Evidence Digest: CARMELITA TAN and RODOLFO TAN VS. COURT OF APPEALS (1967)

Topic: Prior Testimony (Rule 130, Section 47)

CARMELITA TAN and RODOLFO TAN VS. COURT OF APPEALS et al
[G.R. No. L-22793, May 16, 1967]

Facts:

At first, petitioners, thru their mother as guardian ad litem, sued respondent Tan for acknowledgment and support. The first civil case was dismissed on the ground that parties have already come to an amicable settlement.

1 year and eight months thereafter, petitioners, this time thru their maternal grandfather as guardian ad litem, commenced the present action before the Juvenile & Domestic Relations Court for acknowledgment and support, involving the same parties, cause of action and subject matter.The case was again dismissed by reason of res judicata and insufficiency of evidence.

On appeal, petitioners contends that the testimony of their witnesses, who were unable to testify in the 2nd trial must be admissible, applying Rule 130 Sec 41.

SEC. 41. Testimony at a former trial. — The testimony of a witness deceased or out of the Philippines, or unable to testify, given in a former case between the same parties, relating to the same matter, the adverse party having had an opportunity to cross-examine him, may be given in evidence.

Notably, the witnesses were subpoenaed by the Juvenile & Domestic Relations Court a number of times. But, they  did not appear to testify. These witnesses were neither dead nor outside of the Philippines.

Issue:

Are the witnesses' testimonies in the former trial within the coverage of the rule of admissibility intended for witnesses of the class unable to testify? 

Held:

NO. They cannot be categorized as witnesses of the class unable to testify. The witnesses in question were available. Only, they refused to testify. No other person that prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those unable to testify.

To emphasize, subsequent failure or refusal to appear thereat [second trial] or hostility since testifying at the first trial does not amount to inability to testify. To be qualified, such inability should proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech.