G.R. No.

L-10396            July 29, 1915

THE UNITED STATES, plaintiff-appellee, 

vs.
TERESA CONCEPCION, defendant-appellant.

M. Jesus Cuenco for appellant.

Attorney-General Avanceña for appellee.

JOHNSON, J.:

The defendant was charged with a violation of the Opium Law. The complaint alleged that she had in her
possession and under her control a quantity of opium. She was arrested, arraigned, pleaded not guilty, tried,
found guilty, and sentenced to pay a fine of P300 and costs.

From that sentence she appealed to this court. In this court she alleges that the lower court committed several
errors, both of law and of fact. Upon the question of fact, she alleges that the lower court committed an error in
deciding that the evidence adduced during the trial of the cause was sufficient to show that she was guilty of
the crime charged beyond a reasonable doubt.

Upon that question the Attorney-General, in a carefully prepared brief in which he analyzes the proof, reaches
the conclusion that the facts are insufficient to show that she is guilty of the crime charged.

It appears from the evidence that on the night of the 2nd of December, 1913, several policemen went to the
house of the defendant, where she was living with her husband, Felix Ricablanca. Upon arriving there, they
obtained permission to enter and immediately proceeded to make a search of the premises for opium. While
there is some dispute concerning the fact, we believe the proof shows that the defendant, during the time the
policemen were searching the house, went to a bed located in the house, after being so ordered by her
husband, and took from beneath a pillow a small can of opium, said to contain about 7½ grams of opium, and
attempted to throw it away. At that moment the policemen took possession of the can. There is some conflict in
the proof as to just what took place at that moment. That the policemen inquired to whom the opium belonged
is not denied. The conflict arises in the answer which was given to that question. The defendant in the present
case, according to some of the witnesses, declared that it belonged to her. Her husband, Felix Ricablanca,
according to some witnesses, declared that he was the owner of the house and was responsible for everything
that was found within it. The policemen, at that moment, evidently believed that the opium belonged to the
husband, Felix Ricablanca, for the reason that they arrested him and took him to the pueblo, and later filed a
complaint against him for a violation of the Opium Law .He was later brought to trial and was acquitted.

No complaint was presented against the present defendant until after a period of more than ten months had
elapsed. The policemen who were present at the time the opium was found certainly knew no more about the
facts at the time the complaint was presented against the present defendant than they did on the night when
the opium was found and when they arrested her husband. The fact that the defendant took the opium from
under the pillow on the bed, at the request of her husband, seems to us to be entirely supported by the proof.
Her husband was a confirmed user of opium. He admitted that he was in the habit of smoking opium. That the
defendant was temporarily in possession of the opium is not denied, even by her. That her possession was
such a possession as is prohibited by the law, she strongly denies. The mere fact that she had in her
possession the opium for but a moment and took possession of it under her husband's order, is not, in our
opinion, such a possession of opium as is intended to be condemned by the law. She certainly did not intend,
even remotely, to have in her possession opium. She did exactly what any other faithful wife would have done
under similar circumstances. There is no proof that she was a user of opium in any form. There is no proof that
she knew that the can contained opium and consequently there is no proof of the animus possidendi. In the
absence of such proof there can be no conviction under the complaint for the illegal possession of opium.

The appellant makes another assignment of error which presents an important question of law. She alleges
that the lower court committed an error in permitting the testimony of her husband to be presented against her
over her objection. She alleges that the admission of that testimony was in violation of paragraph 3 of section
383 of the Code of Civil Procedure in Civil Actions. Said paragraph provides: "A husband can not be examined
for or against her husband without his consent; nor a wife for or against her husband without her consent; nor
can either, during the marriage or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during the marriage; but this exception does not apply to a civil action
or proceeding by one against the other, or to a criminal action or proceeding for a crime committed by one
against the other."

It will be noted that said action prohibits a husband from giving testimony against his wife without her consent,
except in a civil action between husband and wife, and in a criminal action when the crime was committed by
one against the other. The present is not a civil action between husband and wife, neither it is a criminal action
where the crime was committed by one against the other. It would seem to clear, therefore, that the testimony
of the husband is not admissible if the wife objected. The testimony of the husband should not have been
admitted.

There still another objection to the admissibility of the testimony of the husband. His testimony was not given in
the present case. It was a copy of his declaration given in another case, in which he was the defendant and in
which he was charged with the illegal possession of the opium in question. It will be remembered that at the
time the opium was found in the house of the defendant, the husband of the present defendant was arrested;
that later a complaint was presented against him. During the trial he testified in his own behalf. It was the
testimony given in that case which was presented as proof in the present case. He was not called as a witness.
His testimony is not only not admissible under the provisions above quoted of section 383, but it is not
admissible under the Philippine Bill, which provides: "In all criminal prosecutions the accused shall enjoy the
right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to compel
the attendance of witnesses in his behalf."

The defendant was not given an opportunity "to meet the witness face to face." The acceptance of the
testimony of her husband, given in another case, was in absolute violation of her rights and in direct
contravention of the law .The presentation and acceptance of the testimony of the husband violated two well-
recognized rules of law — first, paragraph 3 of section 383 of Act No. 190, and [second], paragraph 2 of section
5 of the Act of Congress of July 1, 1902.

At the common law the rule was that husband and wife could not testify for or against each other in any criminal
proceedings, except in the prosecution of one for criminal injury to the other. The common-law rule has been
adopted in practically all of the States of the United States. The rule is based upon considerations of public
policy growing out of the marital relation. To allow one to testify for or against the other would be to subject him
or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital
relation. The cases supporting the rule are innumerable.

For the foregoing reasons, the sentence of conviction must be revoked, and it is hereby ordered and decreed
that the complaint be dismissed and the defendant discharged from the custody of the law, with costs de oficio.
So ordered.

G.R. No. L-568             July 16, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
JUAN FRANCISCO, defendant-appellant.

Augusto Kalaw for appellant.

Assistant Solicitor General Roberto A. Gianzon and Acting Solicitor Isidro C. Borromeo for appellee.

HILADO, J.:

Convicted of the crime of parricide by the Court of First Instance of Mindoro, Juan Francisco appeals to this
Court and asks us to reverse the decision of the trial court and to acquit him of the crime charged.
On March 4, 1945, defendant, who had been previously arrested on charges of robbery, was being held as
detention prisoner in the municipal jail of Mansalay, Mindoro. On that date he requested permission from the
chief of police, and he was allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard him.
Upon their reaching the house, the sergeant allowed the prisoner to see his wife who was at the time in a room
of said house, while said sergeant remained at the foot of the stairs. After a few moments, Pimentel heard the
scream of a woman. Running upstairs, he met defendant's wife running out of the room and holding her right
breast which was bleeding. Still moments later, Pimentel saw defendant lying down with his little son Romeo,
aged one year and a half, on his breast. Pimentel also found defendant to have a wound in his belly while his
child had a wound in the back. Pimentel found the child dead.

The prosecution, in recommending the imposition of the capital penalty upon the accused, relies mainly on: (1)
the affidavit, Exhibit C (translation, Exhibit C-1), which is a virtual confession of the accused; (2) Exhibit D,
which is the record made by the justice of the peace of Mansalay of the arraignment of the defendant upon
which the latter entered a plea of guilty; and (3) the rebuttal testimony of Emilia Taladtad, wife of the appellant.

Exhibit C is an affidavit signed and sworn to by the appellant before the justice of the peace of Mansalay on
March 5, 1945,. Exhibit C-1 is its English translation. In said affidavit appellant declares that: "I asked
permission from the chief of police so that I may be able to raise my bond and to indicate to me the house of
one Guillermo Gervasio, a policeman, and I was consented and the sergeant of police accompanied me to my
house; that upon arriving at the house, Sgt. Pacifico Pimentel allowed me to go up in order that I may be able
to talk to my wife and the sergeant of police awaited me in the stairs of the house; when I was in the house, I
remembered what my uncle told me to the effect that he would order someone to kill me because I am a shame
and a dishonor to our family and suddenly I lost my sense and I thought to myself that if someone would kill me
it would be more preferable for me to kill myself; when I looked at the bed I saw a scissor near my wife and
unconsciously I picked up the said scissor and immediately stabbed my wife whereupon I looked for my child
on the bed and stabbed him; I killed my son Romeo Francisco whose age is more or less two years and after
that I stabbed myself; after stabbing myself, I heard a shot and the sergeant of police asked me if I would
surrender to him or not; I replied him "yes" then I lost my consciousness."

Sergeant of Police Pimentel, whose veracity we find in the evidence no reason to doubt, declared (p. 6, t.s.n.,
Lunar) that the accused confessed to him that because he was already tired or disgusted with his life "on
account of the accusation of his father-in-law" against him, he wanted to wipe out his family by stabbing his
wife, his son and himself, and killing the three of them. The same witness also stated (p. 9, ibid.) that the
accused confessed to him that he stabbed his wife, his child and himself because he was ashamed, as his
father-in-law told him that he should rather die than live in shame for having dishonored the family of his wife.

The voluntariness and spontaniety of the confession contained in Exhibit C was testified to by the justice of the
peace of Mansalay and police sergeant Pimentel, one Sebastian Punzalan, and the chief of police Alfredo
Iwahi; that said justice of the peace had previously read the contents of the same affidavit to the accused and
that the accused signed without any intimidation having been exerted in the presence of said justice of the
peace; that the accused signed voluntarily in the session hall of the justice of the peace court in Barrio
Paclasan (pp. 26-27, ibid.) Pimentel testified, upon the same point, that no force was exerted upon appellant to
state what is contained in the affidavit; that he had not maltreated or boxed the accused as pretended by the
latter; that the contents of the exhibit were read to the accused; that he did not threatened the accused to shoot
the latter if he would not swear to Exhibit C before the justice of the peace, as declared by said accused (pp.
25-26, ibid.) In this connection we note from the testimony of the accused himself that on the way to the house
of the justice of the peace after the incident, he was being helped by the chief of police Iwahi when, according
to him, Sergeant Pimentel told him that he was going to swear to the contents of Exhibit C and that if he would
not do so Pimentel would shoot him (p. 17, ibid.); that (the same accused assured the court) Iwahi treated him
well (t.s.n., p. 20, ibid.); and really from the entire testimony of this accused the good treatment accorded him
by Chief of Police Iwahi is clearly discernible. He was under preventive detention in the house of Iwahi and it
was Iwahi who suggested or told him, after he had killed and dressed the former's pig, that he bring a kilo of the
meat to his (appellant's) wife (p. 13, ibid.) It was also Iwahi who allowed him to go to his house on the same
occasion for the purposes of the procurement of his bail (p. 13, ibid.).

Under these circumstances, besides the complete absence of proof of any reason or motive why Pimentel
should so threaten the accused, we find the accused's version incredible. On page 16 of the same transcript,
answering a question by the Court of First Instance, the accused testified that he understands English and the
translation Exhibit C-1 of the affidavit Exhibit C is in that language.

Other indications of appellant's lack of trustworthiness are: While on page 14 of said transcript he testified that
he was the only one who went to the house of his wife because Pimentel, according to him, remained in the
house of Roberto Magramo, on page 13 he declared that he was accompanied by the sergeant of police of
Mansalay, Pacifico Pimentel to the house of his wife and that the chief of police ordered Pimentel to so
accompany him. Contradicting the same pretension of his having gone alone to his wife's house is his own
testimony on page 17 of the transcript wherein he assured affirmatively the question of his own counsel
whether Pimentel was the policeman who was with him to guard him on the occasion of his going to his wife's
house; and really, while he imputed upon his wife the wounding of their child, who died as a consequence
thereof, he admitted that he did not tell this to the justice of the peace of Mansalay (p. 18, ibid.), and the reason
he assigned for this passive conduct on his part to the effect that he was afraid of Pimentel (p. 19, ibid.) is
patently unacceptable, for no motive whatsoever has been established to make us believe that the accused
had reasons to be so afraid of Pimentel. Appellant's testimony to the effect that Pacifico Pimentel was testifying
against him because Pimentel "being my guard that time he might be held responsible for allowing me to go
alone" (p. 17, ibid.) is absolutely without merit. This testimony clearly reveals a desire to show that because
Pimentel allowed the accused to go up the house while the former stayed at the foot of the stairs, said Pimentel
would be responsible for what had happened unless the accused was the one who killed the child and
wounded his wife rather than the wife having accidentally wounded the child and killed him and been stabbed
by the accused, who also stabbed himself. As we said a moment ago, we do not give any merit to this purpose
in testifying against the accused to relieve himself of all responsibility for what had happened, it would have
been more conducive to this result if Pimentel had testified that it was not the accused, whom he had allowed
to go upstairs unguarded, who was guilty, but his wife, of the wounding of the child, and that the accused
wounded his wife only as the result of the obfuscation produced by the child's death. And the fact that Pimentel
gave the version which might place no small blame on him for allowing the accused to go up the house alone,
gives special weight to his testimony.

This case, as developed by the evidence for the prosecution, which has not been destroyed nor enervated by
that of the defense, presents a truly strange happening. But the fact of the commission of the crime of parricide
appears to us to have been established beyond reasonable doubt. As to the reasons impelling the commission
of the act, the case is a strange one and admittedly not common. But while it is not necessary even to prove
motive in case the commission of the crime is established as required by law (U.S. vs. Ricafor, 1 Phil., 173;
U.S. vs. McMann, 4 Phil., 561; U.S. vs. Reyes, 18 Phil., 495; U.S. vs. Balmori and Apostol, 18 Phil., 578), here
we have a case of a crime proven beyond reasonable doubt, not absolutely without a proven motive, but with
proof of a motive testified to by the accused himself in his confession, strange though it be. But at times "truth
is stranger than fiction," and it so happens here. The law must be applied to the facts.

We have scanned and searched the evidence and the record diligently for facts and circumstances which might
sufficiently establish insanity or any allied defense, but we have failed to find them.

As we construe the evidence, we believe that Exhibit C contains the truth, as narrated by the accused himself
who, at the time of making it, must have been moved only by the determination of a repentant father and
husband to acknowledge his guilt for facts which, though perhaps done under circumstances productive of a
diminution of the exercise of will-power, fell short of depriving the offender of consciousness of his acts. We will
have occasion to further consider this aspect of the case later.

Exhibit C was signed and sworn to by appellant the day following the fatal event. Presumably, on making this
confession appellant had not yet had time to reflect upon the consequences of such a confession to himself —
egoism was not yet allowed to operate against the promptings of his conscience. But when on February 23,
1946 — almost one year after — this man testified in his own defense in the Court of First Instance, he already
had had ample opportunity to reflect upon those consequences. And what happened? As in similar cases, he
repudiated his confession, and alleged torture and violence to have been exerted upon his person and his mind
in order, so he now pretends, to extract it from him. As we find the confession to have been given voluntarily,
we feel justified in concluding that its subsequent repudiation by the accused almost a year after must have
been due to his fear of its consequences to himself, which he not improbably thought might cost him his own
life. It was the struggle between the noble and the ignoble in the man, and the latter, aided by instinct of self-
preservation, won.
Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason that the statements
contained therein were not, counsel contends, given spontaneously but through use of violence and
intimidation. He also questions the admissibility of Exhibit D on the ground that it has not been properly
identified; and, with more vigor and stronger emphasis, he impugns the admissibility of the testimony of
appellant's wife, invoking the provision of section 26 (d) of Rule 123 prohibiting the wife and the husband from
testifying for or against each other.

As to Exhibit C, this document was sworn to and subscribed by said accused before the justice of the peace of
Mansalay. This official testified that he asked the prisoner before the latter signed said exhibit whether he
understood the contents thereof, and that said latter answered in the affirmative. The witness further declared
that appellant signed the exhibit voluntarily and that said appellant said that the said affidavit was his (p.
10, ibid.). There is a total absence of evidence, besides the testimony of appellant himself, to show that his
statements contained in said exhibit were extracted form him by the use of violence and intimidation. While we
are not unaware of the practice resorted to by some peace officers of extracting admissions or confessions
from persons accused of crime by the employment of third-degree methods, in the present case we fail to find
from the evidence sufficient proof to destroy the categorical testimony of the justice of the peace that Exhibit C
was signed by appellant voluntarily and with a full understanding thereof. Furthermore, the statements of
appellant in said Exhibit C were corroborated by the testimony of his wife on rebuttal. This leads us to the
consideration of the admissibility of the wife's testimony.

The rule contained in section 265 (d) of Rule 123 is an old one. Courts and text-writers on the subject have
assigned as reasons therefor the following: First, identity of interest; second, the consequent danger of perjury;
third, the policy of the law which deems it necessary to guard the security and confidences of private life even
at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead
to domestic disunion and unhappiness; and fourth, because where a want of domestic tranquility exists, there is
danger of punishing one spouse through the hostile testimony of the other. This has been said in the case of
Cargill vs. State (220 Pac., 64; 25 Okl. Cr., 314; 35 A.L.R., 133), thus:

The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a
witness against the other except in a criminal prosecution for a crime committed by one against the
other have been stated thus: First, identity of interests; second, the consequent danger of perjury;
third, the policy of the law which deems it necessary to guard the security and confidences of private
life even at the risk of an occasional failure of justice, and which rejects such evidence because its
admission would lead to domestic disunion and unhappiness; and fourth, because, where a want of
domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of
the other. (70 C.J., 119.)

However, as all other general rules, this one has its own exceptions, both in civil actions between the spouses
and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are
backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility of interests disappears and the consequent danger of perjury based on that
identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law
aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy
home.

At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but under
circumstances presently to be stated. It will be noted that the wife only testified against her husband after the
latter, testifying in his own defense, imputed upon her the killing of their son. (p. 15, ibid.) By all rules of justice
and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a witness
against her husband, the right to do so, as it did in rebuttal; and the the wife herself the right to so testify, at
least, in self-defense, not of course, against being subjected to punishment in that case in which she was not a
defendant but against any or all of various possible consequences which might flow from her silence, namely:
(1) a criminal prosecution against her which might be instituted by the corresponding authorities upon the basis
of her husband's aforesaid testimony; (2) in the moral and social sense, her being believed by those who heard
the testimony orally given, as well as by those who may read the same, once put in writing, to be the killer of
her infant child. It has been aptly said that the law of evidence is the law of common sense. Presuming the
husband who so testified against his wife to be endowed with common sense, he must be taken to have
expected that the most natural reaction which the said testimony would give rise to on the part of the
prosecution, as well as of his wife, was to deny upon rebuttal the new matter which was involved in the same
testimony, namely, the imputation that it was his wife who killed their little son. Upon the part of the prosecution,
because he not only limited himself to denying that he was the killer, but went further and added what was
really a new matter  consisting in the imputation of the crime upon his wife. And upon the part of the wife,
because of the reasons already set forth above. Hence, in giving such testimony, the husband must, in all
fairness, be held to have intended all its aforesaid natural and necessary consequences. By his said act, the
husband — himself exercising the very right which he would deny to his wife upon the ground of their marital
relations — must be taken to have waived all objection to the latter's testimony upon rebuttal, even considering
that such objection would have been available at the outset.

At this point, it behooves us to emphasize the all-important role of the State in this case. The State being
interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated,
must have the right to offer the rebutting testimony in question, even against the objection of the
accused, because it was the latter himself who gave rise to its necessity. It may be said that the accused
husband thought that he would have more chances of convincing the court of his pretended innocence if he
pointed to his wife as having caused the death of their child, instead of simply denying that he was the author of
the fatal act. To this we would counter by saying that if he was to be allowed, for his convenience, to make his
choice and thereby impute the act upon his spouse, justice would be partial and one-sided if both the State and
the wife were to be absolutely precluded from introducing the latter's rebutting testimony.

As well-settled as this rule of marital incompetency itself is the other that it may be waived.

Waiver of incompetency. — Objections to the competency of a husband or wife to testify in a criminal

prosecution against the other may be waived as in the case of the other witnesses generally. Thus, the
accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby
making the spouse subject to cross-examination in the usual manner. It is well-established that where
an accused introduces his wife as a witness in his behalf, the state is entitled to question her as to all
matters germane and pertinent to her testimony on direct examination. It is also true that objection to
the spouse's competency must be made when he or she is first offered as witness, and that the
incompetency may be waived by the failure of the accused to make timely objection to the admission
of the spouse's testimony, although knowing of such incompetency, and the testimony admitted,
especially if the accused has assented to the admission, either expressly or impliedly. Other courts
have held that the witness's testimony is not admissible even with the other spouse's consent. Clearly,
if the statute provides that a spouse shall in no case testify against the other except in a prosecution
for an offense against the other, the failure of the accused to object does not enable the state to use
the spouse as a witness. (3 Wharton's Criminal Evidence, 11th Ed., section 1205, pp. 2060-2061.)

Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to section 1149 appearing on page
1988 of the same volume, dealing with waiver objection to incompetency of witnesses in general. We transcribe
this section for convenient reference:

Waiver of objection to incompetency. — A party may waive his objection to the competency of a
witness and permit him to testify. A party calling an incompetent witness as his own waives the
incompetency. Also, if, after such incompetency appears, there is failure to make timely objection, by a
party having knowledge of the incompetency, the objection will be deemed waived, whether it is on the
ground of want of mental capacity or for some other reason. If the objection could have been taken
during the trial, a new trial will be refused and the objection will not be available on writ of error. If,
however, the objection of a party is overruled and the ruling has been excepted to, the party may
thereafter examine the witness upon the matters as to which he was allowed to testify to without
waiving his objections to the witness's competency. (Ibid., section 1149, p. 1988.)

It will be noted, as was to be expected, that in the last above-quoted section, the author mentions certain
specific cases where the courts concerned hold that there was waiver, but for obvious reasons neither the
author nor said courts have attempted to make an enumeration of all possible cases of waiver. In the very
nature of things, it would be impossible to make a priori such a complete enumeration and to say that it is
exclusive. So long as the Legislature itself does not make its own statutory and exclusive specification of cases
of such waiver — and we doubt that it ever will — no complete and exclusive enumeration can, nor should, be
attempted by the courts, for in the absence of such legislation the cases of waiver will be as indefinite in
number as indefinite are and always will be the varying and unpredictable circumstances surrounding each
particular case.

To illustrate, Mr. Wharton says above that the accused waives his or her privilege by calling the other spouse
as a witness for him or her, thereby making the spouse subject to cross-examination in the usual manner, the
reason being that the State is  entitled  to question the spouse so presented as to all matters germane and
pertinent to the direct testimony. In the same way, and for a similar reason, when the herein appellant gave his
testimony in question in his defense, the State had the right to rebut the new matter contained in that testimony
consisting in the imputation upon his wife of the death of the little boy. And that rebuttal evidence, which was
rendered necessary byappellant's own testimony,  could be furnished only by his wife who, as he fully knew,
was  alone  with him and their son at the precise place and time of the event. This right to rebut is secured to the
State, no less than to the accused, by Rule 115, section 3, paragraph (c), the provision further authorizing the
court, in furtherance of justice, to permit one or the other party to offer "new additional evidence bearing upon
the main issue in question." So that if the waiver that we here declare to flow from the above-mentioned
testimony of appellant does not happen to be among those which were mentioned in the cases cited by Mr.
Wharton, that is no reason against the existence of said waiver.

When the husband testified that it was his wife who caused the death of their son, he could not, let us repeat,
justly expect the State to keep silent and refrain from rebutting such new matter in his testimony, through
the  only  witness available, namely, the wife; nor could he legitimately seal his wife's lips and thus gravely
expose her to the danger of criminal proceedings against her being started by the authorities upon the strength
and basis of said testimony of her husband, or to bear the moral and social stigma of being thought, believed,
or even just suspected, to be the killer of her own offspring. A decent respect and considerate regard for the
feelings of an average mother will tell us that such a moral and social stigma would be no less injurious to her
than a criminal punishment. And if the wife should, in such a case and at such a juncture, be allowed to testify
upon rebuttal, the scope of her testimony should at least be the same as that of her husband. This is only
simple justice and fairness dictated by common sense. Since the husband had testified that it was his wife who
caused the death of the little boy, she should be allowed to say that it was really her husband who did it. We
hold that it is not necessary, to justify such rebuttal evidence, and to declare the existence of the waiver upon
which it was based, that the wife be in jeopardy of punishment  in the same case  by reason of such testimony
of her accused husband. The rule of waiver of objection to the competency of witnesses generally does not
require this prerequisite in the case between husband and wife. Rather the rule makes the determination of the
question hinge around the consequences which by common sense, in justice and in fairness, should be
deemed to have been expected by the spouse who first testified naturally to flow from his act of giving that
testimony. At any rate, the trial court not only had the power to allow the State to utilize the wife as rebuttal
witness, but also the discretion to permit "new additional evidence bearing upon the main issue in question."
But even restricting the wife's testimony to merely contradicting her husband's version that she was the one
who killed their child, there is evidence beyond reasonable doubt that appellant was the killer. With the
testimony of both spouses upon the point, instead of that of the accused alone, let justice take its course.

As to Exhibit D, this document was a part of the record of the case in the justice of the peace of court which
was expressly presented by the prosecution as evidence in the Court of First Instance.

But after all has been said and done, in justice to the accused, we believe that, whether we are dealing with a
simpleton or an eccentric, or we have here one of those well-nigh inexplicable phenomena in human conduct
where the judge finds himself at a loss to discover an adequate motivation for the proven acts of the accused,
— indulging all reasonable intendments in favor of appellant, we are of opinion that when he committed the
crime charged against him he must have been suffering from some illness (of the body, the mind, the nerves,
or the moral faculty) as is contemplated in paragraph 9 of article 13 of the Revised Penal Code as a mitigating
circumstance, namely, "such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of consciousness of his acts."

Article 246 of the Revised Penal Code punishes parricide by the penalty of reclusion perpetua to death. Article
63, paragraph 3, of the same code, provides that when the commission of the act is attended by some
mitigating circumstance and there is no aggravating circumstance, and the law prescribes a penalty composed
of two indivisible penalties, the lesser penalty shall be applied; in this case, in view of the above indicated
circumstance and there being no aggravating circumstance, the lesser penalty is reclusion perpetua, which was
the penalty correctly applied by the trial court, which penalty, of course, carries with it the accessory penalties
provided for in article 41 of the said Code. The accused should also be sentenced to indemnify the heirs of the
deceased Romeo Francisco in the sum of P2,000, and to pay the costs.

As above modified, the appealed judgment is affirmed, with costs against appellant. So ordered.

Moran, C.J., Paras, Perfecto, Bengzon, and Tuason, JJ., concur.

Briones J., concurs in the result.

PADILLA, J.:

I concur in the result. To my mind the evidence is sufficient to support the judgment of conviction without taking
into consideration the testimony of the appellant's wife in rebuttal. I agree with Mr. Justice Feria in his dissent
that she is incompetent to testify against the appellant, her husband, there being an objection to her testifying
against him.

Separate Opinions

PABLO, M., concurrente y disidente:

Concurro con la opinion de la mayoria en cuanto condena al acusado. En mi opinion aun sin tener en cuenta la
declaracion de la esposa del acusado en contra-pruebas, obra en autos concluyente prueba que establece la
culpabilidad del acusado.

En cuanto a la interpretacion de la Regla 123, articulo 26, seccion (d), concurro con la disidencia del
Magistrado Sr. Feria. La declaracion de la esposa debe ser excluida como prueba contra el acusado, por
inadmissible.

FERIA, J., dissenting:

Without necessity of discussing the merits of the case and deciding whether the appellant's conviction by the
Court of First Instance must be affirmed or reversed, for the majority has decided to affirm it and it would be
useless now for the undersigned to dissent from or concur in the conviction of the appellant, we dissent from
the new theory enunciated in the majority opinion that the appellant's testimony to the effect that his wife was
the one who unintentionally inflicted the wound which caused the death of the child, capacitated his wife to
testify as a witness on rebuttal against her husband, and "constituted a waiver of all objections to her
testimony."

The pertinent portion of the majority decision reads as follows:

"The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be
a witness against the other except in a criminal prosecution for a crime committed by one against the
other have been stated thus: First, identity of interests, second, the consequent danger of perjury;
third, the policy of the law which deems it necessary to guard the security and confidences of private
life even at the risk of an occasional failure of justice, and which rejects such evidence because its
admission would lead to domestic disunion and unhappiness; and fourth, because, where a want of
domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of
the other. (70 C.J., 119)"
 However, as all other general rules, this one has its own exceptions, both in civil actions between the
spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of
the general rule. For instance, where the marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based
upon such harmony and tranquility fails. In such case identity of interests disappears and the
consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the
security and confidences of private life which the law aims at protecting will be nothing but ideals
which, through their absence, merely leave a void in the unhappy home."

The new theory of the majority is evidently untenable for it is predicated upon the incorrect premise or
assumption that the abovementioned reasons or grounds of the incapacity of one of the spouses to testify
against the other in a proceeding in which the latter is a party, are also applicable to testimony of one spouse
against the other who is not a party to the cause which it is offered or given, as in the present case. This
premise or assumption is incorrect, for said reasons do not apply to the latter case. Were it applicable, the law
would have also disqualified one spouse to give testimony which in any way disparages or disfavor the other
although the latter is not a party to the cause; but the law does not so. The prohibition contained in section 26
(d) of Rule 123 only relates to cases in which the testimony of a spouse is offered for or against the other in a
proceeding to which the latter is a party (U.S. vs.Concepcion, 31 Phil., 182; People vs. Natividad, 70 Phil.,
315). And the reason is obvious. Although the testimony of the husband against his wife who is not a party to
the case is admissible; yet, as said testimony can not be used as evidence against the wife in a civil case or
criminal prosecution against her, it would not effectively strain the marital and domestic relations; lead to
domestic disunion and unhappiness; disturb the peace, harmony, and tranquility of the family, and destroy the
identity of interest.

Such testimony, far from producing said results, might have a different effect. Where one of the spouses
testifies in his defense that the other spouse, who is not a party to the case, is the one who committed the
crime charged, his testimony, if believed by the court, would result in the acquittal and release of the defendant
spouse and enable the accused, if confined in prison, to join again his spouse, without placing the latter in
danger of being prosecuted and convicted by his testimony. In the present case, the testimony of the appellant
does not require any rebuttal by his wife, because, according to the clear provisions of law, the latter can not
testify against her husband appellant, and the courts should take into consideration in determining the
probative force of such a testimony. And it does not call for a denial by the wife in herself or own defense,
because it can not be used or admitted without her consent as evidence in a criminal case instituted against
her for her son's death.

Under the new theory of the majority, the prosecutor of one spouse who, in order to free himself from liability as
defendant in a criminal case would testify, as the appellant has testified, that his other spouse who is not a
party to the case is responsible for their child's death, may take advantage of such testimony to induce that
other spouse to testify in her defense according to the prosecution, and the latter in so testifying would naturally
accuse the defendant to be the guilty party in order to save himself or herself from criminal liability.

Who may give the assurance that the defendant's wife in the present case did testify the way she she testified
against her husband, not because her husband is really guilty, but because she wanted to defend and save
herself, taking into consideration the way the question were propounded to her by the prosecution and her
answers thereto? The prosecution asked her: "The accused testified here that you were the one who inflicted
the wound at the back of Romeo Francisco, is that right?" and she answered: "No sir he was the one who
inflicted the wound to my son Romeo Francisco." "P. Did you see him inflict the wound to the child? — R. Yes
sir." (P. 23, st. notes.) Who may dispel from the mind the doubt that the prosecution in the court below,
believing erroneously, but in good faith, that the testimony of the appellant in his defense is admissible against
and tended to make his wife criminally responsible, imparted such wrong belief to and induced her thereby to
testify imputing the commission of the crime to her husband although he is not guilty, just to save herself.

It is plain that if the wife testified against her husband, it was because the fiscal erroneously assumed in his
interrogatory above quoted that the appellant later imputed to her the crime charged, for the testimony of the
appellant quoted below clearly belies the fiscal's assumption:
 P. Please tell the Court what happened when you sat beside your wife?

Sr. Fiscal: Objection, no basis.

Court: He may answer.

R. When I sat beside my wife and our son was lying face downward on the bed I was joking my wife
because at the time I was drunk.

P. What was the relative position of your son with respect to you and your wife? — R. I am going to
demonstrate our relative positions, (the accused was facing his wife and the wife was facing in the
opposite direction and the son was between them lying face downward and little bit behind on the
bed). I used to touch her, so she swung her hand backward towards me, then I stood up and evaded
the blow. Later on I heard the boy cried.

P. What hand did your wife swing, left or right hand?-- R. Her right hand.

P. Is this the very scissors when she swung her arm? — R. Yes, sir.

P. After she swung her arm what happened? — R. The child cried.

P. Then what happened? — R. When I stood up our child was already wounded so I became
obfuscated.

P. Then what happened? — R. I got hold of the scissors that she was holding and stabbed her and
then stabbed myself."

Besides, it is to be borne in mind that the capacity or incapacity of one of the spouses to testify against the
other is governed by the statute in force and the Court should construe the statute such as it is, and not as it
should. It is for the law-making power to evolve new theories and enact law in accordance therewith. The
provisions of section 26 (c), Rule 123, were copied from those of section 383 (3) of Act No. 190, as amended,
and the latter were in turn taken from similar provisions of law in force in the States of the Union, which are
based on the common-law. Under the common-law, husband and wife are absolutely incompetent against each
other except in a civil case instituted by one against the other, or in a criminal case for a crime committed by
one against the other; and the consent of a spouse can not render the other spouse competent. But in many
states, statutes were enacted granting exceptions upon the common-law rule and enabling one of them to
testify against the other with the consent of the latter in civil case, or the consent of the other or both in criminal
cases. Under such statute, one spouse who calls the other as a witness thereby consents that the latter shall
testify; and if the adverse party offers one of the spouses against the other and the latter does not object, then
he or she is presumed to have consented to it.

In the case of Toskstein vs. Birmmerle (150 Mo., 491; 131 S.W., 126), it was held that incompetency of a wife
continues as at common-law where she is not rendered competent under the provision of the enabling statute.
In the case of Conley vs. State (176 Ark., 654; 3 S.W. [2d], 980), the Supreme Court of Arkansas ruled that
statutes providing that no person shall be excluded from testifying in prosecution for violation of Liquor Act do
not change the general rule that a wife cannot testify against her husband in a criminal prosecution. And in
another case entitled Connecticut Fire Ins. Co. vs. Chester P. & Ste. G.R. Co. (171 Mo. App., 70; 153 S.W.,
544), it was held that unless wife comes within exceptions of the enabling statute granting exceptions upon the
common-law rule excluding her testimony in an action in which her husband is interested, the wife can not
testify.

Therefore, inasmuch as our statute on the matter, or section 26 (d), Rule 123, provides that a wife cannot be
examined for or against her husband without his consent except in a criminal case for crime committed by one
against the other, and the appellant in the present case objected strenuously to the testimony of her wife
against him, her testimony is inadmissible and can not be taken into consideration in the decision of the case.
We can not, by any process of reasoning or stretch of imagination, construe said provision so as to capacitate
a wife to be a witness against her husband if the latter, in testifying in his own defense, says that his wife was
the one who accidentally inflicted the fatal wound on their small child. We can not evolve a new theory,
however reasonable and plausible it may be, and apply for the first time as if it were the law in the present case
against the appellant. It may be a good theory or a sufficient reason for amending the law in order to include it
as one of the exceptions of the rule incapacitating one spouse to testify against the other; but we can not
legally apply it as a law now against the appellant, a defendant in a criminal case.

But the majority, not being sure of its stand on the admissibility of the testimony of the wife against her
husband, further states:

At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but
under circumstances presently to be stated. It will be noted that the wife only testified against her
husband after the latter, testifying in his own defense imputed upon her the killing of their little son. (P.
15, ibid.) By all rules of justice and reason this gave the prosecution, which had theretofore refrained
from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and
to the wife herself the right to so testify, at least, in self-defense,. . .. (P. 704, ante.)

To this we may reply that, in the first place, the testimony of the wife to the effect that her husband was the one
who inflicted and she saw him inflict the wound on Romeo Francisco that caused the death of the latter (pp. 23,
24, st. notes), is not a rebutting but a new additional evidence bearing upon the main issue whether or not the
defendant is guilty of the offense charged. For according to section 3 (c), Rule 115, the prosecution may, after
the defendant has presented evidence in support of his defense, "offer rebutting testimony, but rebutting only,
unless the court in furtherance of justice, permit them to offer new additional evidence bearing upon the main
issue in question." Her testimony would have been in rebuttal only if she had limited herself to say that she did
not inflict the wound on her son. And in the second place, to make the testimony of the wife admissible in
rebuttal against the appellant, would be to amend the provision of said section 26 (d) of Rule 123 and establish
another exception, that has never been adopted by the statutes anywhere in the States of the Union and in this
jurisdiction.

And not being sure as to the scope of a rebuttal testimony, the majority opinion adds the following:

When the husband testified that it was his wife who caused the death of their son, he could not, let us
repeat, justly expect the State to keep silent and refrain from rebutting such new matter in his
testimony, through the only witness available, namely, the wife; nor could he legitimately seal his wife's
lips and thus gravely expose her to the danger of criminal proceedings against her being started by the
authorities upon the strength and basis of said testimony of her husband, or to bear the moral and
social stigma of being thought, believed, or even just suspected, to be the killer of her own offspring. . .
. And if the wife should, in such a case and at such a juncture, be allowed to testify upon rebuttal, the
scope of her testimony should at least be the same as that of her husband. This is only simple justice
and fairness dictated by common sense. Since the husband had testified that it was his wife who
caused the death of the little boy, she should be allowed to say that it was really her husband who did
it. . . . At any rate, the trial court not only had the power to allow the State to utilize the wife as rebuttal
witness, but also the discretion to permit "new additional evidence bearing upon the main issue in
question." But even restricting the wife's testimony to merely contradicting her husband's version that
she was the one who killed their child, there is evidence beyond reasonable doubt that appellant was
the killer.

It is elemental that the scope of a rebuttal is circumscribed to contradicting or destroying the evidence of the
adverse party tending to prove new matter in favor of the latter, and can not extend to disproving directly the
main issue in question, that is, the guilt of the appellant in the present case. Evidently, the testimony of the
husband that his wife was the one who unintentionally inflicted the wound which caused the death of their child,
can not gravely expose her to the danger of criminal proceeding against her," and "to bear the moral and social
stigma of being thought, believed, or even just suspected to be the killer of her own offspring;" because said
testimony is not admissible against his wife in that or in any other cases, and everybody is presumed to know
the law that incapacitates the wife to testify against her accused husband and contradict what the latter may
testify against her however false it may be.
The conclusion in the majority decision that, if not in rebuttal, the court had discretion to permit the prosecution
to present the testimony of the wife, as additional evidence bearing upon the main issue in question, is
absolutely untenable, since we have already shown that such a testimony is inadmissible as evidence, and this
court has already decided in the case of People vs. Natividad (above cited), squarely applicable to the present
case, that "a wife can not testify against her husband in a criminal case in which the latter was charged with
having killed the child of the former."

The matter under discussion is the incompetency of the wife to testify, directly or in rebuttal, in the present case
against her husband, and not the guilt or innocence of the appellant. Hence the last statement in the above
quoted decision of the majority that "even restricting the wife's testimony as merely contradicting the husband's
version that she was the one who killed their child, there is other evidence beyond reasonable doubt that the
appellant is the killer," is out of place for it has no bearing on the issue. The conclusion of fact on which a
sentence declaring a defendant guilty must be positive and not argumentative. And if the appellant is to be
convicted on the strength of other evidence, aside from the testimony of the appellant's wife, the decision
should express clearly and distinctly the facts and the law on which the decision convicting the appellant is
based, as required by section 12, Article IX of the Constitution.

The majority's conclusion that the testimony of the appellant to the effect that the cause of the death of their
child was the wound unintentionally inflicted by his wife, constituted a waiver of all objection to her testimony, is
without any foundation in fact and in law; because the defendant had strongly and persistently objected to his
wife taking the witness stand (st. t.s.n., p. 23), and no law, court or authority, from time immemorial up to the
present, has ever recognized such testimony as a waiver. The only cases in which the incapacity of one of the
spouses to testify against the other is considered waived according to law, are those stated in section 1205, of
Wharton on Criminal Evidence, Vol. 3, 11th ed., quoted in the very opinion of the majority, which says the
following:

SEC. 1205. Waiver of incompetency. — Objections to the competency of a husband or wife to testify in

a criminal prosecution against the other may be waived as in the case of other witnesses generally.
Thus, the accused waives his or her privilege by calling the other spouse as a witness for him or her,
thereby making the spouse subject to cross-examination in the usual manner. It is well-established that
where an accused introduces his wife as a witness in his behalf, the state is entitled to question her as
to all matters germane and pertinent to her testimony on direct examination. It is also true that
objection to the spouse's competency must be made when he or she is first offered as a witness, and
that the incompetency may be waived by the failure of the accused to make timely objection to the
admission of the spouse's testimony, although knowing of such incompetency, and the testimony
admitted, especially if the accused has assented to the admission, either expressly or impliedly.

But the decision, after quoting subsequently section 1149 of the same work, which refers to waiver of objection
to competency of a witness in general, concludes by saying "It will be noted, as was to be expected, that in the
last-quoted section, the author mentions certain specific cases where the courts concerned hold that there was
waiver, but for obvious reasons neither the author nor the said courts have attempted to make an enumeration
of all possible cases of waiver. In the very nature of things, it would be impossible to make a priori such a
complete enumeration and to say that it is exclusive." The last-quoted section in the decision reads in its
pertinent part as follows:

SEC. 1149. Waiver of objection to incompetency. — A party may waive his objection to the
competency of a witness and permit him to testify. A party calling an incompetent witness as his own
waives the incompetency. Also, if, after such incompetency appears, there is a failure to make timely
objection, by a party having knowledge of the incompetency, the objection will be deemed waived,
whether it on the ground of want of mental capacity or for some other reason. . . .

The cases of waiver specified by Wharton in sections 1149 and 1205 of his work on criminal evidence above-
quoted, are the only cases of waiver of the objection to the competency of one spouse to testify against the
other, as well as of the objection to the competency of any other witness to testify. Not only Wharton but all
works on criminal evidence enumerate only those cases, because there are no other cases provided for by the
statutes or declared by the courts in their decisions. Authors or writers on evidence do not generally evolve and
formulate new legal theories but only expound those based on positive laws as the latter have been interpreted
and construed up-to-date by the courts. It is to be presumed that during several centuries in which the rule
excluding the testimony of one spouse in a case in which the other is interested has been in force, a case
similar to the present must have been arisen, and it would be too presumptuous to assume that this Court is
the first to find correctly that the case is one of the exceptions upon said rule. For the majority can not point out
a single decision in support of the exception which the majority intends to establish now for the first time.

The above-mentioned cases of the objection to the competency of one of the spouses to testify against the
other are the only ones, and no writers on evidence nor courts did or could enumerate or recognize other
cases, since no legislative or law making power had so provided; because what is called waiver is merely or
nothing more than the consent of one spouse that the other testify in a case in which he or she is interested or
a party, consent provided for as exception by law. As the consent may be either express or implied: express
when the spouse who is a party presents the other spouse to testify, and implied when the adverse party or the
prosecution presents the other spouse as a witness, and the spouse against whom the other is to testify does
not object; so the waiver may also be expressed and implied. And, therefore, just as there can not be any other
way of giving such consent than those above-stated, so there is no other case of waiver under the laws now in
force.

Therefore, this Court must, in the interest of justice, reject the testimony of the defendant's wife, admitted as
rebuttal evidence over the objection of the appellant, and considered by the majority as corroborative of the
defendant's extrajudicial confession Exhibit C, and decide whether this confession alone is sufficient to support
the appellant's conviction

G.R. No. L-39012 January 31, 1975

AVELINO ORDOÑO, petitioner, 
vs.
HON. ANGEL DAQUIGAN, presiding Judge of the Court of First Instance of La Union, Branch I and
CONRADO V. POSADAS, First Assistant Provincial Fiscal of La Union and the PEOPLE OF THE
PHILIPPINES, respondents.

Pedro G. Peralta for petitioner.

Conrado V. Posadas for and in behalf of other respondents.

AQUINO, J.:

Avelino Ordoño was charged in the municipal court of San Gabriel, La Union with having raped his daughter,
Leonora, on October 11, 1970. The verified complaint dated November 7, 1973 was signed by the twenty four
year old victim (Criminal Case No. 104).

In support of that complaint, Catalina Balanon Ordoño, the mother of Leonora, executed a sworn statement
wherein she disclosed that on that same date, October 11th, Leonora had apprised her of the outrage but no
denunciation was filed because Avelino Ordoño threatened to kill Leonora and Catalina (his daughter and wife,
respectively) if they reported the crime to the police.

Catalina Ordoño in her sworn statement further revealed that her husband had also raped their other daughter,
Rosa, on March 25 and April 7, 1973. He was charged in court with that offense.

Catalina Ordoño said that the rape committed by Avelino Ordoño against Leonora was mentioned during the
investigation and trial of Avelino Ordoño for the rape committed against Rosa Ordoño. Catalina's statement on
this point is as follows:
 Q — Why did you not file the complaint against your husband concerning the incident
involving Leonora Ordoño?

A — We Also narrated the incident during the investigation in the Fiscal's Office and also
when I testified in court in the case of my daughter Rosa Ordoño but then my daughter
Leonora Ordoño was still in Manila, sir.

During the preliminary investigation of the rape committed against Leonora, Catalina manifested that she was
no longer afraid to denounce Avelino Ordoño because he was already in jail for having raped Rosa Ordoño.

The case against Avelino Ordoño, where Leonora Ordoño was the complainant, was elevated to the Court of
First Instance of La Union, San Fernando, Branch (Criminal Case No. 356). On May 29, 1974 the Fiscal
presented Catalina Ordoño as the second prosecution witness. After she had stated her personal
circumstances, the defense counsel objected to her competency. He invoked the marital disqualification rule
found in Rule 130 of the Rules of Court which provides:

Sec. 20. Disqualification by reason of interest or relationship. — The following persons cannot
testify as to matters in which they are interested, directly or indirectly, as herein enumerated:

xxx xxx xxx

(b) A husband cannot be examined for or against his wife without her consent; nor a wife for
or against her husband without his consent, except in a civil case by one against the other or
in a criminal case for a crime committed by one against the other;

xxx xxx xxx

Counsel claimed that Avelino Ordoño had not consented expressly or impliedly to his wife's testifying against
him.

The trial court overruled the objection. After the denial of Avelino Ordoño's motion for the reconsideration of the
adverse ruling, he filed the instant action for certiorari and prohibition. He was allowed to sue in forma pauperis.

The issue is whether the rape committed by the husband against his daughter is a crime committed by him
against his wife within the meaning of the exception found in the marital disqualification rule.

Should the phrase "in a criminal case for a crime committed by one against the other" be restricted to crimes
committed by one spouse against the other, such as physical injuries, bigamy, adultery or concubinage, or
should it be given a latitudinarian interpretation as referring to any offense causing marital discord?

There is a dictum that "where the marital and domestic relations are so strained that there is no more harmony
to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and
tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on
that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the
law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the
unhappy home" (People vs. Francisco, 78 Phil. 694, 704).

In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the husband who was
charged with having killed his son and who testified that it was the wife who killed their son.

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill vs. State, 35
ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too narrow; and
the rule that any offense remotely or indirectly affecting domestic harmony comes within the
 exception is too broad. The better rule is that, when an offense directly attack or directly and
vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall
not be a witness against the other except in a criminal prosecution for a crime committed (by)
one against the other.

Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in the law of
evidence the rape perpetrated by the father against his daughter is a crime committed by him against his wife
(the victim's mother). *

That conclusion is in harmony with the practices and traditions of the Filipino family where, normally, the daughter is close to the mother who,
having breast-fed and reared her offspring, is always ready to render her counsel and assistance in time of need. Indeed, when the daughter
is in distress or suffers moral or physical pain, she usually utters the word Inay (Mother) before she invokes the name of the Lord.

Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora in the early morning of
October 11, 1970, tried to repeat the beastly act in the evening of that date, Leonora shouted "Mother" and, on
hearing that word, Avelino desisted.

That the rape of the daughter by the father, an undeniably abominable and revolting crime with incestuous
implications, positively undermines the connubial relationship, is a proposition too obvious to require much
elucidation.

In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband
in a prosecution for rape committed by the husband against his stepdaughter, who is the wife's natural
daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a
crime against humanity itself". The court adopted the interpretation that "a criminal action or proceeding for a
crime committed by one against the other" may refer to a crime where the wife is the individual particularly and
directly injured or affected by the crime for which the husband is being prosecuted (See Dill vs. People, 19
Colo. 469, 475, 36 Pac. 229, 232).

In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision that husband or wife
shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by
one against the other, that the wife was competent to testify against the husband in a case where he was
prosecuted for incest committed against his stepdaughter.

In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a
case where he was prosecuted for incest committed against their eleven-year old daughter because incest is a
"crime committed against the wife". (See Owens vs. State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W.
507, 17 Neb. 526; People vs. Segura, 60 Phil. 933).

The trial court did not err in holding that Catalina Ordoño could testify against her husband, Avelino Ordoño, in
the case where he is being tried for having raped their daughter, Leonora.

WHEREFORE, the petition for certiorari and prohibition is dismissed. No costs.

SO ORDERED.

G.R. No. 143439 October 14, 2005

MAXIMO ALVAREZ, Petitioner, 
vs.
SUSAN RAMIREZ, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari1 assailing the Decision2 of the Court of Appeals dated May 31,
2000 in CA-G.R. SP No. 56154, entitled "Susan Ramirez, petitioner, versus, Hon. Benjamin M. Aquino, Jr., as
Judge RTC, Malabon, MM, Br. 72, and Maximo Alvarez, respondents."

Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN for
arson3 pending before the Regional Trial Court, Branch 72, Malabon City. The accused is Maximo Alvarez,
herein petitioner. He is the husband of Esperanza G. Alvarez, sister of respondent.

On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the first witness
against petitioner, her husband. Petitioner and his counsel raised no objection.

Esperanza testified as follows:

"ATTY. ALCANTARA:

We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor.

COURT:

Swear in the witness.

xxx

ATTY. MESIAH: (sic)

Your Honor, we are offering the testimony of this witness for the purpose of proving that the accused Maximo
Alvarez committed all the elements of the crime being charged particularly that accused Maximo Alvarez pour
on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro
Manila, the house owned by his sister-in-law Susan Ramirez; that accused Maximo Alvarez after pouring the
gasoline on the door of the house of Susan Ramirez ignited and set it on fire; that the accused at the time he
successfully set the house on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez, the
members of the family as well as Esperanza Alvarez, the estranged wife of the accused; that as a
consequence of the accused in successfully setting the fire to the house of Susan Ramirez, the door of said
house was burned and together with several articles of the house, including shoes, chairs and others.

COURT:

You may proceed.

xxx

DIRECT EXAMINATION

ATTY. ALCANTARA:

xxx

Q: When you were able to find the source, incidentally what was the source of that scent?

A: When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister (and witness
pointing to the person of the accused inside the court room).

Q: For the record, Mrs. Witness, can you state the name of that person, if you know?
A: He is my husband, sir, Maximo Alvarez.

Q: If that Maximo Alvarez you were able to see, can you identify him?

A: Yes, sir.

Q: If you can see him inside the Court room, can you please point him?

A: Witness pointing to a person and when asked to stand and asked his name, he gave his name as Maximo
Alvarez."4

In the course of Esperanza’s direct testimony against petitioner, the latter showed "uncontrolled emotions,"
prompting the trial judge to suspend the proceedings.

On June 30, 1999, petitioner, through counsel, filed a motion5 to disqualify Esperanza from testifying against
him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.

Respondent filed an opposition6 to the motion. Pending resolution of the motion, the trial court directed the
prosecution to proceed with the presentation of the other witnesses.

On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further
testifying and deleting her testimony from the records.7 The prosecution filed a motion for reconsideration but
was denied in the other assailed Order dated October 19, 1999.8

This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN, to file
with the Court of Appeals a petition for certiorari9 with application for preliminary injunction and temporary
restraining order.10

On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders
issued by the trial court.

Hence, this petition for review on certiorari.

The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No.
19933-MN.

Section 22, Rule 130 of the Revised Rules of Court provides:

"Sec. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may
testify for or against the other without the consent of the affected spouse, except in a civil case by one against
the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants
or ascendants."

The reasons given for the rule are:

1. There is identity of interests between husband and wife;

2. If one were to testify for or against the other, there is consequent danger of perjury;

3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional
failure of justice, and to prevent domestic disunion and unhappiness; and

4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile
testimony of the other.11
But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions
between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself,
the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the
general rule. For instance, where the marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such
harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of
private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely
leave a void in the unhappy home.12

In Ordoño vs. Daquigan,13 this Court held:

"We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargil vs. State, 35
ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

‘The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any
offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better
rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within
the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for
a crime committee (by) one against the other.’"

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and
his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major
aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship
survives and flourishes.

As correctly observed by the Court of Appeals:

"The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well
that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the
harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal
act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact
that the marital and domestic relations between her and the accused-husband have become so strained that
there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a
case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims
to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home.
(People v. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification
Rule."

It should be stressed that as shown by the records, prior to the commission of the offense, the relationship
between petitioner and his wife was already strained. In fact, they were separated de facto almost six months
before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage
between petitioner and Esperanza is no longer an interest the State aims to protect.

At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the
guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of
Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco14), "it was
the latter himself who gave rise to its necessity."

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72, Malabon
City, is ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in Criminal Case No.
19933-MN. Costs against petitioner.

SO ORDERED.

Case assigned last week that was supposed to be included in the assigned cases for this week
AFP Gr no. 188596