People vs.

Estenzo
G.R. No. L-41166. August 25, 1976
Topic: Examination in Open Court

DOCTRINE: 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.

FACTS:
This is a Certiorari and prohibition with prayer for preliminary injunction to
nullify the Order of respondent Judge, 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

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.

Respondent Judge gave his conformity thereto and subsequently issued the
questioned Order.

Contending that respondent Judge gravely abused his discretion because

the aforesaid Orders 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.

ISSUE: Whether the respondent judge erred in sustaining the manifestation

of the defense counsel in filing only affidavits of his subsequent witnesses.

RULING: Yes.
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 provides:

"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."cralaw virtua1aw library

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 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." 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. 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.

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. 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.

Galman vs. Pamaran

138 SCRA 294 – 1985
Topic: Examination in Open Court
DOCTRINE: The privilege of the right against self-incrimination and the
right to due process extends to all proceedings sanctioned by law and to all
cases in which punishment is sought to be visited upon a witness, whether a
party or not.

FACTS:

On August 21, 1983, a crime unparalleled in repercussions and

ramifications was committed inside the premises of the Manila International
Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., was
gunned down to death. The assassination rippled shock-waves throughout
the entire country which reverberated beyond the territorial confines of this
Republic. The after-shocks stunned the nation even more as this ramified to
all aspects of Philippine political, economic and social life.

To determine the facts and circumstances surrounding the killing and to

allow a free, unlimited and exhaustive investigation of all aspects of the
tragedy, P.D. 1886 was promulgated creating an ad hoc Fact Finding Board
which later became more popularly known as the Agrava Board.  Among the
witnesses who appeared, testified and produced evidence before the Board
were the herein private respondents General Fabian C. Ver, Major General
Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt.
Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto
Acupido. 

UPON termination of the investigation, two (2) reports were submitted to

His Excellency, President Ferdinand E. Marcos. After conducting the
necessary preliminary investigation, the TANODBAYAN filed with the
SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of
Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010
and another, criminal Case No. 10011, for the killing of Rolando Galman,
who was found dead on the airport tarmac not far from the prostrate body
of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and
one accomplice.

Upon arraignment, all the accused, including the herein private ate
Respondents pleaded NOT GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the
Prosecution represented by the Office of the petition TANODBAYAN,
marked and thereafter offered as part of its evidence, the individual
testimonies of private respondents before the Agrava Board. Private
respondents, in a Motion to Exclude Evidence, objected to the admission of
said pieces of evidence contending that its admission will be in derogation
of their constitutional right against self-incrimination and violative of the
immunity granted by P.D. 1886. TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in
support of their motions to exclude their respective testimonies, was not
available to them because of their failure to invoke their right against self-
incrimination before the ad hoc Fact Finding Board. 

SANDIGANBAYAN issued a Resolution, admitting all the evidences offered

by the prosecution except the testimonies and/or other evidence produced
by the private respondents in view of the immunity granted by P.D. 1886. 

Prosecution’s argument: Testimonies are admissible against the private

respondents because of their failure to invoke before the Agrava Board the
immunity granted by PD 1886. Since they did not invoke the said privilege,
the immunity did not attach and this amounts to a waiver.

Private respondents’ argument: Notwithstanding failure to set up the

privilege against self-incrimination before the Agrava Board said evidence
cannot used against them without the immunity granted by PD 1886, the
legal compulsion imposed by the first clause of the said law would be
unconstitutional for being violative of the witness’ right against self-
incrimination.

ISSUE: Whether the testimonies given by the eight (8) private respondents
who did not invoke their rights against self-incrimination before the Agrava
Board are admissible as evidence? -No

RULING:

The investigation of the Agrava Board is geared, as any other similar

investigation of its sort, to the ascertainment and/or determination of the
culprit or culprits, their consequent prosecution and ultimately, their
conviction. And as safeguard, the P.D. guarantees "any person called to
testify before the Board the right to counsel at any stage of the
proceedings."  Considering the foregoing environmental settings, it cannot
be denied that in the course of receiving evidence, persons summoned to
testify will include not merely plain witnesses but also those suspected as
authors and co-participants in the tragic killing. And when suspects are
summoned and called to testify and/or produce evidence, the situation is
one where the person testifying or producing evidence is undergoing
investigation for the commission of an offense and not merely in order to
shed light on the facts and surrounding circumstances of the assassination,
but more importantly, to determine the character and extent of his
participation therein.

When private respondents were all summoned and gave their testimonies
before the Agrava Board, This notwithstanding, Presidential Decree No.
1886 denied them the right to remain silent. They were compelled to testify
or be witnesses against themselves. Section 5 of P.D. 1886 leave them no
choice. They have to take the witness stand, testify or produce evidence,
under pain of contempt if they failed or refused to do so.  The jeopardy of
being placed behind prison bars even before conviction dangled before their
very eyes. Similarly, they cannot invoke the right not to be a witness against
themselves, both of which are sacrosantly enshrined and protected by our
fundamental law. Both these constitutional rights (to remain silent and not
to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced
evidence as ordered, they were not immune from prosecution by reason of
the testimony given by them.

A literal interpretation fashioned upon Us is repugnant to Article IV, Section

20 of the Constitution, which is the first test of admissibility. It reads:

No person shall be compelled to be a witness against himself. Any

person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such
 right. No force, violence, threat, intimidation, or any other means
which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence.
(Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in

violation thereof. As herein earlier discussed, this exclusionary rule applies
not only to confessions but also to admissions, 33 whether made by a witness
in any proceeding or by an accused in a criminal proceeding or any person
under investigation for the commission of an offense. Any interpretation of a
statute which will give it a meaning in conflict with the Constitution must be
avoided. So much so that if two or more constructions or interpretations
could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for
this purpose to disregard the more usual and apparent import of the
language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will
bring it within the fundamental law. 35 Apparent conflict between two
clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against

self- incrimination as a condition sine qua non to the grant of immunity
presupposes that from a layman's point of view, he has the option to refuse
to answer questions and therefore, to make such claim. P.D. 1886, however,
forecloses such option of refusal by imposing sanctions upon its exercise,
thus:

SEC. 4. The Board may hold any person in direct or indirect

contempt, and impose appropriate penalties therefor. A person
guilty of .... including ... refusal to be sworn or to answer as a
witness or to subscribe to an affidavit or deposition when
lawfully required to do so may be summarily adjudged in direct
contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the
witness no choice but to answer and thereby forfeit the immunity
purportedly granted by Sec. 5. The absurdity of such application is apparent
Sec. 5 requires a claim which it, however, forecloses under threat of
contempt proceedings against anyone who makes such claim. But the
strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in
the light of the sanctions provided in Section 4,infringes upon the witness'
right against self-incrimination. As a rule, such infringement of the
constitutional right renders inoperative the testimonial compulsion,
meaning, the witness cannot be compelled to answer UNLESS a co-
extensive protection in the form of IMMUNITY is offered. 37 Hence, under
the oppressive compulsion of P.D. 1886, immunity must in fact be offered to
the witness before he can be required to answer, so as to safeguard his
sacred constitutional right. But in this case, the compulsion has already
produced its desired results the private respondents had all testified
without offer of immunity. Their constitutional rights are therefore, in
jeopardy. The only way to cure the law of its unconstitutional effects is to
construe it in the manner as if IMMUNITY had in fact been offered. We
hold, therefore, that in view of the potent sanctions imposed on the refusal
to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies
compelled thereby are deemed immunized under Section 5 of the same law.
The applicability of the immunity granted by P.D. 1886 cannot be made to
depend on a claim of the privilege against self-incrimination which the same
law practically strips away from the witness.

People vs. Estenzo

G.R. No. L-41166. August 25, 1976
Topic: Leading Question

DOCTRINE: 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. 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.

FACTS:
This is a Certiorari and prohibition with prayer for preliminary injunction to
nullify the Order of respondent Judge, 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

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.
Respondent Judge gave his conformity thereto and subsequently issued the
questioned Order.

Contending that respondent Judge gravely abused his discretion because

the aforesaid Orders 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.

ISSUE: Whether the respondent judge erred in sustaining the manifestation

of the defense counsel in filing only affidavits of his subsequent witnesses.

RULING: Yes.

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 provides:
gc:chanrobles.com.ph

"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."cralaw virtua1aw library

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 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." 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. 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.

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. 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.

People vs. Limbo

G.R N0. L-24810, March 29 1926
Topic: Leading Questions
DOCTRINE: A leading question propounded to a witness may, by creating
an inference in his mind, cause him to testify in accordance with the
suggestion conveyed by the question; his answer may be "rather an echo to
the question" than a genuine recollection of events..
..With ordinary witnesses is far worse when the witnesses are aged and
ignorant and therefore we should not discredit the testimony of a witness
who is old just because he has made some contradictions during a long and
tedious cross-examination.

FACTS:

This appeal is taken by the defendants Pedro Limbo and Juan Limbo from a
judgment of the Court of First Instance of Batangas, convicting them of the
crime of homicide. While the appeal was pending the defendant and
appellant Juan Limbo died, wherefore the appeal as to him had to be
dismissed.

Juan Limbo was the father of Pedro Limbo and grandson of Petra Vergara,
aunt of Silvestra Vergara. The latter was engaged in the sale
of pansit (Chinese maccaroni) in the market, and it was her custom to keep
her money in a long pouch made of a grayish material which she wound
around her waist.

A few days before the commission of the crime Juan Limbo invited Silvestra
Vergara to pick tomatoes and tobacco on the former's plantation, after
selling pansit in the market, Silvestra Vergara counted her money which
amounted to over P200 in cash and bills, which she placed within the pouch
and tied it around her waist.

The next morning, Calixto Macaraig and Petra Vergara, who were in the
Kitchen of their home, heard the voice of Silvestra Vergara shouting "Why
do you treat me this way?" Calixto Macaraig, he saw Pedro Limbo in the act
of hitting Silvestra Vergara with a club and the latter fall dead. Juan Limbo
unsheathed his bolo and cut the pouch that served as a belt around the
waist of Silvestra Vergara and took it. Calixto Macaraig, after witnessing
this, asked Juan Limbo why they had attacked Silvestra Vergara. In reply
the accused remarked: "If you inform the authorities, you old man, we will
kill you" and they ran, Juam Limbo carrying the bilao and Pedro Limbo
the takuyan. Calixto Macaraig then called to his wife saying "Come here
because Terang has been killed by Pedro and Juan." 

Doctor Leon P. Cusi upon examining the body of Silvestra Vergara, found
several contuse wounds in the body of the victim. All the contuse wounds
were produced by a blunt instrument while the wound on the face was
caused by a sharp instrument. The contusion in the occipital region caused
her death.

The defense tried to prove that the accused Pedro Limbo and his wife had
left their house in the barrio of Mareykit, that on Holy Saturday Pedro
Limbo stayed in the house of his father in the neighboring barrio of
Kalikante, in the municipality of Bolbok, Batangas; that on Easter Sunday
and the following Monday and Tuesday he was ill with fever and could not
leave the house although he could walk around it.

Prosecution there testified Procesa Comia, daughter-in-law of Silvestra

Vergara with whom she was living at the time and in whose presence she
had counted the money in the afternoon of Easter Sunday, afterwards
placing it in the pouch; the spouses Calixto Macaraig and Petra Vergara
who saw Silvestra Vergara, Juan Limbo, and Pedro Limbo on the morning of
the crime when the accused fatally wounded Silvestra Vergara, relieving
her of the money she carried, by cutting the pouch in which it was kept.

ISSUE: Whether the testimony of the witnesses, Calixto Macaraig and

Petra Vergara is not worthy of any credit as they contradicted their own
and each other's testimony.

RULING:

The contradictions and discrepancies observed in the testimony of Calixto

Macaraig and Petra Vergara given during the trial and in their sworn
statements, are due, on one hand, to their relationship to the culprits and
their victim, and, on the other hand, to the natural psychological effect of a
long and tedious cross-examination, the majority of which consisted of
leading questions.

Everyday life and the result of investigations made in the flied of

experimental psychology show that the contradictions of witnesses
generally occur in the details of a certain incident, after a long series of
questionings, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an
incident are impressed in like manner, it is but natural that in relating their
impressions they should not agree in the minor details; hence, the
contradictions in their testimony.

As to a witness contradicting himself on the circumstances of an act or

different act, this may be due to a long series of questions on cross-
examination during which the mind becomes tired to such a degree that the
witness does not understand what he is testifying about, especially in the
questions, in their majority are leading and tend to make him ratify a former
contrary declaration. In this case the mind, incapable of reasoning, only
reflects, like an echo, the idea suggested. Professor Ed. Claparede, Director
of the Psychological Laboratory of the University of Geneva in his work
"What is the Value of Evidence" says: "'In the giving of evidence suggestion
plays a most important part. The simple fact of questioning a witness, of
pressing him to answer, enormously increases the risk of errors in his
evidence. The form of the question also influences the value of the reply
that is made to it. Let us suppose, for instance, that some persons are
questioned about the color of a certain dog. The replies are likely to be
much more correct if we ask the witnesses, "What is (was) the color of the
dog?" than if we were to say to them, "Was the dog white, or was it brown?"
The question will be positively suggestive if we ask, "Was the dog white?" . .
. A leading question propounded to a witness may, by creating an
inference in his mind, cause him to testify in accordance with the
suggestion conveyed by the question; his answer may be "rather an
echo to the question" than a genuine recollection of events . . . ."
(Moore on Facts, vol. II, p. 913, 914.) 

This same thing that happens to ordinary witnesses is far worse

when the witnesses are aged and ignorant and therefore we should
not discredit the testimony of a witness who is old just because he
has made some contradictions during a long and tedious cross-
examination. (Op. Cit., pp. 810-1410.) This is exactly what happened to the
government witnesses Calixto Macaraig and Petra Vergara. These witnesses
were subjected to a long series of questions on cross-examination, the
majority of which were leading. Old age and ignorance, together with
weariness, could not resist the psychological influence of those leading
questions which, as will be seen by their answers, are but the echo of such
questions.

The fact that Petra Vergara, who is over 100 years old, when making her
sworn statement to the justice of the peace five days after the commission
of the crime, stated that it took before sunset, seemingly contradicting the
testimony of her husband, Calixto Macaraig, to the effect that the crime
took place after 10 o'clock in the morning - as fact it did - cannot be
described to a voluntary falsehood but to her forgetfulness of proximate
facts and events due to the debility of her senile memory.

For the reasons above stated we are of the opinion that the evidence
introduced during the trial shows beyond a reasonable doubt that the
herein accused Pedro Limbo and Juan Limbo were the persons who killed
Sivestra Vergara and who relieved her of her money. The acts committed by
them constitute the crime of robbery with homicide defined and punished
by article 402 of the Penal Code, the penalty being from life imprisonment
to death.
 People vs. Cana
G.R. No. 139229 - April 22 2002
Topic: Leading Questions
DOCTRINE: As a general rule, leading questions are not allowed.
However, we have held that when the witness is a child of tender years, it is
proper for the court to allow leading questions as it is usually difficult for a
child of such age to state facts without prompting or suggestion.

Leading questions are necessary to coax the truth out of their reluctant lips.
Here, the decision of the trial court to allow leading questions to Jovelyn
was justified, as she was evidently young and unlettered, making the recall
of events difficult, if not uncertain.

FACTS:

In this case, the accuse had carnal knowledge of one Jovelyn Lestana, a ten
(10) year old girl against her will and consent to the damage and prejudice
of herein victim.

Complainant JOVELYN LISTANA testified that she was ten (10) years
old She lived with appellant, the live-in partner of her aunt Josephine whom
she calls "Mama". She babysat for their child and ran errands for them. She
recounted that one day, the date of which she could not recall since she was
sexually abused many times by appellant, he undressed her, removed her
panty, placed himself on top of her, and inserted his penis in her
vagina. She felt pain and tried to stop him but he continued. Only when she
cried of pain did appellant stop. She explained that she could not stop him
because he threatened to hang her. He also threatened her against telling
anyone. Later, whenever her aunt was in Manila, which was often, he would
rape her.

On cross-examination, she recalled that appellant oftentimes scolded and

punished her for her mistakes in doing household chores and that she
resented appellant for punishing her. She said that appellant's penis
penetrated her vagina easily as he had sexually molested her many times
over.

DR. MARCELITO ABAS, testified that he medically examined the victim. In

his opinion, there was penetration of the victim's vagina by a penis, and the
laceration of the hymen was due to sexual intercourse or defloration.

BELEN SENES, nicknamed Ate Belen, testified that she recounted that on
January 31, 1997, Jovelyn Listana told her that she had been raped by
appellant. Belen reported the matter to Barangay Captain Dominico Mago,
Jr., who advised her to go to the DSWD. 

The defense presented as witnesses:

TITO OCHOA testified that he knew Jovelyn, having seen her with her
grandmother at appellant's house. He observed that Jovelyn was fond of
climbing coconut trees and that every time she did, appellant would beat
her up with a twig. So, she fled the house and at times would not return.

Twelve-year old GERWIN CANA stated that he knew Jovelyn, who lived in
their house for a year. He narrated that appellant often scolded and
whipped Jovelyn for her various mistakes such as stealing appellant's money
and climbing coconut trees. Twice, he saw her embrace a dog, play with its
organ, and insert it in her vagina. He confirmed that Jovelyn would fight
back whenever appellant beat her up.

On cross-examination, Gerwin testified that he told appellant about

Jovelyn's habit of toying with the dog's penis. Appellant whipped Jovelyn
and warned her not to repeat it, and killed the dog.

GRACITA VAZQUEZ testified that she knew Jovelyn as her sister-in-law's

daughter. During a family reunion at appellant's house on November 2,
1994, she noticed Jovelyn fondling the dog's penis. She told appellant about
this, but he answered that Jovelyn got mad at him whenever he scolded her.

Appellant ESMERALDO CANA testified that he was at the seashore catching

shrimps and that he went home at midnight. 51 He saw Jovelyn sleeping at
home with legs apart, and wearing a torn panty that revealed her
vagina.52 He touched her vagina twice. This awakened the complainant who,
he claimed, was eleven years old. She then ran to the sala. His two sons
were also awakened and he did not pursue her anymore but went to sleep
instead.55

During cross-examination, he denied inserting his penis inside the

complainant's genitalia. He said that he only wanted to tease complainant
by touching her vagina, but admitted that doing so got him aroused to the
extent that he inserted his middle finger in it. He admitted that during his
arrest, he did not tell the police or execute an affidavit stating that he
merely touched her vagina.58

RTC, convicted the accused beyond reasonable doubt of the crime of Rape

ISSUE: The propriety of leading questions addressed to the complainant.

RULING:

Appellant imputes partiality to the trial court for allowing the prosecution to
ask Jovelyn leading questions on direct examination. He claims that were it
not for these improper questions, the prosecution could not have
established the crime charged.

As a general rule, leading questions are not allowed. However, we have held
that when the witness is a child of tender years, it is proper for the court to
allow leading questions as it is usually difficult for a child of such age to
state facts without prompting or suggestion. 62 Leading questions are
necessary to coax the truth out of their reluctant lips. Here, the decision of
the trial court to allow leading questions to Jovelyn was justified, as she was
evidently young and unlettered, making the recall of events difficult, if not
uncertain. Her cross-examination is quite instructive on this matter, to wit:

ATTY. BARANDON:

Q:        Miss witness, do you know how to write?

A:        I do not know how to write.
Q:        You do not know how to write your name?
A:        I know, Sir.
Q:        Do you know how to read?
A:        No, Sir.
Q:        Even in Tagalog you do not know how to read, Miss Witness?
A:        I do not know.
Q:        Is it not true Miss Witness that you are in Grade I, did you finish
Grade I?
A:        No, Sir.
Q:        Did your teacher [teach] you how to read and write?
A:        I was taught.

COURT:

The Court take (sic) notice that in Grade I you will not learn how to read
and write fully. That is of judicial notice.63

Nevertheless, after careful reading of the records, we find that even if the
alleged leading questions were not allowed, Jovelyn's testimony appears
credible and comprehensive. She gave a candid, plain, and straightforward
account on how she was raped by appellant. She spoke in a manner
reflective of honest and unrehearsed testimony. Moreover, when it comes to
the issue of credibility, this Court generally defers to the assessment and
evaluation given by the trial court 64 because of its unique position to
observe the demeanor of the witnesses. In this case, we reiterate the truism
that it is highly inconceivable that a young barrio lass, inexperienced with
the ways of the world, would fabricate a charge of defloration, undergo a
medical examination of her private parts, subject herself to public trial, and
tarnish her family's honor and reputation, unless she was motivated by a
potent desire to seek justice for the wrong committed against her.65
 People vs. Escultor
G.R. Nos. 149366-67, May 27, 2004
Topic: Leading Questions
DOCTRINE: The court ruled that the court may exercise a wide latitude of
control in getting the testimony of a child witness. This is done in order to:
(1) to facilitate the ascertainment of the truth, (2) to ensure that questions
are stated in a form appropriate to the developmental level of the child, (3)
to protect children from harassment or undue embarrassment, and (4)
avoid waste of time. Leading questions in all stages of examination of a
child are allowed if the same will further the interests of justice.

FACTS:

The prosecution charged appellant with two counts of rape committed

against the daughter of his common-law wife. The Informations read:

The prosecution presented two witnesses: the victim Jenelyn Alcontin or

Jennylyn Manansad Lomaino ("Jenelyn")6 and Dr. Noli Yap ("Dr. Yap"), the
municipal health officer who conducted the physical examination on
Jenelyn.

Jenelyn Alcontin then 7 years old, was lying on the floor of their house in
Sitio Canlatumbo, Giloctog, Barili, Cebu when Florentino Escultor
(appellant), common-law husband of private complainant’s mother Linda
Alcontin, undressed her (at the time, Linda was out of the house). After
removing all her clothing, appellant, who was already naked, placed himself
on top of her and forcibly inserted his organ on her vagina. Private
complainant cried. After ejaculating, appellant warned her not to reveal the
incident to anyone otherwise he would kill her.

The incident was repeated in the morning of January 13, 2000. While the
private complainant was inside the house, appellant asked her to remove his
moustache. Private complainant complied (private complainant was then 11
years old)

After shaving his moustache, appellant ordered the private complainant to

sleep as he would follow her mother to the market. After a while, appellant
returned.

Private complainant was lying on the floor when appellant sat beside her.
He pulled off his pants and ordered her to undress. When private
complainant ignored him, appellant forcibly removed her clothes.

After undressing her, appellant thrust his genital organ toward her private
part and made successive pumping motions. After ejaculating, appellant
threatened private complainant with harm should she divulge the incident
to anyone.

Unable to bear anymore appellant’s bestiality, private complainant confided

her ordeal to her elder brother Jerry (private complainant’s half-brother
from her mother’s first marriage). Her brother immediately accompanied
her to the DSWD. Said office helped the private complainant in filing the
complaint against the appellant.

The medical examination of appellant showed the presence of an old healed

hymenal laceration. The examining physician concluded that the private
complainant could have been raped in 1995. It is also possible that the
sexual assault was repeated in 2000.

The defense presented appellant as its only witness. The Public Attorney
summarized appellant’s testimony as follows:

FLORENTINO ESCULTOR testified that he is innocent of the charges

imputed against him. He knew the complainant personally because she is
the daughter of his common-law-wife. He had an agreement with her
mother that he can instill discipline on the complainant whenever she
commits any wrong. There were instances that he used a broom or a piece
of wood or stick in hitting the complainant. Every time, he would discipline
the complainant, she would run away from home.

The trial court found Jenelyn’s testimony positive, credible, spontaneous

and straightforward. The trial court was fully convinced that she was telling
the truth when she testified in court.

ISSUE: Whether the trial court erred when it upheld the testimony of the
victim.

RULING: No.

Jenelyn’s testimony established that appellant succeeded in sexually

abusing her. She testified:

Q: During the first rape which an information was filed in March 21,
2000 regarding an incident that happen (sic) in the year 1995 when
you were still seven (7) years old and during that time you were
threatened, can you remember if the organ of Florentino Escultor was
actually inserted to your sex organ?

A: Yes sir.
 Q: And the same is true also on the second information on Jan.
13, 2000 when you were eleven (11) years old when you were
also actually raped the organ of Florentino Escultor was
actually inserted to your sex organ?

A: Yes sir.21 (Emphasis supplied)

Jenelyn testified that appellant placed himself on top of her while she was
lying on the floor. He pulled off his pants and undressed Jenelyn. Appellant
made push and pull movements at which point Jenelyn cried because she
felt pain. When asked by the prosecutor whether "the organ of appellant
was actually inserted into her sex organ," Jenelyn replied "Yes."

A question that suggests to the witness the answer, which the examining
party wants, is a leading question. As a rule, leading questions are not
allowed. However, the rules provide for exceptions when the witness is a
child of tender years as it is usually difficult for such child to state facts
without prompting or suggestion. Leading questions are necessary to coax
the truth out of their reluctant lips. The prosecutor asked leading questions
to Jenelyn as she was young and unlettered, making the recall of events
difficult, if not uncertain. Jenelyn was only 11 years old the second time
appellant sexually assaulted her and 12 years old when she testified in
court. Her educational attainment is only Grade 1.As explained in People v.
Daganio:

The trend in procedural law is to give wide latitude to the courts in

exercising control over the questioning of a child witness. The reasons
are spelled out in our Rule on Examination of a Child Witness, which
took effect on December 15, 2000, namely, (1) to facilitate the
ascertainment of the truth, (2) to ensure that questions are
stated in a form appropriate to the developmental level of the
child, (3) to protect children from harassment or undue
embarrassment, and (4) avoid waste of time. Leading questions
in all stages of examination of a child are allowed if the same
will further the interests of justice.

Although Jenelyn’s testimony was not perfect in all details, it bore the
earmarks of truth. She was not sophisticated enough to fabricate the crime
of rape against her mother’s live-in partner. The revelation of a young and
innocent child whose chastity was abused deserves full credit. 28 Surely,
Jenelyn would not concoct a story of defloration, allow the examination of
her private parts and expose herself to the humiliation of a public trial if she
was not motivated solely by a desire to vindicate her honor. As the Court
has stressed in numerous cases, when a woman or a child victim says that
she has been raped, she in effect says all that is necessary to show that rape
was indeed committed.29 At any rate, if the defense wanted to object on the
ground that leading questions were being asked the victim, they could have
done so. However, they did not. Thus, appellant waived the defense based
on this ground.