Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
G.R. No. L-48883
August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALBERTO V. V. SENERIS, As !st"!#t $u%g&, 'ou"t o( F!"st I)st*)#&, B"*)#+ II, S!t&&)t+ S!t&&)t+ $u%!#!* $u%!#!* !st"!#t, */o*)g* '!t *)% PILAR ANGELES E PI2ENTEL, respondents. The legal issue issue posed in this this special civil civil action for certiorari, certiorari , with prayer for a writ of preliminary injunction, spawned by the August 4, 197 order of respondent judge in !riminal !ase "o. 7#$ for parrici parricide de against against therein therein accused accused %ilar %ilar Angeles Angeles de %imente %imentel, l, hereina hereinafte fterr referr referred ed to as private private respondent, respondent, is the admissibility in evidence of the testimony of a prosecution witness in the said criminal case who dies before before completi completion on of his cross&e cross&e'ami 'aminati nation. on. That issue issue is crucial to the fate of private respondent, considering that the deceased prosecution witness (... is the most vital and the only eyewitne eyewitness ss available available to the prosec prosecutio ution n against against respondent %ilar Angeles de %imentel for the commission of the gruesome crime of parricide ...( )p. 1$, rec.*. The factual bac+groun bac+ground d of the action is undisputed. undisputed. n -ebruary -ebruary , 197, Assistant %rovincial %rovincial -iscal !amilo . Tamin, Tamin, who was then on o/cial detail with the o/ce of the !ity -iscal, -iscal, 0amboang 0amboanga a !ity, !ity, led with the !ourt !ourt of -irst -irst 2nstance 2nstance,, 3i'teen 3i'teenth th udicial udicial 5istrict 5istrict,, 0amboang 0amboanga a !ity, !ity, an amended amended informa information tion for parrici parricide de in !riminal !riminal !ase "o. 1746, 1746, charging charging herein herein private respondent respondent as principal principal by inducement, Mario Nemenio y delos Santos and Salim Doe as principals by direct participation and Moises Andaya y Julkanain, as accomplice accomplice,, in the fatal stabbing on 3eptember , 1977 in 0amboanga !ity of duardo %imentel y rario, the lawful lawful husband husband of private private respond respondent ent.. The amended amended information reads8 That on or about 3eptember 3eptember , 1977, in the !ity of 0amboanga, %hilippines, and within the jurisdiction of this
!ourt, the above&named accused %ilar Angeles de %imentel, with deliberate intent to +ill her husband, duardo %imentel y rario, with whom she was united in lawful wedloc+, did then and there, willfully, unlawfully and feloniously, induce and oer a sum of money as consideration or pri:e to said accused ;ario "emenio "emenio y delos 3antos and 3alim 5oe to +ill her her said said lawful lawfully ly wedd wedded ed husba husband nd dua duard rdo o %ime %iment ntel el y rari rario, o, and and becau because se and on accoun accountt of said said promi promise sed d consideration consideration or pri:e which was accepted, accepted, the said accused ;ario "emenio y delos 3antos and 3alim 5oe, did then and there, willfully and feloniously assault, attac+ and stab with a +nife with which which they they were were convenie conveniently ntly provided, provided, the person of said duardo %imentel y rario, thereby in, rec.* n anuary 17, 197, private respondent, respondent, assisted by her counsel counsel,, moved moved and was granted granted a separat separate e trial trial )p. 1, rec.*. n -ebruary 66, 197, the accused ;ario "emenio y delos 3ant 3antos os,, assi assist sted ed by his his coun counse sell de ofcio ofcio,, ente entere red d on arraignment arraignment a plea of guilty. ?espondent ?espondent judge thereafter thereafter rende rendered red judgmen judgmentt convictin convicting g accused accused ;ario ;ario "emenio "emenio y delos 3antos of murder @ ualied by the circumstance of pri:e pri:e and reward&an reward&and d not of parricid parricide e as charged charged in the information= because he (... had no relation whatsoever to the decease deceased d duard duardo o %iment %imentel el ...( and apprecia appreciating ting the mitigating circumstances circumstances of voluntary plea of guilty and lac+ of inst instru ruct ctio ion n and and educ educat atio ion, n, impo impose sed d on him him the the indeterminate penalty of eight )* years of prision mayor as as the minimum, to fourteen )14* years and eight )* months of reclusion temporal as the ma'imum= to indemnify the heirs
1
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
of the deceased duardo %imentel the amount of %16,$$$.$$ and to pay one&fourth )B* of the costs of the proceedings )pp. 1#&19, rec.*. 2mmediately after promulgation of judgment, accused ;ario "emenio y delos 3antos oered to testify against his co& accused, herein private respondent, in her separate trial earlier granted by the respondent judge in the same criminal case, now numbered 7#$. Allowed, he testied as prosecution witness on -ebruary 6, ;arch , and ;arch 66, 197 and as summari:ed by the petitioner, his testimony on direct e'amination contained in seventy&si' )7* pages of transcripts of stenographic notes )pp. 61&44, #7&4, rec.*, is to the eect (...that he and 3alim 5oe were hired by respondent %ilar Angeles de %imentel, for the consideration of %>,$$$.$$ to +ill duardo %imentel, husband of respondent %ilar Angeles de %imentel, in the evening of 3eptember , 1977, in the latterCs residence in 0amboanga !ity, and that it was respondent %ilar Angeles de %imentel herself who actually pointed out the victim duardo %imentel to the witness, who then stabbed the said victim to death...That he did not +now the 2dentity of the victim duardo %imentel at the time of the stabbing in the evening of 3eptember , 1977. De was guided solely by respondent %ilar Angeles de %imentel, who pointed out her victim spouse to him ...( )allegation "o. 4, petition, pp. 4&#, rec.*. After the prosecution had terminated on ;arch 66, 197 the direct e'amination of its witness ;ario "emenio y delos 3antos, counsel for private respondent moved for the holding in abeyance of the cross&e'amination of the said prosecution witness until after he )counsel* shall have been furnished with the transcripts of the stenographic notes of the direct e'amination of said prosecution witness )p. 47, T3", ;arch 66, 197, p. 4, rec.*= allegation "o. #, petition, p. #, rec.*. The same was granted by the respondent judge who ordered the resumption of the hearing on April 19, 197 )pp. 4, 94, 1$, rec.*. Eut on April 19, 197, aforesaid prosecution witness failed to
appear because he was not served with a subpoena )p. 1$, rec.*. !onseuently, the hearing was reset for une 7, 197 )ibid.* n une 7, 197, counsel for private respondent commenced his cross& e'amination of prosecution witness ;ario "emenio y delos 3antos, which cross&e'amination however was not completed on that session for lac+ of material time, thus8 ATTF. !AGH"T8 2 reserve my right to cross&e'amine the witness further. !I?T ?eservation to continue the cross&e'amination is granted. ?5?8 -or lac+ of material time, as prayed for and upon agreement of the parties todayCs hearing is hereby adjourned and to be resumed on uly >, 197 at 8>$ oCcloc+ in the morning )p. 4, rec.*. According to the petition, the uncompleted cross& e'amination reduced in fty&three )#>* pages of transcripts of stenographic notes )pp. #&4, rec.* had already (... touched on the conspiracy e'isting among 3alim 5oe, witness ;ario "emenio and respondent %ilar Angeles de %imentel to +ill duardo %imentel, in the latterCs residence in 0amboanga !ity in the evening of 3eptember , 1977, and also on the actual stabbing by witness ;ario "emenio of the victim duardo %imentel who was pointed out to the witness&+iller by his wife, respondent %ilar Angeles de %imentel ...( )p. 7, rec.*. This is not disputed by private respondent. !ontinuation of the cross&e'amination was, as aforestated, set for uly >, 197 at 8>$ oCcloc+ in the morning. Dowever, prosecution witness ;ario "emenio y delos 3antos was shot dead by the 2ntegrated "ational %olice patrols on une 61, 197 while allegedly escaping from the 3an ?amon %rison and %enal -arm, 0amboanga !ity, where he was then serving his sentence. !onseuently, the completion of his cross&e'amination became an impossibility. n uly 6$, 197, petitioner, without any motion on the part
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
of the defense for the stri+ing out of the deceased witnessCs testimony, led with the respondent court a motion praying for a ruling on the admissibility of the testimony of deceased witness ;ario "emenio y delos 3antos. n August 4, 197, respondent judge issued an order declaring as inadmissible the entire testimony of the deceased witness ;ario "emenio y delos 3antos on the principal ground (... that the defense was not able to complete its cross&e'amination of said witness ...(, relying on the case of rtigas, r. vs. Gufthansa, etc., G&677>, une >$, 197#, 4 3!?A, pp. 1$,>&>7*. Dence, this action, to which J gave due course on 5ecember 4, 197, after considering private respondentCs comment as well as those of the 3olicitor Keneral and of the respondent judge who was reuired to le one. n even date, J li+ewise issued a temporary restraining order (... eective immediately and until further orders from this !ourt enjoining respondent 5istrict udge from continuing with the trial of !riminal !ase "o. 7#$ )1746* entitled %eople of the %hilippines, plainti, versus %ilar Angeles de %imentel, accused, in the !ourt of -irst 2nstance of 0amboanga !ity, Eranch 22.( %etitioner contends that respondent judge gravely abused his discretion in ruling as inadmissible the testimony of prosecution witness ;ario "emenio y delos 3antos. J agree. 2 1. The constitutional right of confrontation, which guarantees to the accused the right to cross&e'amine the witnesses for the prosecution, is one of the most basic rights of an accused person under our system of justice. 2t is a fundamental right which is part of due process not only in criminal proceedings but also in civil proceedings as well as in proceedings in administrative tribunals with uasi&judicial powers )3avory Guncheonette vs. Ga+as ;anggagawang %ilipino, et al., 6 3!?A 6# L197#M*. 2n almost e'actly the same language, both the 19># and
197> !onstitutions secured it, thus8 (2n all criminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses face to face ...( )3ection 19, Art. 2H, Eill of ?ights, 197> !onstitution= 3ection 17, Art. 222, 19># !onstitution*. choing the same guarantee, 3ection 2 )f* of ?ule 11# of the ?evised ?ules of !ourt provides that in all criminal proceedings the defendant shall have the right to be confronted at the trial by, and to cross& e'amine the witnesses against him. !onstitutional confrontation reuirements apply specically to criminal proceedings and have been held to have two purposes= rst and primarily, to secure the opportunity of cross&e'amination, and secondarily, to obtain the benet of the moral impact of the courtroom atmosphere as it aects the witnesses demeanor )61 Am ur 6d >$*. 3tated otherwise, it insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury charge= it forces the witness to submit to cross&e'amination, a valuable instrument in e'posing falsehood and bringing out the truth= and it enables the court to observe the demeanor of the witness and assess his credibility )!alifornia v. Kreen, >>9 I.3. 1#7 L197$M*. 6. Eut while the right to confrontation and cross&e'amination is a fundamental right, J have ruled that the same can be waived e'pressly or implied by conduct amounting to a renunciation of the right of cross&e'amination )3avory Guncheonettee vs. Ga+as ng ;anggagawang %ilipino, et al., supra, p. 6#9, citing I.3. v. Atanacio, %hil. 41> L19$M= %eople vs. dela !ru:, # 3!?A 4, 91 L19741*. The conduct of a party which may be construed as a implied waiver of the right to cross&e'amine may ta+e various forms. Eut the common basic principles underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross&e'amination an opposing witness but failed to ta+e advantage of it for reasons attributable to himself alone. Thus, where a party has had the opportunity to cross&e'amine an opposing witness but
3
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
failed to avail himself of it, he necessarily forfeits the right to cross&e'amine and the testimony given on direct e'amination of the witness will be received or allowed to remain in the record )3avory Guncheonette vs. Ga+as ng ;aggagawang %ilipino, et al., supra, citing -rancisco, ?evised ?ules of !ourt, Hol. on vidence, p. #>, in turn citing %eople vs. !ole, 4> ".F. #$ and Eradley vs. ;iric+, 91 ".F. 69>= see alo 69 Am. ur. 6d 749*. n the other hand, when the cross&e'amination is not and cannot be done or completed due to causes attributable to the party oering the witness, as was the situation in the Gufthansa Kerman Airlines case )4 3!?A 1$ L197#M* relied upon by respondent judge, the uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. J emphasi:ed in the said case that (LTMhe right of a party to cross&e'amine the witness of his adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The e'press recognition of such right of the accused in the !onstitution does not render the right of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. 3ubject to appropriate supervision by the judge in order to avoid unnecessary delays on account of its being unduly protracted and to needed injunctions protective of the right of the witness against self& incrimination and oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a full cross&e'amination as prescribed in 3ection of ?ule 1>6 ... Intil such cross&e'amination has been nished, 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( )p. >7*. Dowever, J li+ewise therein emphasi:ed that where the right to cross e'amine is lost wholly or in part through the fault of the cross&e'aminer, then the testimony on direct e'amination may be ta+en into account= but when cross&e'amination is not and cannot be done or completed
due to causes attributable to the party oering the witness, the uncompleted testimony is thereby rendered incompetent )p. >* >. The eects of absence of and incomplete cross& e'amination of witness on the admissibility in evidence of his testimony on direct e'amination has been e'tensively discussed thus8 (As a general rule, the testimony of a witness, given on direct e'amination, should be stric+en where there is not an adeuate opportunity for cross& e'amination, as where the witness by reason of his death, illness, or absence cannot be subjected to cross& e'amination. Although the contrary has been held )3cott v. ;c!ann, 64 A. #>, 7 ;d. 47*, the testimony of a witness, given on direct e'amination, should be stric+en where there is not an adeuate opportunity for cross&e'amination )"ehring v. 3mith, 49 ".J. 6d >1, 64> 2owa 66#*, as where the party against whom he testied is, through no fault of his own, deprived of the right to cross&e'amine him by reason of his death )Denderson v. Twin -alls !ounty $ %. 6d $1, #9 2daho 97= Twin -alls !ounty, 3tate of 2daho v. Denderson, #9 3. !t. 149, >$# I.3. #, > G. d. >#*, or as a result of the illness of the witness or absence, or a mistrial ordered. The direct testimony o a witness who dies beore conclusion o the crosse!amination can be stricken only insoar as not covered by the crosse!amination )!urtice v. Jest, 6 "F3 #$7, #$ Dun 47, a/rmed 64 ".. 1$99, 161 ".F. 9*, and absence o a witness is not enou"h to warrant strikin" his testimony or ailure to appear or urther cross e!amination where the witness has already been su#ciently crosse!amined )Gew !hoy v. Gim 3ing 61 %. , 16# Jash >1*, or the matter on which further cross&e'amination is sought is not in controversy )supra*. 2t has been held that a referee has no power to stri+e the e'amination of a witness on his failure to appear for cross&e'amination where a good e'cuse is given )2n re !roo+s, 6> Dun 9*( L9 !3 16&167, mphasis suppliedM. ;oreover, (L2Mf one is deprived of the opportunity of a cross&
4
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
e'amination without fault upon his part, as in the case of the illness or death of a witness after direct e'amination, it is generally held that he is entitled to have the direct testimony stric+en from the record. This doctrine rests on the common law rule that no evidence should be admitted but what was or might be under the e'amination of both parties, and that e!parte statements are too uncertain and unreliable to be considered in the investigation of controverted facts )Jray vs. 3tate, 1#4 Ala >, 4# 3o 97= %eople vs. ;anchetti, 69 !al. 6d 4#6,17# %6d #>>= A. D. Angerstein, 2nc. vs. an+ows+i, ## 5el >$4, 17 A6d 1= "ehring vs. 3mith, 64> 2owa 66#, 49 "J6d >1= !iti:ens Ean+ N Trust !o. vs. ?eid ;otor !o. 61 "! 4>6, # 3 6d >1*. 2t has been held, however, that the trial court did not abuse its discretion in refusing to discharge the jury where the state witness collapsed before cross& e'amination was completed, it being shown that no motion to strike the testimony was made, that it was not indicated what further information was sought to be produced by further cross& e'amination, and that the witnessC testimony was largely cumulative )Ean+s vs, !ommonwealth, >16 Oy 697, 667 3J 6d 46*( L1 Am ur 6d 474M. 4. Jigmore, eminent authority on evidence, opined that8 ''' ''' ''' ... where the death or illness prevents crosse!amination under such circumstances that no responsibility o any sort can be attributed to either the witness o his party, it seems harsh measure to strike out all that has been obtained on the direct e!amination$ %rinciple reuires in strictness nothing less. %ut the true solution would be to avoid any in&e!ible rule, and to leave it to the trial judge to admit the direct e'amination so far as the loss of cross&e'amination can be shown to him to be not in that instance a material loss. !ourts dier in their treatment of this di/cult situation= e'cept that by "eneral concession a crosse!amination be"un but unfnished sufces i its purposes have been substantially accomplished
''' ''' ''' )Hol. 22, %. 1$, mphasis supplied*. 22 1. ?espondent judgeCs full reliance on the Gufthansa Kerman Airlines case cannot be sustained. To be sure, while the cross&e'amination of the witness in the aforesaid Gufthansa case and that of the witness in the present action were both uncompleted, the causes thereof were dierent in that while in the present case it was the death of the witness, in the Gufthansa case, it was the unjustied and une'plained failure of Gufthansa to present its witness on the scheduled date for his cross&e'amination which had already been preceded by several postponements initiated by Gufthansa itself, thus depriving the other party the opportunity to complete the cross&e'amination of said witness. !onseuently, this !ourt therein correctly ruled as inadmissible the testimony of the said witness on the principle that (... when cross&e'amination is not and cannot be done or completed due to causes attributable to the party o'erin" the witness, the uncompleted testimony is thereby rendered incompetent ...( ) supra, at p. >*. As clear as day, the Gufthansa ruling therefore applies only if there is a nding that the cause for non&completion of the cross&e'amination of a witness was attributable to the very party oering the said witness. !onseuently, the same is inapplicable to the instant action as the cause for the non& completion of the cross&e'amination of petitionerCs witness was a fortuitous event as he was +illed, as per the pleadings submitted in this action, by the law enforcers )2ntegrated "ational %olice %atrols* after his escape from prison. As a matter of fact, respondent judge, in his uestioned order, did not lay any basis for the application of the Gufthansa ruling as he failed to ma+e any nding that the non& completion was due to petitioner, the party oering the witness, whose testimony he declared as inadmissible in evidence. A reading of the uestioned order reveals that respondent judge ruled as inadmissible said uestioned
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
testimony mainly because private respondent can no longer nish her cross&e'amination= hence incomplete. Dowever, private respondent advanced in this action the cavalier theory that the failure of her counsel to complete his cross& e'amination of petitionerCs witness was due to the fault of or was attributable to the petitioner, %eople of the %hilippines, because it was the very agents of 3tate who +illed its own witness= hence, ma+ing the uestioned testimony of petitionerCs witness inadmissible, per the Gufthansa ruling. The contention does not deserve serious consideration. There was no nding nor any showing as the same is farfetched or inconceivable that the +illing of the witness of petitioner by its own agents was ill&motivated. The prosecution did not order the shooting of the government witness. De was shot while escaping from prison. 2t is petitionerCs cause which will possibly suer from said death= not the cause of private respondent. 2t may be true that the escape of the said witness and his conseuent death may be attributable to the negligence of petitionerCs agents= but such negligence may not bind the petitioner as to pre& judicially aect its cause and interest @ the prosecution of criminal oenses @ by reason of the generally accepted principle that the 3tate is not bound by the negligence or tortious acts of its agents. As the cause of non&completion was, as aforesaid, beyond the control of the prosecution, respondent judgeCs uestioned order cannot be sustained on the basis of the Gufthansa ruling which, as aforestated, was principally anchored on the nding that the cause of the non&completion of the cross&e'amination of the therein witness was attributable to the very party oering him as a witness. 6. n the other hand, J nd no merit in petitionerCs contention that the testimony of its deceased witness is admissible on the ground that private respondent had waived her right to cross&e'amine the witness and that the cause of non&completion was attributable to said private respondent. As correctly pointed out by private respondent
and sustained by respondent judge, petitioner is not justied in attributing fault to her )private respondent* and in contending that she is deemed to have partly lost already the right of cross&e'amination by not availing of the right to cross&e'amine the witness ;ario "emenio on ;arch 66, 197 or right after his direct e'amination was closed and delaying until the lapse of two and a half )6P* months thereafter before ma+ing such cross&e'amination= because while it is true that her counsel did not immediately start with his cross&e'amination of the deceased witness on ;arch 66, 197, he did avail, however, of such right on the same day by initially obtaining an opportunity to ma+e preparations for an eective e'ercise thereof considering the nature of the case @ a capital one @ and the length of the direct e'amination= three sittings on three dierent dates or on -ebruary 6, 197, ;arch , 197 and ;arch 66, 197. Dence, there was no waiver of her right of cross& e'amination. ;oreover, the deferment of the cross& e'amination of the witness reuested by private respondent on ;arch 66, 197 was approved by respondent judge without any objection on the part of petitioner )pp. 4#, 4, 4, rec.*. And on the date for the cross&e'amination of the witness ;ario "emenio or on April 19, 197, counsel for private respondent failed to cross&e'amine the said witness not of his own design but because said witness failed to appear on that date for the reason that due to the oversight of the courtCs personnel the subpoena for said witness was not served on him at the 3an ?amon %rison and %enal -arm )pp. 9$, 1$, rec.*. And respondent judge had to re&set the hearing for the cross&e'amination of the witness by the private respondent only to une 7, 197 because of the fact that respondent judge too+, with the approval of the 3upreme !ourt, his summer vacation the whole month of ;ay, 197. 2t is thus apparent that no fault can be imputed to the private respondent for the length of time that elapsed before her counsel was able to commence his cross&
6
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
e'amination of the witness. And private respondentCs counsel was not able to complete his cross&e'amination of the witness on une 7, 197 for lac+ of material time by reason of which and upon agreement of the parties the hearing was adjourned and ordered resumed on uly >, 197 )p. 4, rec.*. 2t appears, therefore, that the situation is one whereby the cause of non&completion of the cross&e'amination of the deceased witness was attributed neither to the fault of petitioner nor the private respondent. !onseuently, the admissibility or inadmissibility of the testimony of the said witness cannot be resolved on the basis of the rule enunciated in the Gufthansa case. 222 There is merit in the contention of the petitioner that the uestioned testimony of its deceased witness is admissible in evidence because private respondentCs counsel had already (... rigorously and e'tensively cross&e'amined witness ;ario "emenio on all essential elements of the crime charged )parricide*, all of which have been testied upon by said witness in his direct e'amination&in&chief, and conseuently, the cross&e'amination&in& chief, has already been concluded.( The cross&e'amination was completed insofar as the essential elements of the crime charged @ parricide, fact of killin"is concerned. Jhat remained was merely the cross& e'amination regarding the price or reward, which is not an element of parricide, but only an aggravating circumstance )par. 11, Art. 14, ?evised %enal !ode*. As elaborated by petitioner in its memorandum8 The crime charged in the case at bar is %arricide under Article 64 of the ?evised %enal !ode. The elements of the crime of %arricide are that a person was +illed= that the +illing was intentionally caused by the accused= and that the victim is a parent or child, whether legitimate or illegitimate, or the lawful spouse, or legitimate ascendant or descendant of the accused. nce these facts
are established beyond reasonable doubt, conviction is warranted )3ee Auino, The ?evised %enal !ode, 191 d., Hol. 22, p. 1171*. The deceased duardo %imentel has been su/ciently shown to be the lawful husband of private respondent %ilar %imentel by means of the marriage contract e'ecuted between them on ;ay 1, 1971 ... mar+ed as 'hibit C?C for the prosecution ... The cross&e'amination of witness ;ario "emenio by the counsel for private respondent on une 7, 197 touched on the conspiracy, and agreement, e'isting among 3alim 5oe, witness ;ario "emenio and private respondent %ilar %imentel to +ill duardo %imentel, in the latterCs residence in 0amboanga !ity in the evening of 3eptember , 1977, and also on the actual stabbing by witness ;ario "emenio of the victim duardo %imentel who was pointed out to the witness&+iller by his wife, the private respondent %ilar %imentel herself... The matter of consideration or price of %>,$$$.$$, which both the public and private respondents maintain was not touched in the cross&e'amination of witness ;ario "emenio, is not an essential element of the crime of parricide. %rice or consideration is merely an aggravating circumstance of the crime charged, not an essential element thereof. The failure to touch the same in the cross&e'amination would not at all aect the e'istence of the crime of parricide. -urthermore, there is no showing or even the slightest indication that the witness or his testimony would be discredited if he was cross&e'amined on the promised consideration. The probability is rather very great that the witness would only have conrmed the e'istence of the promised consideration were he cross& e'amined on the same. -rom the foregoing discussion, it is submitted that the rigorous and searching cross&e'amination of witness ;ario "emenio on une 7, 197, practically concluded already the cross&e'amination&in&chief, or has already substantially accomplished the purpose of the cross&e'amination, and
5
Section 132 – Presentation of Evidence
Evidence - Case no. 88
Section 6 – Cross Examination
therefore, the failure to pursue the privilege of further cross& e'amination, would not adversely aect the admissibility of the direct testimony of said witness anymore )pp. 1#916, rec.*. %rivate respondent did not dwell on the aforesaid points in her memorandum. Eecause the cross&e'amination made by the counsel of private respondent of the deceased witness was e'tensive and already covered the subject matter of his direct testimony as state witness relating to the essential elements of the crime of parricide, and what remained for further cross&e'amination is the matter of price or reward allegedly paid by private respondent for the commission of the crime, which is merely an aggravating circumstance and does not aect the e'istence of the oense charged, the respondent judge gravely abused his discretion in declaring as entirely inadmissible the testimony of the state witness who died through no fault of any of the parties before his cross& e'amination could be nished. JD?-?, TD AIKI3T 4,197 ?5? - TD ?3%"5"T I5K 23 D?EF 3T A325= TD ?3T?A2"2"K ?5? - 5!;E? 4, 197 233I5 EF TD23 !I?T 23 D?EF G2-T5= A"5 ?3%"5"T I5K ? D23 3I!!33? 23 A!!?52"KGF ?5?5 T %?!5 J2TD TD T?2AG - !?2;2"AG !A3 ". 7#$ )1746* A"5 T A5;2T A"5 !"325? 2" 5!252"K TD !A3 TD T3T2;"F - TD 5!A35 J2T"33 ;A?2 ";"2 y 5G3 3A"T3 Q!GI52"K "GF TD %?T2" TD?!"!?"2"K TD AKK?AHAT2"K !2?!I;3TA"! - %?2! ? ?JA?5 JD2!D JA3 "T !H?5 EF TD !?33& QA;2"AT2". " !3T3.
8
