Evidence Session 11 (Part 2)

4/20/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 037 4/20/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 037
corroborated by other persons mentioned by the accused but they

are not presented.
Same; Same; Same; Alibi to be believed must be supported by
physical impossibility for the accused to have been at the scene of
the crime.The defense of alibi is so weak that in order to be
believed there should be a demonstration of physical impossibility
336 SUPREME COURT REPORTS ANNOTATED for the accused to have been at the scene of the crime at the time
of its commission.
People vs. Brioso
Same; Same; Same; Defense of alibi must be established by
full, clear and satisfactory evidence.In case of positive iden
35
337
PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.JUAN BRIOSO and MARIANO TAEZA, defendants
appellants.
VOL. 37, JANUARY 30, 1971 337
Remedial law; Criminal procedure; Findings of fact of the People vs. Brioso
trial judge not to be disturbed.The general rule, based on logic
and experience, is that the findings of the judge who tried the case
tification of the culprit by reliable witnesses, it has been held that
and heard the witnesses are not disturbed on appeal, unless there
the defense of alibi must be established by full, clear and
are substantial facts and circumstances which have been
satisfactory evidence. It is obvious that the witness, who is a
overlooked and which, if properly considered, might affect the
close relative of the accused, was merely presented in court in an
result of the case.
attempt to save Juan Brioso from punishment for the crime
Same; Evidence; Antemortem declaration; When statements committed. The witness has an interest in the fate of the accused
satisfy the requirements of antemortem statement. The Juan Brioso, and, therefore, his testimony should not be given
testimony of Cecilia Bernal finds corroboration in the declaration credence.
of the victim, who told his wife that it was Juan Brioso and
Same; Same; Locus criminis; When there is possibility to be
Mariano Taeza who shot him. This statement does satisfy the
present at the scene of the crime.Evidence shows that from Tiker
requirements of an antemortem statement. Judged by the nature
to Catungawan is only about nine kilometers and only a twohour
and extent of his wounds, Silvino Daria must have realized
walk. The place is also accessible by motor transportation,
seriousness of his condition, and it can be safely inferred that he
although motor vehicles are allegedly rare in the said place. As in
made the same under the consciousness of impending death,
the case of Mariano Taeza, it was not physically impossible for
considering that he died only one hour after being shot.
Juan Brioso to be at the locus criminis at the time the crime was
Same; Same; Affidavits; When affidavits are rejected as committed.
hearsay; Affiants should be placed on witness stand.Affidavits
Criminal law; Aggravating circumstances; Alevosia absorbs
are generally not prepared by the affiants themselves but by
abuse of superior strength and nocturnity; Dwelling aggravating
another who uses Ms own language in writing the affiants
although triggerman was outside.It has been clearly and
statements, which may thus be either omitted or misunderstood
sufficiently proved that the killing of Silvino Daria was qualified
by the one writing them. For this reason, and for the further
by treachery (alevosia). The victim was quietly making rope in his
reason that the adverse party is deprived of the opportunity to
own house. He was caught offguard and defenseless when
crossexamine the affiants, affidavits are generally rejected in a
suddenly and unexpectedly the two accused fired at him. He had
judicial proceeding as hearsay, unless the affiants themselves are
no chance either to evade or repel the aggression. The trial court
placed on the witness stand to testify thereon.
correctly held that treachery absorbs nocturnity and abuse of
Same; Same; Alibi; Alibi a weak defense.It has been superior strength. But while these aggravating circumstances are
repeatedly held that in the face of direct evidence, alibi is always included in the qualifying circumstance of treachery, the
necessarily a weak defense and becomes more so if commission of the crime in the victims dwelling is not, hence the
uncorroborated. It is worse if the alibi could have been crime is murder attended by one aggravating circumstance, which
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has been held to be present where the victim was shot inside his and Susana Tumalip were in their house at barrio Tiker,
house although the triggerman was outside. Tayum, Abra. The husband was making rope in the annex
of their house, while the wife, four meters away, was
APPEAL from a judgment of the Court of First Instance of applying candle wax to a flat iron. Silvino Daria was using
Abra. Ofilada, J. a lamp where he worked. Outside, the night was bright
The facts are stated in the opinion of the Court because of the moon overhead.
Solicitor General Antonio P. Barredo, Assistant Cecilia Bernal, a niece and neighbor of the spouses, was
Solicitor General Frine C. Zaballero and Solicitor Rosalio alarmed by the barking of dogs. She peeped through a
A. de Leon for plaintiffappellee. crack in the wall of her house and saw appellants herein
Cirilo F. Aspritta, Jr.(Counsel de Oficio) for pass southward in the direction of the house of Silvino
defendantsappellants. Daria that was six meters away. Brioso was carrying a long
gun. Her suspicions awakened, she went downstairs and,
REYES, J.B.L., J.:
shielded by the fence, witnessed each appellant point a gun
Appeal from a judgment of the Court of First Instance at the bamboo wall of Darias house. Two detonations
followed, and thereafter she heard Daria moaning and his
338 wife
339
338 SUPREME COURT REPORTS ANNOTATED
People vs. Brioso VOL. 37, JANUARY 30, 1971 339
People vs. Brioso
of Abra, in its Criminal Case No, 626, finding the two
appellants Juan Brioso and Mariano Taeza guilty of
murder, and sentencing each to suffer life imprisonment call for help, saying her husband had been shot. Bernal
and to indemnify, jointly and severally, the heirs of Silvino went to the house and found the victim prostrate, wounded
Daria in the sum of P6,000.00 but without subsidiary and unable to speak. The widow, however, testified that
imprisonment in case of insolvency, and to pay the costs. right after being shot, she rushed to her husbands side and
An information filed by the Provincial Fiscal dated 16 he told her that he was shot by Juan Brioso and Mariano
January 1967 charged the two accused, Juan Brioso and Taeza. Silvino Daria expired one hour later as a result of
Mariano Taeza, with the crime of murder under Article 248 gunshot wounds in the abdomen and leg. A few days later,
of the Revised Penal Code, committed as follows: Cecilia Bernal and the widow, Susana Tumalip, executed
affidavits pointing to the two accused as the killers
That on or about the 23rd day of December, 1966, in the (Exhibits B and C, respectively).
Municipality of Tayum, Province of Abra, Philippines, and within The cause of the death of Silvino Daria was Shock due
the jurisdiction of this Honorable Court, the abovenamed to severe hemorrhage secondary to gunshot wounds at the
accused, armed with firearms of different calibers, by abdomen and leg, as found by Dr. Isabelo B. Lucas,
confederating and mutually helping one another, with deliberate Municipal Health Officer of Tayum, Abra, contained in his
intent to kill and without justifiable motive, with treachery and MedicoLegal Necropsy Report, Exhibit A.
evident premeditation, did then and there willfully, unlawfully The motive for the killing appears to have been the
and feloniously, assault, attack and shot one, Silvino Daria, disapproval by the spouses Silvino and Susana Daria of
inflicting upon him multiple gunshot wounds on the different Mariano Taezas courtship of their daughter, Angelita.
parts of his body, which wounds caused his death thereafter. Angelita was even sent to Manila for her to avoid Mariano
CONTRARY TO LAW, with the aggravating circumstances in Taeza. The courtship is admitted by Mariano Taeza.
the commission of the crime, to wit: (a) treachery and evident The two accused appealed the conviction and assigned
premeditation; (b) advantage was taken of superior strength; and the following errors as committed by the court a quo:
(c) with the use of firearm.
1. The lower court erred in relying on the uncorroborated
The records of the case show that on 23 December 1966, and contradictory testimony and statement of the
between 8 and 9 in the evening, the spouses Silvino Daria
prosecution witness Cecilia Bernal on the physical accused as the ones who were seen at the scene of the crime
identity of the accused; and who actually shot Silvino Daria.
2. The lower court erred in disregarding the affidavit It is noteworthy that the trial judge observed witness
(Exhibit 2) of Antonio Daria, son of the deceased, Bernal closely, warning her several times not to
clearing the accused Mariano Taeza, which affidavit had exaggerate, yet in the decision gave her full credence, being
been identified in court by the fiscal before whom the obviously satisfied of her truthfulness. The general rule
same was executed; and based on logic and experience, is that the findings of the
judge who tried the ease and heard the witnesses are not
3. The lower court erred in finding the accused guilty of
the crime of murder.
disturbed on appeal, unless there are substantial facts and
circumstances which have been overlooked and which, if2
properly considered, might affect the result of the case,
The assigned errors are discussed together, being closely
which in this case have not been shown to exist.
interrelated.
Moreover, the testimony of Cecilia Bernal finds corro
We find no discrepancy in the testimony of Cecilia
Bernal on the material points. She stated that she did not
see Mariano Taeza carry a gun when both the accused _______________
passed by. But this brief observation does not necessarily 1 Page 5, Decision,
mean 2 People vs. Pareja, G. R. No. L21937, 29 November 1969, 20 SCRA
340 693.
341
People vs. Brioso VOL. 37, JANUARY 30, 1971 341
People vs. Brioso
that he was not actually armed or carrying a gun on his
person. The fact that he did was proved when both the said
boration in the declaration of the victim, who told his wife
accused were seen pointing their respective gun at the
that it was Juan Brioso and Mariano Taeza who shot him.
victim and each subsequently fired once at him, Taeza
This statement does satisfy the requirements of an ante
using a short weapon (t.s.n. Millare, page 17) that could
mortem statement. Judged by the nature and extent of his
have been carried concealed in his person.
wounds, Silvino Daria must have realized the seriousness
The house of Cecilia Bernal was only six meters away
of his condition, and it can be safely inferred that he made
from that of Silvino Darias. The night was brightly 3
the same under the consciousness of impending death ,
illuminated by the moon. Cecilia Bernal had known both
considering that he died only one hour after being shot.
accused for a long time and it is admitted that they also
The defense of both the accused is alibi. Mariano Taezas
know her. There could have been no difficulty in identifying
own account was that in the evening of 23 December 1966
the accused under the circumstances.
he was at the barrio clinic of Tiker playing the guitar with
Cecilia Bernal had no motive to impute falsely this
Antonio Daria (son of the deceased), Narciso Valera and
heinous charge of murder against the abovesaid accused,
Jose Cabais. While in the said place, they heard two gun
considering that Mariano Taeza is a nephew of the
explosions. Soon afterwards, Macrino Arzadon and Taurino
deceased by a first degree cousin. Even Juan Brioso
Flores came running towards them, informing Antonio
specifically said that he knew of no reason why she should
Daria that his father was already dead.
testify against him. Hence, her statement that she came to
Exhibit 2, the alleged affidavit of Antonio Daria, was
court only to tell the truth should be believed. The witness
presented in court to corroborate Mariano Taezas
also stated that she was hard of hearing and could not
testimony. But while the said affidavit was identified by
understand some of the questions; thus, the alleged
the Provincial Fiscal as having been subscribed and sworn
inconsistencies in her testimony 1do not detract from the
to before him, he also stated that he did not know Antonio
positive and straightforward identification of the
Daria personally and that was the only time he appeared
before him. Exhibit 2 does not have the seal of the Fiscals
Office. Moreover, the said exhibit was never identified by Daria died may be less than thirty minutes, may be five
the supposed affiant and there was no opportunity for the minutes after his arrival at the victims house with7 the
prosecution4 to crossexamine him. As stated in People vs. latters son and other persons. As held in another case the
Mariquina , affidavits are generally not prepared by the defense of alibi is so weak that in order to be believed there
affiants themselves but by another who uses his own should be a demonstration of physical impossibility for the
language in writing the affiants statements, which may accused to have been at the scene of the crime at the time
thus be either omitted or misunderstood by the one writing of its commission. Mariano Taeza was so near the victims
them. For this reason, and for the further reason that the house that it was easy for him to be there when the
adverse party is deprived of the opportunity to cross shooting occurred.
examine the affiants, affidavits are generally rejected in a The other accused, Juan Brioso, stated that he was in
judicial proceeding as hearsay, unless the affiants sitio Catungawan, barrio Basbasa, Tayum, on 23 December
themselves are placed on the witness stand to testify 1966. He was there upon invitation of his first cousin,
thereon. In view hereof, We find Exhibit 2 of no probative Nestorio Flores, to cut and mill sugar cane. He left his
value,
_______________
_______________
5 Editors Note: No corresponding footnote in the original.
3 People vs. De Gracia, G.R. No. L21419, 29 September 1966, 18 SCRA 6 People vs. Mendoza, L7030, 31 Jan. 1957, cited in People vs.
197. Alcantara, supra.
4 Editors Note: No corresponding footnote in the original. 7 People vs. Alcantara, supra.
342 343
342 SUPREME COURT REPORTS ANNOTATED VOL. 37, JANUARY 30, 1971 343
People vs. Brioso People vs. Brioso
and that the lower court did not err when it rejected the house in Addamay at 8 in the morning of the said day,
same. In this connection, it is markworthy that the arriving in Catungawan before the noon meal. They cut
prosecuting attorney stated in open court that Antonio sugar cane from 4 to 5 in the afternoon. At 6:30, after
Daria had also executed another affidavit (Exhibit D) in supper, he, his cousin, and the latters son, Felix Flores,
the Fiscals office to the effect that he went to the office of started milling the sugar cane which they had cut. The
defense counsel, . . . . . . and there affixed his thumbmark milling lasted up to 2 in the early morning of the following
on a statement that was never read to him. Be that as it day. He never left the place where they were milling. He
may, not one of the other persons who, Mariano Taeza learned of the death of Silvino Daria only when he returned
claimed, were with him in the barrio clinic (Narciso Valera to Addamay because his parents informed him of the news.
and Jose Cabais) was produced in court to support his alibi. He admitted knowing Cecilia Bernal and that she likewise
Mariano Taezas testimony, therefore, remains knows him.
uncorroborated. It has been repeatedly held that in the face He denied being a close friend of Mariano8 Taeza
of direct evidence, alibi is necessarily
5
a weak defense and (thereby contradicting Mariano Taezas testimony) ; denied
becomes more so if uncorroborated. It is worse if the alibi that he had gone to the house of Angelita Daria, and his
could have been corroborated by other persons 6
mentioned having knowledge of the courtship of Angelita by Mariano
by the accused but they are not presented. Taeza; or that both of them used to drink and go out
By Mariano Taezas own admission, he and the other together. On crossexamination, however, he admitted that
accused, Juan Brioso, are close friends. It was shown that he went with Mariano Taeza when they attended dances.
Mariano Taezas house is only about two hundred meters One such occasion was during the birthday of his first
from that of Silvino Darias and that the barrio clinic is degree cousin in Addamay way back in 1965.
only about eighty to one hundred meters from the said Nestorio Flores was presented to corroborate the alibi of
victims place. Mariano Taeza himself stated that Silvino the accused. But while both exhibited wonderful memory
11
as to what happened between sunset and midnight of 23 (alevosia). The victim was quietly making rope in his own
December 1966, they contradict each other as to what house. He was caught offguard and defenseless when
happened in the earlier hours or events. As already stated, suddenly and unexpectedly the two accused fired at him.
Juan Brioso testified that he left his place in Addamay at 8 He had no chance either to evade or repel the aggression.
in the morning and arrived at his cousins house before the The trial court correctly held that treachery 12
absorbs
noon meal of 23 December 1966; but Nestorio Flores nocturnity and abuse of superior strength. But while
asserted that it was 8 in the morning when Juan Brioso these aggravating circumstances are always included in
arrived. Brioso claimed that they cut sugar cane from 4 to 5 the qualifying circumstance of treachery, 13the commission of
in the afternoon of the said day. His cousin testified that the crime in the victims dwelling is not, hence the crime
they cut sugar cane in the morning after Briosos arrival is murder attend
until lunchtime. Brioso stated that they milled sugar cane
for the third time in that place in 1966, the first occasion _______________
being on 29 November, and the second on 8 December.
Flores denied this, saying that they did not cut sugar cane 9 Page 90, t.s.n., Hearing of 19 September 1967.
in November, 1966, although in other years they did. He 10 US vs. Pascua, No. 869, 16 January 1903, 1 Phil. 631, and other
further stated that it was already in December of that year cases, cited in People vs. Alcantara, supra; See also People vs. Marquez,
that Brioso came. In fact, the same witness showed uncer G.R. Nos. L2437374, 28 November 1969, 30 SCRA 442.
11 Art 14, paragraph 16 of the Revised Penal Code.
12 People vs. de Gracia, supra, citing US vs. Estopia, No. 9411, 29
_______________
September 1914, 28 Phil. 97.
8 Page 62, t.s.n., Hearing of 19 September 1967. 13 People vs. Ruzol, et al., L8699, 26 December 1956, 100 Phil. 537; See
also People vs. Manobo, L19798, 20 September 1966, 18 SCRA 30.
344
345

VOL. 37, JANUARY 30, 1971 345
People vs. Brioso
People vs. Brioso
tainty as to the exact date, when he answered even on
direct examination
9
that may be that was the time when he ed by one aggravating circumstance, which has been held
came. In cases of positive identification of the culprit by to be present where the victim was shot 14
inside his house
reliable witnesses, it has been held that the defense of alibi although the triggerman was outside. There being no
must be 10established by full, clear and satisfactory mitigating circumstance to offset it, the apposite penalty is
evidence. It is obvious that this witness, who is a close death. However, for lack of sufficient votes, the penalty
relative of the accused, was merely presented in court in an imposable is reduced to life imprisonment.
attempt to save Juan Brioso from punishment for the crime WHEREFORE, the sentence under appeal is affirmed,
committed. We believe the trial court when it found that with the sole modification that 15the amount of the
the witness has an interest in the fate of the accused Juan indemnity is increased to P12,000.00.
Brioso, and, therefore, his testimony should not be given
credence. Concepcion, C.J ., Dizon, Makalintal, Zaldivar,
Evidence also shows that from Tiker to Catungawan is Castro, Fernando, Teehankee, Villamor and Makasiar, JJ.,
only about nine kilometers and only a twohour walk. The concur.
place is also accessible by motor transportation, although Barredo, J., did not take part.
motor vehicles are allegedly rare in the said place. As in
Judgment affirmed with modification.
the case of Mariano Taeza, it was not physically impossible
for Juan Brioso to be at the locus criminis at the time the Notes .(a) Admissibility of affidavits.Unless
crime was committed. presented against the affiant himself as an admission, an
It has been clearly and sufficiently proved that the affidavit adduced without the affiant being placed on the
killing of Silvino Daria was qualified by treachery stand to testify thereon is generally rejected as hearsay
11
(alevosia). The victim was quietly making rope
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(Paa vs. Chan, L25945, Oct. 31, 1967, 21 SCRA 753; People There are cases, however, where nighttime may be
vs. Kusain Saik, L17060, May 30, 1963; Vda. de Gregorio taken as aggravating even if treachery is coexistent, as
vs. Go Chong Bing, 102 Phil. 557; Soriano vs. Heirs of along as the one is separable from or independent of the
Magali, L15133, July 31, 1963; Marifosque vs. Luna, L other (People vs. Salgado, 11 Phil. 56; People vs. Bredejo, 21
9095, May 25, 1957; Community Investment & Finance Phil. 23; People vs. Perez, 32 Phil. 163; People vs. John Doe,
Corporation vs. Garcia, 88 Phil. 215; Duldulao vs. Ramos; L2463, Mar. 31, 1950). Thus, where the hands of the
L4615, Nov. 20, 1951). This is true even where the victim were tied at the time they were beaten, the
affidavit was presented and received at the preliminary circumstance of nighttime is not absorbed in treachery; for,
investigation so long as the witness is available to testify in in this instance, it can be perceived distinctly therefrom
court (People vs. Salatambos, L11283, May 29, 1959). The since the treachery rests on an independent factual (People
inadmissibility of this sort of evidence is based, not only on vs. Berdida, L20183, June 30, 1966).
the lack of opportunity on the part of the adverse party to
crossexamine the affiant (People vs. Pagkaliwagan, 76 _______________
Phil. 457), but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant
himself but
_______________
14 People vs. Ompad, L23513, 31 January 1969, 26 SCRA Copyright 2017 Central Book Supply, Inc. All rights reserved.
15 People vs Casillar, L28132, 25 November 1969, 30 SCRA 352, citing
People vs. Pantoja, L18793, 11 October 1968, 25 SCRA 468.
346

Lahora vs. Dayanghirang, Jr.
by another who uses his own language in writing the

affiants statements which may be either omitted or
misunderstood by one writing them (People vs. Mariquina,
84 Phil. 39).
An affidavit may, however, be admitted as proof of the
service of a summons, notice or other papers in a judicial
action or proceeding (Collector of Internal Revenue vs.
Aznar, 102 Phil. 979, 987).
(b) Alibi.See the annotation in 21 SCRA 914924.
(c) Nighttime absorbed in treachery; exception.Where
treachery is present, nighttime is generally considered
inherent and absorbed in the former, and so may not, even
if concurrent and especially sought in committing the
crime, be appreciated separately. In such case it forms part
of the peculiar treacherous means and manner adopted to
insure the commission of the offense (People vs.
Empeinado, 9 Phil. 913; People vs. Buncad, 25 Phil. 530;
People vs. Balagtas, 68 Phil. 675; People vs. Pardo, 79 Phil.
568; People vs. Alfaro, 83 Phil. 85).

The facts are stated in the opinion of the Court.

Davao Provincial Fiscal Alejandro B. Ruiz and Assistant
Provincial Fiscal Martin V. Delgra, Jr. for petitioner.
No appearance for respondents.
DIZON, J.:
In Criminal Case No. 6813 of the Court of First Instance
of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo,
Filomeno Macalinao, Ricardo Dairo, and Magno Montano
People vs. Cusi, Jr. were charged with robbery in band with homicide, to which
they pleaded not guilty. During the trial, and while Sgt.
No. L20986. August 14, 1965. Lucio Bao of the Police Force of Digos, Davao was
testifying as a prosecution witness regarding the
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. extrajudicial confession made to him by the accused
HON. VICENTE N. Cusi, JR., Presiding Judge, Branch I, Ai;cadio Puesca, he said that the latter, aside from
Court of First Instance of Davao, ARCADIO PUESCA alias admitting his participation in the commission of the offense
Big Boy, WALTER APA, JOSE GUSTILO alias Peping, charged, revealed that other persons conspired with him to
FILOMENO MACALINAO, JR. alias White, RICARDO to commit the offense, mentioning the name of each and
DAIRO alias Carding, and MAGNOMONTANO alias Edol, everyone of them. Following up this testimony, the
respondents. prosecuting officer asked the witness to mention in court
the names of Puescas alleged coconspirators. Counsel for
the accused Macalinao, Gustilo and Dairo objected to this,
Evidence; Not hearsay if purpose is merely to establish the fact upon the ground that whatever the witness would say
that the statement was made.While the testimony of a witness would be hearsay as far as his clients were concerned. The
regarding a statement made by another person, if intended to respondent judge resolved the objection directing the
establish the truth of the fact asserted in the witness to answer the question but without mentioning or
giving
945
946
VOL. 14, AUGUST 14, 1965 945 946 SUPREME COURT REPORTS ANNOTATED
People vs. Cusi, Jr. People vs. Cusi, Jr.
the names of the accused who had interposed the objection.

statement, is clearly hearsay evidence, it is otherwise if the
In other words, the witness was allowed to answer the
purpose of placing the statement in the record is merely to
question and name his coconspirators except those who
establish the fact that the statement was made or the tenor of
had raised the objection. The prosecuting officers motion
such statement.
for reconsideration of this ruling was denied. Hence the
Same; Same; Case at bar.In the case at bar where the present petition for certiorari praying that the
purpose of the prosecuting officer is only to establish the fact that abovementioned ruling of the respondent judge be declared
the accused had mentioned to the witness the names of those who erroneous and for a further order directing said respondent
conspired with him to commit the offense charged, without judge to allow witness Bao to answer the question in full.
claiming that said statement or the answer to be given by the The question involved herein is purely one of evidence.
witness would be competent and admissible evidence to show that There is no question that hearsay evidence, if timely
the persons so named really conspired with the accused, it is held objected to, may not be admitted. But while the testimony
that the question propounded to the witness was proper and the of a witness regarding a statement made by another
latter should have been allowed to answer it in full. person, if intended to establish the truth of the facts
asserted in the statement, is clearly hearsay evidence, it is
ORIGINAL PETITION in the Supreme Court. Certiorari. otherwise if the purpose of placing the statement in the
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record is merely to establish the fact that the statement

was made or the tenor of such statement (People vs. Lew
Yon, 97 Cal. 224; VI Wigmore 1778).
In the present case, the purpose of the prosecuting
officer, as manifested by him in the discussions below, is
nothing more than to establish the fact that the accused
Puesca had mentioned to Sgt. Bao the names of those who
conspired with him to commit the offense charged, without
claiming that Puescas statement or the answer to be given
by Sgt. Bao would be competent and admissible evidence
to show that the persons so named really conspired with
Puesca. For this limited purpose, we believe that the
question propounded to the witness was proper and the
latter should have been allowed to answer it in full, with
the understanding, however, that his answer shall not to be
taken as competent evidence to show that the persons
named really and actually conspired with Puesca and later
took part in the commission of the offense.
On the other hand, the fact which the prosecuting officer
intended to establish would seem to be relevant to explain
why the police force of the place where the offense was
committed subsequently questioned and investigated the
persons allegedly named by Puesca.
947
VOL. 14, AUGUST 14, 1965 947

Rivera vs. Luciano
PREMISES CONSIDERED, the writ is granted. The writ

of preliminary injunction issued heretofore is hereby set
aside.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,

J.B.L., Paredes, Regala, Makalintal, Bengzon, J.P., and
Zaldivar, JJ., concur.
Writ granted.
o0o
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consistent with each other, consistent with the hypothesis that

the accused is guilty and at the same time inconsistent with any
other hypothesis except that of guilt [People v. Constante, G.R.
No. L14639, December 28, 1964, 12 SCRA 653; People v. Caneda,
G.R. No. L19132, September 26, 1964, 12 SCRA 9.]
Same; Same; Same; Same; Credibility of Witnesses; The trial
VOL. 170, FEBRUARY 27, 1989 649 courts assessment of the credibility of the witnesses is entitled to
great weight and respect.Appellant however disputes the trial
People vs. Gaddi
courts reliance on the testimonies of the prosecution witnesses as
* a basis for his conviction. As a rule, the trial courts assessment of
G.R. No. 74065. February 27, 1989. the credibility of the prosecution witnesses is entitled to great
weight and respect [People v. Valentino, G.R. Nos. L4985960,
PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos.
NERIO GADDI y CATUBAY, defendantappellant. L6265458, November 13, 1986, 145 SCRA 464] since it has the
advantage of observing the demeanor of a witness while on the
witness stand and therefore can discern if such witness is telling
Criminal Law; Murder; Remedial Law; Evidence;
the truth or not [People v. Ornoza, G.R. No. L56283, June 30,
Circumstantial Evidence; Requisites of; It is essential for the
1987, 151 SCRA 495.]
validity of a conviction based only on circumstantial evidence that
the circumstances proved must be consistent with each other, Same; Same; Same; Same; ExtraJudicial Confessions; A
consistent with the hypotheses that accused is guilty, and at the confession constitutes evidence of high order because it is
same time inconsistent with any other hypotheses except that of supported by the strong presumption that no person of normal
guilt.Where the conviction of an accused is based merely on mind would deliberately and knowingly confess to a crime unless
circumstantial evidence, as in this case, it is essential for the he is prompted by truth and his conscience.Moreover,
validity of such conviction that: 1) there be more than one appellants claim that Ernesto Guzmans testimony on Gaddis
circumstance; 2) the facts from which the inferences are derived confession of the crime to him cannot be given credence for being
are proven; and 3) the combination of all the circumstances is hearsay is unavailing. This Tribunal had previously declared that
such as to produce a conviction beyond reasonable doubt [Section a confession constitutes evidence of high order since it is
5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. supported by the strong presumption that no person of normal
No. L25484, September 21, 1968, 25 SCRA 36; People v. mind would deliberately and knowingly confess to a crime unless
Pajanustan, prompted by truth and his conscience [People v. Salvador, G.R.
No. L77964, July 26, 1988 citing People v. Castaeda; G.R. No. L
32625, August 31, 1979, 93 SCRA 59.] Proof that a person
_______________
confessed to the commission of a crime can be presented in
* THIRD DIVISION. evidence without violating the hearsay rule, [Section 30, Rule 130
of the Revised Rules of Court] which only prohibits a witness from
testifying as to those facts which he merely learned from other
650 persons but not as to those facts which he knows of his own
knowledge; that is, which are derived from his own perception.
Hence, while the testi
650 SUPREME COURT REPORTS ANNOTATED 651
People vs. Gaddi
G.R. No. L38162, May 17, 1980, 97 SCRA 699.] Although no VOL. 170, FEBRUARY 27, 1989 651
general rule has been formulated as to the quantity of People vs. Gaddi
circumstantial evidence which will suffice for any case, yet all
that is required is that the circumstances proved must be
http://www.central.com.ph/sfsreader/session/0000015b8ad8f5cacd7bf738003600fb002c009e/t/?o=False 1/15 http://www.central.com.ph/sfsreader/session/0000015b8ad8f5cacd7bf738003600fb002c009e/t/?o=False 2/15

mony of a witness regarding the statement made by another
person, if intended to establish the truth of the fact asserted in People vs. Gaddi
the statement, is clearly hearsay evidence, it is otherwise if the
purpose of placing the statement in the record is merely to
performed their duties in regular manner in the absence of
establish the fact that the statement was made or the tenor of
evidence to the contrary [People v. Boholst, G.R. No. L73008,
such statement [People v. Cusi, Jr., G.R. No. L20986, August 14,
July 23 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No.
1965, 14 SCRA 944.] Here, when Guzman testified that the
L25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R.
appellant, who probably was bothered by his conscience, admitted
No. L37325, August 30, 1983, 124 SCRA 271; People v. Rosas,
the killing to him, there was no violation of the hearsay rule as
G.R. No. L727892, April 30 1987, 149 SCRA 464.]
Guzman was testifying to a fact which he knows of his own
personal knowledge; that is, he was testifying to the fact that the Same; Same; Defenses; Alibi; Courts look upon the evidence of
appellant told him that he stabbed Augusto Esguerra and not to alibi with suspicion not only because it is inherently weak but also
the truth of the appellants statement. because of its easy fabrication.Appellants defense to the
prosecutions charge rests on an uncorroborated and purely oral
Same; Same; Same; Same; Same; The contents of an oral
evidence of alibi. It has been ruled time and again that courts look
extrajudicial confession may be proved by the testimony of a
upon the evidence of alibi with suspicion [People v. Bondoc, 85
person who testifies that he was present, heard and understood
Phil. 545 (1950) and always receive it with caution [People v.
and remembers the substance of the statements made by the
Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23
accused.That the testimony of Guzman on appellants oral
(1940) not only because it is inherently weak and unreliable but
confession is competent evidence finds support in People v. Tawat
also because of its easy fabrication [People v. Rafallo, 86 Phil. 22
[G.R. No. L62871, May 25 1984, 129 SCRA 431] which upheld the
(1950).] To overcome the evidence of the prosecution, an alibi
trial courts reliance on an extrajudicial confession given, not to a
must satisfy the test of full, clear and satisfactory evidence [U.S.
police officer during custodial interrogation, but to an ordinary
v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil. 587 (1915);
farmer as the basis for conviction. The Courts pronouncements in
U.S. v. Olais, 36 Phil. 828 (1917).] This test requires not only
the aforesaid case find relevance in the instant case. x x x x x x
proof that the accused was somewhere else other than the scene of
The rule is that any person, otherwise competent as a witness who
the crime but clear and convincing proof of physical impossibility
heard the confession, is competent to testify as to the substance of
for the accused to have been at the place of the commission of the
what he heard if he heard and understood all of it. An oral
crime [People v. Pacis, G.R. Nos. L3295758, July 25, 1984, 130
confession need not be repeated verbatim, but in such case it must
SCRA 540; People v. Coronado, G.R. No. L68932, October 28,
be given in its substance. (23 C.J.S. 196.) Proof of the contents of
1986, 145 SCRA 250; People v. Ferrera, G.R. No. L66965, June
an oral extrajudicial confession may be made by the testimony of
18, 1987, 151 SCRA 113.]
a person who testifies that he was present, heard, understood,
and remembers the substance of the conversation or statement Same; Same; Qualifying Circumstances; Treachery; Treachery
made by the accused [citing Underhills Criminal Evidence, 4th cannot be deduced from mere presumption or sheer speculation, it
Ed., Niblack, Sec. 278, p. 551.) [at pp. 436437; Italics supplied.] must be proven as indubitably as the killing itself.However, in
the absence of proof as to how the victim was killed, the
Same; Same; Same; Same; Presumption of Regular
aggravating circumstances of treachery and evident
Performance of Official Duty; Police officers are presumed to have
premeditation cannot be properly appreciated. The killing must
performed their duties in a regular manner in the absence of
be considered as homicide only and not murder since the
evidence to the contrary.As to the testimony of Pat. Angeles and
circumstance qualifying the killing must be proven as indubitably
Pat. Castillo, the police officers who apprehended the appellant,
as the killing itself [People v. Vicente, G.R. No. L31725, February
credence should be given to their narration of how the appellant
18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a
was apprehended and how he led the police and the barangay
previous case that x x x It is needless to add that treachery cannot
residents to the place where he dumped the body of his victim
be deduced from mere presumption, much less from sheer
since these police officers are presumed to have
speculation. The same degree of proof to dispel reasonable doubt is
652
required before any conclusion may be reached respecting the
attendance of alevosia [People v. Duero, G. R. No. L65555, May
22, 1985, 136 SCRA 515, 519520; Italics supplied.]

653 654
VOL. 170, FEBRUARY 27, 1989 653 654 SUPREME COURT REPORTS ANNOTATED
People vs. Gaddi People vs. Gaddi
SO ORDERED. [Rollo, p. 31.]

APPEAL from the decision of the Regional Trial Court of
Quezon City, Br. 104. On appeal to this Court, Gaddi assigns as errors of the trial
court the following:
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiffappellee. I
Citizen Legal Assistance Office for defendant
appellant. THE TRIAL COURT ERRED IN GIVING WEIGHT AND
CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN
CORTS, J.: AND IN TOTALLY DISREGARDING THE EVIDENCE
ADDUCED BY THE DEFENSE.
Nerio Gaddi y Catubay was charged with murder for the
death of one Augusto Esguerra y Navarro in an II
information which reads as follows:
THE TRIAL COURT ERRED IN CONVICTING THE
xxx ACCUSEDAPPELLANT BASED ON HIS WRITTEN
That on or about the 11th day of December, 1981, in Quezon STATEMENT (EXH. F) WHICH IS INADMISSIBLE IN
City, Metro Manila, Philippines, the abovenamed accused, with EVIDENCE.
intent to kill, without any justifiable cause, qualified with
treachery and with evident premiditation (sic), did then and III
there, wilfully, unlawfully and feloniously attack, assault and
THE TRIAL COURT ERRED IN APPRECIATING THE
employ personal violence upon the person of one AUGUSTO
QUALIFYING CIRCUMSTANCES OF TREACHERY AND
ESGUERRA y NAVARRO, by then and there stabbing him
EVIDENT PREMEDITATION [Rollo, p. 38.]
several times with a knife, hitting him on the different parts of
his body, thereby inflicting upon him serious and mortal wounds The prosecution presented five (5) witnesses before the
which were the direct and immediate cause of his death, to the court a quo, namely: Ernesto Guzman, Pat. Arturo Angeles,
damage and prejudice of the heirs of the offended party in such Cpl. Rogelio Castillo, Pat. Jesus Patriarca and Dr. Gregorio
amount as maybe awarded under the provision of the Civil Code. C. Blanco. On the other hand, the accused Gaddi was the
CONTRARY TO LAW. [Rollo, p. 15.] sole witness presented for the defense. The prosecutions
version of the facts are as follows:
After arraignment, wherein Gaddi pleaded not guilty, and
trial Judge Maximiano C. Asuncion of Branch 104 of the xxx
Regional Trial Court of Quezon City handed down a verdict At about 5:00 oclock in the afternoon of December 11, 1981, at
of guilt for the crime charged, the decretal portion of which San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw
reads: appellant Nerio Gaddi and the victim Augusto Esguerra drinking
gin. In the morning of the following day, December 12, 1981,
xxx
appellant told Ernesto Guzman that he killed his drinking
WHEREFORE, the Court finds the accused NERIO GADDI y
partner Augusto Esguerra and dumped his body in a toilet pit.
CATUBAY guilty beyond reasonable doubt of the crime of murder,
Guzman advised appellant to surrender to the police. After work,
as charged in the information, and hereby sentences him to suffer
Guzman went to the police and reported what appellant told him
the penalty of RECLUSION PERPETUA or LIFE
(pp. 23. tsn, September 2, 1982; pp. 28. tsn, August 9, 1983).
IMPRISONMENT and to pay his heirs of Augusto Esguerra the
sum of P50,000.00 without subsidiary imprisonment in case of 655
insolvency, with all the accessory penalties provided for by law,
and to pay the costs.
VOL. 170, FEBRUARY 27, 1989 655 656 SUPREME COURT REPORTS ANNOTATED
People vs. Gaddi People vs. Gaddi
rated to him that Bong Kuleleng (Augusto Esguerra) held his

At around 2:00 oclock in the afternoon of the same day, December
rooster by the neck and that his tattoo mark BCJ (Batang City
12, 1981, Corporal Rogelio Castillo and Detective Rodrigo
Jail) will be erased by him. He did not report the killing to the
Salamat arrested appellant at Manrey Subdivision, Novaliches,
authorities. Guzman likewise requested him to admit the killing
Quezon City. Appellant told Corporal Castillo that he killed the
but he refused. While in the house, Guzman filed the case ahead.
victim and where he buried the body. Later, Pat. Jesus Patriarca
He was later arrested and investigated while looking for the
arrived. Appellant himself led the policeman and Barangay
corpse. When brought to the police station, he was forced to admit
residents to where the body wasin a toilet pit in the backyard of
the killing of Augusto Esguerra (TSN, pp. 314 August 20, 1984).
Ernesto Guzman. The policeman, with the help of the Barangay
[Appellants Brief, p. 45; Rollo, p. 38.]
residents, dug out the body. The body of the victim was identified
by Ernesto Guzman, his wife, and Jose Esguerra, victims brother.
The Court finds the instant appeal unmeritorious.
Pat. Patriarca took pictures of the body (Exhibits C to C5), noted
Where the conviction of an accused is based merely on
the statements of Ernesto Guzman and Jose Esguerra, (Exhibit
circumstantial evidence, as in this case, it is essential for
D), and took down the confession of appellant (Exhibit F). Later,
the validity of such conviction that: 1) there be more than
the cadaver was subjected to autopsy (pp. 313, tsn, August 24,
one circumstance; 2) the facts from which the inferences
1983; pp. 322, tsn, January 3, 1984).
are derived are proven; and 3) the combination of all the
A mans Tshirt with collar, colored yellow, red and blue, and
circumstances is such as to produce a conviction beyond
red shorts, were recovered from the pit where the body of the
reasonable doubt [Section 5, Rule 133 of the Revised Rules
victim was dug out. The Tshirt and shorts were identified by
of Court, People v. Modesto, G.R. No. L25484, September
Ernesto Guzman as those worn by appellant while he was
21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L
drinking with the victim on December 11, 1981 (pp. 23, tsn,
38162, May 17, 1980, 97 SCRA 699.] Although no general
September 2, 1982). A small table, rubber slipper, bottle of wine
rule has been formulated as to the quantity of
and glass were likewise recovered from the same pit. (p. 6, tsn,
circumstantial evidence which will suffice for any case, yet
July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.]
all that is required is that the circumstances proved must
On the other hand, the defenses version of the facts are as be consistent with each other, consistent with the
follows: hypothesis that the accused is guilty and at the same time
inconsistent with any other hypothesis except that of guilty
Accused Nerio Gaddi a resident of Novaliches, Quezon City, [People v. Constante, G.R. No. L14639, December 28,
testified that on December 11, 1981, at around 2:00 to 5:00 p.m., 1964, 12 SCRA 653; People v. Caneda, G.R. No. L19132,
he was drinking with Augusto Esguerra (Bong Kuleleng) near the September 26, 1964, 12 SCRA 9.]
house of Ernesto Guzman. At about 5:00 p.m., he was requested In the case at bar, the circumstantial evidence adduced
by Ernesto Guzman to buy gin. He left Ernesto Guzman and by the prosecution sufficiently satisfies the quantum of
Augusto Esguerra (who were allegedly drinking) in order to buy a proof necessary to uphold a judgment of conviction. The
bottle of gin in a nearby store, about 200 meters away. At the following circumstances proven by the prosecution
store, he met an acquaintance and they talked for a while before indubitably point to the accused as the perpetrator of the
returning. Upon his arrival at the place (where they had a crime committed against Augusto Esguerra.
drinking spree) he noticed stain of blood in the place where they
had been drinking and Augusto Esguerra, alias Bong Kuleleng 1. The fact that said victim was last seen on the day
was not there anymore. He inquired from Ernesto Guzman the he was killed in the company of the accused,
whereabouts of Augusto Esguerra and was told that the latter drinking gin at the back of the house of Ernesto
went home already. He then asked Guzman about the blood and Guzman [TSN, August 9, 1983, p. 1.]
was told that it was the blood stain of a butchered chicken. At 2. The fact that on the day after the drinking spree,
about 12:00 oclock midnight, Ernesto Guzman informed him December 12, 1981, the accused himself admitted to
about the killing of Augusto Esguerra. Guzman nar Ernesto Guzman
656 657
Tribunal had previously declared that a confession

constitutes evidence of high order since it is supported by
VOL. 170, FEBRUARY 27, 1989 657
the strong presumption
People vs. Gaddi
658
that he stabbed his drinking companion and that

the latter was nadisgrasya niya so he dumped the 658 SUPREME COURT REPORTS ANNOTATED
body of the victim in a hole being dug out for a
People vs. Gaddi
toilet, located at the yard of Ernesto Guzman [TSN,
August 9, 1983, p. 7.]
that no person of normal mind would deliberately and
3. The fact that when he was turned over to Pat.
knowingly confess to a crime unless prompted by truth and
Arturo Angeles and Pat. Rogelio Castillo of the
his conscience [People v. Salvador, G.R. No. L77964, July
Northern Police District by the barangay people
26, 1988 citing People v. Castaneda; G.R. No. L32625,
who apprehended him, he admitted the truth of the
August 31, 1979, 93 SCRA 59.] Proof that a person
charge of the barangay residents that he killed
confessed to the commission of a crime can be presented in
someone and that he dumped the body of the victim
evidence without violating the hearsay rule [Section 30,
in a place being dug out as an improvised toilet
Rule 130 of the Revised Rules of Court] which only
[TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p.
prohibits a witness from testifying as to those facts which
8.] At the time the barangay people started digging
he merely learned from other persons but not as to those
for the body of the victim, the appellant was even
facts which he knows of his own knowledge; that is, which
instructing them as to the exact location where the
are derived from his own perception. Hence, while the
body was buried [TSN, August 24, 1983, p. 6.]
testimony of a witness regarding the statement made by
4. The fact that the place where he led the police another person, if intended to establish the truth of the fact
officers and the barangay residents, i.e. the toilet asserted in the statement, is clearly hearsay evidence, it is
pit in the backyard of Ernesto Guzman, was indeed otherwise if the purpose of placing the statement in the
the site where he buried the victim as the body of record is merely to establish the fact that the statement
the victim was found there after the digging [TSN, was made or the tenor of such statement [People v. Cusi,
January 3, 1984, p. 5.] Jr., G.R. No. L20986, August 14, 1965, 14 SCRA 944.]
5. The fact that the Tshirt and shorts which the Here, when Guzman testified that the appellant, who
accused was wearing during the drinking spree probably was bothered by his conscience, admitted the
were later recovered from the place where the killing to him, there was no violation of the hearsay rule as
victim was buried [TSN, September 2, 1982, p. 3.] Guzman was testifying to a fact which he knows of his own
personal knowledge; that is, he was testifying to the fact
Appellant however disputes the trial courts reliance on the that the appellant told him that he stabbed Augusto
testimonies of the prosecution witnesses as a basis for his Esguerra and not to the truth of the appellants statement.
conviction. As a rule, the trial courts assessment of the That the testimony of Guzman on appellants oral
credibility of the prosecution witnesses is entitled to great confession is competent evidence finds support in People v.
weight and respect [People v. Valentino, G.R. Nos. L Tawat [G.R. No. L62871, May 25, 1984, 129 SCRA 431]
4985960, February 20, 1986, 141 SCRA 397; People v. which upheld the trial courts reliance on an extrajudicial
Dagangon, G.R. Nos. L6265458, November 13, 1986, 145 confession given, not to a police officer during custodial
SCRA 464] since it has the advantage of observing the interrogation, but to an ordinary farmer as the basis for
demeanor of a witness while on the witness stand and conviction. The Courts pronouncements in the aforesaid
therefore can discern if such witness is telling the truth or case find relevance in the instant case:
not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151
SCRA 495.] The declaration of an accused expressly acknowledging his guilt
Moreover, appellants claim that Ernesto Guzmans of the offense charged, may be given in evidence against him
testimony on Gaddis confession of the crime to him cannot (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco
be given credence for being hearsay is unavailing. This may in a sense be also regarded as part of the res gestae.

The Rule is that any person, otherwise competent as a witness, Gamayon, G.R. No. L25486, April 28, 1983, 121 SCRA 642;
who heard the confession, is competent to testify as to the People v. Campana, G.R. No. L37325, August 30, 1983,
substance of 124 SCRA 271; People v. Rosas, G.R. No. L72782, April 30
1987, 149 SCRA 464.]
659
660
VOL. 170, FEBRUARY 27, 1989 659

People vs. Gaddi 660 SUPREME COURT REPORTS ANNOTATED
People vs. Gaddi
what he heard if he heard and understood all of it. An oral
confession need not be repeated verbatim, but in such case it must Appellants defense to the prosecutions charge rests on an
be given in its substance. (23 C.J.S. 196.) uncorroborated and purely oral evidence of alibi. It has
Proof of the contents of an oral extrajudicial confession may be been ruled time and again that courts look upon the
made by the testimony of a person who testifies that he was evidence of alibi with suspicion [People v. Bondoc, 85 Phil.
present, heard, understood, and remembers the substance of the 545 (1950)] and always receive it with caution [People v.
conversation or statement made by the accused [citing Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23
Underhills Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) (1940)] not only because it is inherently weak and
[at pp. 436437; Italics supplied.] unreliable but also because of its easy fabrication [People v.
Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the
The trial court found no reason to doubt Guzmans
prosecution, an alibi must satisfy the test of full, clear and
credibility as a witness considering his stature in the
satisfactory evidence [U.S. v. Pascua, 1 Phil. 631 (1903);
community as a member of a religious movement
U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil
participating in such activities as maanita and
828 (1917).] This test requires not only proof that the
procession of the Fatima and Black Rosary [Rollo, p. 30.] In
accused was somewhere else other than the scene of the
fact, on the day the killing took place, he left his house
crime but clear and convincing proof of physical
where appellant and his companion, Esguerra were still
impossibility for the accused to have been at the place of
drinking and went to the house of Junior Isla to attend a
the commission of the crime [People v. Pacis, G.R. Nos. L
maanita and participate in the weekly activity of
3295758, July 25, 1984. 130 SCRA 540; People v.
bringing down the crucifix and the image of the Fatima
Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA
[TSN, September 2, 1982. p. 2] Besides, there was no
250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151
showing at all that he was actuated by improper motives in
SCRA 113.]
testifying against appellant so as to warrant disregard of
The testimony of the accused himself believes any claim
his testimony [People v. Magdueno, G.R. No. L68699,
of physical impossibility for him to be at the scene of the
September 22, 1986, 144 SCRA 210.] On the contrary, the
crime since according to him, the store where he allegedly
evidence shows that even though the appellant is not
bought another bottle of gin was only 200 meters away. He
related at all to Guzman, the latter, as an act of generosity,
was able to return to Guzmans house only after half an
allowed the former to sleep in the porch of his house as the
hour since he still had a chat with an acquaintance at the
former had no immediate relatives in Quezon City [TSN,
store. Even granting the truth of appellants story that he
August 9, 1983, p. 14.]
was ordered by Guzman to buy a bottle of gin at about 5:00
As to the testimony of Pat. Angeles and Pat. Castillo, the
oclock in the afternoon and that he was back after thirty
police officers who apprehended the appellant, credence
minutes, it was not impossible for him to have committed
should be given to their narration of how the appellant was
the crime since Guzman and his wife left appellant alone
apprehended and how he led the police and the barangay
with the victim at around 6:00 oclock in the evening to
residents to the place where he dumped the body of his
attend the maanita at the house of Junior Isla. Thus, his
victim since those police officers are presumed to have
statements on the witness stand, far from demonstrating
performed their duties in a regular manner in the absence
physical impossibility of being at the scene of the crime,
of evidence to the contrary [People v. Boholst, G.R. No. L
cast serious doubt on the veracity of his alibi.
73008, July 23, 1987, 152 SCRA 263 citing People v.

As the culpability of the accused has been established As the evidence on record does not disclose the existence of
beyond reasonable doubt by the evidence of the treachery and evident premeditation in the stabbing of the
prosecution, there is no need to dwell on the admissibility victim, the crime committed is only HOMICIDE and not
of appellants extrajudicial confession [Exh. F to F9; Rollo, murder. Since there are neither mitigating nor aggravating
p. 20, et seq.] His conviction can be sustained circumstances, the penalty for homicide which is reclusion
independently of said confession. temporal should be imposed in its medium period. Applying
the Indeterminate Sentence Law, the range of the
661
imposable penalty is from eight (8) years and one (1) day of
prision mayor, as minimum, to seventeen (17) years and
VOL. 170, FEBRUARY 27, 1989 661 four (4) months of
People vs. Gaddi 662
However, in the absence of proof as to how the victim was

killed, the aggravating circumstances of treachery and
evident premeditation cannot be properly appreciated. The People vs. Gaddi
killing must be considered as homicide only and not
murder since the circumstance qualifying the killing must reclusion temporal, as maximum.
be proven as indubitably as the killing itself [People v. Absent any proof of actual damages, the heirs of
Vicente, G.R. No. L31725, February 18, 1986, 141 SCRA Augusto Esguerra are entitled only to the indemnity of
347.] This Tribunal clearly pointed out in a previous case P30,000.00. Hence, the amount of P50,000.00 awarded by
that the trial court should be reduced accordingly.
WHEREFORE, the appealed decision is MODIFIED and
As heretofore stated, not a single eyewitness to the stabbing the accusedappellant is hereby found guilty beyond
incident had been presented by the prosecution. Thus, the record reasonable doubt of the crime of HOMICIDE, sentenced to
is totally bereft of any evidence as to the means or method suffer the indeterminate penalty of eight (8) years and one
resorted to by appellant in attacking the victim. It is needless to (1) day of prision mayor as minimum, to seventeen (17)
add that treachery cannot be deduced from mere presumption, years and four (4) months of reclusion temporal as
much less from sheer speculation. The same degree of proof to maximum, and to indemnify the heirs of Augusto Esguerra
dispel reasonable doubt is required before any conclusion may be in the amount of P30,000.00.
reached respecting the attendance of alevosia [People v. Duero, SO ORDERED.
G.R No. 65555, May 22, 1985, 136 SCRA 515, 519520; Italics
supplied.] Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin,
JJ., concur.
Neither can the aggravating circumstance of evident
premeditation be considered, absent a clear showing of Decision modified.
1. the time when the offender determined to commit Notes.A confession is presumed voluntary until the
the crime; contrary is proved. (People vs. Petenia, 143 SCRA 361.)
2. an act manifestly indicating that the culprit clung Presumption of regularity of performance of official duty
to his determination; and does not apply to incustody confession. Prosecution must
3. a sufficient laspe of time between the determination prove compliance with constitutional requirements. (People
and the execution to allow him to reflect upon the vs. Tolentino, 145 SCRA 597.)
consequences of his act [People v. Diva, G.R. No. L
22946, October 11, 1968, 25 SCRA 468; People v. o0o
Pacada, Jr., G.R. Nos. L4444445, July 7, 1986, 142 663
SCRA 427.]

4/20/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 170 4/20/2017 iReader
IN THE SUPREME COURT
Copyright 2017 Central Book Supply, Inc. All rights reserved.

North Dakota Supreme Court Opinions
Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970)
STATE OF NORTH DAKOTA
Allen Leake, Plaintiff and appellant

v.
Charlotte Hagert, Defendant and respondent
Civil No. 8569
[175 N.W.2d 678]
Syllabus of the Court
1. The hearsay rule prohibits use of a person's assertion, as equivalent to testimony of the fact asserted,
unless the assertor is brought to testify in court on the stand, where he may be probed and cross-
examined as to the grounds of his assertion and his qualications to make it.
2. Where a witness testies as to what the declarant said to the witness, it is error for the trial court to
admit such evidence but it is not prejudicial error where adverse witnesses testied during the trial as to
what the declarant had said. Rule 61, N.D.R.Civ.P.
3. The admission into evidence of eld notes which contain hearsay evidence and self-serving
declarations does not constitute prejudicial error where the appellant cross-examined concerning the
details contained in the eld notes and introduced on his behalf other evidence supporting the hearsay
evidence and the self-serving declarations set forth in the eld notes. Rule 61, N.D.R.Civ.P.
4. Although an instruction to the jury may be insufcient or erroneous, it must be considered in
connection with the remainder of the charge and if the whole charge taken together correctly advises the
jury as to the law, the error, if any, is thereby cured.
5. Where the court incorrectly included in its instructions to the jury the words "willful misconduct" as
the basis of a claim for liability, before a party may be held responsible for negligence or willful
misconduct, even though willful misconduct was neither alleged in the pleadings nor supported by the
evidence and where the court did not give any further instruction dening willful misconduct, the
inclusion of the words "willful misconduct" did not mislead the jury as to the law applicable to the issues
in the case where the remainder of the instructions correctly dened actionable negligence as the basis
for appellant's claim for relief.
6. Where a quoted portion of a statute, although not applicable to the evidence, is included in the court's
instructions and a jury would reasonably infer that the quoted portion of the statute was not applicable,
such error would not be prejudicial.
7. Where the court instructed the jury "*** that a violation of any of
[175 N.W.2d 679]

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entered in the District Court of Grand Forks County, North Dakota, and from an order of the trial court
the trafc laws of the state of North Dakota, or any other law bearing thereon is evidence of negligence denying his motion for a new trial.
which the jury may consider in determining the issue of negligence", it is not error for the court to
exclude from such instruction a cautionary provision concerning proximate cause when the court Allen Leake's complaint was predicated upon the alleged negligence of the defendant, Charlotte Hagert,
properly instructed the jury elsewhere on the issues of negligence, contributory negligence, and in her operation of a motor vehicle on October 25, 1966, wherein she negligently and carelessly drove her
proximate cause. automobile into the rear of the plow being towed by a tractor which Leake was operating, causing
8. Where the state of the evidence is such that a jury may reasonably infer therefrom its truth or falsity as injuries to Leake and damages to his plow and tractor. Leake's complaint included allegations of
to a material fact, that is, whether a red taillight was lit prior to and at the time of an accident, an damages for hospital and doctor bills; for permanent injuries to his chest and right arm; for pain and
instruction on circumstantial evidence is proper. suffering; and for damages to his plow and tractor; and he
9. Specications of error unsupported by written argument in a brief led with the Supreme Court are
deemed abandoned. [175 N.W.2d 680]
10. Where the court's instructions were in essence those which were requested, the court did not commit
prayed for a judgment against Charlotte Hagert in the sum of $27,600. Charlotte Hagert, in her answer,
error in denying the specic requested instructions.
admitted that the collision occurred, but, as a defense, denied that the collision was proximately caused
11. The trial court did not abuse its discretion in denying a new trial where the evidence was such that
by her negligence in the operation of her motor vehicle, and she alleged that the sole and proximate
the verdict of the jury could have gone either way, and reasonable men could have drawn different
cause of the collision was the negligence of the plaintiff in the maintenance and operation of his tractor
conclusions from the evidence, and the jury's verdict is amply supported by the evidence.
and plow, upon a public highway after sunset, without proper lights, reectors, or other warnings.
12. Where a litigant desires to take advantage of irregularities on the part of the court occurring during
Charlotte Hagert counterclaimed for damages caused by the alleged negligence of Allen Leake for
the course of a trial, proper and timely objections and requests to the court for curative instructions may
permanent injuries, for pain and suffering, for hospitalization and medical expenses and for damages to
be made in order to preserve such rights. In the instant case, where neither objections nor requests for
her 1966 Plymouth automobile; and she prayed for a judgment against him in the sum of $32,000.
curative instructions were made, the appellant waived his rights to preserve the errors on appeal.
13. The trial court is vested with the power and duty of preserving order, of enforcing obedience to All claims and defenses of both Allen Leake and Charlotte Hagert were submitted to a jury, which
lawful orders and process, of controlling the witnesses and the conduct of counsel, and may take returned a verdict dismissing the complaint of Allen Leake as well as dismissing the counterclaim of
necessary precautions to ensure that the parties receive a fair and impartial trial. Charlotte Hagert.
14. Where there is nothing in the record to support the specication of error which allegedly occurred on
voir dire of a juror, the provision of Rule 59(b)(3), N.D.R.Civ.P., is not applicable in the instant case. Allen Leake, before the case was submitted to the jury, made a motion asking the court to direct a verdict
15. The trial court has the discretionary power in refusing to have read a witness's testimony to the jury dismissing the defendant's counterclaim on the ground that Charlotte Hagert was guilty of negligence as
while the jury is deliberating, where the court notied counsel, requested objections, and informed a matter of law. She resisted this motion and also made a motion for a directed verdict, which, in turn,
counsel that, in the absence of objections, the jury's request would be denied; and especially when the was resisted by Allen Leake. The trial court denied both motions. See Northern Improvement Co. v.
appellant did not specify error as to the action on the part of the court until after the jury had reached a Pembina Broadcasting Co., 153 N.W.2d 97 (N.D. 1967); Rule 50(a), North Dakota Rules of Civil
verdict. Procedure.
Allen Leake, after the judgment was entered, made a motion for a new trial which was denied by the
Appeal from the District Court of Grand Forks County, the Honorable Harold M. Hager, Judge. trial court. The motion set forth specications of error, which, generally, are as follows:
ORDER DENYING A NEW TRIAL AND THE JUDGMENT ARE AFFIRMED.
Opinion of the Court by Paulson, J. 1. That certain errors of law occurred at the trial in that:
Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, for plaintiff and Appellant.
Letnes, Murray & Marshall, Grand Forks, for defendant and respondent. a. Edward Gross was permitted to give testimony which was hearsay;
b. The eld notes of Edward Gross, which contained hearsay evidence and were self-serving
Leake v. Hagert declarations, were admitted into evidence.
Civil No. 8569 c. The court erred in instructing the jury;
d. The court erred in refusing to give the plaintiff's requested instructions.

Paulson, Judge.
2. That the evidence was insufcient to justify the verdict and that it is against the law.
This is an appeal by the plaintiff, Allen Leake, from a judgment of dismissal of his cause of action
entered in the District Court of Grand Forks County, North Dakota, and from an order of the trial court 3. That there were irregularities in the proceedings of the court or abuse of the court's discretion, 3/17
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4/20/2017 iReader the accident
4/20/2017 it was in good operating condition, and particularly
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3. That there were irregularities in the proceedings of the court or abuse of the court's discretion,
which prevented the plaintiff from having a fair trial. Highway Patrolman Edward E. Siemieniewski, who investigated the accident, testied that the accident
was reported on October 25, 1966, at about 6:45 p.m., and that on this day the sun had set at 5:22 p.m. He
4. That the plaintiff's cause was subject to accident or surprise in that the juror and foreman, Lewis
testied that he arrived at the accident scene at about 7:30 p.m., and his investigation revealed that the
Nelson, had had a similar accident and did not advise counsel, on questioning, of this fact and
accident occurred about 3 miles south of Emerado, on Highway No. 3, the blacktop surface of which is
that he had no prejudice which could in any way disqualify him, and that this surprise was
26 feet wide; that there were skid marks 146 feet in length made by the Hagert car and that, after the
unknown until after the verdict of the jury, and it is to the prejudice of the plaintiff.
accident, the tractor had come to rest 104 feet from the car; that the plow and the car were badly
Allen Leake, after his original motion for a new trial was made, moved to amend his specications of damaged; that the lights on the tractor were not burning, but that when he activated the light switch, he
error to include an alleged error made by the trial court in not granting the jury's request to have the found that the two front lights and one rear light were in working condition; that the rear light was a
testimony of Scott Bosard read to them. The trial court also denied this motion. white light, but he did not know which one of the two rear lights was working, because the lenses in
both lights had been broken; that the road south of the accident scene was not level, but had a slight rise,
The above are in substance the same specications of error set forth on appeal to this court from the but not sufcient to interfere with a driver's range of vision.
judgment dismissing Allen Leake's complaint and from the trial court's order denying the plaintiff's
motion for a new trial. It should be mentioned that the defendant is not appealing from the judgment Mrs. Allen Leake, the plaintiff's wife, testied that she and the wife of Highway Patrolman
dismissing her counterclaim. Kingdon v. Sybrant, 158 N.W.2d 863 (N.D. 1968). Siemieniewski were cousins.
The record reveals that Charlotte Hagert, on cross-examination, testied in substance that she lived with Scott Bosard, who lives 4 1/2 miles south of Emerado, testied that on October 25, 1966, between 6:30
her husband, Curtis Hagert, on a farm south of Emerado, North Dakota. On October 25, 1966, p.m. and 7:00 p.m., while he was on his way home from Emerado, he was a passenger, riding in the right
rear seat of a car driven by Gladys LaFontaine, who was driving south on Highway No. 3 at a speed of
between 50 and 55 miles an hour. He further testied that while the LaFontaine car was proceeding
[175 N.W.2d 681]
south on such highway, he observed Allen Leake driving his tractor and towing a plow coming from the
she decided to drive to Emerado. She left the farm during the evening and started driving north on opposite direction; that the car in which he was riding met Allen Leake's tractor and plow
Highway No. 3, which is a paved farm road. As she was driving north she saw a car approaching from
the north and when the cars were approximately a mile apart she dimmed her headlights. Immediately [175 N.W.2d 682]
after the oncoming car had passed her vehicle, she became aware that a tractor towing a plow was
proceeding north, directly in front of her. She applied her brakes, slowing her car to some extent, but her at the top of the rise in the road south of the point where the accident occurred, and also met another car,
car continued forward and struck the plow. The impact of the collision forced the front end of her car up also traveling north, about 300 yards further south of the rise. He also testied that he did not see the
on the plow and, as a result, she was thrown forward in her car and was knocked unconscious. accident nor stop at the accident scene after the collision.
She further testied that the road preceding the point of impact was not level and, in fact, there was a Allen Leake testied that on October 25, 1966, he had been plowing in a eld south of where the accident
rise in the road. She also stated that she had not seen any lights or reectors on the plow or the tractor occurred. When he nished plowing he left the eld, turned left, and proceeded north on Highway No.
that she could remember; that at the time of the accident she was driving at a speed of between 50 and 60 3. He was driving a tractor and towing a plow. The tractor was equipped with two headlights and two
miles an hour; that her car collided with the plow and tractor when her car was in the east lane and, as a rear lights; one of the rear lights was a white working light for use when working in the elds and the
result of the collision, her car and the plow crossed the centerline of the road into the west lane, and the other was a smaller red light for use when driving on the highways. He testied that when he turned on
tractor veered into the east ditch. to Highway No. 3 he switched on his lights and tested them, and at that time both headlights and the
small red rear light were working. He further testied that he was driving his tractor prior to the
Mrs. Hagert further testied that she was 46 years of age at the time of the accident and had lived in the accident at a speed of about 10 miles an hour; that he had driven north on Highway No. 3 about 1 1/2
same area with her husband since their marriage some 27 years earlier; that she was familiar with the miles; that a car passed him coming from the opposite direction; that he observed a car approaching
highways in that area and with the fact that during the farming season farmers were often driving their from behind him at a fast rate of speed; that he attempted to pull his tractor and plow to the right side of
equipment on the highways; and that she was aware that within this area there might be cars parked the road, but before he could do so the oncoming car struck his plow from the rear, causing the plow and
along the highways at night, some without lights. tractor to disengage and forcing his tractor into the right ditch. He further testied that there were two 3-
inch reectors on the plow and that he had often observed them when his plow was in his farm yard. He
Mrs. Hagert further testied that prior to the accident she and her husband had purchased a new 1966 stated that the reectors were visible at night when automobile headlights shone on them and that they
Plymouth automobile, and that on the day of the accident this car's odometer had registered could be seen from a distance of about 500 feet.
approximately 4,000 miles. She also testied that she had driven this car previously and at the time of
the accident it was in good operating condition, and particularly its power brakes. Allen Leake testied on cross-examination that he did not make a minute inspection of the rear end of
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Allen Leake testied on cross-examination that he did
4/20/2017 not make a minute inspection of the rear end of
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Leake's rst contention on appeal is that certain errors at law occurred during the course of the trial, at
the tractor and did not know the condition or color of its rear taillight, either before or after the accident.
the time that the trial court overruled objections to the admission of certain evidence. The evidence
He further testied that he did not know whether the red light was burning at the time of the collision,
objected to was certain testimony adduced from Edward Gross, an adjuster who investigated the
and stated that there could have been some dust on the reectors as a result of his plowing in the eld
accident. Gross testied that Allen Leake's son told him, with reference to the small rear light on the
prior to the accident; that he had no recollection of how the tractor stopped or of how he got off the
tractor, that the red lens had been out for some time. Edward Gross's testimony concerning the statement
tractor; and he testied that the car which hit him was traveling about 70 miles an hour.
of Allen Leake's son was hearsay.
Curtis Hagert, in support of his wife's counterclaim and defense against the claim of Allen Leake,
The hearsay rule prohibits use of a person's assertion, as equivalent to testimony of the fact asserted,
testied that his wife left their farm at about 6:30 on the evening of the accident; that after he heard about
unless the assertor is brought to testify in court on the stand, where he may be probed and cross-
the accident he called his son-in-law, Myron Larson, who came to the farm and gave him a ride to the
examined as to the grounds of his assertion and his qualications to make it. Grand Forks B. & D. Co. v.
hospital to which his wife had been taken. On the way to the hospital, Curtis Hagert and Myron Larson
Iowa Hardware Mut. Ins. Co., 75 N.D. 618, 31 N.W.2d 495 (1948). See 5 Wigmore on Evidence (3d ed.)
stopped and observed the scene of the accident and inspected the damages to the Hagert car. Highway
1361, 1364. Allen Leake contends that whether or not the red lens was out at the time of the accident is a
Patrolman Siemieniewski was at the accident scene and was checking the lights on the tractor when they
material question of fact, determinative as to the contributory negligence by Allen Leake; and whether
arrived, and Curtis Hagert testied that the small light on the rear of the tractor did not come on until
he complied with the standards set forth in 39-21-15, N.D.C.C., which requires that every tractor, when
the patrolman struck it. He further testied that the lens for the small light was missing from the rim but
operating upon a highway of this state at any time from onehalf hour after sunset to a half-hour before
the bulb was not broken; that there was no indication of any broken glass inside the casing of the small
sunrise, be equipped with at least one lamp displaying a red light visible, when lighted, from a distance
light; and that the casing was rusty and dirty and the bulb was colored with a red substance.
of one thousand feet to the rear of such tractor. Leake's son did not testify in the present action; he was
Myron Larson, the Hagerts' son-in-law, testied that he gave Curtis Hagert a ride to the hospital to not a party to the action; his statement was not made under oath; his statement was not subject to
which Mrs. Hagert had been taken and enroute they stopped and observed the scene of the accident. he crossexamination; and he was not available as a witness at the time of trial because he was in the Army
further stated, with respect to the tractor lights, that the front lights came on, but the working light and and overseas. We nd that it was error for the trial court to admit into evidence the testimony
the taillight both failed to light until the highway patrolman jiggled them; and that there was no lens in concerning what Leake's son said to Edward Gross; the son's statement was hearsay and should have
the small light, the bulb of which was painted a pinkish, faded red color. been excluded.
Edward Gross testied that he investigated the accident on October 26, 1966, the day following the Having found that the trial court erred in admitting the statement of Allen Leake's son into evidence, we
accident. His must determine on this appeal whether such an erroneous admission was prejudicial and constitutes
reversible error. Under Rule 61, N.D.R.Civ.P., error in the admission of evidence is not a ground for a
[175 N.W.2d 683] new trial unless such error affects the substantial rights of the parties. Fox v. Bellon, 136 N.W.2d 134
(N.D. 1965). Therefore, to be prejudicial error, the substantial rights of the
investigation included visiting the scene of the accident and making an inspection of the tractor-and
plow, and the damaged car; and taking pictures and making eld notes of his ndings. He testied, with [175 N.W.2d 684]
reference to the small light, that it did not have a lens in it; that the rubber gasket of the small light was
weatherbeaten and shriveled; that the casing did not have any reectorized material inside of it; that the complaining party must be affected. Other witnesses testied during the trial as to the condition of the
bulb had some red and green paint on it; and he stated that the plow had a reector on it, which was taillight and whether the light had a red lens. Curtis Hagert, Myron Larson, and Edward Gross testied
dusty, and which did not face the rear, but was turned to the right. He further testied that the skid to the fact that the rear light was painted or covered with some reddish substance and that there was
marks made by the Hagert car measured approximately 131 feet. He stated that, while he was making nothing which would indicate that the red lens had been shattered by the accident. In addition, a
his investigation, he talked to Allen Leake's son, who told him that the lens in the small light had been statement taken by Edward Gross, from Allen Leake's summary of circumstances surrounding the
missing from its frame for some time prior to the accident. He further testied that he took statements accident, included a statement that the lens had been out for some time before the accident. This
from both Allen Leake and Charlotte Hagert as to how the occident occurred. statement was introduced by Allen Leake. Reviewing the record concerning the testimony submitted
with reference to the condition of the light and the lens at the time of the accident, we nd that the
In addition to the testimony of the above witnesses, a number of pictures of the accident scene, the hearsay statement of Allen Leake's son was erroneously admitted by the trial court, but that such error
tractor and plow, and the car were introduced into evidence. The eld notes of Edward Gross and the was not prejudicial.
statement taken by him were introduced into evidence, which contained evidence of the fact that the
lens in the small light on the rear of the tractor had been out for some time. Allen Leake urges that the trial court erred when it permitted the admission of the eld notes of Edward
Gross into evidence. Leake contends that the eld notes contained hearsay evidence and were self-
The foregoing, in substance, was the pertinent testimony and evidence presented at the trial to the jury. serving declarations. The hearsay evidence contained in the eld notes consisted of a summary of what
Allen Leake's son told Edward Gross with regard to the red lens being out for some time. As previously
Leake's rst contention on appeal
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Allen Leake's
4/20/2017 son told Edward Gross with regard to the red lens being out for some time. As previously
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stated by this court, it was error on the part of the trial court to permit the admission of such hearsay misconduct. Although we agree with Allen Leake that it was error for the court to so instruct, the
evidence, but because other competent testimony as to the same fact was admitted by other evidence, instructions, considered in their entirety, correctly advised the jury as to the law of negligence; and, in
the error would not be prejudicial unless the admission of all of the eld notes was deemed prejudicial addition, we are of the opinion that the use of the words "willful misconduct" or "negligence" by the
and constituted reversible error. court in the alternative was not sufcient to mislead the jury as to the applicable rule of law to apply to
the issues in the case, especially where the balance of such instruction related only to what is required to
Leake contends that none of the eld notes should have been admitted into evidence and that their satisfy actionable negligence to support Leake's claim.
consideration by the jury should not have been permitted, because such notes were self-serving
declarations of the witness, Edward Gross, who testied at the trial. While it is generally recognized that Leake also urges that it was error for the trial court to quote an entire statute, which contained irrelevant
the written statement of a witness cannot be introduced into evidence over objection unless the adverse language, not pertinent to the evidence submitted at the trial. The trial court set out, in essence, all of
party has the right to confrontation and the right to cross-examination, in the present case it was Allen 39-21-15, N.D.C.C., in Instruction Number 6:
Leake who introduced testimony, through cross-examination of Edward Gross, as to the contents of
"6. ***
Gross's eld notes and it was Gross's eld notes which supported the testimony of Allen Leake. The
plaintiff may have believed that questioning Edward Gross as to the contents of his eld notes was good "Section 39-21-15. Every farm tractor, self-propelled unit of farm equipment, or towed implement
trial strategy, but Allen Leake cannot now complain of the introduction of such eld notes if they were of husbandry, when operated upon the highways of this state at any time from one half hour after
used by him during the course of the trial. This court held, in the case of Grand Forks B. & D. Co. v. Iowa sunset to a half hour before sunrise shall be equipped as follows: 1. Tractors and self-propelled
Hardware Mut. Ins. Co., supra, that the admission of a detailed statement was prejudicial error. units of farm equipment shall be equipped with two single-beam or multiple-beam head lamps
However, is that case the written statement contained statements of fact and conclusions which had not meeting the requirements as herein before set forth, provided that a tractor or self-propelled unit
been testied to in open court. In the case at bar, the eld notes of Edward Gross did not contain any of farm equipment which is not equipped with an electrical system shall be equipped with at least
facts on conclusions, but only notations as to damages to the vehicles and as to measurements to which one lamp displaying a white light visible when lighted from a distance of not less than one
he testied on cross-examination by Leake attorney. Accordingly, we conclude that it was not prejudicial thousand feet to the front of such vehicle. Every tractor and self-propelled unit of farm equipment
error for the trial court to admit the eld notes of Edward Gross into evidence. shall be equipped with at least one lamp displaying a red light visible when lighted from a
distance of one thousand feet to the rear of such vehicle. In addition, every self-propelled unit of
Allen Leake further contends that certain of the trial court's instructions to the jury were improper. The
farm equipment shall be equipped with two red reectors visible from all distances from six
law in North Dakota with reference to jury instructions is well established. This court on appeal has
hundred feet to one hundred feet to the rear when directly in front of lawful upper beams of head
followed the rule that although an instruction standing alone may be insufcient or erroneous, it must
lamps. [Emphases added.]
be considered in connection with the remainder of the charge; and if the whole charge taken together
correctly advises the jury as to the law, the error, if any, is thereby cured. Willert v. Nielsen, 146 N.W.2d "2. Every towed unit of farm equipment or implement of husbandry shall be equipped with at
26 (N.D. 1966); Spalding v. Loyland, 132 N.W.2d 914 (N.D. 1965); Grenz v. Werre, 129 N.W.2d 681 (N.D. least one lamp displaying a red light visible when lighted from a distance of one thousand feet to
1964); Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11 (1949). the rear or two red reectors visible from all distances within six hundred to one hundred feet to
the rear when directly in front of lawful upper beams of head lamps. In addition, if the extreme
[175 N.W.2d 685] left projection of such towed unit of farm equipment or imp1ement of husbandry extends beyond
the extreme left projection of the towing tractor or vehicle, such unit or implement shall be
Allen Leake asserts that it was error for the trial court to give the following instruction: equipped with at least one amber lamp or reector mounted to indicate as nearly as practicable
the extreme left projection and visible from all distances within six hundred feet to one hundred
"4. Before a person can be held responsible for negligence or willful misconduct, either as the basis
feet to the front thereof when illuminated by the upper beams of head lamps and at least one red
of a claim of liability or as a basis of the defense of contributory negligence, his wrongful conduct
lamp reector so mounted and
must have been a proximate cause of the injury.***"
Leake particularly states that it was error for the trial court to include in such instruction on negligence [175 N.W.2d 686]
the following language:
visible from such distances to the rear. [Emphasis added.]
"***negligence or willful misconduct [emphasis added], either as a basis of a claim of liability or as
a basis of contributory negligence***" "The lamps and reectors required by this section shall be so positioned as to show from front and
rear as nearly as practicable the extreme projection of the vehicle carrying them on the side of the
Leake contends that the use of the words "willful misconduct" in the charge was error, because it was not roadway used in passing such vehicle. If a farm tractor or a unit of farm equipment, whether self-
alleged in the pleadings, and, furthermore, the evidence did not support and prove a claim of willful propelled or towed, is equipped with two or more lamps or reectors visible from the front or two
misconduct. Although we agree with Allen Leake that it was error for the court to so instruct, the
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or more lamps or reectors visible from the rear, such lamps or relectors shall be so positioned that
Leake asserts as additional error the trial court's failure to include a cautionary provision with respect to
the extreme projections both to the left and to the right of said vehicle shall be indicated as nearly
proximate cause when it instructed the jury as follows:
as is practicable.***"
"*** that a violation of any of the trafc laws of the state of North Dakota, or any other law bearing
The main thrust of Leake's argument is that the emphasized portion of the instruction is surplusage and
thereon is evidence of negligence which the jury may consider in determining the issue of
misleading, in that: rst, no self-propelled unit of farm equipment was involved in the case; and, second,
negligence." [Instruction No. 7.]
there is no evidence that any part of the plow extended to the left of the tractor, both of which, under
39-21-15, N.D.C.C., require different standards of lights or reectors when used on the highways in It is Leake's contention that a violation of law may be considered as evidence of negligence, but only
North Dakota. when such violation is found to be the proximate cause of the injury. The above-quoted instruction has
been approved by this court in many cases. Attleson v. Boomgarden, 73 N.W.2d 448 (N.D. 1955); Imus v.
This instruction is, in essence, a direct Quote from 39-21-15, N.D.C.C.; therefore, it is a correct statement
Huber, 71 N.W.2d 339 (N.D. 1955); Spenningsby v. Peterson, 67 N.W.2d 913 (N.D. 1955); Knudsen v.
of the law. Our court said, in Spalding v. Loyland, supra, 132 N.W.2d at 923:
Arendt, 79 N.D. 316, 56 N.W.2d 340 (1952). In none of the cases has this court been presented with the
"Although there was no evidence whatsoever in the record to which the quoted portion of the issue now under consideration. Leake's contention has merit and a cautionary provision with respect to
statute could apply, nevertheless, it was copied and given. The inclusion in an instruction of proximate cause would have been more specic and helpful to the jury in order for them to better
inapplicable portions of a statute can only add to the jury's formidable task of applying the law as understand and apply the law of the case to the facts before them. However, a review of the instruction
given to it by the court to the facts as it nds them. For this reason, we nd it was error to so shows that the trial court did properly instruct the jury on proximate cause, on the elements of
instruct. negligence, and on what constitutes actionable negligence; and we therefore nd that it was not
prejudicial error for the trial court to so instruct.
'A verdict is properly set aside, and a new trial granted, where the instructions were not applicable
under the evidence, and tended to mislead and confuse the jury. The fact that such instructions Leake urges that the trial court's instruction on circumstantial evidence was erroneous because all of the
may state correct legal propositions in no manner changes the rule.' Welter v. Leistikow, 9 N.D. facts were testied to by both parties who were present and who were eyewitnesses to the accident. We
283, 83 N.W. 9.'" nd from the record that the court's instruction was proper, especially since there was conicting
testimony as to whether the rear light on the tractor was lit prior to and at the time of the accident, and,
This court has also said, in Mills v. Roggensack, 92 N.W.2d 722, 725 (N.D. 1958): accordingly, the jury had the right to consider the direct evidence as well as the circumstantial evidence
in order to determine whether or not the rear light was burning and, in addition, whether such light also
"We agree that this instruction was superuous but that does not mean that it was necessarily had a red lens, as required by the statute.
prejudicial. Instructions on issues or matters not warranted by the evidence are erroneous but
constitute reversible error only when calculated to mislead the jury or in other words when they Leake asserts additional error because of the refusal of the trial court to grant Leake's Requested-
are prejudicial. Foster v. Dwire, 51 N.D. 581, 199 N.W. 1017, 51 A.L.R. 21; Schwabel v. First Instructions Nos. 9, 11, 12, and 17. Requested Instruction No. 11 dealt with the issues of negligence and
National Bank, 53 N.D. 904, 208 N.W. 236." proximate cause; and Requested Instruction No. 17 concerned the rule of law where a driver is blinded
by a glare of light, and the exercise of care required. Both were submitted by Leake as error, but were not
This being the law, we must determine whether in the instant case the instruction tended to mislead or argued either in his brief or on oral argument. Specications of error unsupported by argument in the
confuse the jury. It is difcult for us to nd that the jury was misled or confused by the instruction. brief led in the Supreme Court are deemed abandoned. Rule 8(B), North Dakota Supreme Court Rules,
Considering the evidence submitted at the trial and the instruction given, a jury would reasonably infer 76 N.D. xix; Regent Coop. Equity Exch. v. Johnston's Fuel Liners, 122 N.W.2d 151 (N.D. 1963); Mevorah v.
that no selfpropelled unit of farm equipment was involved and therefore would not apply the Goodman, 68 N.W.2d 469 (N.D. 1955).
inapplicable portion of 39-21-15, N.D.C.C., to the facts before them. As to the claim that the evidence
did not support the instruction concerning a pulled unit which extended to the left of the tractor, the Requested Instruction No. 12 sets forth the burden of proof required of Allen Leake and Mrs. Hagert
standards of reectors to the rear as required by the statute were fully complied with, and this is with reference to negligence and contributory negligence and incorporating proximate cause. Leake
supported by the evidence; even if the jury would have determined that the plow did extend to the left concedes that the same is included in the court's instructions and submits no further argument. Leake
of the tractor when being pulled. Considering these facts, in addition to the fact that the statute was concedes that Requested Instruction No. 9 and the court's instructions, which are based on North Dakota
clearly separable as to certain requirements for different types of vehicles, we believe that the jury was pattern jury instructions, do not satisfactorily explain the proof required by the fair-preponderance-of-
not misled or confused by the instruction; and, even though it was error for the trial court to so instruct, the-evidence rule. However, Leake does not present any argument in support thereof. Considering both
the error was not prejudicial. Requested Instructions Nos. 12 and 9, and the failure of Leake to submit argument in support of such
alleged errors, this court deems that Leake has abandoned them, and, therefore, they will not be
[175 N.W.2d 687] discussed.
https://www.ndcourts.gov/court/opinions/8569.htm 10/17 Leake contends that since the

https://www.ndcourts.gov/court/opinions/8569.htm court instructed the jury on the question of "willful misconduct" 11/17
or
Leake contends that since the court instructed the jury on the question of "willful misconduct" or see such vehicle as a careful person would have seen."
"negligence", the court should have dened what "willful
Leake's primary contention is that the trial court in its instruction to the jury should not have qualied
[175 N.W.2d 688] the word "assured" with the words "with reasonable certainty rather than absolute certainty". We nd,
after considering the court's instruction, that the court properly instructed the jury as to the law with
misconduct" means. Leake's Requested Instruction No. 6 contains such wording. Having decided that it regard to the assured-clear-distance rule; and, in addition, that the court explained the proper
was error for the trial court to instruct the jury with regard to "willful misconduct", Leake's Requested application of that rule to the evidence adduced at the trial.
Instruction No. 6 would only compound that error. Thus we determine that it was not prejudicial error
for the trial court to refuse to give Leake's Requested Instruction No. 6. Leake asserts that the court erred when it did not give his requested
Leake's Requested Instruction No. 16 reads as follows: [175 N.W.2d 689]
"If you should nd from the evidence that parties to this action have violated the law of the State instructions, which error he bases on the following instruction given by the trial court:
of North Dakota governing the use of motor vehicles as I have instructed you, then you are
instructed that such violation is evidence of negligence. However, I charge you in connection "*** Any person driving a vehicle on a street or highway shall drive the same in a careful and
therewith that a violation of law is of no consequence unless it was a proximate cause of, or prudent manner, having due regard to the trafc, surface, and width of the street or highway and
contributed, in some degree as a proximate cause, to an injury found by you to have been suffered any other conditions then existing. No person shall drive any vehicle upon a street or highway in
by one of the parties." a manner to endanger the life, limb, or property of any person ***" [Instruction No. 6.]
Since we previously have determined that the trial court did not err when it failed to include the issue of Leake asked that the court give his Requested Instructions Nos. 3 and 22, which relate to the court's
proximate cause in conjunction with the instruction to the jury that a violation of the law is evidence of instruction above. Leake's Requested Instructions Nos. 3 and 22 are similar, except for the fact that No. 3
negligence, no further discussion with reference to Leake's Requested Instruction No. 16 is necessary. directs that the court "instruct" and No. 22 directs that the court "charge" the jury. Both of these requested
instructions are, in essence, what the court did instruct the jury. Leake contends that the court should
Leake's Requested Instruction No. 19 is divided into two parts; the rst part being an excerpt from 39- have instructed the jury by stating that it is unlawful to drive in a careless and heedless manner. We nd
21-15, N.D.C.C. and the second part being the statutory denition of the words "lawful upper beams of that the language used by the trial court in its instruction was given in a fair and unbiased manner and
head lamps". The trial court did give the requested instruction as to the excerpt from 39-21-15, that such instruction was a correct statement of the law and that the trial court did not err in refusing to
N.D.C.C., but denied the requested instruction as to the denition of the words "lawful upper beams of give Leake's Requested Instructions Nos. 3 and 22.
head lamps". We nd that the trial court did not commit error in denying the same, because there was no
evidence contained in the record that Mrs. Hagert was using the upper beams of the head lamps on her Leake's Requested Instructions Nos. 5 and 20 were qualications of the absolute speed limits as set forth
car when the accident occurred. by statute. He contends that the court should have given these requested instructions. However, we nd
from a reading of the entire instructions that the court, in substance, did qualify the specic instruction
The trial court gave the following instruction to the jury: given as to the speed limits on the highway where the accident occurred, and thus the court did not
commit error in refusing to give Requested Instructions Nos. 5 and 20.
"5(3) *** The rule of safety is the rule that one must drive at such a speed as to be able to stop
within the assured clear distance ahead. The word "Assured" means with reasonable certainty Leake's Requested Instruction No. 4 states that it is the duty of every driver to exercise ordinary care in
rather than absolute certainty. In order to comply with this rule, the driver of a motor vehicle must the operation of a motor vehicle, denes ordinary care, and sets forth a driver's responsibility for failure
not operate it at a greater speed than will permit him to bring it to a stop within the distance to comply with the duty to drive carefully. We have reviewed Requested Instruction No. 4, as well as the
between his vehicle and a discernible object obstructing his path or line of travel. The distance that trial court's instructions, and determine that the trial court, in essence, gave a similar instruction. Thus
a driver can see ahead of him is shortened at night in the dark, and he should therefore drive more the trial court did not err in refusing to give Leake's Requested Instruction No. 4.
slowly after nightfall, and must be able, as a general rule, to stop within the range of his
headlights for such obstructions as an ordinarily careful driver would see." Leake sets forth as grounds for his motion for a new trial that the evidence was insufcient to justify the
jury's verdict and that the verdict was contrary to law. Leake, in support of this contention, asserts that:
Leake submitted to the court Requested Instruction No. 10, which reads as follows: where he was driving his tractor on the highway, towing a plow, and Mrs. Hagert was driving her
automobile in the same direction, and collided with the rear end of his plow, that the accident resulted
"You are instructed that the law of the State of North Dakota requires that a person must drive his
either from Mrs. Hagert's failure to maintain a proper lookout or because she was overdriving her range
vehicle at such a speed as to be able to stop within the assured clear distance ahead and that a
of vision within her lights while driving with them on dim.
driver must anticipate that other vehicles, lighted or unlighted, may be upon the road and he must
Leake asserts that he was prevented from having a fair trial because of certain irregularities occurring
This court has held that the question of whether a new trial should be granted upon the ground of
during the course of the trial. Leake submits that he was prejudiced by the rulings and comments of the
insufciency of the evidence rests largely in the trial court's sound discretion. Any action which the trial
court as to the admission of certain evidence, as well as by the trial court's admonishments to Leake's
court takes on such motion will not be disturbed by this court on appeal in the absence of a showing of
counsel in open court. Generally, where a litigant wishes to take advantage of irregularities occurring
abuse of such discretion. Muhlhauser v. Archie Campbell Construction Co., 160 N.W.2d 524 (N.D. 1968);
during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting
Sucher v. Oliver-Mercer Electric, 151 N.W.2d 321 (N.D. 1967); Grenz v. Werre, 129 N.W.2d 681 (N.D.
for or on their behalf, he must do so at the time the irregularities occur, in order that the court may take
1964); Stokes V. Dailey, 97 N.W.2d 676 (N.D. 1959); Hamre v. Senger, 79 N.W.2d 41 (N.D. 1956).
appropriate action, if possible, to remedy any prejudice that may have resulted. Braun v. Riskedahl, 150
The discretion of the trial court in passing on such motion is a legal discretion to be exercised in the N.W.2d 577 (N.D. 1967). And when no objection is made at the time that a comment is made by the judge
interests of justice. Muhlhauser v. Archie Campbell Construction Co., supra; Sucher v. Oliver-Mercer and no request is made for a curative instruction to the jury concerning the comment, an appellant
Electric, supra; Maier v. Holzer, 123 N.W.2d 29 (N.D. 1963); Mann v. Policyholders' Nat. Life Ins. Co., 78 waives any right to urge the comment as error on appeal. Gleson v. Thompson, supra.
N.D. 724, 51 N.W.2d 853 (1952).
We have reviewed each specication of error in light of the context in which each was made, as it
Before the trial court can exercise its discretion in deciding a motion for a new trial on the ground of appears in the record, and nd that none of the allegations of error were objected to by counsel, except
insufciency of the evidence, there must be sufcient evidence one, and at no time did counsel request that the court give a curative instruction to the jury. Leake
objected to the court's admonishment of his counsel, when the court advised both counsel to keep their
blood pressures down and then referred to the conduct of Leake's counsel as being the "worst of the
[175 N.W.2d 690]
whole bunch". The trial court is vested with the power and duty of
in the record so that a decision could be made either way. McDermott v. Sway, 78 N.D. 521, 50 N.W.2d
235 (1951); Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228 (1928). [175 N.W.2d 691]
However, in passing on this motion, certain legal principles must be kept in mind. We often have held preserving order, of enforcing obedience to lawful orders and process, of controlling the witnesses and
that questions of negligence, contributory negligence, and proximate cause are questions of fact for the the conduct of counsel; and may take necessary precautions to ensure that the parties receive a fair and
jury, unless the evidence is such that reasonable men can draw but one conclusion therefrom, when they impartial trial. 53 Am.Jur., Trial 34, p. 49; 88 C.J.S. Trial 36, p. 91. See also 27-10-01 and 27-10-03,
then become questions of law. Gleson v. Thompson, 154 N.W.2d 780 (N.D. 1967); Sucher v. Oliver-Mercer N.D.C.C. There was a continuous colloquy between counsel, as is evidenced from the record, and both
Electric, supra; Grenz v. Werre, supra. attorneys were very energetically representing their clients and their actions reached a point where the
trial judge was required to admonish them. We do not believe from a perusal of the record that Leake
In determining the sufciency of the evidence to sustain the verdict, the evidence must be viewed in the was prejudiced by the trial court's admonishments.
light most favorable to the verdict. Gleson v. Thompson, supra; Grenz v. Werre, supra.
Leake contends that his right to a fair trial was prejudiced when, through accident or surprise which
The trial court did not specically rule on this alleged specication of error, but held that all of the other ordinary prudence could not have guarded against, the plaintiff's attorney was informed after the
specications of error alleged were without merit. The trial court thus by implication ruled that the verdict, that Lewis Nelson, the foreman of the jury, had been involved in a similar accident and did not
evidence was sufcient to justify the verdict of the jury when it denied Leake's motion for a new trial. so advise counsel, on questioning, of that fact on voir dire. Rule 59(b), N.D.R.Civ.P., sets forth the
grounds for a new trial; and accident or surprise mentioned in Rule 59(b)(3) [identical language used in
We conclude, after viewing the entire record, that the evidence was such that the verdict of the jury
28-1902(3), North Dakota Revised Code of 1943, which statute was superseded by the Rule) as grounds
could have gone either way, and that reasonable men could have drawn different conclusions from the
for a new trial denotes an occurrence out of the usual course of events which happens suddenly or
evidence. The jury brought in a verdict dismissing the plaintiff's cause of action and also dismissing the
unexpectedly, without any design on the part of the person affected and which ordinary prudence could
defendant's counterclaim. The jury must have found that Mrs. Hagert was negligent and that Leake was
not have guarded against. See Hamre v. Senger, 79 N.W.2d 41 (N.D. 1956); Baird v. Kensal Light & Power
contributorily negligent. Leake contends that, as a matter of law, Mrs. Hagert was negligent and
Co., 63 N.D. 88, 246 N.W. 279 (1933).
therefore the jury should have returned a verdict in his favor. Leake has failed to consider the question of
his contributory negligence. The evidence in the case presents a question of fact as to whether Leake, Leake strenuously urges that learning that Juror Lewis Nelson had been involved in a similar accident
while driving at night, had proper lights and reectors on his tractor and plow, as required by 39-21-15, was unexpected and a surprise, and that if such information had been known, Juror Nelson would have
N.D.C.C., which the jury could consider as evidence of Leake's negligence and Mrs. Hagert's negligence, been excused from serving as a juror in the case. Leake has failed to show that ordinary prudence could
both of which were proximate. causes of the accident. We determine that the jury's verdict that the not have guarded against this oversignt on Leake's part. There is no transcript of the voir dire of the jury
plaintiff was contributorily negligent is amply supported by the evidence. Therefore, the trial court did to support the contention that Lewis Nelson was asked specically whether he had been involved in a
not abuse its discretion in denying Leake a new trial. similar accident. This court, without such a record cannot assume that such question was asked, and
therefore we nd that Leake has failed to sustain the required burden of proof. Even if we would assume
Leake asserts that he was prevented from having a fair trial because of certain irregularities occurring
https://www.ndcourts.gov/court/opinions/8569.htm 14/17 that Lewis Nelson was asked about his similar accident, Leake would be required to show that he was
https://www.ndcourts.gov/court/opinions/8569.htm 15/17
that Lewis Nelson was asked about his similar accident, Leake would be required to show that he was additional information requested.
without knowledge that Lewis Nelson had experienced a similar accident and also show that he could
For reasons stated in the opinion, the order denying the motion for a new trial and the judgment are
not have acquired such information through diligent effort on his part. In addition, this court has said
afrmed.
that a new trial will not ordinarily be granted for accident or surprise unless it appears probable that,
except for the surprise or accident, a different verdict would have been rendered or a new trial will William L. Paulson
probably result in a changed verdict. Hamre v. Senger, supra. However, we do not reach this issue Obert C. Teigen, C.J.
because we nd that in the case at bar there was no basis on which to determine whether there was Ralph J. Erickstad
accident or surprise involved. Alvin C. Strutz
Harvey B. Knudson
Leake's attorney made a motion to amend the specications of error in support of Leake's motion for a
new trial. Leake alleges that it was error for the trial court to refuse to grant the jury's request to have the
testimony of Scott Bosard read to them. The request was made to the court when both parties and their
www.ndcourts.gov
attorneys were not present in court. The trial judge telephoned Leake's attorney and informed him of the
jury's request and that the request was going to be denied. Leake's attorney did not object to such action https://www.ndcourts.gov/court/opinions/8569.htm
taken by the trial court, except to specify it as error in his motion for a new trial and also on appeal to
this court. http://goo.gl/ffgS
Leake contends that Ferderer v. Northern Pacic Ry. Co., 75 N.D. 139, 26 N.W.2d 236 (1947), is
controlling, where the court said that the requirements of 28-1419 of the North Dakota Revised Code of
1943 [ 28-14-19, N.D.C.C.] are mandatory and that any failure to comply with this section is error per se
and is
[175 N.W.2d 692]
deemed prejudicial until the contrary is shown. In the Ferderer case the trial court entered the jury room
and gave additional oral instructions in the absence of the court reporter, and in the absence and without
the consent of or notice to the parties or their attorneys. The holding in the Ferderer case is limited to the
mandatory requirement that when any additional information is actually given to the jury after they
have retired for deliberation, such information must be given in the presence of the parties or their
attorneys or only after notice has been given to the parties or their attorneys that such information will
be given at a certain time, in the court room, at which time they may be present. This requirement still is
the law in North Dakota. However, in the case at bar, this particular specication of error is not directed
to additional information which was given to the jury, but, on the contrary, to the failure to give certain
information. Where the court does not honor the juror's request, it has been found not to be error.
Tschosik v. Meier, 110 N.W.2d 97 (N.D. 1961). We believe that in this respect the trial court has
discretionary power to determine whether testimony should be read to the jury. 28-14-19 N.D.C.C. See
50 A.L.R.2d 176. Each case must be decided upon its own facts. The time when the request is made to the
court is important because, before the trial court grants a jury's request for additional information, the
court must give notice to the parties or to their attorneys. In the instant case, the parties and their
attorneys were not present when the jury requested that Scott Bosard's testimony be read to them. The
trial judge notied the attorneys by telephone that he was going to refuse the jury's request, and Leake's
attorney did not object at the time to such refusal. Assuming, without deciding, that the jury was entitled
to have the reporter's minutes of the testimony of Scott Bosard read to them, we cannot agree with Leake
that the failure to have such testimony read constitutes grounds for a reversal of the verdict where Leake
failed to object prior to the rendition of the verdict and the trial court did not furnish the jury with the
additional information requested.
purpose of proving that the facts are as asserted in the statement."[5]
United States v. Zenni, 492 F. Supp. 464 (E.D. Ky. 1980)
On the other hand, not all out-of-court expression is common law hearsay. For instance, an utterance
offered to show the publication of a slander, or that a person *466 was given notice of a fact, or orally
492 F. Supp. 464 (1980)
entered into a contract, is not hearsay.[6]
UNITED STATES of America, Plaintiff, In the instant case, the utterances of the absent declarants are not offered for the truth of the words,[7]
v.
and the mere fact that the words were uttered has no relevance of itself.[8] Rather they are offered to
Albert Charles ZENNI, Jr., et al., Defendants.
show the declarants' belief in a fact sought to be proved. At common law this situation occupied a
controversial no-man's land. It was argued on the one hand that the out-of-court utterance was not
Crim. No. 79-53.
hearsay, because the evidence was not offered for any truth stated in it, but for the truth of some other
United States District Court, E. D. Kentucky, Covington Division. proposition inferred from it. On the other hand, it was also argued that the reasons for excluding hearsay
applied, in that the evidence was being offered to show declarant's belief in the implied proposition, and
July 3, 1980. he was not available to be cross-examined. Thus, the latter argument was that there existed strong policy
reasons for ruling that such utterances were hearsay.
*465 James E. Arehart, Asst. U. S. Atty., Lexington, Ky., for plaintiff.
The classic case, which is discussed in virtually every textbook[9] on evidence, is Wright v. Tatham, 7
F. Dennis Alerding, Stephany Tsanges, Covington, Ky., Harry Hellings, Fort Wright, Ky., Jack
Adolph. & E. 313, 386, 112 Eng.Rep. 488 (Exch. Ch.1837), and 5 Cl. & F. 670, 739, 47 Rev.Rep. 136
Rubenstein, Allan Schwartz, Richard Slukich, R. Michael Murphy, Federal Public Defender, Louis
(H.L.1838). Described as a "celebrated and hard-fought cause,"[10]Wright v. Tatham was a will contest, in
DeFalaise, Thomas C. Smith, Stephen T. McMurtry, Covington, Ky., Dale Schmidt, for defendants.
which the will was sought to be set aside on the grounds of the incompetency of the testator at the time
BERTELSMAN, District Judge. of its execution. The proponents of the will offered to introduce into evidence letters to the testator from
certain absent individuals on various business and social matters. The purpose of the offer was to show
This prosecution for illegal bookmaking activities[1] presents a classic problem in the law of evidence, that the writers of the letters believed the testator was able to make intelligent decisions concerning such
namely, whether implied assertions are hearsay. The problem was a controversial one at common law, matters, and thus was competent.
the discussion of which has lled many pages in the treatises and learned journals.[2] Although the
One of the illustrations advanced in the judicial opinions in Wright v. Tatham is perhaps even more
answer to the problem is clear under the Federal Rules of Evidence, there has been little judicial
famous than the case itself. This is Baron Parke's famous sea captain example. Is it hearsay to offer as
treatment of the matter, and many members of the bar are unfamiliar with the marked departure from
proof of the seaworthiness of a vessel that its captain, after thoroughly inspecting it, embarked on an
the common law the Federal Rules have effected on this issue.
ocean voyage upon it with his family?
The court in Wright v. Tatham held that implied assertions[11] of this kind were hearsay. The rationale, as
FACTS stated by Baron Parke, was as follows:

The relevant facts are simply stated. While conducting a search of the premises of the defendant, Ruby
Humphrey, pursuant to a lawful search warrant which authorized a search for evidence of bookmaking "The conclusion at which I have arrived is, that proof of a particular fact which is not of itself a
activity, government agents answered the telephone several times. The unknown callers stated directions matter in issue, but which is relevant only as implying a statement or opinion of a third person on
for the placing of bets on various sporting events. The government proposes to introduce this evidence the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath
to show that the callers believed that the premises were used in betting operations. The existence of such would be of itself inadmissible; and, therefore, in this case the letters which are offered only to
belief tends to prove that they were so used. The defendants object on the ground of hearsay. prove the competence of the testator, that is the truth of the implied statements therein contained,
were properly rejected, as the mere statement or opinion of the writer would certainly have been
inadmissible."
COMMON LAW BACKGROUND
*467 This was the prevailing common law view,[12] where the hearsay issue was recognized. But
frequently, it was not recognized.[13] Thus, two federal appellate cases involving facts virtually identical
At common law,[3] the hearsay rule applied "only to evidence of out-of-court statements[4] offered for the
to those in the case at bar did not even discuss the hearsay issue, although the evidence admitted in
purpose of proving that the facts are as asserted
http://law.justia.com/cases/federal/district-courts/FSupp/492/464/2309016/ in the statement."[5] 1/8 http://law.justia.com/cases/federal/district-courts/FSupp/492/464/2309016/ 2/8
to those
4/20/2017 in the case at bar did not even discuss the iReader
hearsay issue, although the evidence admitted in 4/20/2017 iReader
them would have been objectionable hearsay under the common law view.[14] testator's sanity. And in the typical `conduct as hearsay' case this assumption will be quite
justiable.

THE FEDERAL RULES OF EVIDENCE
"On this assumption, it is clear that evidence of conduct must be taken as freed from at least one of
the hearsay dangers, i. e., mendacity. A man does not lie to himself. Put otherwise, if in doing what
The common law rule that implied assertions were subject to hearsay treatment was criticized by
he does a man has no intention of asserting the existence or non-existence of a fact, it would
respected commentators for several reasons. A leading work on the Federal Rules of Evidence, referring
appear that the trustworthiness of evidence of this conduct *468 is the same whether he is an
to the hotly debated question whether an implied assertion stands on better ground with respect to the
egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination
hearsay rule than an express assertion, states:
in relation to his veracity or lack of it, would seem to be of no substantial importance. Accordingly,
the usual judicial disposition to equate the ìmplied' to the èxpress' assertion is very
questionable."[16]
"By the time the federal rules were drafted, a number of eminent scholars and revisers had
concluded that it does. Two principal arguments were usually expressed for removing implied The drafters of the Federal Rules agreed with the criticisms of the common law rule that implied
assertions from the scope of the hearsay rule. First, when a person acts in a way consistent with a assertions should be treated as hearsay and expressly abolished it.[17] They did this by providing that no
belief but without intending by his act to communicate that belief, one of the principal reasons for oral or written expression was to be considered as hearsay, unless it was an "assertion" concerning the
the hearsay rule to exclude declarations whose veracity cannot be tested by cross-examination matter sought to be proved and that no nonverbal conduct should be considered as hearsay, unless it
does not apply, because the declarant's sincerity is not then involved. In the second place, the was intended to be an "assertion" concerning said matter.[18] The relevant provisions are:
underlying belief is in some cases self-verifying:

Rule 801. "(a) Statement. A `statement' is (1) an oral or written assertion or (2) nonverbal conduct of
`There is frequently a guarantee of the trustworthiness of the inference to be drawn ... because the a person, if it is intended by him as an assertion.
actor has based his actions on the correctness of his belief, i. e. his actions speak louder than
words.'"[15]
In a frequently cited article the following analysis appears: ******
"But ought the hearsay rule be deemed applicable to evidence of conduct? As McCormick has (c) Hearsay. `Hearsay' is a statement, other than one made by the declarant while testifying at the
observed, the problem `has only once received any adequate discussion in any decided case,' i. e., trial or hearing, offered in evidence to prove the truth of the matter asserted."
in Wright v. Tatham, already referred to. And even in that case the court did not pursue its inquiry

beyond the point of concluding that evidence of an ìmplied' assertion must necessarily be
excluded wherever evidence of an èxpress' assertion would be inadmissible. But as has been Rule 802. "Hearsay is not admissible except as provided by these rules or by other rules prescribed
pointed out more than once (although I nd no judicial recognition of the difference), the ìmplied' by the Supreme Court pursuant to statutory authority or by Act of Congress." (Emphasis added).
assertion is, from the hearsay standpoint, not nearly as vulnerable as an express assertion of the
fact which the evidence is offered to establish. "Assertion" is not dened in the rules, but has the connotation of a forceful or positive declaration.[19]
The Advisory Committee note concerning this problem states:
"This is on the assumption that the conduct was `nonassertive;' that the passers-by had their
umbrellas up for the sake of keeping dry, not for the purpose of telling anyone it was raining; that
the truck driver started up for the sake of resuming his journey, not for the purpose of telling "The denition of `statement' assumes importance because the term is used in the denition of
anyone that the light had changed; that the vicar wrote the letter to the testator for the purpose of hearsay in subdivision (c). The effect of the denition of `statement' is to exclude from the operation of the
settling the dispute with the latter, rather than with any idea of expressing his opinion of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the
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4/20/2017 iReader 371 with conspiracy to (1) conduct an illegal gambling
4/20/2017 iReader business (18 U.S.C. 1955); (2) travel in
denition is that nothing is an assertion unless intended to be one. interstate commerce to facilitate the conducting of an illegal gambling business (18 U.S.C. 1952(a) (1)
(3)) and (3) to use telephones to transmit bets and wagering information. (18 U.S.C. 1084).
In the remaining counts defendants were charged with conducting an illegal gambling business (18
"It can scarcely be doubted that an assertion made in words is intended by the declarant to be an
U.S.C. 1955); using interstate facilities to promote illegal gambling (18 U.S.C. 1952(a) (3)); traveling in
assertion. Hence verbal assertions readily fall into the category of `statement.' Whether nonverbal
interstate commerce to distribute proceeds (18 U.S.C. 1952(a) (1)); and using telephones in interstate
conduct should be regarded as a statement for purposes of dening hearsay requires further
commerce to place bets and wagers (18 U.S.C. 1084). The evidentiary issue is presented by a pre-trial
consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a
motion.
lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement.
Other nonverbal conduct, however, may be offered as evidence that the person acted as he did [2] See e. g., McCormick on Evidence 250 (2d Ed. 1972) [hereinafter McCormick]; Morgan, Basic Problems of
because of his belief in the existence of the condition sought to be proved, from which belief the Evidence (1976); Weinstein's Evidence 801 [hereinafter Weinstein]. Falknor, The "Hear-Say" Rule as a "See-
existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the Do" Rule: Evidence of Conduct, 33 Rocky Mt.L. Rev. 133 (1961) [hereinafter Falknor] contains a particularly
existence of the condition and hence properly includable within the hearsay concept. See Morgan, penetrating and succinct analysis. (See also authorities in note 15, infra.)
"Hearsay Dangers and the Application of *469 the Hearsay Concept," 62 Harv.L.Rev. 177, 214, 217
(1948), and the elaboration in Finman, "Implied Assertions as Hearsay: Some Criticisms of the [3] As used in this opinion the term "common law" refers primarily to case law, as distinguished from the
Uniform Rules of Evidence," 14 Stan.L.Rev. 682 (1962). Admittedly evidence of this character is Federal Rules of Evidence, or other evidence codes.
untested with respect to the perception, memory, and narration (or their equivalents) of the actor,
but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to [4] It should be noted at the outset that the word statement as used in the Federal Rules of Evidence has a
assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the more restricted meaning than as used at common law. F.R.Ev. 801(a). See further discussion below.
possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal
[5] McCormick supra note 2, 250.
conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate
questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of [6] Ibid. at 596-97.
reliance will bear heavily upon the weight to be given the evidence. Falknor, "The `Hear-Say' Rule
as a `See-Do' Rule: Evidence of Conduct," 33 Rocky Mt.L.Rev. 133 (1961). Similar considerations [7] That is, the utterance, "Put $2 to win on Paul Revere in the third at Pimlico," is a direction and not an
govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring assertion of any kind, and therefore can be neither true nor false.
something other than the matter asserted, also excluded from the denition of hearsay by the
language of subdivision (c)." (Emphasis added). [8] Cf. United States v. McLennan, 563 F.2d 943 (9th Cir. 1977), in a criminal case, the defense was advice of
counsel. Statements made by counsel to the defendant were not hearsay, because it was relevant what
This court, therefore, holds that, "Subdivision (a) (2) of Rule 801 removes implied assertions from the the advice was. Of a similar nature would be a policeman's statement, "Go through the stop sign," if it
denition of statement and consequently from the operation of the hearsay rule."[20] were illegal to go through it unless directed by an ofcer. Other examples of expression admissible as
non-hearsay, because they are verbal acts, relevant merely because they occurred, are "I agree" offered to
Applying the principles discussed above to the case at bar, this court holds that the utterances of the show a contract was made; or "He took a bribe," offered to show a slander was published.
betters telephoning in their bets were nonassertive verbal conduct, offered as relevant for an implied
assertion to be inferred from them, namely that bets could be placed at the premises being telephoned. [9] See e. g. Morgan, Basic Problems of Evidence, 227-28 (1976); 2 Wigmore Evidence 267. McCormick, supra
The language is not an assertion on its face, and it is obvious these persons did not intend to make an note 2, 250 (2d Ed. 1972).
assertion about the fact sought to be proved or anything else.[21]
[10] McCormick, supra note 2, 250. This case "entailed no less than four separate trials, hundreds of
As an implied assertion, the proffered evidence is expressly excluded from the operation of the hearsay pages of published transcript, numerous appeals, vast amounts of money, and the participation of most
rule by Rule 801 of the Federal Rules of Evidence, and the objection thereto must be overruled. An order of England's high judiciary, before it was nally concluded in 1838." Weinstein, supra note 2, 801(a)[01]
to that effect has previously been entered. at 801-54.
[11] The problem is the same whether the relevant assertion is implied from verbal expression, such as
NOTES
that of the betters in the instant case or the letter writers in Wright, or from conduct, as in the sea captain
example. See F.R.Ev. 801(a); Falknor, supra note 2, at 134.
[1] Eleven defendants were charged in a ve-count indictment, with violations of the Travel Act, in that
they conducted an illegal gambling business. In the rst count, defendants were charged under 18 U.S.C. [12] Falknor, supra note 2, at 133.
371 with conspiracy to (1) conduct an illegal gambling business (18 U.S.C. 1955); (2) travel in
http://goo.gl/ffgS
[13] McCormick, supra note 2, 250 at 598; Weinstein, supra note 2, 801(a)[02] at 801-57.
[14] Reynolds v. United States, 225 F.2d 123 (5th Cir. 1955); Billeci v. United States, 184 F.2d 394
(D.C.Cir.1950). See Weinstein 801(a)[02] at 801-57 801-58.
[15] Weinstein 801(a)[01], at 801-55. See also Morgan, Hearsay, 25 Miss.L.J. 1, 8 (1953); Maguire, The
Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741 (1961); McCormick, The Borderland of
Hearsay, 39 Yale L.J. 489 (1930); Falknor, supra note 2 at 133.
[16] Falknor, supra note 2, at 136. The context makes clear that the author would apply the same analysis
"where the conduct, although `verbal,' is relevant, not as tending to prove the truth of what was said, but
circumstantially, that is, as manifesting a belief in the existence of the fact the evidence is offered to
prove." Id. at 134.
[17] See Weinstein, 801(a)[01] at 801-55 801-56; Lewis, Federal Rules of Evidence, 6.5 (Ill.Inst. for
C.L.E.1977).
[18] See the sea captain illustration discussed, supra. In an unpublished ruling this court recently held
admissible as non-hearsay the fact that a U.S. mining inspector ate his lunch in an area in a coal mine
now alleged to have been unsafe, and that other inspectors who observed operations prior to a
disastrous explosion issued no citations, when it would have been their duty to do so, if there had been
safety violations. These non-assertive acts would have been hearsay under the rule of Wright v. Tatham
but are not hearsay under Rule 801 of the Federal Rules of Evidence, because the inspectors did not
intend to make assertions under the circumstances. Boggs v. Blue Diamond Coal Company (E.D.Ky. No. 77-
69, Pikeville Division).
[19] Random House Dictionary of the English Language (1969 Ed.)
[20] Weinstein, 801(a)[01] at 801-56; McCormick 250 at 599.
[21] A somewhat different type of analysis would be required by words non-assertive in form, but which
under the circumstances might be intended as an assertion. For example, an inspector at an airport
security station might run a metal detector over a passenger and say "go on through." In the absence of
the inspector, would testimony of this event be objectionable hearsay, if offered for the proposition that
the passenger did not have a gun on him at that time? Although Rule 801(a) does not seem to require a
preliminary determination by the trial court whether verbal conduct is intended as an assertion, it is
submitted that such a determination would be required in the example given. If an assertion were
intended the evidence would be excluded. If not, it would be admissible. This result is implicit in the
policy of the drafters of the Federal Rules of Evidence that the touchstone for hearsay is the intention to
make an assertion. See S. Saltzburg and K. Redden, Federal Rules of Evidence Manual 456 (2d ed. 1977).
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Evidence Session 11 (Part 2)

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4/20/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 037 4/20/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 037

corroborated by other persons mentioned by the accused but they

344 SUPREME COURT REPORTS ANNOTATED

346 SUPREME COURT REPORTS ANNOTATED

by another who uses his own language in writing the

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The facts are stated in the opinion of the Court.

People vs. Cusi, Jr. People vs. Cusi, Jr.

the names of the accused who had interposed the objection.

record is merely to establish the fact that the statement

VOL. 14, AUGUST 14, 1965 947

PREMISES CONSIDERED, the writ is granted. The writ

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,

Copyright 2017 Central Book Supply, Inc. All rights reserved.

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consistent with each other, consistent with the hypothesis that

650 SUPREME COURT REPORTS ANNOTATED 651

People vs. Gaddi

652 SUPREME COURT REPORTS ANNOTATED

652 SUPREME COURT REPORTS ANNOTATED

People vs. Gaddi People vs. Gaddi

SO ORDERED. [Rollo, p. 31.]

People vs. Gaddi People vs. Gaddi

rated to him that Bong Kuleleng (Augusto Esguerra) held his

Tribunal had previously declared that a confession

that he stabbed his drinking companion and that

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VOL. 170, FEBRUARY 27, 1989 659

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However, in the absence of proof as to how the victim was

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IN THE SUPREME COURT

Copyright 2017 Central Book Supply, Inc. All rights reserved.

STATE OF NORTH DAKOTA

Allen Leake, Plaintiff and appellant

Civil No. 8569

[175 N.W.2d 678]

Syllabus of the Court

[175 N.W.2d 679]

Civil No. 8569 c. The court erred in instructing the jury;

d. The court erred in refusing to give the plaintiff's requested instructions.

https://www.ndcourts.gov/court/opinions/8569.htm 10/17 Leake contends that since the

Leake's Requested Instruction No. 16 reads as follows: [175 N.W.2d 689]

[175 N.W.2d 692]

In a frequently cited article the following analysis appears: ******

The Advisory Committee note concerning this problem states:

[19] Random House Dictionary of the English Language (1969 Ed.)

[20] Weinstein, 801(a)[01] at 801-56; McCormick 250 at 599.

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