Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11889 January 10, 1918
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, applicant-appellee,
vs.
CARMEN MARTINEZ and DOLORES MARTINEZ, claimants-appellants. JULIO SALVADOR, claimant-appellee.
C. Lozano for appellants.
Montinola and Montinola for appellee Salvador.
No appearance for the Government.
ARAULLO, J.:
In the cadastral proceedings instituted in the Court of Land Registration for the settlement of titles to lands in the municipality of Iloilo, Province of Iloilo, Dolores and Carmen Martinez on May 11, 1914, appeared claiming to be the owners of lots Nos. 873 and 450. They alleged in effect, after describing said lots, that they were in possession thereof for about twenty-five years, having acquired them by donation from Maria Sarlabus, and that their predecessors in interest had had possession of the same for at least three years prior to said donation.
When the case came up for trial, Julio Salvador, through his attorney, entered his appearance and claimed title to said lots, alleging that he was in actual possession thereof, and that his predecessors in interest had been in possession before him for at least fourteen years.
Trial having been held and the parties having adduced their evidence, judgment was rendered by the Court of First Instance of Iloilo, which took the place of the Court of Land Registration, denying the claim of Carmen and Dolores Martinez and adjudicating said lots to Julio Salvador, on the ground that, in the opinion of the court, it was proved that the Martinez sisters had sold said land to one named Domenech and that the latter, in return, sold it to Julio Salvador, who could, therefore, be considered owner of the disputed lots.
Dolores and Carmen Martinez excepted to said judgment and filed a bill of exceptions after their motion for new trial had been overruled, and they had excepted to the order overruling said motion. they now allege that the trial court erred:
1. In admitting the copy of the record of a supposed document of sale presented by the oppositor Julio Salvador, in support of his claim of title without the disappearance or loss of the original document having been previously proved;
2. In not considering the evidence of the appellants as to his acts of possession and ownership on the lot in question; and,
3. In adjudicating and decreeing the registration of said lot in favor of said oppositor.
According to the testimony of Tiburcio Saez, witness of Julio Salvador, he was acquainted with the latter for about twelve or fourteen years; Julio Salvador acquired said lots from Antonio Domenech, as appeared in the document exhibited to him at the trial, dated March 14, 1912, and signed by him (the witness) in the name, and at the request, of the vendor Domenech because the latter had a trembling hand and a poor eyesight; the notary and two witnesses were present at the time of signing; said lots, according to the document, consisted of three pieces, to wit, one acquired by Domenech from Anastasio Montes and the other two from Dolores and Carmen Martinez who, because of certain difficulties he had been in, sold them in a document acknowledged before the notary public, Mr. Yulo; he was not presented when the transaction was effected, having only learned of it from the plaintiffs; he did not know of any other possessor of said land but Domenech, during his lifetime, and Julio Salvador; after Domenech's death Dolores Martinez told him that the lands did not belong to the former but to them, and finally, Julio Salvador took possession of said lands at the time of the sale, a fact which he afterwards knew from Salvador himself, for he was not personally present when the possession was taken.
Juan Madrenas Soler, attorney in fact of Julio Salvador, who was away in Spain during the trial, testified: That Julio Salvador gave him certain papers referring to the land in question and that he looked among them for the document of the sale executed by the Martinez sisters in favor of Antonio Domenech but did not find it; that the made investigations concerning said document, having interviewed My. Yulo, because he remembered that when Salvador left for Spain he told the witness that the documents concerning the case had been in Yulo's possession, who informed him that the Martinez sisters had been looking for the same documents having asked him about them, to which he answered that he remembered having returned those papers to Domenech and that he did not have them, not having found them, when he had looked for them, but that, according to Mr. Yulo himself, a copy of them was in some archive in Manila.
As the claimants Martinez denied having sold the aforesaid two lots to Antonio Domenech,, as stated by the witness Saez, and having executed a document of sale of said lots in favor of Domenech, the attorney for Julio Salvador, besides the document of sale of said lots executed by Antonio Domenech in favor of Julio Salvador on March 14, 1912 (Exhibit 1), presented also a certified copy issued by the acting registrar of deeds of Iloilo and dated May 13, 1914 (Exhibit 2). In referring to the registration of the property consisting of the two lots in question, after mentioning the acquisition of said lots by Carmen and Dolores Martinez by virtue of a donation inter vivos made to them of one of said lots by Maria Sarlabus and of a grant of the other in their favor by Anastasio Montes, respectively, on September 19, 1889, and April 24, 1893, said certified copy stated that said Martinez sold the same lots, that is, the property in the city, to Antonio Domenech de Toldra for the sum of one hundred fifty pesos, and that the vendors acknowledged having received the price from the purchaser before the execution of the contract. Said copy also contained all that was stated in the document of sale executed on January 9, 1900, before the notary public, Don Gregorio Yulo y Regalado, and presented in that registry at 9:30 a. m. on April 23, 1900, according to entry No. 2, vol. 1 of the daybook. It further stated that in the same entry there was a marginal note which read: "This property was sold too Mr. Julio Salvador y Miralles, as appears from record No. 2 of this property No. . . . page . . . of vol. 6 of this book." And said acting registrar, Roman Lacson, having appeared at the trial, indicated said registration in the book mentioned in said certificate, and also stated that Exhibit 2 was a true and exact copy thereof.
Said entry, that is, the certified copy already referred to (Exhibit 2), having been presented as evidence, as already stated, the attorney of the Martinez claimants objected, alleging that it has not been satisfactorily proved that the document of sale said to have been executed by them in favor of Antonio Domenech was lots; that Julio Salvador did not say, nor was there any statement, made by him or his attorney in fact, that the document was in his possession, and, finally, that the previous existence of such document has not been proved nor had anybody seen it before its supposed loss. The court, however, on the ground that Julio Salvador's counsel did all he could possibly do when he found himself obliged to present said document, admitted said certified copy (Exhibit 2), the attorney for the appellants having excepted to this ruling.
The oppositor or claimant Julio Salvador was under the obligation to present, as evidence of his supposed title to the lots in question, the document of sale of the said two lots, which, accordingly to the witness Saez, was executed by the Martinez sisters in favor of Antonio Domenech; for to prove said title it was not sufficient for them to present, as they did, the document of sale of said lots executed by said Domenech on March 14, 1912, in favor of Julio Salvador, in the execution of which, according to the declaration of the same witness, Saez, he took part, signing in the name, and at the request, of the vendor Domenech; but said certified copy of the record in the registry, Exhibit 2, in which mention is made of the document, was presented by said oppositor, in view of the fact that he did not have said document in his possession. Nevertheless Julio Salvador ought first to have proved the loss of said original document and that the same was duly signed and only then could he have proved the contents-thereof by means of the certified copy of the record, Exhibit 2, or by the statement therein contained of that sale, according to the provisions of section 321 of the Code of Civil Procedure.
The knowledge of the witness Juan Madrenas Soler attorney in fact of Salvador, concerning said document of sale was obtained from Mr. Yulo who, according to said witness, had told him that the documents referring to the land in question were again delivered by him to Mr. Domenech. Said witness also testified that before the search for said document, he had no occasion to see it as he was not interested; that he did not attempt to look for it after making the declaration he made in the municipal building; that Julio Salvador himself, before leaving for Spain had not instructed him to look for said papers; and finally, that when Salvador gave him power to represent him in all his business he only recommended that the name of Antonio Domenech be changed with that of his own.
As already stated, Tiburcio Saez only said that he knew that due to certain informations, Dolores and Carmen Martinez had executed a document of sale in favor of Domenech before the notary public Mr. Yulo, but that he did not see its execution, learning thereof only through statements made by the Martinez sisters, which the latter denied while testifying at the trial.
The oppositor Julio Salvador did not present as a witness the notary public, Mr. Yulo, before whom, according to the witness Saez, Domenech executed said document of sale, in order that he might testify on this point and corroborate the references made to him by the witnesses Madrenas and Saez and especially by the first, with respect to the whereabouts of the document. No attempt appears to have been made to present as witnesses said notary and those persons who must have seen the signing of the document, nor was it shown that said document had been lost. Finally, it does not appear that Julio Salvador or his lawyer or his attorney in fact, Madrenas, had made any effort to obtain a copy of said document from the general archives in the City of Manila, where, according to the lawyer himself, it could be secured. He, however, promised, after the introduction of evidence, to present it after looking for it in the archives, which promise was made good, although the court said that he wound limit himself to the evidence therefore introduced, for the trial having terminated on May 15, 1914, and the court having rendered judgment on December 15, 1915, that is, one and one-half years afterwards, he had had sufficient time within which to look for said document and ask for the admission thereof, in case it should be found, before the final judgment appealed from was rendered.
The loss of said document of sale which, it is said, had been executed by the Martinez sisters in favor of Domenech not having been proved and no proof having been offered that said document was duly executed and signed, all of this being due to an obvious lack of diligence on the part of the oppositor himself, his lawyer and attorney in fact, the presentation of the certified copy of the registration, Exhibit 2, and its admission by the court as secondary and supplementary evidence of said document, was improper and cannot serve as a basis for us to hold it proven, as the lower court did hold, that the Martinez sisters had sold the land in question to Antonio Domenech and that having acquired it from the latter, Julio Salvador, the oppositor, could be adjudged to be the owner of said disputed lots.
The appellee, however, invoking section 299 of the Code of Civil Procedure, maintains that said certified copy, Exhibit 2, issued by the acting registrar of deeds of Iloilo, was properly admitted as evidence in the same manner that the original deed of sale of said lots said to have been executed by the Martinez sister in favor of Antonio Domenech, which, copy being a public document, had the same effect as the original.
Section 299 of the Code of Civil Procedure provides: "The written acts of record of the acts of the sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial, and executive of the Philippine Islands, or of the United States, or of any States of the United States or of a foreign country, and public records kept in the Philippine Islands of private writings are public writings. A copy of a public writing, duly certified to be a true copy thereof, is admissible evidence in like cases and in like effect as the original writing." The appellee understands that as the copy of a public writing duly certified to be a true copy has the same effects as the original, according to section 299, such a copy, as a public writing, is included in the exception of section 321 of the same Code, which provides that secondary evidence of the contents of a document cannot be admitted without the requirement of said section having been complied with, as already explained in the preceding paragraphs.
The first observation that may be made against said argument, is that the certified copy issued by the acting registrar of deeds of Iloilo, Exhibit 2, is not a true copy of the document of sale which is said to have been executed by the Martinez sisters in favor of Antonio Domenech, but of the recital appearing in the books of said registry with respect to the urban property, consisting of those two lots, which recital is to the effect that there was presented in the office of the registrar at 9:30 a. m. on April 23, 1900, a document of sale, executed on January 9 of said year by Carmen and Dolores Martinez before the notary, D. Gregorio Yulo y Regalado, in favor of Antonio Domenech, of said property or lot composed of two parts, one acquired by said Martinez from Doña Maria Victoria Sarlabus by donation inter vivos, according to the document of September 19, 1889, ratified before a notary of that province, D. Andres Pastor Santana, and the other by a grant from D. Anastasio Montes, as evidenced by a private document executed on April 24, 1893. On the margin of said entry it is stated that said lot was sold to Julio Salvador. In short, the effect of the certified copy as evidence is that said document, in which the facts already stated appear, was presented to the registrar of deeds on April 23, 1900. So that all that was certified to by the registrar of deeds in the document, Exhibit 2, is that said recital, referring to the document appears in the books of the registry. For this reason it is evident that as said certified copy was not a copy of the original document it could not, unlike the original writing, be properly admitted as evidence in the present case on the ground that it was a public document according to section 299. Neither could said copy produce the same legal effect as the original. Such certification has the character of a public document and is such indeed, according to said section 299 of the Code of Civil Procedure, but is only effect is to show that said document was presented at the office of the registrar of deeds of Iloilo, where the aforesaid statements appear. It does not, however, prove that said lots had in fact been sold by the Martinez sisters to Antonio Domenech, or that the document presented was true, duly executed or ratified before the notary, D. Gregorio Yulo, for the simple reason that said document presented to the registrar might have been false and simulated, and the signatures appearing thereon might not have been the authentic and legitimate signatures of the vendors, or of the notary before whom it was ratified, or of the witnesses who appear in said document as eyewitnesses to the signing thereof by the vendors.
It is true that section 299 already cited includes among public documents the public records of private writings existing in the Philippine Islands; and this may very well give rise to the interpretation , which the appellee seems to give it, that the entry in the books of the registry of Iloilo as to the presentation of said document of conveyance executed by the Martinez sisters in favor of Domenech is a public record of the same writing, and therefore the recital of said entry is a public writing. But in the first place it must be taken into account that the entry made in the registry and mentioned in Exhibit 2 refers only to the presentation of the writing at the office of the registrar; and as the Martinez sisters denied at the trial having executed said document in favor of Domenech and sold the property therein described, and the document itself not being literally transcribed in said entry or registry, and as it is neither proved that in the filing of said document with the registrar the Martinez sisters took any part, said certified copy cannot have the effect of proving the said sale took place, even considering said document as a public writing. It was therefore necessary for the claimant Julio Salvador, in order to fully and sufficiently prove his alleged title to that real property, to present the original document of said to have been executed by the Martinez sisters in favor of Domenech, or a literal copy of the same, or a recital thereof appearing in some authentic document. If he could not do so he should have proved its contents by means of the recollection that a witness might have had thereof.
The recital in the entry in the registry, a certified copy of which has been presented as Exhibit 2, by counsel of Julio Salvador, cannot be held to have the effect of proving the contents of the documents referred to, for the reason that the Martinez claimants have questioned and denied the authenticity of said document which, according to the entry in the registry, was presented to the registrar on April 23, 1900. And, as already stated with respect to the recollection that a witness may have of said document, none of the witnesses who testified for the oppositor, Salvador, affirmed having seen such document, said witnesses having learned of it only by reference, as he himself stated, from the Martinez claimants themselves, who denied even this fact.
But whether said entry in the registry be considered as a recital of said document in an authentic writing, or whether it be held that some witness had some recollection of said document, this secondary evidence of said document should not have been admitted by the court for the reason that the oppositor, Julio Salvador, had not first complied with the provisions of section 321 of the Code of Civil Procedure.
The best obtainable evidence should be adduced to prove every disputed fact, and a failure to produce it, but an attempt instead to sustain the issue by inferior evidence, will authorize the inference that the party does not furnish the best evidence because it would tend to defeat, instead of sustaining, the issue of his part. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. (Ruling Case Law, vol. 10, p. 903, par. 54, and cases therein cited.)
Undoubtedly the best evidence of the contents of a written instrument consists in the actual production of the instrument itself, and the general rule is that secondary evidence of its contents cannot be admitted until the nonproduction of the original has been satisfactory accounted for. (Ruling Case Law, vol. 10, p. 903, par. 55, and cases therein cited.)
Secondary evidence of the contents of writings if admitted on the theory that the original cannot be produced by the party by whom the evidence is offered, within a reasonable time by the exercise of reasonable diligence. And ordinarily secondary evidence is not admissible until the nonproduction of the primary evidence has been sufficiently accounted for. (Ruling Case Law, vol. 10, p. 911, par. 66, and cases therein cited.)
Under the earlier English decisions no degrees of secondary evidence are recognized. The American courts, however, have asserted that secondary evidence, to be admissible, must be the best evidence obtainable under the circumstances. . . . It is a rule of evidence, too ancient and too well understood to require proof of its existence, that the original instrument is better evidence than a copy. Again, whenever a copy of a record or document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from or compared with the original. If the first copy be lost, or in the hands of the opposite party, so long as another may be obtained from the same source, no ground can be laid for resorting to evidence of an inferior or secondary character. (Ruling Case Law, vol. 10, p. 912, par. 68, and cases therein cited.)
Preliminary to the introduction of secondary evidence under the principle herein referred to, the proponent must establish the former existence of the primary evidence, and its loss or destruction as the case may be. . . . It has been held that the existence of a deed is sufficiently proved where there is a preponderance of proof in its favor. (Ruling Case Law, vol, 10, p. 917, par. 75, and cases therein cited.)
The contents of a lost instrument cannot be proved unless it appears that reasonable search has been made in the place where the paper was last know to have been, and if not found there, that inquiry has been made of the person last known to have had its custody. (Ruling Case Law, vol, 10, p. 917, par. 76, and cases therein cited.)
In accordance with the rule set forth in the next preceding paragraph parol evidence of the contents of a will is inadmissible, unless it is first shown that diligent and unavailing search has been made for the original, by or at the request of the party interested, and in the place where it is most likely to be found. . . . But to justify admission of secondary evidence of a deed, it is not necessary to prove its loss beyond all possibility of mistake. A reasonable probability of its loss is sufficient; and this may be shown by a bona fide and diligent search, fruitless made for it in places where it is likely to be found. (Ruling Case Law, vol, 10, p. 918, par. 77, and cases therein cited.)
As the failure of the oppositor to present the original document in question was not accounted for; as it is not proper to suppose that the original could not have been presented within a reasonable time if he had exercised due diligence for he or his counsel had the means, opportunity and time to find the original if it really existed; as no proof was adduced that said document had been lost, or destroyed, or that proper search therefor was made in the general files of notarial documents in the City of Manila, or that an attempt was made to secure a copy thereof if it existed in said files; as the notary, Gregorio Yulo, a person well known in Iloilo, was not asked directly and clearly as to the whereabouts of said document or some particular or data it in order to obtain from him some conclusive and categorical answer; as said notary has not been presented at the trial to be examined on these points; and, lastly, as it was not shown that the party interested in the presentation of said document who is Julio Salvador, had made a diligent and proper, but fruitless, search for said document in any place where it could probably be found — therefore the secondary evidence presented by the oppositor, consisting of the testimony of the witnesses, Saez and Madrenas, and the certified copy issued by the registrar of deeds of Iloilo, Exhibit 2, is of no value for the purpose intended and such evidence was improperly considered by the court in reaching the conclusion that said Julio Salvador was the owner of the lots in question.
But not only this — as stated in said certified copy of the registry, Exhibit 2, Carmen and Dolores Martinez acquired said lots, one by donation inter vivos from Maria Sarlabus, made in a public document, and the other by grant fro Anastasio Montes, evidenced by a private document. These documents being a part of the title deeds of the lots, they ought to have been delivered by the Martinez sisters to Domenech; and when the registration of said sale in the registry was asked, these documents should have been presented by the latter, together with the deed of sale which is said to have been the notary Yulo on January 9, 1900; and when they were returned to Domenech or to any other, the registrar ought to have made at the foot of said documents, a note stating the fact of their presentation, together with the document of April 23, 1900, as well as of the fact that they were properly noted in the registry; and, finally, said documents ought to be in the possession of Domenech, and afterwards, when the lots were sold to Julio Salvador, those documents should have been delivered by Domenech to the latter.
Yet said documents were not in the possession of Julio Salvador, or his attorney in fact, but of Dolores and Carmen Martinez, who presented them at the trial and were there marked as Exhibit A and B, for the purpose of proving their title to said lots, and there appears no note whatever of the registrar to the effect that they had been presented in the registry and that they had been noted in said office. This is evident proof that really they were not presented to the registrar when the document of sale alleged to have been executed on January 9, 1900, by the Martinez sisters in favor of Domenech, and ratified before the notary public, Mr. Yulo, was presented by Domenech or his representative. Said document of donation, Exhibit B, and that of grant, Exhibit A, being among the title deeds of said lots, it is strange that in registering said sale the should have presented the said document only, the existence and execution of which were denied by the Martinez sisters. There are therefore sufficient grounds to hold it not proved that the latter sold said lots to Antonio Domenech, and, consequently, they could not have transferred any title thereto to Julio Salvador.
On the other hand, the title of Carmen and Dolores Martinez to said lots, Nos. 873 and 450, which constitute the property described in their claim and that of Julio Salvador, respectively, is recognized by the latter, when he attempted to prove that they were sold by the former to Antonio Domenech, as well as by the witnesses of said oppositor, Tiburcio Saez, when he stated that they were sold by said two sister to Domenech; and this title has been confirmed by the documents already mentioned, Exhibits A and B. The first of said documents states that on April 24, 1893, Anastasio Montes gratuitously ceded a lot 9:20 meters wide and 11.80 meters long, bordering on Calle San Rafael, and bounded on the north by the lot of Don Leon Yorac, while the document, Exhibit B, which is a public document executed on September 29, 1869, and ratified before the notary public of Iloilo, Don Andres Pastor Santana, states that Maria Victoria Sarlabus, in order to show affection to her intimate friends Carmen and Dolores Martinez, gave them by way of a perfect and irrevocable donation inter vivos a lot belonging to her, situated on said Calle San Rafael, Iloilo, being 6 brazas wide and 7 brazas long, and bounded on the right by the lot of Mateo Catalva, on the left by that of Nicolas Batingui, and on the rear by that of Anastasio Montes. These lots are numbered as 450 and 873 in the cadastral plans of the municipality of Iloilo and constitute the lot now in question.
It appears from the evidence that the lot in question was not fenced and there was no building at all on it, the witness Tiburcio Saez having declared that he knew that Domenech was in possession thereof and after him Julio Salvador, which statement was contradicted by Dolores Martinez and her witness Manuel Zerrudo. Dolores Martinez stated that during all the time that were in possession of the land, Julio Salvador never laid any claim to them until lately, that is, about two or three years ago; that during the lifetime of Domenech they paid the real estate taxes of the land, giving the sum of P6 to him every year, and that they had no receipts because Domenech had a lot adjacent to theirs and he included it in the receipt of the lot in question for they look their receipts at the same time; and that even after Domenech's death, Julio Salvador paid for the taxes, and they did not attempt to pay for them because Domenech had already talked to Mr. Campos, who told him that he paid for said taxes; that it seemed that lately Salvador was in possession of the land; that during the lifetime of Domenech they had filled it and that it was not true that Campos or Salvador had paid for the filling of the land. The witness Manuel Zerrudo declared that he knew the land for about twenty years; that since he knew it, it has been in the possession of Carmen and Dolores Martinez and at the date of the trial was still in their possession; that Julio Salvador at no time possessed it; that he did not see Salvador fence it; and that he knew of the possession of the Martinez sisters for he lived on Calle Del Rosario and the lot was next to that of his teacher, Mr. Anastasio Montes; and, finally, he indicated, as an act of possession of the claimants, the fact that they had put it in their name.
The attorney for the Bishop of Jaro, Jose Maria Arroyo, witness for the claimants, Martinez, stated that the bishop, having attempted to acquire the lot in question, as it adjoins a lot of his, Domenech took him to the land, stating that he wanted to sell it, but that the bishop did not put the sale through, because he suspected that it belonged to the Martinez sisters; that he could not tell whose property it was; that he did not know whether Domenech possessed it; that he did not know who collected the fruits of the land, but he had information that it belonged to the Martinez sisters, although he had not seen the title deeds, documents, or anything. He furthermore insisted that the purchase was not effected because of the doubts that existed about the ownership of the land.
Lastly, according to Dolores Martinez, a woman who like her sister Carmen, was already in the sixties, Antonio Domenech lived in their house before the bombardment of the city (which must have taken place in 1898) until 1912, when he died; that although Domenech had been a supervisor of laborers, he no longer had that occupation when he came to live in their house; that during the first years he paid the corresponding rent, but after the bombardment he ceased to pay rent and for his subsistence, which was given him by them. Dolores Martinez and her sister also denied having sold the two lots of land in question to Domenech or that they had received any sum from him in payment of said lot, or that they had executed the document already reffered to. The former further stated that she did not make any statement whatever to the witness Saez on the occasions referred to by him to the effect that they had sold said lot to Domenech. She also declared that she had not received any sum of money from him for, on the contrary, they had to support him.
As the title of the claimants Dolores and Carmen Martinez to the lots in question was proved, as it was not proved that they had sold them to Antonio Domenech, and as Julio Salvador could not have acquired said property from Antonio Domenech, these lots still belong to the Martinez sisters; and, on the other hand, as it was established that they had been in possession of said lots since the acquisition thereof; and as the possession which Julio Salvador might have exercised during the last years (admitting the statements in the record to this effect) is not based upon any valid or legitimate title, it is evident that the two sister are entitled to have their rights to the lots in question confirmed and to have them registered in their name. It is, therefore, clear that the trial court erred in not so holding in the judgment appealed from.
The judgment appealed from is therefore reversed and the claims of Julio Salvador is denied; and we declare that the two lots Nos. 873 and 450 should be adjudicated to the appellants Carmen and Dolores Martinez and be registered in their name. No special pronouncement is made as to costs. So ordered.
Arellano, C.J., Johnson, Street, and Malcolm, JJ., concur.
Carson, J., dissents.
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