VDA. DE MANGUERRA vs. RISOS, G.R. No. 152643, August 28, 2008

on September 10, 1999, Concepcion, who was a resident of Cebu City, while on vacation in Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and was advised to stay in Manila for further treatment.

On November 4, 1999, respondents were charged with Estafa Through Falsification of Public Document before the RTC of Cebu City arose from the falsification of a deed of real estate mortgage allegedly committed by respondents where they made it appear that Concepcion, the owner of the mortgaged property known as the Gorordo property, affixed her signature to the document.

On November 24, 1999, respondents filed a Motion for Suspension of the Proceedings in Criminal Case on the ground of prejudicial question. They argued that Civil Case was an action for declaration of nullity of the mortgage, should first be resolved.

On May 11, 2000, the RTC granted the aforesaid motion. Concepcion’s motion for reconsideration was denied on June 5, 2000.

On August 16, 2000, the counsel of Concepcion filed a motion to take the latter’s deposition. He explained the need to perpetuate Concepcion’s testimony due to her weak physical condition and old age, which limited her freedom of mobility.

On August 25, 2000, the RTC granted the motion and directed that Concepcion’s deposition be taken before the Clerk of Court of Makati City. The respondents’ motion for reconsideration was denied by the trial court on November 3, 2000. The court ratiocinated that procedural technicalities should be brushed aside because of the urgency of the situation, since Concepcion was already of advanced age. After several motions for change of venue of the deposition-taking, Concepcion’s deposition was finally taken on March 9, 2001 at her residence.

Aggrieved, respondents assailed the order of the RTC granting the taking of the petitioners deposition in a special civil action for certiorari before the CA.The CA rendered a Decision favorable to the respondents granting its petition and setting aside any deposition that may have been taken on the authority of such void orders is similarly declared void. Hence this instant case.

Whether Rule 23 of the 1997 rules of civil procedure applies to the deposition of petitioner.

No, It is basic that all witnesses shall give their testimonies at the trial of the case in the presence of the judge. This is especially true in criminal cases in order that the accused may be afforded the opportunity to cross-examine the witnesses pursuant to his constitutional right to confront the witnesses face to face. It also gives the parties and their counsel the chance to propound such questions as they deem material and necessary to support their position or to test the credibility of said witnesses. Lastly, this rule enables the judge to observe the witnesses’ demeanor.

This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the ground which places her squarely within the coverage of the same provision. Rule 119 specifically states that a witness may be conditionally examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the witness has to leave the Philippines with no definite date of returning. Thus, when Concepcion moved that her deposition be taken, had she not been too sick at that time, her motion would have been denied. Instead of conditionally examining her outside the trial court, she would have been compelled to appear before the court for examination during the trial proper.

To reiterate, the conditional examination of a prosecution witness for the purpose of taking his deposition should be made before the court, or at least before the judge, where the case is pending. Such is the clear mandate of Section 15, Rule 119 of the Rules. We find no necessity to depart from, or to relax, this rule. As correctly held by the CA, if the deposition is made elsewhere, the accused may not be able to attend, as when he is under detention. More importantly, this requirement ensures that the judge would be able to observe the witness’ deportment to enable him to properly assess his credibility. This is especially true when the witness’ testimony is crucial to the prosecution’s case.

While we recognize the prosecution’s right to preserve its witness’ testimony to prove its case, we cannot disregard rules which are designed mainly for the protection of the accused’s constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.


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