[ G.R. No. L-41166. August 25, 1976 ] 164 Phil. 422
SECOND DIVISION
[ G.R. No. L-41166. August 25, 1976 ]
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO AND DIONISIO CERBO, PETITIONERS, VS. HON. NUMERIANO G. ESTENZO, JUDGE, COURT OF FIRST INSTANCE OF ILOILO, AND GREGORIO OJOY, RESPONDENTS. D E C I S I O N
ANTONIO, J.:
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses for the accused on direct examination in open court, he was filing their affidavits, subject to cross-examination by the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary restraining order enjoining the respondent Judge from enforcing the questioned Order.
In Criminal Case No. 2891, entitled “People of the Philippines, plaintiff, versus Gregorio Ojoy, accused”, of the Court of First Instance of Iloilo, Branch III, after the accused himself had testified in his defense, his counsel manifested that for his subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on matters stated in the affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the proposed procedure but this notwithstanding, respondent Judge gave his conformity thereto and subsequently issued the questioned Order. Contending that respondent Judge gravely abused his discretion because the aforesaid Order violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the testimony of the witness should be given orally in open court, and there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the testimony of a witness shall be given orally in open court. The afore-cited Sections 1 and 2 provide:
“SECTION 1. Testimony to be given in open court. — The testimony of witnesses shall be given orally in open court and under oath or affirmation.
“SEC. 2. Testimony in superior courts to be reduced to writing. ? In superior courts the testimony of each witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the witness being stated, and all questions put to the witness and his answers thereto being included. If a question put is objected to and the objection is ruled on, the nature of the objection and the ground on which it was sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. A transcript of the record made by the official stenographer or stenotypist and certified as correct by him shall be prima facie a correct statement of such testimony and proceedings.”
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from Section 381 of Act No. 190,[1] while Section 78 from Section 32 of General Order No. 58.[2]
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,[3] “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 to be obtained by the personal appearance of the witness before the judge, and it is this ? it enables the judge as the 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."[4] 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.[5] 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. Indeed, the great weight given the findings of fact of the trial judge in the appellate court is based upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses. This has been explained by Chief Justice Appleton, thus:
“The witness present, the promptness and unpremeditatedness of his answers or the reverse, their distinctness and particularity or the want of these essentials, their incorrectness in generals or particulars, their directness or evasiveness, are soon detected. . . . The appearance and manner, the voice, the gestures, the readiness and promptness of the answers, the evasions, the reluctance, the silence, the contumacious silence, the contradictions, the explanations, the intelligence or the want of intelligence of the witness, the passions which more or less control — fear, love, have, envy, or revenge — are all open to observation, noted and weighed by the jury."[6]
Thus, Section 1 of Rule 133 of the Rules[7] requires that in determining the superior weight of evidence on the issues involved, the court, aside from the other factors therein enumerated, may consider the “witness’ manner of testifying” which can only be done if the witness gives his testimony “orally in open court”. If a trial judge prepares his opinion immediately after the conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript, without having had the opportunity to see, hear and observe the actions and utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally in court. Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to the witness. A witness may testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except on preliminary matters, or when there is difficulty in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feebleminded, or a deaf-mute.[8] It is obvious that such purpose may be subverted, and the orderly dispatch of the business of the courts thwarted, if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court.
WHEREFORE , in view of the foregoing, the petition for certiorari is hereby granted and the Order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary restraining order issued on August 22, 1975 is hereby made permanent, without any pronouncement as to costs.
Fernando, Acting C.J., Aquino, and Concepcion, Jr., JJ., concur.
Barredo, (Acting Chairman), J., concurs in a separate opinion.