Death or absence of a witness
impossibility.
[G.R. No. L-48883. August 6, 1980.]
THE PEOPLE OF THE PHILIPPINES, petitioners, vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of
First Instance, Branch II, Sixteenth Judicial District,
Zamboanga City and PILLAR ANGELES DE PIMENTEL,
respondents.
FACTS: an information for parricide was charged to
respondent Pilar angeles as principal by inducement,
Mario Nemenio and Salim Doe as principals by direct
participation and Moises Julkanain as accomplice, in the
fatal stabbing of Eduardo Pimentel, the lawful husband of
private respondent.
In this case, the accused Mario entered on arraignment a
plea of guilty. Respondent judge thereafter rendered a
judgment convicting the accused Mario of murder.
Immediately after promulgation of judgment, accused
Mario offered to testify against his co accused, herein
private respondent, in her separate trial.
Allowed, he testified as prosecution witness and as
summarized by the petitioner, his testimony on direct
examination contained that “he and Salim were HIRED by
respondent Pilar Angeles de Pimentel, for the
consideration fo P3,000 to kill Eduardo Pimentel, husband
of respondent Pilar in the latter’s residence in Zamboanga
City. And that, it was respondent Pilar, who ACTUALLY
pointed out the victim Eduardo to the witness Mario
Nemenio who then stabbed the said victim to death.
After the prosecution had terminated the direct
examination of its witness Mario Nemenio, counsel for the
private respondent moved for the holding in abeyance of
the cross examination of the said prosecution witness until
after he shall have furnished with the transcript of
stenographic notes. The same was granted by judge who
ordered the resumption of hearing on April 19, 1978. But
on said date the prosecution witness failed to appear
because he was not served with a subpoena.
Consequently the hearing was reset for June 7.
On June 7, counsel for private respondent commenced his
cross examination of prosecution witness Mario, which
cross examination however was not completed for lack of
material time. Thus, the hearing was adjourned and
resumed on July 3.
According to the petition, the uncompleted cross
examination reduced in f53 pages of transcript HAD
ALREADY TOUCHED ON THE CONSPIRACY existing
among Salim Doe, Mario and respondent Pilar, to kill
Eduardo Pimentel.
Continuation of the cross examination was set for July 3,
however Mario was shot dead by the Police while allegedly
escaping from the San Ramon Prison and Penal Farm in
Zamboanga City, where he was serving his sentence. The
completion of this cross examination became an
The petitioner filed with the court a motion praying for a
ruling on the admissibility of the testimony of deceased
witness Mario. The respondent judge issued an order
declaring as inadmissible the entire testimony of the
deceased witness Mario on the principal ground that the
defense was not able to complete its cross examination of
said witness relying on the case of Ortigas v. Lufthansa.
ISSUE:
1. Whether or not respondent judge gravely abused its
discretion in ruling as inadmissible the testimony of
prosecution witness Mario Nemenio.
2. Whether or not respondent’s judge full reliance on the
Lufthansa case can be sustained.
3. Whether or not there is merit in the contention of the
petitioner that the questioned testimony of the deceased
witness is admissible in evidence because the private
respondent counsel had already rigorously cross examined
Mario Nemenio.
HELD:
1. Yes.
As a general rule, the testimony of a witness given on direct
examination should be stricken where there is not an
adequate opportunity for cross examination, as where the
witness by reason of his death, illness or absence cannot
be subjected to cross examination. The direct testimony of
a witness who dies before conclusion of the cross
examination CAN be stricken only insofar as not covered
by the cross-examination and absence of a witness is NOT
enough to warrant striking his testimony for failure to
appear for further cross examination where the witness has
already be sufficiently cross examined or the matter on
which further cross examination is sought is not in
controversy.
On the other hand, when the cross-examination is not and
cannot be done or completed due to CAUSE
ATTRIBUTABLE TO THE PARTY OFFERING THE
WITNESS, as was the situation in Lufthansa relied upon by
the respondent judge, the uncompleted testimony is
hereby rendered incompetent and inadmissible in
evidence.
Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete
and may not, therefore, be allowed to form part of the
evidence to be considered by the court in deciding the
case. HOWEVER, we likewise therein emphasized that
where the right to cross-examine is LOST WHOLLY OR IN
PART THROUGH THE FAULT OF THE CROSS
EXAMINER, then the testimony on direct examination MAY
be taken into account. BUT when cross examination is not
and cannot be done due to causes attributable to the party
offering the witness, the uncompleted testimony is thereby
rendered incompetent.
Further, where the death or illness prevents cross
examination under such circumstances that no
responsibility of any sort can be attributable to EITHER the
witness of his party, it seems harsh measure to strike out
all that has been obtained on direct examination.
While the right to confrontation and cross-examination is a
fundamental right, We have ruled that the same CAN BE
WAIVED expressly or impliedly by conduct amounting to a
renunciation of the right to cross examination.
The common basic principle underlying the application of
the rule on implied waiver is that the party was given the
opportunity to confront and cross-examination an opposing
witness BUT failed to take advantage of it for reasons
attributable to himself alone. Thus, where a party has had
the opportunity to cross-examine a witness but failed to
avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of
the witness will be received or allowed to remain in the
record.
2. NO. it cannot be sustained.
While the cross examination of the witness in the Lufthansa
case were both uncompleted, the causes therof were
different. In the present case it was the death of the
witness, in Lufthansa case, it was the unjustified and
unexplainable failure of Lufthansa to present its witnesses
on scheduled date for his cross examination which had
already been preceded by several postponements, thus
depriving the other party the opportunity to complete the
cross examination of said witness.
Lufthansa ruling therefore applies only of there is a finding
that the cause for non completing of the cross examination
for a witness was attributable to the very party offering the
said witness. Consequently, the same is inapplicable to the
instant action as the cause for the non-completion of the
cross examination of petitioner’s witness was a fortuitous
event as he was killed by the law enforcers after his
escape from prison.
3. Yes. There is merit in the contention of the petitioner that
the questioned testimony of its deceased witness is
admissible in evidence because private respondent’s
counsel had already “rigorously and extensively cross
examined witness Mario on ALL ESSENTIAL ELEMENTS
of the crime of parricide, all of which have been testified
upon by said witness in his direct examination in chief and
consequently, the cross examination in chief has already
been concluded.
The cross examination was completed insofar as the
essential elements of the crime charged – parricide, fact of
killing is concerned. What remained was merely cross-
examination regarding price or reward which is not an
element of parricide, but only an aggravating circumstance.
From the foregoing discussion, it is submitted that the
rigorous and searching cross examination of witness Mari
practically concluded already the cross examination or has
already substantially accomplished the purpose of the
cross examination and therefore, the failure to pursue
further the cross examination WOULD NOT adversely
affect the admissibility of the direct testimony of said
witness anymore.
NOTE:
In all criminal prosecutions, the accused shall enjoy the
right to meet the witnesses face to face. Echoing the same
guarantee, Section 1 (f) of Rule 115 of the Rules of Court,
provides that in all criminal proceedings the defendant shall
have the right to be confronted at the trial by, and to cross-
examine the witnesses against him. Constitutional
confrontation requirements apply specifically to criminal
proceedings and have been held to have two purposes
First, to secure the opportunity of cross-examination, and
Secondarily, to obtain the benefit of the moral impact of
the courtroom atmosphere as it effects the witness’
demeanor.
Emilio dela Paz vs IAC | Gutierrez, Jr, J
G.R. No. 71537, September 17, 1987|
FACTS
 Loreto de la Paz filed a complaint against the
petitioners for a judicial declaration of ownership of a
43,830 square meter parcel of land covered by Original
Certificate of Title No. 901 in the name of Ponciano de
la Paz
 Loreto alleged that the subject parcel of land was
among the properties adjudicated to her and her
mother as a result of a partition submitted by the heirs
of Ponciano de la Paz and approved by the court in
Civil Case No. 1399.
 The subject matter of Civil Case No. 1399 was
Ponciano's testate estate.
 In their answer, the petitioners denied that the disputed
lot was among the properties adjudicated to Loreto and
her mother. They claimed that the parcel of land was
not accounted for in the probate proceedings but is
actually community property of the parties.
 The parties, except for petitioner Enrique de la Paz,
were admittedly compulsory heirs of Ponciano de la
Paz who died in 1916
 Loreto was the only legitimate child of Ponciano
 As regards petitioner Enrique de la Paz, Loreto denied
his claim that he is one of the heirs of Ponciano. The
petitioners, however, allege that he is also a
compulsory heir of Ponciano, he being the son of
Ponciano de la Paz, Jr., the eldest child of the
decedent.
 Loreto took the witness stand. She finished her direct
testimony on March 12, 1984.
 On April 25, 1984, the petitioners' counsel began his
cross-examination of Loreto. The cross-examination
was, however, not completed.
 The petitioners' counsel moved in open court for the
continuance of the cross-examination on the ground
that he still had to conduct a lengthy cross-
examination.
 On May 18, 1984, Loreto's counsel filed a motion for
"correction of transcript" due to some errors in the
transcript of stenographic notes taken during the direct
testimony of Loreto. The motion was granted.
 This order granting the correction prompted the
petitioners'' counsel to manifest that he would not be
able to undertake the cross-examination of the witness
as scheduled. The trial court postponed the trial of the
case to May 31, 1984 and later to July 5, and 11, 1984
 Trial resumed. The petitioners' counsel, however,
asked for still another postponement of the cross-
examination to give him a chance to go over the
stenographic notes.
 During the scheduled trial on September 14, 1984,
neither the petitioners, nor their counsel appeared
despite due notice. Loreto's counsel, therefore, filed a
motion that she be allowed to present evidence ex
parte before a commissioner.
 Despite this development, the petitioners upon their
motion were allowed to cross-examine Loreto.
 On the scheduled hearing however, the petitioners'
counsel failed to appear, and the cross-examination of
Loreto was deferred for the fourth time.
 Finally, on November 7, 1984, the petitioners' counsel
resumed his repeatedly postponed cross-examination
of Loreto. The cross-examination was, however, cut
short and rescheduled again on motion of the
petitioners' counsel.
 Unfortunately, Loreto died on December 1, 1984. An
amended complaint was filed for the purpose of
substituting the respondents as heirs of Loreto
 The petitioners moved verbally to strike off the record
the entire testimony of Loreto. The motion was denied.
Thus, they filed a petition before the IAC, however the
same was also denied.
 The petitioners contend that the appellate committed
grave abuse of discretion when it sanctioned the trial
court's orders which denied the striking out of the
testimony of original plaintiff Loreto de la Paz from the
record.
ISSUES & ARGUMENTS
 W/N petitioners were deprived of their right to
cross examination when the court denied their
motion to strike off the record, the testimony of
Loreto
HOLDING & RATIO DECIDENDI
NO.
 Well settled is the rule that the right of a party to
confront and cross-examine opposing witnesses in a
judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasi-
judicial powers, is a fundamental right which is part of
due process.
 The right of a party to cross-examine the witness of his
adversary in invaluable as it is inviolable in civil cases,
no less than the right of the accused in criminal cases.
The express recognition of such right of the accused in
the Constitution does not render the right thereto of
parties in civil cases less constitutionally based, for it
is an indispensable part of the due process guaranteed
by the fundamental law. ... Until such cross-
examination has been finished, the testimony of the
witness cannot be considered as complete and may
not, therefore, be allowed to form part of the evidence
to be considered by the court in deciding the case.
 But also, it is ruled that it is not an absolute right which
a party can demand at all times.
 The right is a personal one which may be waived
expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-
examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness
will be received or allowed to remain in the record.
 In the case at bar, the petitioners' failure to cross-
examine Loreto was through no fault of the
respondents. As can be gleaned from the record,
Loreto was available for cross-examination from the
time she finished her direct testimony on March 12,
1984
 The petitioners not only kept on postponing the cross-
examination but at times failed to appear during
scheduled hearings.
 The postponement of the trial on May 23, 1984 to a
later date due to the correction of the stenographic
notes of Loreto's testimony may be justified, but the
same cannot be said for the subsequent
postponements requested by the petitioners.
 Under these circumstances, we rule that the petitioners
had waived their right to cross-examine Loreto.
Through their own fault, they lost their right to cross-
examine Loreto. Her testimony stands.
IMPEACHMENT OF A WITNESS
PEOPLE OF THE PHILIPPINES vs. WINSTON DE
GUZMAN
G.R. No. 122740 | March 30, 1998 | Regalado, J.
FACTS:
June 9, 1994 (2pm): While 14-year-old JOVELYN A.
GERAM was sleeping alone in their residence at Barangay
Monserrat, Governor Generoso, Davao Oriental she was
awakened by the weight of DEFENDANT WINSTON DE
GUZMAN on top of her, who was then naked.
● JOVELYN tried to shout for help but WINSTON
covered her mouth and nose with his hand and
warned her not to resist or she would be killed.
● Upon recovering, JOVELYN discovered that
WINSTON was gone and she was already
undressed. She saw blood on her vagina and
white fluid on her abdomen and thighs.
JOVELYN recounted her ordeal at WINSTON’s hands to
neighbors, Mauricia and Hugo Bayno, then to Genesis
Delgado.
 ● When her parents returned from fishing,
JOVELYN’s mother, Evelyn Geram could only cry
as the former related the incident to her.
JOVELYN and her mother subsequently went to the
barangay captain of Monserrat who advised them to report
to the police authorities of Sigaboy, Governor Generoso.
● Afterwards, she and her mother proceeded to the
municipal hospital for physical examination. Dr.
Divina Lopez, a resident physician of the Municipal
District Hospital of Governor Generoso, issued a
medical certificate detailing the finding of (1) blood
cloths in labia minora, (2) ruptured hymen, and (3)
redness around the vulvar area.
WITNESS Genesis Delgado declared that he saw
WINSTON going inside the house of JOVELYN on June 9
at around 2PM through the kitchen door at the rear portion
of the house, leaving 2 hours later.
● Another witness, Enecita dela Cruz Torion, a
teacher in Monserrat Elementary School, also
testified that she saw WINSTON, together with 2
companions, sitting at the front porch of the
Gerams’ house at about 1PM of June 9, 1994.
WINSTON’s defense is denial and alibi, which the Court is
not persuaded to grant any credence thereto since the
facts relied on to make out his story obviously appear too
pat as to have clearly been contrived, being corroborated
only by his own parents’ story.
● WINSTON claimed that he was in Davao City since
June 6 with his mother to attend to his sister-in-law
who was confined. After she was discharged on
June 8, they went to his sister’s house at Sasa,
Davao City where they stayed until 4:30AM of June
10.
LOWER COURT FOUND WINSTON GUILTY, giving
credence to JOVELYN’s testimony and disregarding
WINSTON’s defense of denial cum alibi.
● He was sentenced with reclusion perpetua and to
indemnify Jovelyn P40,000.
ISSUE:
W/N DEFENDANT WINSTON IS GUILTY OF RAPE- YES
RATIO:
WINSTON’s ARGUMENT: JOVELYN stated in her
complaint and testimony during preliminary investigation
that he used odorous chemicals over her nose and mouth
to sleep BUT in the trial court she merely claimed the crime
was consummated through force and intimidation.
● Such inconsistency destroys her credibility, thus
warranting a reversal of his conviction.
SC: A witness cannot he impeached by evidence of
contradictory or prior inconsistent statements until the
proper foundation or predicate has been duly laid by
the party against whom said witness was called.
● Rule 132, Sec. 13. How witness impeached by
evidence of inconsistent statements. - Before a
witness can be impeached by evidence that he has
made at other times statements inconsistent with
his present testimony, the statements must be
related to him, with the circumstances of the times
and places and the persons present, and he must
be asked whether he made such statements, and
if so, allowed to explain them. If the statements be
in writing they must be shown to the witness before
any question is put to him concerning them.
Although the whole record of the preliminary examination
was offered in evidence by the defense and admitted by
the trial court, such previous statements cannot serve as
bases for impeaching the credibility of a witness unless
his/her attention was first directed to the discrepancies and
was then given an opportunity to explain them.
● Without such explanation, whether plausible or
not, Court is left with no basis to evaluate and
assess his/her credibility on the rationale that it is
only when no reasonable explanation is given by a
witness in reconciling his conflicting declarations
that his credibility should be deemed impeached.
People vs. Resabal: The mere presentation of the prior
declarations of a witness without the same having
been read to the witness while he was testifying in
court is insufficient for the desired impeachment of his
testimony.
SC: The rule which requires a sufficient foundation to be
first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense
and is essential to protect the character of a witness.
● His memory is refreshed by the necessary
inquiries, which enables him to explain the
statements referred to, and to show that they were
made under a mistake, or that there was no
discrepancy between them and his testimony.
SC: It is evidentiarily proscribed to discredit a witness
on the bases of purportedly prior inconsistent
statements which were not called to the attention of
that witness during the trial, although the same are
supposedly contained in a document which was
merely offered and admitted in its entirety without the
requisite specifications.
ITC, JOVELYN was never confronted during the
proceedings in the trial court with her alleged testimony at
the preliminary investigation regarding WINSTON’s resort
to sleep-including chemicals.
● In fact, no sub-markings for such particular
answers as exhibits were made in the records of
her testimony in the preliminary investigation,
 much less offered by WINSTON’s counsel for that
purpose during the trial of the case
● Hence, as things stand before us and the court a
quo, JOVELYN’s credibility remains unimpeached.
● We confirm the validity of the doctrine in Villaruel
vs. Bascon that, unless the proper predicate is
laid during the trial by calling the attention of a
witness to his alleged inconsistent statements
given outside of his testimony in court and
asking him to explain the contradiction, the
supposed inconsistencies cannot be pointed
out on appeal for the purpose of destroying the
credibility of the witness.

Similarly, WINSTON cannot rely on JOVELYN’s complaint

since records show that said complaint was never
introduced in evidence for the consideration of the trial
court nor shown to her during the trial so that she could
explain the alleged discrepancies in accordance with the
foregoing rule.
● The complaint is not even included in the folder of
exhibits as part of the documents admitted in
evidence by the trial court.
● It is only attached to the original record of this case
together with the other records of the preliminary
investigation forwarded to the trial court.
● Under the revision in the 1985 Rules of Criminal
Procedure, those records of the preliminary
investigation do not form part of the record of the
case in the RTC.

RULING:
WHEREFORE, the judgment of the court a quo is hereby
AFFIRMED, with the MODIFICATION that the indemnity to
be paid by accused-appellant Winston de Guzman is
increased to P50,000.00 in accordance with the present
case law thereon.