Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 105813 September 12, 1994 CONCEPCION M. CATUIRA, petitioner, vs. COURT O APPEA!S "#$ PEOP!E O T%E P%I!IPPINES, respondents. Arnold V. Guerrero & Associates for petitioner. &E!!OSI!!O, J.: 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 13 , of the Revised Rules on !vidence"

#n $ %une 1&&', two ( ) Informations for estafa were filed a*ainst petitioner +oncepcion ,. +atuira with the Re*ional -rial +ourt of +alamba, .a*una, for havin* issued two ( ) chec/s in payment of her obli*ation to private complainant ,a0ima #campo when petitioner had no sufficient funds to cover the same, which chec/s upon presentment for payment were dishonored by the drawee ban/. 2 1fter the prosecution had presented its evidence, petitioner +oncepcion ,. +atuira filed a ,otion to 2ismiss (by way of 2emurrer to !vidence) under Sec. 15, Rule 11&, of the 1&$5 Revised Rules on +riminal 3rocedure. 3 3etitioner contended that the testimony of private respondent #campo was inadmissible in evidence since it was not properly introduced when she was called to testify as mandated in Sec. 35, Rule 13 , of the Revised Rules on !vidence. 3etitioner also ar*ued that even if the testimony of private respondent was considered, the evidence of the prosecution still failed to prove that the chec/s were issued in payment of an obli*ation. #n 4 %uly 1&&1, the trial court denied the motion to dismiss for lac/ of merit. #n 1$ #ctober 1&&1, it li/ewise denied the motion to reconsider its denial of the motion to dismiss. #n 4 5ovember 1&&1 petitioner elevated her case to the +ourt of 1ppeals throu*h a petition for certiorari, prohibition and mandamus. In a similar move, the appellate court re6ected her petition and sustained the trial court in its denial of the motion to dismiss. 7ence, this recourse see/in* to annul the decision of the +ourt of 1ppeals rendered on 8 9ebruary 1&& as well as its resolution of 1 %une 1&& . 4 3etitioner claims that the +ourt of 1ppeals 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 stric/en off the record pursuant to Sec. 34, Rule 13 , which prohibits the court from considerin* evidence which has not been formally offered: and, it was error for respondent appellate court to declare that petitioner;s ob6ection was not done at the proper time since under Sec. 34, Rule 13 , 5 ob6ection to evidence offered orally must be made immediately after the offer is made. !vidently, petitioner could not have waived her ri*ht to ob6ect 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 ob6ect only came when the prosecution attempted, albeit belatedly, to offer the testimony after it has rested its case. ' -he petition is devoid of merit. -he reason for requirin* that evidence be formally introduced is to enable the court to rule intelli*ently upon the ob6ection to the questions which have been as/ed. ( 1s a *eneral rule, the proponent must show its relevancy, materiality and competency. <here the proponent offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the ri*ht to ob6ect.

=ut such ri*ht is a mere privile*e which can be waived. 5ecessarily, the ob6ection must be made at the earliest opportunity, lest silence when there is opportunity to spea/ may operate as a waiver of ob6ections. 8 -hus, 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 failin* to ob6ect at the appropriate time, i.e., when the *round for ob6ection became reasonably apparent the moment private respondent was called to testify without any prior offer havin* been made by the proponent. ,ost apt is the observation of the appellate court> <hile it is true that the prosecution failed to offer in evidence the testimony of the complainin* witness upon callin* her to testify and that it was only after her testimony and after the petitioner moved that it be stric/en that the offer was made, the respondent +ourt did not *ravely err in not dismissin* the case a*ainst the petitioner on the *round invo/ed. 9or, she should have ob6ected to the testimony of the complainin* witness when it was not first offered upon callin* her and should not have waited in ambush after she had already finished testifyin*. =y so doin* she did not save the time of the +ourt in hearin* the testimony of the witness that after all accordin* to her was inadmissible. 1nd for her failure to ma/e /nown her ob6ection at the proper time, the procedural error or defect was waived. 9 Indeed, the rationale behind Sec. 34, Rule 13 , is manifest in the minutes of the Revision of Rules +ommittee. 10 -hus ? -he new rule would require the testimony of a witness to offer it at the time the witness is called to testify. -his is the best time to offer the testimony so that the court;s time will not be wasted. Since it can ri*ht away rule on whether the testimony is not necessary because it is irrelevant or immaterial. If petitioner was *enuinely concerned with the ends of 6ustice bein* served, her actuations should have been otherwise. Instead, she attempted to capitali@e on a mere technicality to have the estafa case a*ainst her dismissed. 11 =ut even assumin* that petitioner;s ob6ection was timely, it was at best pointless and superfluous. 9or there is no debatin* the fact that the testimony of complainin* witness is relevant and material in the criminal prosecution of petitioner for estafa. It is inconceivable that a situation could e0ist wherein an offended party;s testimony is immaterial in a criminal proceedin*. +onsequently, even if the offer was belatedly made by the prosecution, there is no reason for the testimony to be e0pun*ed from the record. #n the contrary, the unoffered oral evidence must be admitted if only to satisfy the court;s sense of 6ustice and fairness and to stress that substantial 6ustice may not be denied merely on the *round of technicality. 12 <7!R!9#R!, the decision of the +ourt of 1ppeals sustainin* the order of the Re*ional -rial +ourt of +alamba, .a*una, =r. 35, denyin* petitioner;s motion to dismiss (by way of demurrer to evidence) is 199IR,!2. +osts a*ainst petitioner. S# #R2!R!2.