mind than constant or even intermittent substance abuse..

What do you think? Had Estrellita followed the wishes of her father (As I have assumed) would the crime against them could have been prevented? I don't think so.. even if what I was thinking really did happened. There was nothing wrong about buying a land cheap and selling it at high price, that's good business and good thinking. And there's nothing wrong about buying your dream house in an exclusive surroundings. And there's definitely nothing wrong about differing from your father's wishes and making decisions and planning your own life the best way you can. 

What was wrong was the proliferation of drug abuse among high society youths back then and the state turning it's head and giving a deaf ear standing oblivion to it's ills. It's a pity that 20 years after the gruesome crime had been committed that it is only now that it is being addressed. Credits to a feisty president.       

But we will not discuss the Criminal case here.  We will zero in on the Successional rights of Mr. Lauro Vizconde... not as compulsory heir of his wife's estate but as insinuated compulsory heir to a purported collation from his father-in-law's estate. 

So the following year roughly from the date the house was bought, the unfortunate thing happened.

On November 18, 1992, Rafael Nicolas the father of Estrellita died. 

On May 12, 1993, Ramon, Estrellita's brother filed his own petition,  entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from the collation of all the properties distributed to his children by Rafael during his lifetime. 

So from Deed of Absolute Sale we're now talking about Collation here..

Ramon stated before the probate court that:

1. Herein petitioner, Mr. Vizconde, is one of Rafael's children by right of representation as the widower of deceased legitimate daughter of Estrellita.  

2. Ramon also alleged that the transfer of ownership of the Valenzuela property in favor of Estrellita by her father was GRATUITOUS and the subject property in Parañaque which was purchased out of the proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of Estrellita, is subject to COLLATION.

Eh bilhin mo ba naman ng P135,000 and then benta mo ng P3.5 Million pag hindi pa ba naman gratuitous yon.. but the question is.. is this Collation?

What is really happening here?? Here's what's happening here.. the brother would like to include the Vizconde Massacre house to the Collation process as the probate court determines the value of the whole estate. What he was actually doing is pinapalaki nya yung net value ng hereditary estate na mamanahin nila. Which is understandable, everything will be collated where some if not all of the properties are usually sold  including a bad luck house and proceeds divided to all compulsory heirs. Maybe the brother wanted to blot out the bad memories of the house and cut some bad luck I dunno.   What's good about it is he never excluded Lauro Vizconde from the legitime by representation as the widower of his deceased sister. The thing is, hindi naman compulsory heir si Mr. Vizconde... and besides Mr. Vizconde sees it differently.. mawawalan sya ng bahay. Namatayan na nga yung tao di pa ma-imagine sinapit ng mag-iina nya aalisan mo pa ng matitirahan.  Would you like to say something Mr. Vizconde? "That ahhh.. the aaaah... Eh binili ng asawa ko to.. pinaghirapan nya to.. kinamatay nya nga pati na ng mga anak ko pagbili nya dito.. baket ko babaliwalain tong property na to"... (Choz lang don't quote me on that ah). 

Here's what the Probate Court did. It nullified the transfer of the Valenzuela property from Rafael to Estrellita, and declaring the Parañaque property as subject to collation, which was sustained by the Court of Appeals.

W-w-w-waaait a minute... if the previous sale between Estrellita and her father becomes nullified then why make the Paranaque property subject to Collation?  We have a 3rd Party in interest here in the person of the Chius?? The buyer of the Valenzuela property. If said previous Deed of Sale be nullified then that puts a question on the legal ownership of the Chius who made a cash outlay of P3.5 Million...?? 

ISSUE:

Did the Court of Appeals correctly sustained the order of the Probate Court? 

Is there Collation here? 

RULING:

Court said NO. 

The attendant facts herein do not make a case of collation. We find that the probate court, as well as respondent Court of Appeals, committed reversible errors.

The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the following, legitimate parents and ascendants, with respect to their legitimate children and ascendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

With respect to Rafaels estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third person or a stranger. As such, petitioner may not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality or interest in the said proceeding, which petitioner correctly argued in his manifestation.

As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings. Such determination is provisional in character and is subject to final decision in a separate action to resolve title.  In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. 

The order of the probate court subjecting the Paranaque property to collation is premature. Records indicate that the intestate estate proceedings is still in its initiatory stage. We find nothing herein to indicate that the legitime of any of Rafaels heirs has been impaired to warrant collation. 

Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Paranaque property. We note that what was transferred to Estrellita, by way of a deed of sale, is the Valenzuela property. The Paranaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. 

Indeed collation of the Paranaque property has no statutory basis. The order of the probate court presupposes that the Paranaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Paranaque property was conveyed for and in consideration of P900,000.00,  by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Paranaque property is not one of Rafaels heirs. 

Thus, the probate courts order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafaels estate. As it stands, collation of the Paranaque property is improper for, to repeat, COLLATION COVERS ONLY PROPERTIES GRATUITOUSLY GIVEN BY THE DECEDENT DURING HIS LIFETIME TO HIS COMPULSORY HEIRS which fact does not obtain anent the transfer of the Paranaque property. 

Moreover, Rafael, in a public instrument, voluntarily and willfully waived any claims, rights, ownership and participation as heir  in the Paranaque property.

Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property.  Hence, even assuming that the Valenzuela property may be collated collation may not be allowed as the value of the Valenzuela property has long been returned to the estate of Rafael. Therefore, any determination by the probate court on the matter serves no valid and binding purpose.

The High Court Reversed the CA ruling. Mr. Vizconde wins this case. Meaning he won back the house. And the warm memories he knows of it.   

LOPEZ vs. HEESEN

 "I love you as certain dark things are to be loved, in secret, between the shadow and the soul."

- Pablo Neruda, 100 Love Sonnets 

The Thought..

Frederick Forsyth, in his book 'The Day of the Jackal' wrote an interesting conversation between two of his characters. It's a conversation between the gunsmith and the assassin him self:

The Gunsmith:  Over what range will you fire?
The Jackal:  I'm not sure yet but probably not more than 400 feet
The Gunsmith:  Will the gentleman be moving?
The Jackal:  Stationary.
The Gunsmith:  Will you go for a head shot or a chest shot?
The Jackal:  Probably head.
The Gunsmith:  What about the chance of a second shot?
The Jackal:  Well I might get the chance but I doubt it. In any event I'll need a silencer to escape.
The Gunsmith:  In that case you'd better have explosive bullets. I can prepare a handful along with the gun.
The Jackal:  Glycerin or mercury?
The Gunsmith:  Mercury... much cleaner.

Excerpt from the 1971 Best Selling Novel by the English writer Frededick Forsyth “The Day of the Jackal”. The book he wrote before The Odessa File, and The Fourth Protocol. Nope, I only read the Jackal.  The novel received admiring reviews and praise and bagged the Best Novel Edgar Award from the Mystery Writers of America. The novel remains popular, and in 2003 it was listed on the BBC's survey as one of every gentleman’s big read.

It’s about this professional hitman contracted to assassinate the President of France Charles de Gaulle. (I think I read it when I was… a young college freshman)

Notice the conversation between the gunsmith and the assassin? Simple conversation but you can outright tell both gentlemen put a premium on one’s intelligence as both are accustomed to operate on a detached and a minimized level of interaction.

See how quick there was a meeting of both minds? My grandpa once told me “Intelligent conversations are but fleeting” I never knew what it meant until I grew old.

Sometimes intelligent conversations are like that. Short but sweet so to speak. Brevity is indeed the soul of wit. Fleeting, because there’s nothing more to explain. Why? Because it was clearly understood from the very beginning. Never listened to but felt. It’s like the above excerpt, two experts conversing. One is a gun expert, the other a human expert. One on the craft itself, the other in his own craft of killing.  Tsk tsk tsk.. I’m such a wordsmith. But you know sometimes when it comes to women, I think the unspoken conversations of the mind is sexier than the conversation itself.

You know I think my grandfather is right. Intelligent conversations are indeed short but vital. Sometimes I compare them to a poem, the shortest literary work of communication. And I compare poems to bullets. The brevity of its lines shoot straight quicker than a paragraph. Some say it’s the shortest weapon in the world there is, likened to that of a bullet projectiled from a barrel of a gun. Even the great poet Pablo Neruda said ‘Poems are like bullets that explode in the mind’.  

The Case..

Sears Roebuck was ah.. engaged in designing, manufacturing and selling of hunting fire arms. (galing ko ba sa segue?)   Sears designed, manufactured and sold the Higgins Model 51 Hunting Rifle (click it) in around year 1958. The thing about this model is its design has a defect.

Oh by the way this is another US case, just in case. Mind you, this is not a US Case decided by the Philippine Supreme Court. It was decided by US courts. Blame it on PHIL REPORTS. I remember how we love hunting down the case in PHIL REPORTS back in my freshmen year, just for the simple reason that 1. it’s usually a US case, 2. It’s usually an old case and 3. old case US decisions were usually written short and therefore lessens our reading ordeal compared to the SCRA cases. And here's the good thing about PHIL REPORTS, it included cases as I've said decided by the US Supreme Court. My hunch is there weren't much crime committed then. Iba yung mga tao noon, di katulad ngayon. I presume that during the US Commissions in the 1950's  like the Taft and the Jones Commissions the Philippine justice system was at it's infant stage, and so courts lack ample jurisprudence... 

So.. moving right along, the thing with this Higgins rifle Sears Roebuck manufactured is that it was negligently designed. In fact its safety device was considered unsafe and dangerous among gun enthusiasts.

Facts of the case states that appellant Jesse Lopez filed suit against appellee  Robert Heesen alleging that one fateful day of Ocotober of 1958 Heesen assaulted and shot appellant Lopez with a shotgun thereby inflicting dangerous and painful wounds and injuries to appellant all to his damage in the total sum of $80.000. Heesen denied the allegation of the complaint and demanded for a jury trial. And in this trial the gun company Sears Roebuck who sold the defected gun to Heesen was joined as party-defendant.

The amended complaint alleged that on October 14, 1958 Sears sold to Heesen one of said Higgins Model 51 Hunting Rifles, the one that was negligently designed or manufactured by Sears, and that appellee Sears negligently failed to warn appellee Heesen of the dangerous and defective condition of the rifle.

The complaint further alleged that one afternoon in Colfox County New Mexico, Heesen negligently permitted the rifle to discharge while hunting and AS A PROXIMATE RESULT OF THE JOINT AND CONCURRENT NEGLIGENCE OF BOTH APPELLEES (SEARS & HEESEN) APPELLANT (LOPEZ) SUSTAINED A SEVERE GUNSHOT WOUND TO HIS CHEST.  Appellant demanded damages in the amount of $55,000 against both appellees jointly and severally.

You see an issue arose with regard to the pressure required to move the safety lever form “safe” to “fire” position.  And appellee Sears showed that the poundage pressure required to move the safety lever on a Higgins Model 51 from “safe” to “Fire” measured 2 ½ pounds. The evidence discloses that the pound pressure required to move the safety lever on other similar devices was sometimes little less and sometimes more than the Higgins Model 51...  

In other words they couldn’t outright determine whether the 2 ½ pound pressure would be enough in order for the rifle to be safe. And that means they needed an expert opinion on this... 

The QUESTION is.. is expert opinion or shall we say Opinion Evidence be admissible in court as adduced evidence by any party?...

ISSUE:

This is a clear case of OPINION EVIDENCE because this is an ultimate ISSUE OF FACT. Where the fact to be determined is whether the safety device on the Higgins Model 51 was dangerous and defective or unsafe and was properly the subject of expert testimony.  

RULING:

Opinion Evidence is admissible on the basis that it will aid the jury to understand the problem and lead them to the truth on the ultimate facts.

It is a widely accepted American Jurisprudence that:

“In such cases, witnesses possessing requisite training, skill, or knowledge, denominated experts, may testify, not only to the facts, but to their opinions respecting the facts, so far as necessary to enlighten the jury and to enable it to come to a right verdict”  

The thing about opinion evidence is its admissibility in court depends on the facts of the case at hand. In other words, there is no clear cut basis that expert opinions adduced as evidence in ultimate issues of facts can outright determine the outcome of the case. In fact it does not attempt or have the power to usurp the functions of such in this case, the jury. As stated in the case, the jury may still reject these expert opinions and accept some other view. Its admissibility all depends on the jury’s assessment on how expert the expert opinion is. Besides, opinion evidence offered by both parties in this case was not binding upon the jury and they were so instructed.

We don't have a jury of course, but this does not only apply to the American judicial system. The fact that the case is written in our judicial records such as the PHIL REPORTS therefore follows that it is a widely accepted principle of jurisprudence in our own judicial system...  

The opinion evidence in this case were admitted on the basis that it aided the jury to understand the problem and led them to the truth on the ultimate facts.

The high court affirmed the lower court ruling.

Heesen wins this case.