CONCEPCION M. CATUIRA, PETITIONER, VS. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Is the testimony of a witness inadmissible in evidence if not
formally offered at the time the witness is called to testify, as required in
Sec. 35, in relation to Sec. 34, Rule 132, of the Revised Rules on Evidence?^[1]

On 8 June 1990, two (2) Informations for estafa were filed
against petitioner Concepcion M. Catuira with the Regional Trial Court of
Calamba, Laguna, for having issued two (2) checks in payment of her obligation
to private complainant Maxima Ocampo when petitioner had no sufficient funds to
cover the same, which checks upon presentment for payment were dishonored by
the drawee bank.^[2]

After the prosecution had presented its evidence, petitioner
Concepcion M. Catuira filed a Motion to Dismiss (by way of Demurrer to
Evidence) under Sec. 15, Rule 119, of the 1985 Revised Rules on Criminal
Procedure.^[3]
Petitioner contended that the testimony of private respondent Ocampo was
inadmissible in evidence since it was not properly introduced when she was
called to testify as mandated in Sec. 35, Rule 132, of the Revised Rules on
Evidence. Petitioner also argued that
even if the testimony of private respondent was considered, the evidence of the
prosecution still failed to prove that
the checks were issued in payment of an obligation.

On 26 July 1991, the trial court denied the motion to dismiss for
lack of merit. On 18 October 1991, it
likewise denied the motion to reconsider its denial of the motion to dismiss.

On 4 November 1991 petitioner elevated her case to the Court of
Appeals through a petition for certiorari, prohibition and mandamus. In a similar move, the appellate court
rejected her petition and sustained the trial court in its denial of the motion
to dismiss. Hence, this recourse
seeking to annul the decision of the Court of Appeals rendered on 27 February
1992 as well as its resolution of 1 June 1992.^[4]

Petitioner claims that the Court of Appeals erred when it
accepted the testimony of private respondent despite the undisputed fact that
it was not offered at the time she was called to testify; her testimony should
have been stricken off the record pursuant to Sec. 34, Rule 132, which prohibits the court from considering evidence
which has not been formally offered; and, it was error for respondent appellate
court to declare that petitioner’s objection was not done at the proper time
since under Sec. 36, Rule 132,^[5] objection to evidence offered orally must be
made immediately after the offer is made. Evidently, petitioner could not have waived her right to object to the
admissibility of the testimony of private respondent since the rule requires
that it must be done only at the time such testimony is presented and the
records plainly show that the opportunity for petitioner to object only came
when the prosecution attempted, albeit belatedly, to offer the testimony after
it has rested its case.^[6]

The petition is devoid of
merit. The reason for requiring that
evidence be formally introduced is to enable the court to rule intelligently
upon the objection to the questions which have been asked.^[7] As a general rule, the proponent must show
its relevancy, materiality and competency. Where the proponent offers evidence deemed by counsel of the
adverse party to be inadmissible for any reason, the latter has the right to
object. But such right is a mere
privilege which can be waived. Necessarily, the objection must be made at the earliest opportunity,
lest silence when there is opportunity to speak may operate as a waiver of
objections.^[8]

Thus, while it is true
that the prosecution failed to offer the questioned testimony when private
respondent was called to the witness stand, petitioner waived this procedural
error by failing to object at the appropriate time, i.e., when the ground for
objection became reasonably apparent the moment private respondent was called
to testify without any prior offer having been made by the proponent. Most apt is the observation of the appellate
court:

While it is true
that the prosecution failed to offer in evidence the testimony of the
complaining witness upon calling her to testify and that it was only after her
testimony and after the petitioner moved that it be stricken that the offer was
made, the respondent Court did not gravely err in not dismissing the case
against the petitioner on the ground invoked. For, she should have objected to the testimony of the complaining
witness when it was not first offered upon calling her and should not have
waited in ambush after she had already finished testifying. By so doing she did not save the time of the
Court in hearing the testimony of the witness that after all according to her
was inadmissible. And for her failure
to make known her objection at the proper time, the procedural error or defect
was waived.^[9]

Indeed, the rationale behind Sec. 34, Rule 132, is manifest in
the minutes of the Revision of Rules Committee.^[10] Thus
–

The new rule would require the testimony of a witness to offer it
at the time the witness is called to testify. This is the best time to offer the testimony so that the court’s time
will not be wasted. Since it can right
away rule on whether the testimony is not necessary because it is irrelevant or
immaterial.

If petitioner was genuinely concerned with the ends of justice
being served, her actuations should have been otherwise. Instead, she attempted to capitalize on a
mere technicality to have the estafa case against her dismissed.^[11]
But even assuming that petitioner’s objection was timely, it was at best
pointless and superfluous. For there is
no debating the fact that the testimony of complaining witness is relevant and
material in the criminal prosecution of petitioner for estafa. It is inconceivable that a situation could
exist wherein an offended party’s testimony is immaterial in a criminal
proceeding. Consequently, even if the offer was belatedly made by the prosecution,
there is no reason for the testimony to be expunged from the record. On the contrary, the unoffered oral
evidence must be admitted if only to satisfy the court’s sense of justice and
fairness and to stress that substantial justice may not be denied merely on the
ground of technicality.^[12]

WHEREFORE, the decision of the Court of Appeals sustaining
the order of the Regional Trial Court of Calamba, Laguna, Br. 35, denying
petitioner’s motion to dismiss (by way of demurrer to evidence) is AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., Quiason, and
Kapunan, JJ., concur.

Cruz, J., (Chairman), on
official leave.

^[1]
Sec. 34. Offer of evidence. – The
court shall consider no evidence which has not been formally offered. The purpose for which the evidence is
offered must be specified.

Sec. 35. When to make offer. – As regards the testimony of a
witness, the offer must be made at the time the witness is called to testify x
x x x

^[2]
Annexes “C” and “D,” Petition, Rollo, pp. 28-31.

^[3]
Sec. 15. Demurrer to evidence. – After the prosecution has rested its
case, the court may dismiss the case on the ground of insufficiency of
evidence: (1) on its own initiative
after giving the prosecution an opportunity to be heard; or (2) on motion of
the accused filed with prior leave of court.

If the court
denies the motion for dismissal, the accused may adduce evidence in his
defense. When the accused files such
motion to dismiss without express leave of court, he waives the right to
present evidence and submits the case for judgment on the basis of the evidence
for the prosecution.

^[4]
Justice Pedro A. Ramirez, ponente, concurred in by Justices Cezar D.
Francisco and Angelina S. Gutierrez.

^[5]
Sec. 36. Objection. – Objection
to evidence offered orally must be made immediately after the offer is
made. Objection to a question
propounded in the course of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably apparent.

An offer of
evidence in writing shall be objected to within three (3) days after notice of
the offer unless a different period is allowed by the court.

In any case,
the grounds for the objections must be specified.

^[6]
Rollo, pp. 14-15, 126.

^[7]
Martin, Rules of Court in the Philippines, Vol. 5, Fifth Edition, p.
603, citing 53 Am. Jur. 88.

^[8]
Id., p. 610.

^[9]
Rollo, p. 25.

^[10]
Minutes of the Revision of Rules Committee, 8 October 1986, p. 5, cited in
Comment on the Petition, Rollo, p. 97.

^[11]
Rollo, pp. 97-98.

^[12]
Co v. Court of Appeals, G.R. No. 52200, 21 August 1980, 99 SCRA 321, 325, citing People v.
Jose, No. L-28397, 17 June 1976, 71 SCRA 273, 281.