VDA. DE MANGUERRA vs.

RAUL RISOS
G.R. NO. 152643, 28 AUGUST 2008
563 SCRA 499
FACTS:
A case of Estafe Through Falsification of Public Document before the RTC of
Cebu was filed against Raul Risos, Susana Yongco, Leah Abarquez and Atty. Gamaliel
D.B. Bonje. It arose from the falsification of a deed of sale 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. While the case was on going, Concepion was confined at the Makati
Medical Center due to upper gastro-intestinal bleeding. Respondents filed a Motion
for Suspension on the ground of prejudicial question. They argued that the civil case
CEB-20359, an action for declaration of nullity of mortgage, should be first resolved.
The counsel of Concepcion filed a motion to take the latters deposition. He
explained the need to perpetuate Concepcions testimony due to her weak physical
condition and old age. The Motion for Deposition was granted by the RTC. The CA
reversed the RTC stating that, the examination of the witness is governed by
Section15 of Rule 119 and not Rule 23 of the Rules of Court.

ISSUE:
Whether or not Rule 23 would apply in this case.
HELD:
No. In criminal cases, all witnesses shall give their testimonies at the trial of
the case in the presence of the judge. This is to afford the accused 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.
In this case, 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.
Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It
is thus required that the conditional examination be made before the court where
the case is pending. It is also necessary that the accused be notified, so that he can
attend the examination, subject to his right to waive the same after reasonable
notice. As to the manner of examination, the Rules mandate that it be conducted in
the same manner as an examination during trial, that is, through question and
answer.

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 the criminal proceedings are
primarily governed by the Revised Rules of Criminal Procedure. Considering that
Rule 119 adequately and squarely covers the situation in the instant case, there is
no cogent reason to apply Rule 23 suppletorily or otherwise.
While we recognize the prosecutions right to preserve its witness testimony
to prove its case, we cannot disregard rules which are designed mainly for the
protection of the accuseds 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.