RULE 132

Presentation of Evidence and Examination of Witness

PEOPLE OF THE PHILIPPINES vs. SPO1 ROMULO GUTIERREZ, JR

G.R. No. 116281

February 8, 1999
MENDOZA, J.:
FACTS:
On August 25, 1992, Aranas said that he and Rosie Rivas accompanied Mercene, Jr on an
inspection trip along the Casiligan River in Pola because of Rivas complaint that SPO1
GUTIERREZ, JR had been poaching in the area in which she had been granted the exclusive
right to catch lapu-lapu. Rivas had asked Mercene, Jr. for assistance. Aranas said that they saw
SPO1 GUTIERREZ, JR with companions at the riverbank, and that Rosie Rivas alighted from
the banca they were riding on to talk to SPO1 GUTIERREZ, JR. Aranas said he heard SPO1
GUTIERREZ, JR telling Rivas, Bakit may kasama ka pang Konsehal fry at CAFGU fry (Why do
you have to be accompanied by a councilor and CAFGU fry)? Later, according to Aranas, they
again met SPO1 GUTIERREZ, JRs group in the middle of the river. SPO1 GUTIERREZ, JR
shouted invectives at them, Putang ina ninyo, mga Konsehal fry at CAFGU fry, masisira ang
aming lambat (You s.o.b. Councilor and CAFGU fry. Our fishing nets are going to be destroyed).
Because of that incident, Mercene, Jr. also wrote a letter to the Peoples Law Enforcement
Board (PLEB), complaining against SPO1 GUTIERREZ, JR for blocking their way with fishing
nets and shouting expletives at them. Aranas said SPO1 GUTIERREZ, JR was at that time under
the influence of liquor.
Continuing, Aranas testified that Mercene, Jr also filed a complaint against SPO1
GUTIERREZ, JR with the Philippine National Police (PNP) Provincial Command. PNP Chief
Inspector Edwin I. Corvera sent for both SPO1 GUTIERREZ, JR and Rosie Rivas, whereby
SPO1 GUTIERREZ, JR agreed not to catch fish within the area of Rosie Rivas concession. In
exchange, Rosie Rivas agreed not to press charges of illegal fishing against SPO1 GUTIERREZ,
JR. But a day later, Aranas said, he learned from Rosie Rivas that SPO1 GUTIERREZ, JR had
killed Mercene, Jr.
The prosecution presented two other witnesses to the shooting: Dante Pajaron, a supplier of
gravel and sand, and his helper Jose Advincula.
Jose Advincula was first to testify. He told the court that in the afternoon of October 17,
1992, at around 2:30 p.m., he went with Dante Pajaron to deliver gravel and sand to a certain
Evelyn in Barangay Batuhan, Pola, Oriental Mindoro. While their truck was parked and he was
on top of the sand loaded on it, he heard a commotion. Looking to his right, he saw two persons,
one had a gun (SPO1 GUTIERREZ, JR), while the other (Mercene, Jr.) had none. Advincula said
that while Mercene, Jr. was lighting a cigarette, SPO1 GUTIERREZ, JR kicked him, causing him
to fall to the ground with both hands touching the ground. As Mercene, Jr. tried to stand up,
SPO1 GUTIERREZ, JR boxed him, causing him to fall again to the ground. Again Mercene, Jr.
tried to get up, but SPO1 GUTIERREZ, JR hit him on the shoulder, causing Mercene, Jr. to fall
 RULE 132

Presentation of Evidence and Examination of Witness

with his hands and knees to the ground. SPO1 GUTIERREZ, JR then aimed his gun (about two
inches away) towards the back of Mercene, Jr.s left ear and fired. Mercene, Jr. fell face
downwards. In fright, according to Advincula, Dante Pajaron backed out the truck around 12
meters and then they unloaded their cargo of gravel and sand as fast as they could.
Dante Pajaron corroborated the testimony of his helper (Jose Advincula). He said that
while they were delivering gravel and sand, he saw two persons at his right side, around 7-8
meters away, having an argument. One of them had a gun. He recognized the person with a gun
as Mulong (SPO1 GUTIERREZ, JRs). Fearing for his safety, Pajaron said he got off the truck
and sought cover. Less than a minute later, he heard a gunshot. He peeped through his hiding
place and saw the person with whom Mulong was having an argument drop to the
ground. Mulong then went inside his house still holding the gun. Pajaron said he and his helpers
then unloaded the sand from their truck and then left as quickly as they could.
SPO1 Froilan Rivera of the PNP at Pola said that they found Mercene, Jr sprawled on the
ground (nakabulagta). They took pictures of Mercene, Jr. Together with Abog, Rivera made a
sketch of the scene of the crime. Rivera testified that they found no gun or deadly weapon on
Mercene, Jr.s person.
Oscar Coballes is a crime investigator, testified that The gun which SPO1 GUTIERREZ,
JR had surrendered was given to him. It had four bullets and one empty shell . Coballes prepared
a report which became the basis of the criminal complaint filed against SPO1 GUTIERREZ, JR.
SPO1 GUTIERREZ, JR testified in his behalf. He said that he met Mercene, Jr., who was
a little bit drunk, as he was about to leave for work. He claimed that Mercene, Jr. threatened to
kill him, saying
Mercene: Putang Ina mo Patrolman, papatayin kita ngayon.
SPO1 GUTIERREZ: * raised his hands for mercy. Huwag po konsehal, maawa ka sa aking
mga anak, at maliliit pa ang mga anak ko
He said that him and Mercene, Jr grappled for possession of the gun, the gun went
off, hitting Mercene, Jr. on the left nape below the ear. According to SPO1 GUTIERREZ,
JR, at that time, Mercene, Jrs finger was on the trigger. SPO1 GUTIERREZ, JR said he then
picked up the gun and tucked it at his waist, and stepped out towards the road.
SPO1 GUTIERREZ, JR saw SPO4 Meynard Ramos and asked him to help him bring
Mercene, Jr. to the hospital. But Ramos told him to report instead to the police station and he
would take care of Mercene, Jr.
SPO1 GUTIERREZ, JR reported the matter to his station commander, SPO3 Rafael
Tagulalap, saying that Mercene, Jr. had accidentally shot himself, and surrendered the fatal
gun.SPO1 GUTIERREZ, JR claimed that although he was placed inside the jail, it was more
to protect him from relatives of Mercene, Jr rather than to prevent him from escaping
because they believed he committed a crime.
SPO1 GUTIERREZ, JR denied blocking Mercene, Jr.s passage through the river. He
claimed he placed the nets to catch fish. SPO1 GUTIERREZ, JR complained that the spot
report of the incident transmitted by his station to the PNP was different from the version he
 RULE 132

Presentation of Evidence and Examination of Witness

gave to his station commander because in the spot report it was stated that he drew his
revolver and shot Mercene, Jr. as the latter was about to attack him (SPO1 GUTIERREZ,
JR). He claimed that it was actually Mercene, Jr. who pulled the trigger thus accidentally
shooting himself.
Bonifacio Nagulom, a copramaker, corroborated SPO1 GUTIERREZ, JRs account. He
testified that he witnessed the incident as he was on his way to the public market.
The testimony of Menardo Ramos was dispensed with as the prosecution agreed that if
he testified this witness would say he was the one who took Mercene, Jr. to the hospital.
Romelyn Merjan also testified. He said that while on his way to the bus terminal, he
noticed somebody cursing Putang Ina mo, Mulong mag-away tayo. even as SPO1 GUTIERREZ,
JR, with his hands raised, pleaded, Huwag ho konsehal maawa ka sa mga anak ko, kaliliitan pa.
Merjan said he noticed a gun tucked at SPO1 GUTIERREZ, JRs waist as he raised his hands. As
SPO1 GUTIERREZ, JR turned away to go inside his house, Mercene, Jr. threw something at him
and then tried to seize SPO1 GUTIERREZ, JRs gun. Both of them fell as they grappled for
possession of the gun. A moment later, Merjan heard a gunshot. He noticed Mercene, Jr. trying to
stand up only to fall down again.
Enrique Dajoyag, a member of the Philippine National Police of Pola, testified that he
was the one who took down the report of the incident in the police blotter because the
investigator, Alvin de Ramos, who interviewed SPO1 GUTIERREZ, JR, had poor
eyesight. Pages of the blotter containing the report were later found missing and the Station
Commander, Romeo Delmo, in a memorandum (Exh. T), stated his belief that the loss of the
missing pages was not accidental.
Alvin de Ramos could not recall whether he had asked Dajoyag to write the investigation
report in the police blotter for him. Nor could he explain the fact that the pages of the police
blotter containing his alleged report were missing. He remembered that what SPO1
GUTIERREZ, JR said was that Mercene, Jr. went to his house and that they had an argument and
grappled for the possession of SPO1 GUTIERREZ, JRs firearm.

CREDIBILITY OF PROSECUTION WITNESSES

SPO1 GUTIERREZ, JR assails the testimony of the principal prosecution eyewitness, Jose
Advincula, claiming it to be riddled with inconsistencies showing that he did not actually witness
the incident:
1. According to SPO1 GUTIERREZ, JR, Advincula testified that he did not know the
names of the two persons he saw, yet he identified SPO1 GUTIERREZ, JR Gutierrez, Jr.
by name as the man he saw holding a gun. Advinculas testimony is as follows:
Q. Before this incident which you had witnessed, could you be able to tell this
Honorable Court if you had seen Romulo Gutierrez before?
A. Yes, sir.
Q. Why have you seen him?
 RULE 132

Presentation of Evidence and Examination of Witness

A. I saw him that he is a policeman of Pola. I do not only know his name.
Q. What about this Antonio Mercene, have you seen this man before the incident in
question?
A. Yes, sir. I know him long before. I have seen his face but I do not know his name.
[31]

There is no inconsistency between Advinculas testimony that he did not know the names
of the persons he saw in the afternoon of October 17, 1992 and the fact that he later identified
SPO1 GUTIERREZ, JR as the assailant. Obviously, Advincula only came to know SPO1
GUTIERREZ, JRs name after witnessing the incident. Even if at the time of the killing he did
not know SPO1 GUTIERREZ, JRs name, he was familiar with the latter, having seen SPO1
GUTIERREZ, JR before and in fact knew that SPO1 GUTIERREZ, JR was a policeman in
Pola. More importantly, in the courtroom, Advincula positively identified SPO1
GUTIERREZ, JR as the person whom he saw shoot Mercene, Jr.

2. SPO1 GUTIERREZ, JR claims that Advincula was inconsistent because at first he

testified that he could not remember whether it was Mercene, Jr.s left or right shoulder
which SPO1 GUTIERREZ, JR hit with his gun but later this witness said it was the left
shoulder which was hit.
This contention is also without merit. Advincula never said SPO1 GUTIERREZ, JR hit
the deceased on the left shoulder. What he said was that the SPO1 GUTIERREZ, JR aimed
his gun at the left shoulder of deceased. Here is what Advincula said:
A. When Antonio Mercene was about to stand up, he was hit by the gun Romulo was
holding, on the shoulder, I do not know only whether it was left or right
shoulder.
....
Q. What happened next?
A. Romulo Gutierrez shot Antonio Mercene, sir.
Q. How far was Romulo Gutierrez from Antonio Mercene when he fired his gun?
A. Tutok po ang baril.
COURT:
Q. Where was it nakatutok?
A. On his left shoulder, your honor.

3. Another alleged inconsistency in Advinculas testimony is that he said he saw the

deceased and SPO1 GUTIERREZ, JR talking on the road outside the house but later he
 RULE 132

Presentation of Evidence and Examination of Witness

said that the two were at the side of the road. Advinculas testimony is as follows, and it
belies SPO1 GUTIERREZ, JRs claim that it is inconsistent:
ATTY. JUNIO: Q- You said that when you were about 12 meters away from the
place where the incident happened, did you notice that the two persons were just
very close the door of the house?
A- They were talking on the road outside the house, sir.
Q- So, when Councilor Mercene was allegedly shot, he was shot on the road?
A- He was slumped on the road, sir.
ATTY. JUNIO:
The witness is not answering directly the question.
Q- Prior to my last question, you said that the two, the deceased councilor Mercene
and accused Romulo Gutierrez were on the road. So when councilor Mercene
was shot, he was on the road?
A- At the side of the road, sir.
Q- How far to the side of the road?
A- At the very side of the road, sir. [34]
What Advincula actually testified to was that he saw SPO1 GUTIERREZ, JR talking with
Mercene, Jr. on the road but that the latter was shot at the very side of the road. Indeed, this
testimony is consistent with the sketch (Exh. J) [35] of the crime scene, which shows the
deceaseds body on the shoulder of the road and his foot about 15 inches from the road
indicating that if SPO1 GUTIERREZ, JR and the deceased did not have their initial
confrontation on the road, it was at least quite near the same.

4. According to SPO1 GUTIERREZ, JR, Advinculas testimony that SPO1 GUTIERREZ,

JR was situated obliquely on the left side of Mercene, Jr.s head when he shot the latter
was belied by the testimony of the medico-legal witness Dr. Fetizanan. This is not so. Dr.
Alita Fetizanans testimony in fact corroborates Advinculas testimony. She said:

“It could be possible that the victim at the time he was shot was either stooping or
sitting down and the assailant is positioned in such a way that he is higher than the
victim. It is also possible that the assailant is located on the left posterior lateral
position in relation to the victim, sir.”

5. Finally, SPO1 GUTIERREZ, JR contends that Advincula lied when he testified that the
distance between the deceaseds body and the wall of SPO1 GUTIERREZ, JRs house was
5 meters since, according to SPO1 Froilan Rivera, the distance of the deceaseds body
from the wall of SPO1 GUTIERREZ, JRs house was only 5 feet or 1 1/2 meters.
 RULE 132

Presentation of Evidence and Examination of Witness

Advinculas estimate regarding the distance between the place where the deceased was shot
and the wall of appellants house is from 4 to 5 meters. While this is belied by the sketch (Exh. J)
[37]
of SPO1 Rivera and the latters testimony [38] to the effect that the distance between the head of
the deceased and the main door of appellants house was 59 inches, the erroneous estimate of
Advincula may have been caused by fright. At all events, this is an error concerning a minor
point. Far from detracting from the merit of his testimony, it in fact even he bolsters its
credibility for it indicates that his testimony was unrehearsed.
Turning to Dante Pajarons testimony, SPO1 GUTIERREZ, JR contends that it is of doubtful
veracity because Pajaron testified that he had two companions at the time of the shooting, Jose
Advincula and Ramil de los Reyes, but in his earlier affidavit he stated that a certain Teddy Boy
and John-John were also with him. We have observed many times before that affidavits taken ex
parte are often incomplete and inaccurate, sometimes because of suggestion and at other times
because of want of suggestion and inquiries. For this reason, they are generally considered
inferior to testimony given in open court. Moreover, Dante Pajaron clarified during his cross-
examination that Teddy Boy and John-John were with them when they were gathering sand and
that they were left behind in the quarry to pile the same while he, Jose Advincula, and Ramil de
los Reyes proceeded to Pola.
We find the findings of fact of the trial court to be in accordance with the
evidence. With two credible eyewitnesses and the documentary evidence corroborating
their testimonies, the prosecution has clearly discharged its burden of proving SPO1
GUTIERREZ, JRs guilt beyond reasonable doubt. It should be added that the trial court had
the opportunity to observe first-hand the demeanor and deportment of all the witnesses
and its findings that the witnesses for the prosecution are to be believed over those of the
defense are entitled to great weight.
 RULE 132

Presentation of Evidence and Examination of Witness

HARRY L. GO, ET.AL. vs THE PEOPLE OF THE PHILIPPINES

G.R. No. 185527
July 18, 2012

Ponente: Perlas-Bernabe, J.:

FACTS:

Sometime in August 1996, in the City of Manila, Philippines, the said accused,
conspiring, confederating together and helping one another, did then and there willfully,
unlawfully and feloniously defraud Highdone Company Ltd. Represented by Li Luen Ping.

by means of false manifestations and fraudulent representations which they made to said
Li Luen Ping to the effect that they have chattels such as machinery, spare parts, equipment and
raw materials installed and fixed in the premises of BGB Industrial Textile Mills Factory located
in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan, executed a Deed of
Mortgage for a consideration of the amount of $464,266.90 or its peso equivalent at
P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd.
Representing that the said deed is a FIRST MORTGAGE when in truth and in fact the accused
well knew that the same had been previously encumbered, mortgaged and foreclosed by CHINA
BANK CORPORATION as early as September 1994 thereby causing damage and prejudice to
said HIGHDONE COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at
P20,892,010.50 more or less."

Upon arraignment, petitioners pleaded not guilty to the charge.The prosecution's

complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled from
his home country back to the Philippines in order to attend the hearing held on September 9,
2004. However, trial dates were subsequently postponed due to his unavailability.

On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral
Deposition of Li Luen Ping, alleging that he was being treated for lung infection at the Cambodia
Charity Hospital in Laos, Cambodia and that, upon doctor's advice, he could not make the long
travel to the Philippines by reason of ill health.

MeTC granted the motion after the prosecution complied with the directive to submit a
Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC
denied, prompting petitioners to file a Petition for Certiorari before the RTC.
 RULE 132

Presentation of Evidence and Examination of Witness

RTC granted the petition and declared the MeTC Orders null and void. The RTC held
that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply
suppletorily to the case since there is a specific provision in the Rules of Court with respect to
the taking of depositions of prosecution witnesses in criminal cases, which is primarily intended
to safeguard the constitutional rights of the accused to meet the witness against him face to face.

CA promulgated the assailed Decision which held that no grave abuse of discretion can
be imputed upon the MeTC for allowing the deposition-taking of the complaining witness Li
Luen Ping because no rule of procedure expressly disallows the taking of depositions in criminal
cases and that, in any case, petitioners would still have every opportunity to cross-examine the
complaining witness and make timely objections during the taking of the oral deposition either
through counsel or through the consular officer who would be taking the deposition of the
witness.

ISSUES:

Whether or not the application of the rules on deposition-taking in civil cases to criminal
cases is proper.

HELD:

We rule in favor of petitioners.The Procedure for Testimonial Examination of an

Unavailable Prosecution Witness is Covered Under Section 15, Rule 119.

The examination of witnesses must be done orally before a judge in open court. This is
true especially in criminal cases where the Constitution secures to the accused his right to a
public trial and to meet the witnessess against him face to face. The requirement is the "safest
and most satisfactory method of investigating facts" as it enables the judge to test the witness'
credibility through his manner and deportment while testifying. It is not without exceptions,
however, as the Rules of Court recognizes the conditional examination of witnesses and the use
of their depositions as testimonial evidence in lieu of direct court testimony.

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil
procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says
that the rules of civil procedure have suppletory application to criminal cases. However, it
is likewise true that criminal proceedings are primarily governed by the Revised Rules of
Criminal Procedure.

"The main and essential purpose of requiring a witness to appear and testify orally at a
trial is to secure for the adverse party the opportunity of cross-examination. "The opponent",
according to an eminent authority, "demands confrontation, not for the idle purpose of gazing
upon the witness, or of being gazed upon by him, but for the purpose of cross examination which
cannot be had except by the direct and personal putting of questions and obtaining immediate
answers." There is also the advantage of the witness before the judge, and it is this – it enables
the judge as trier of facts "to obtain the elusive and incommunicable evidence of a witness'
deportment while testifying, and a certain subjective moral effect is produced upon the witness.
 RULE 132

Presentation of Evidence and Examination of Witness

It is only when the witness testifies orally that the judge may have a true idea of his countenance,
manner and expression, which may confirm or detract from the weight of his testimony.
Certainly, the physical condition of the witness will reveal his capacity for accurate observation
and memory, and his deportment and physiognomy will reveal clues to his character. These can
only be observed by the judge if the witness testifies orally in court. x x x"

The right of confrontation, on the other hand, is held to apply specifically to criminal
proceedings and to have a twofold purpose:

(1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination,
and

(2) to allow the judge to observe the deportment of witnesses.

As the right of confrontation is intended "to secure the accused in the right to be tried as
far as facts provable by witnesses as meet him face to face at the trial who give their testimony in
his presence, and give to the accused an opportunity of cross-examination, it is properly viewed
as a guarantee against the use of unreliable testimony in criminal trials.

In this case, where it is the prosecution that seeks to depose the complaining witness
against the accused, the stringent procedure under Section 15, Rule 119 cannot be ignored
without violating the constitutional rights of the accused to due process.

Finally, the Court takes note that prosecution witness Li Luen Ping had managed to
attend the initial trial proceedings before the MeTC of Manila on September 9, 2004. At that
time, Li Luen Ping's old age and fragile constitution should have been unmistakably apparent
and yet the prosecution failed to act with zeal and foresight in having his deposition or testimony
taken before the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In fact, it
should have been imperative for the prosecution to have moved for the preservation of Li Luen
Ping's testimony at that first instance given the fact that the witness is a non-resident alien who
can leave the Philippines anytime without any definite date of return. Obviously, the prosecution
allowed its main witness to leave the court's jurisdiction without availing of the court procedure
intended to preserve the testimony of such witness. The loss of its cause is attributable to no
other party.

Still, even after failing to secure Li Luen Ping's conditional examination before the
MeTC prior to said witness' becoming sick and unavailable, the prosecution would capitalize
upon its own failure by pleading for a liberal application of the rules on depositions. It must be
emphasized that while the prosecution must provide the accused every opportunity to take the
deposition of witnesses that are material to his defense in order to avoid charges of violating the
right of the accused to compulsory process, the State itself must resort to deposition-taking
sparingly if it is to guard against accusations of violating the right of the accused to meet the
witnesses against him face to face. Great care must be observed in the taking and use of
depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex
parte affidavits and deposition.
 RULE 132

Presentation of Evidence and Examination of Witness

Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for
taking the deposition of an unavailable prosecution witness when it upheld the trial court's order
allowing the deposition of prosecution witness Li Luen Ping to take place in a venue other than
the court where the case is pending. This was certainly grave abuse of discretion.