G.R. No.
129670, February 01, 2000
MANOLET O. LAVIDES, PETITIONER, VS.
HONORABLE COURT OF APPEALS; HON.
ROSALINA L. LUNA PISON, JUDGE PRESIDING
OVER BRANCH 107, RTC, QUEZON CITY; AND
PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
MENDOZA, J.:
Petitioner Manolet Lavides was arrested on April 3, 1997 for
child abuse under R.A. No. 7610 (an act providing for
stronger deterrence and special protection against child
abuse, exploitation and discrimination, providing penalties
for its violation, and other purposes). His arrest was made
without a warrant as a result of an entrapment conducted by
the police. It appears that on April 3, 1997, the parents of
complainant Lorelie San Miguel reported to the police that
their daughter, then 16 years old, had been contacted by
petitioner for an assignation that night at petitioners room at
the Metropolitan Hotel in Diliman, Quezon City. Apparently,
this was not the first time the police received reports of
petitioners activities. An entrapment operation was therefore
set in motion. At around 8:20 in the evening of April 3, 1997,
the police knocked at the door of Room 308 of the
Metropolitan Hotel where petitioner was staying. When
petitioner opened the door, the police saw him with Lorelie,
who was wearing only a t-shirt and an underwear, whereupon
they arrested him. Based on the sworn statement of
complainant and the affidavits of the arresting officers, which
were submitted at the inquest, an information for violation of
Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997
against petitioner in the Regional Trial Court, Quezon City,
where it was docketed as Criminal Case No. Q-97-70550.
On April 10, 1997, petitioner filed an "Omnibus Motion (1)
For Judicial Determination of Probable Cause; (2) For the
Immediate Release of the Accused Unlawfully Detained on
an Unlawful Warrantless Arrest; and (3) In the Event of
Adverse Resolution of the Above Incident, Herein Accused
be Allowed to Bail as a Matter of Right under the Law on
Which He is Charged."[1]
On April 29, 1997, nine more informations for child abuse
were filed against petitioner by the same complainant, Lorelie
San Miguel, and by three other minor children, Mary Ann
Tardesilla, Jennifer Catarman, and Annalyn Talingting. The
cases were docketed as Criminal Case Nos. Q-97-70866 to
Q-97-70874. In all the cases, it was alleged that, on various
dates mentioned in the informations, petitioner had sexual
intercourse with complainants who had been "exploited in
prostitution and . . . given money [by petitioner] as payment
for the said [acts of] sexual intercourse."
No bail was recommended. Nonetheless, petitioner filed
separate applications for bail in the nine cases.
On May 16, 1997, the trial court issued an order resolving
petitioners Omnibus Motion, as follows:
WHEREFORE, IN VIEW OF THE
FOREGOING, this Court finds that:
1. In Crim. Case No. Q-97-70550, there is
probable cause to hold the accused
under detention, his arrest having been
made in accordance with the Rules. He
must therefore remain under detention
until further order of this Court;
2. The accused is entitled to bail in all the
above-entitled case. He is hereby
granted the right to post bail in the
amount of P80,000.00 for each case or a
total of P800,000.00 for all the cases
under the following conditions:
a) The accused shall not be entitled to a waiver of appearance during
the trial of these cases. He shall and must always be present at the
hearings of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be
automatically cancelled and forfeited, warrants for his arrest shall be
immediately issued and the cases shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands;
and
d) Approval of the bail bonds shall be made only after the arraignment
to enable this Court to immediately acquire jurisdiction over the
accused;
3. Let these cases be set for arraignment
on May 23, 1997 at 8:30 oclock in the
morning.[2]
On May 20, 1997, petitioner filed a motion to quash the
informations against him, except those filed in Criminal Case
No. Q-97-70550 or Q-97-70866. Pending resolution of his
motion, he asked the trial court to suspend the arraignment
scheduled on May 23, 1997.[3] Then on May 22, 1997, he filed
a motion in which he prayed that the amounts of bail bonds
be reduced to P40,000.00 for each case and that the same be
done prior to his arraignment.[4]
On May 23, 1997, the trial court, in separate orders, denied
petitioners motions to reduce bail bonds, to quash the
informations, and to suspend arraignment. Accordingly,
petitioner was arraigned during which he pleaded not guilty
to the charges against him and then ordered him released
upon posting bail bonds in the total amount of P800,000.00,
subject to the conditions in the May 16, 1997 order and the
"hold-departure" order of April 10, 1997. The pre-trial
conference was set on June 7, 1997.
On June 2, 1997, petitioner filed a petition for certiorari (CA-
G.R. SP No. 44316) in the Court of Appeals, assailing the
trial courts order, dated May 16, 1997, and its two orders,
dated May 23, 1997, denying his motion to quash and
maintaining the conditions set forth in its order of May 16,
1997, respectively.
While the case was pending in the Court of Appeals, two
more informations were filed against petitioner, bringing the
total number of cases against him to 12, which were all
consolidated.
On June 30, 1997, the Court of Appeals rendered its
decision, the dispositive portion of which reads:
WHEREFORE, considering that the conditions
imposed under Nos. 2-a) and 2-b),[5] of the May 23
(should be May 16), 1997 Order, are separable, and
would not affect the cash bond which petitioner
posted for his provisional liberty, with the sole
modification that those aforesaid conditions are
 hereby ANNULLED and SET ASIDE, the May
16, May 23 and May 23, 1997 Orders are
MAINTAINED in all other respects.[6]
The appellate court invalidated the first two conditions
imposed in the May 16, 1997 order for the grant of bail to
petitioner but ruled that the issue concerning the validity of
the condition making arraignment a prerequisite for the
approval of petitioners bail bonds to be moot and academic.
It noted "that petitioner has posted the cash bonds; that
when arraigned, represented by lawyers, he pleaded not guilty
to each offense; and that he has already been released from
detention." The Court of Appeals thought that the aforesaid
conditions in the May 16, 1997 order were contrary to Art.
III, 14(2) of the Constitution which provides that "[a]fter
arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and
his failure to appear is unjustifiable."
With respect to the denial of petitioners motion to quash the
informations against him, the appellate court held that
petitioner could not question the same in a petition for
certiorari before it, but what he must do was to go to trial
and to reiterate the grounds of his motion to quash on appeal
should the decision be adverse to him.
Hence this petition. Petitioner contends that the Court of
Appeals erred[7] __
1. In ruling that the condition imposed by
respondent Judge that the approval of
petitioners bail bonds "shall be made
only after his arraignment" is of no
moment and has been rendered moot
and academic by the fact that he had
already posted the bail bonds and had
pleaded not guilty to all the offenses;
2. In not resolving the submission that the
arraignment was void not only because it
was made under compelling
circumstance which left petitioner no
option to question the respondent
Judges arbitrary action but also because
it emanated from a void Order;
3. In ruling that the denial of petitioners
motion to quash may not be impugned
in a petition for certiorari; and
4. In not resolving the legal issue of
whether or not petitioner may be validly
charged for violation of Section 5(b) of
RA No. 7610 under several informations
corresponding to the number of alleged
acts of child abuse allegedly committed
against each private complainant by the
petitioner.
We will deal with each of these contentions although not in
the order in which they are stated by petitioner.
First. As already stated, the trial courts order, dated May 16,
1997, imposed four conditions for the grant of bail to
petitioner:
a) The accused shall not be entitled to a waiver of appearance during
the trial of these cases. He shall and must always be present at the
hearings of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be
automatically cancelled and forfeited, warrants for his arrest shall be
immediately issued and the cases shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands;
and
d) Approval of the bail bonds shall be made only after the arraignment
to enable this Court to immediately acquire jurisdiction over the
accused;
The Court of Appeals declared conditions (a) and (b) invalid
but declined to pass upon the validity of condition (d) on the
ground that the issue had become moot and academic.
Petitioner takes issue with the Court of Appeals with respect
to its treatment of condition (d) of the May 16, 1997 order of
the trial court which makes petitioners arraignment a
prerequisite to the approval of his bail bonds. His contention
is that this condition is void and that his arraignment was
also invalid because it was held pursuant to such invalid
condition.
We agree with petitioner that the appellate court should have
determined the validity of the conditions imposed in the trial
courts order of May 16, 1997 for the grant of bail because
petitioners contention is that his arraignment was held in
pursuance of these conditions for bail.
In requiring that petitioner be first arraigned before he could
be granted bail, the trial court apprehended that if petitioner
were released on bail he could, by being absent, prevent his
early arraignment and thereby delay his trial until the
complainants got tired and lost interest in their cases. Hence,
to ensure his presence at the arraignment, approval of
petitioners bail bonds should be deferred until he could be
arraigned. After that, even if petitioner does not appear, trial
can proceed as long as he is notified of the date of hearing
and his failure to appear is unjustified, since under Art. III,
14(2) of the Constitution, trial in absentia is authorized. This
seems to be the theory of the trial court in its May 16, 1997
order conditioning the grant of bail to petitioner on his
arraignment.
This theory is mistaken. In the first place, as the trial court
itself acknowledged, in cases where it is authorized, bail
should be granted before arraignment, otherwise the accused
may be precluded from filing a motion to quash. For if the
information is quashed and the case is dismissed, there would
then be no need for the arraignment of the accused. In the
second place, the trial court could ensure the presence of
petitioner at the arraignment precisely by granting bail and
ordering his presence at any stage of the proceedings, such as
arraignment. Under Rule 114, 2(b) of the Rules on Criminal
Procedure, one of the conditions of bail is that "the accused
shall appear before the proper court whenever so required by
the court or these Rules," while under Rule 116, 1(b) the
presence of the accused at the arraignment is required.
On the other hand, to condition the grant of bail to an
accused on his arraignment would be to place him in a
position where he has to choose between (1) filing a motion
to quash and thus delay his release on bail because until his
motion to quash can be resolved, his arraignment cannot be
held, and (2) foregoing the filing of a motion to quash so that
he can be arraigned at once and thereafter be released on
bail. These scenarios certainly undermine the accuseds
constitutional right not to be put on trial except upon valid
complaint or information sufficient to charge him with a
crime and his right to bail.[8]
It is the condition in the May 16, 1997 order of the trial court
that "approval of the bail bonds shall be made only after
arraignment," which the Court of Appeals should instead
have declared void. The condition imposed in the trial courts
order of May 16, 1997 that the accused cannot waive his
appearance at the trial but that he must be present at the
hearings of the case is valid and is in accordance with Rule
114. For another condition of bail under Rule 114, 2(c) is
that "The failure of the accused to appear at the trial without
justification despite due notice to him or his bondsman shall
be deemed an express waiver of his right to be present on the
date specified in the notice. In such case, trial shall proceed in
absentia."
Art. III, 14(2) of the Constitution authorizing trials in
absentia allows the accused to be absent at the trial but not at
certain stages of the proceedings, to wit: (a) at arraignment
and plea, whether of innocence or of guilt,[9] (b) during trial
whenever necessary for identification purposes,[10] and (c) at
the promulgation of sentence, unless it is for a light offense,
in which case the accused may appear by counsel or
representative.[11] At such stages of the proceedings, his
presence is required and cannot be waived. As pointed out in
Borja v. Mendoza,[12] in an opinion by Justice, later Chief
Justice, Enrique Fernando, there can be no trial in absentia
unless the accused has been arraigned.
Undoubtedly, the trial court knew this. Petitioner could delay
the proceedings by absenting himself from the arraignment.
But once he is arraigned, trial could proceed even in his
absence. So it thought that to ensure petitioners presence at
the arraignment, petitioner should be denied bail in the
meantime. The fly in the ointment, however, is that such
court strategy violates petitioners constitutional rights.
Second. Although this condition is invalid, it does not follow
that the arraignment of petitioner on May 23, 1997 was also
invalid. Contrary to petitioners contention, the arraignment
did not emanate from the invalid condition that "approval of
the bail bonds shall be made only after the arraignment."
Even without such a condition, the arraignment of petitioner
could not be omitted. In sum, although the condition for the
grant of bail to petitioner is invalid, his arraignment and the
subsequent proceedings against him are valid.
Third. Petitioner concedes that the rule is that the remedy of
an accused whose motion to quash is denied is not to file a
petition for certiorari but to proceed to trial without
prejudice to his right to reiterate the grounds invoked in his
motion to quash during trial on the merits or on appeal if an
adverse judgment is rendered against him. However, he
argues that this case should be treated as an exception. He
contends that the Court of Appeals should not have evaded
the issue of whether he should be charged under several
informations corresponding to the number of acts of child
abuse allegedly committed by him against each of the
complainants.
In Tano v. Salvador,[13] the Court, while holding that certiorari
will not lie from a denial of a motion to quash, nevertheless
recognized that there may be cases where there are special
circumstances clearly demonstrating the inadequacy of an
appeal. In such cases, the accused may resort to the appellate
court to raise the issue decided against him. This is such a
case. Whether petitioner is liable for just one crime regardless
of the number of sexual acts allegedly committed by him and
the number of children with whom he had sexual
intercourse, or whether each act of intercourse constitutes
one crime is a question that bears on the presentation of
evidence by either party. It is important to petitioner as well
as to the prosecution how many crimes there are. For
instance, if there is only one offense of sexual abuse
regardless of the number of children involved, it will not
matter much to the prosecution whether it is able to present
only one of the complainants. On the other hand, if each act
of sexual intercourse with a child constitutes a separate
offense, it will matter whether the other children are
presented during the trial.
The issue then should have been decided by the Court of
Appeals. However, instead of remanding this case to the
appellate court for a determination of this issue, we will
decide the issue now so that the trial in the court below can
proceed without further delay.
Petitioners contention is that the 12 informations filed
against him allege only one offense of child abuse, regardless
of the number of alleged victims (four) and the number of
acts of sexual intercourse committed with them (twelve). He
argues that the act of sexual intercourse is only a means of
committing the offense so that the acts of sexual
intercourse/lasciviousness with minors attributed to him
should not be subject of separate informations. He cites the
affidavits of the alleged victims which show that their
involvement with him constitutes an "unbroken chain of
events," i.e., the first victim was the one who introduced the
second to petitioner and so on. Petitioner says that child
abuse is similar to the crime of large-scale illegal recruitment
where there is only a single offense regardless of the number
of workers illegally recruited on different occasions. In the
alternative, he contends that, at the most, only four
informations, corresponding to the number of alleged child
victims, can be filed against him.
Art. III, 5 of R.A. No. 7160 under which petitioner is being
prosecuted, provides:
Sec. 5 Child Prostitution and Other Sexual Abuse.
Children, whether male or female, who for money,
profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed upon
the following:
....
b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse.
The elements of the offense are as follows: (1) the accused
commits the act of sexual intercourse or lascivious conduct;
(2) that said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and (3) the
child,[14] whether male or female, is or is deemed under 18
years of age. Exploitation in prostitution or other sexual
abuse occurs when the child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any
adult, syndicate, or group.
Each incident of sexual intercourse and lascivious act with a
child under the circumstances mentioned in Art. III, 5 of
R.A. No. 7160 is thus a separate and distinct offense. The
offense is similar to rape or act of lasciviousness under the
Revised Penal Code in which each act of rape or lascivious
conduct should be the subject of a separate information. This
conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160,
which provides:
[t]hat when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under
 Article 335, paragraph 3, for rape and Article 336
of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case
may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years
of age shall be reclusion temporal in its medium
period;
WHEREFORE, the decision of the Court of Appeals is SET
ASIDE and another one is RENDERED declaring the
orders dated May 16, 1997 and May 23, 1997 of the Regional
Trial Court, Branch 107, Quezon City to be valid, with the
exception of condition (d) in the second paragraph of the
order of May 16, 1997 (making arraignment a prerequisite to
the grant of bail to petitioner), which is hereby declared void.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ.,
concur.
G.R. No. L-101, December 20, 1945
HAYDEE HERRAS TEEHANKEE, PETITIONER,
VS. LEOPOLDO ROVIRA, ANTONIO QUIBINO,
AND POMPEYO DIAZ, RESPONDENTS.
DECISION
HILADO, J.:
Petitioner Haydee Herras Teehankee is a political detainee
delivered by the Counter Intelligence Corps, United States
Army, to the Commonwealth Government, pursuant to the
Proclamation of General of the Army Douglas MacArthur,
dated December 29, 1944. She was one of the petitioners in
case No. L-44, "Raquiza vs. Bradford," of this court (p. 50,
ante). She is now confined in the Correctional Institution for
Women under the custody of the Commonwealth
Government since October, 1945, when she was thus
delivered to the said government.
Under date of October 2, 1945, petitioner, through her
husband, Alberto Teehankee, filed with the People's Court a
petition wherein, invoking the provisions of Executive Order
No. 65, promulgated by His Excellency, the President of the
Philippines, dated September 3, 1945, she prayed that her
immediate release be ordered on the ground that no evidence
exists upon which she could be charged with any act
punishable by law, or, alternatively, that the People's Court
fix the bail for her provisional liberty, in conformity with the
aforesaid executive order, and upon approval of such bail,
that an order be forthwith issued directing the officer having
official custody of her person to immediately release her.
On October 4, 1945, the Hon. Antonio Quirino, one of the
Associate Judges of the People's Court, upon considering the
said petition, required the Solicitor General "to file his
comment and recommendation as soon as possible."
On October 5, 1945, the Solicitor General filed
recommendation in compliance with said order, stating: "that
on the strength of the evidence at hand, the reasonable bail
recommended for the provisional release of the petitioner be
fixed at Fifty Thousand Pesos (P50.000)."
On October 9, 1945, the Hon. Leopoldo Rovira, Presiding
Judge of the People's Court, entered an order referring the
petition for provisional release above mentioned for
consideration by the Fifth Division of said Court, but adding
the following statement: "in my opinion, it should be denied
notwithstanding the recommendation of the Solicitor
General for her provisional release under a bond of Fifty
Thousand Pesos (P50,000)."
On the same date, October 9, 1945, the Hon. Pompeyo Diaz,
Associate Judge of said Court, entered an order disposing of
said petition and denying the same "in view of the gravity of
the offense as can be deduced from the fact that the office of
the Special Prosecutors recommends as high as Fifty
Thousand Pesos (50,000) for her provisional release." A
motion having been filed by petitioner with the People's
Court praying said court to reconsider its order of October 9,
1945, denying her petition for provisional release, the Court,
through Associate Judge Pompeyo Diaz, denied said motion.
In her present petition for the writs of certiorari and
mandamus originally filed with this Court on October 19,
1945, petitioner avers that the above-mentioned Judges of
the People's Court, in denying her petition for provisional
liberty under bail, as well as her motion for reconsideration,
acted in excess of jurisdiction and with grave abuse of
discretion. Paragraph VII of this petition contains her
allegations in support of this charge.
Under date of October 21, 1945, respondent Judge Pompeyo
Diaz filed his answer stating that the order denying bail "was
issued under express mandate of the law", citing section 19
of Commonwealth Act No. 682.
Article III, section 1 (16) of the Commonwealth Constitution
provides that:
"All persons shall before conviction be bailable by
sufficient sureties, except those charged with
capital offenses when evidence of guilt is strong.
Kxcessive bail shall not be required." Rule 110 of
the Rules of Court provides in the following
sections:
"SEC. 3. Offenses less than capital before conviction by the
Court of First Instance.After judgment by a justice
of the peace and before conviction by the Court of
First Instance, the defendant shall be admitted to
bail as of right.
"SEC. 4. Noncapital offenses after conviction by the Court
of First Instance.After conviction by the Court of
First Instance, defendant may, upon application,
be bailed at the discretion of the court.
"SEC. 5. Capital offenses defined.A capital offense,
as the term is used in this rule, is an offense which,
under the law existing at the time of its
commission, and at the time of the application to
be admitted to bail, may be punished by death.
"SEC. 6. Capital offense not bailable.No person in
custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt
is strong.
"SEC. 7. Capital offenses-burden of proof.On the
hearing of an application for admission to bail
made by any person who is in custody for the
 commission of a capital offense, the burden of
showing that evidence of guilt is strong is on the
prosecution.
"SEC. 8. Notice of application to fiscal.When
admission to bail is a matter of discretion, the
court must require that reasonable notice of the
hearing of the application for bail be given to the
fiscal."
Section 66 of General Orders, No. 58 stipulates:
"When admission to bail is a matter of discretion,
the court must require that reasonable notice of
the hearing of the application for bail be given to
the promotor fiscal."
Section 19 of Commonwealth Act No. 682 contains the
following proviso:
"SEC. 19. * * * Provided, however, That existing
provisions of law to the contrary notwithstanding,
the aforesaid political prisoners may, in the
discretion of the People's Court, after due notice
to the office of Special Prosecutors and hearing, be
released on bail, even prior to the presentation of
the corresponding information, unless the Court
finds that there is strong evidence of the
commission of a capital offense. * * *."
Section 22 of Commonwealth Act No. 682 ordains:
"SEC. 22. The prosecution, trial and disposal of
cases before the People's Court shall be governed
by existing laws and rules of court, unless
otherwise expressly provided herein * * *."
Against the petitioner herein no information had yet been
presented when she filed her petition dated October 2, 1945,
containing the alternative prayer for the fixing of bail for her
provisional liberty. She there invokes Executive Order No.
65 of the President of the Philippines, dated September 3,
1945. The proviso above quoted from section 19 of the
People's Court Act (Commonwealth Act No. 682) also
existed in the statute books at the time.
The able arguments adduced on both sides have received the
most careful consideration of the Court as befits the
importance of the questions involved. However, in the view
we take of the case, a majority of the Court are of opinion
that the only questions calling for decision at this time are:
(1) whether Article III, section 1(16) of the Commonwealth
Constitution is applicable to the instant case; (2) whether a
hearing should be held of the application for bail with the
attendance of the petitioner and the Solicitor General or the
latter's representative; and (3) if so, what kind of hearing it
should be.
1. As to the first question, we hold that Article III,
section 1(16) of the Commonwealth Constitution
is applicable to the instant case. This constitutional
mandate refers to all persons, not only to persons
against whom a complaint or information has
already been formally filed. It lays down the rule
that all persons shall before conviction be bailable
except those charged with capital offenses when
evidence of guilt is strong. According to this
provision, the general rule is that any person,
before being convicted of any criminal offense,
shall be bailable, except when he is charged with a
capital offense and the evidence of his guilt is
strong. Of course, only those persons who have
been either arrested, detained or otherwise
deprived of their liberty will ever have occasion to
seek the benefits of said provision. But in order
that a person can invoke this constitutional
precept, it is not necessary that he should wait until
a formal complaint or information is filed against
him. From the moment he is placed under arrest,
detention or restraint by the officers of the law, he
can claim this guarantee of the Bill of Rights, and
this right he retains unless and until he is charged
with a capital offense and evidence of his guilt is
strong. Indeed if, as admitted on all sides, the
precept protects those already charged under a
formal complaint or information, there seems to
be no legal or just reason for denying its benefits
to one as against whom the proper authorities may
even yet conclude that there exists no sufficient
evidence of guilt. To place the former in a more
favored position than the latter would be, to say
the least, anomalous and absurd. If there is a
presumption of innocence in favor of one already
formally charged with criminal offense
(Constitution, Article III, section 1 [17], a fortiori,
this presumption should be indulged in favor of
one not yet so charged, although already arrested
or detained.
In Cooley's Constitutional Limitations, 7th edition,
pages 436-438, we read the following:
"Perhaps the most important of the
protections to personal liberty consists
in the mode of trial which is secured to
every person accused of crime. At the
common law, accusations of flony were
made in the form of an indictment by a
grand jury; and this process is still
retained in many of the States, while
others have substituted in its stead an
information filed by the prosecuting
officer of the State or county. Th mode
of investigating the facts, however, is the
same in all; and this is through a trial by
jury, surrounded by certain safeguards
which are a well-understood part of the
system, and which the government
cannot dispense with.
"First, we may mention that the
humanity of our law always presumes an
accused party innocent until he is
proved to be guilty. This is a
presumption which attends all the
proceedings against him, from their
initiation until they result in a verdict,
which either finds the party guilty or
converts the presumption of innocence
into an adjudged fact.
"If there were any mode short of
confinement which would, with
reasonable certainty, insure the
attendance of the accused to answer the
accusation, it would not be justifiable to
 inflict upon him that indignity, when the
effect is to subject him, in a greater or
less degree, to the punishment of a
guilty person, while as yet it is not
determined that he has committed any
crime. If the punishment on conviction
cannot exceed in severity the forfeiture
of a large sum of money, then it is
reasonable to suppose that such a sum
of money, or an agreement by
responsible parties to pay it to the
government in case the accused should
fail to appear, would be sufficient
security for his attendance; and
therefore, at the common law, it was
customary to take security of this
character in all cases of misdemeanor
one or more friends of the accused
undertaking for his appearance for trial,
and agreeing that a certain sum of
money should be levied of their goods
and chattels, lands and tenements, if he
made default. But in the case of felonies,
the privilege of giving bail before trial
was not a matter of right; and in this
country, although tfie criminal code is
much more merciful than it formerly
was in England, and in some cases the
allowance of bail is almost a matter of
course, there are others in which it is
discretionary with the magistrate to
allow it or not, and where it will
sometimes be refused if the evidence of
guilty is strong or the presumption great.
Capital offenses are not generally
regarded as bailable; at least, after
indictment, or when the party is charged
by the finding of a coroner's jury; * * *."
All that Justice Cooley says in the foregoing
quotations regarding the humanity of the law in his
jurisdiction and its presumption that an accused
party is innocent until he is proved to be guilty, is
distinctly true also in ours where the constitutional,
statutory, and reglementary provisions on the
point have been borrowed from America. The
same should be said of what he says regarding the
granting of bail for provisional liberty before
conviction, and even after, in exceptional cases, of
course, always subject to the limitations established
by our own Constitution, laws, and rules of court.
From the last part of said quotation it follows,
firstly, that before indictment or charge by the
coroner's jury, in trie jurisdiction to which the
author refers, there may be cases in which even a
capital offense is bailable, and, secondly, that even
after indictment or the finding of a coroner's jury
in these jurisdictions, there may be exceptional
cases where a capital offense is still bailable. Under
our Constitution, as we have seen, all offenses are
bailable before conviction except capital offenses
when evidence of guilt is strong. In consonance
with this constitutional provision, section 3 of Rule
HO of the Rules of Court stipulates that non-
capital offenses before conviction by the Court of
First Instance shall be bailable as of right; section 4
of the same Rule provides that after conviction by
the Court of First Instance such offenses may,
upon application, be bailable at the discretion of
the court; and section 6 of the said Rule provides
that "no person in custody for the commission of
a capital offense shall be admitted to bail if the
evidence of his guilt is strong."
"By the common law, all offenses
including treason, murder, and other
felonies, were bailable before indictment
found, although the granting or refusing
of such bail in case of capital offenses
was a matter within the discretion of the
court." (6 C. J., 958; italics supplied.)
2. As to the second question, we hold that upon
application by a political prisoner or detainee to
the People's Court for provisional release under
bail, a hearing, summary or otherwise, should be
held with due notice to the Office of Special
Prosecutors, as well as to the prisoner or detainee.
It will be remembered that section 22 of the
People's Court Act subjects the prosecution, trial,
and disposal of cases before the People's Court to
"existing laws and rules of court," unless otherwise
expressly provided in said act. Consequently, the
hearing and disposal of application for bail for
provisional release before the People's Court
should be governed by existing laws and rules of
court, the hearing and disposal of such
applications being a mere part of the "prosecution,
trial, and disposal" of the corresponding cases
before said court. If attention should be directed
to the clause "unless otherwise expressly provided
herein" in said section 22, in connection with the
first proviso of section 19 of the same act, it
should be borne in mind that the provisions of
said act should be construed in harmony with
those of the Constitution, under the well-settled
rule of statutory construction that legislative
enactments should be construed, wherever
possible, in a manner that would avoid their
conflicting with the fundamental law.
3. As to the third question. While it is true that the
Solicitor General on October 3, 1945,
recommended Fifty Thousand Pesos (P50,000) as
a reasonable bail "on the strength of the evidence
at hand," it may happen that thereafter his office
may have secured additional evidence which, in
addition to or in connection with that he already
possessed, in his opinion is sufficiently strong to
prove petitioner's guilt for a capital offense, in
which case, he may yet decide to oppose the
application for bail heretofore filed by the
petitioner at the hearing thereof hereinafter
ordered. It will be remembered that petitioner,
while under the custody of the Counter
Intelligence Corps, United States Army, was
charged with (a) "Active collaboration with the
Japanese" and (b) "Previous association with the
enemy" (Raquiza vs. Bradford, p. 50, ante). Under
the definition of treason in the Revised Penal
Code, active collaboration with the Japanese and
association with them during the war in the
Philippines may constitute treason, a capital
offense.
"ART. 114. Any person who, owing allegiance to
the United States or the Government of the
Philippine Islands, not being a foreigner, * * *
adheres to their enemies, giving them aid or
comfort within the Philippine Islands or elsewhere,
 shall be punished by reclusion temporal to death and
shall pay a fine not to exceed 20,000 pesos."
(Revised Penal Code.)
Of course, it may also happen that, either because no such
further evidence has come into his possession or because, in
his judgment, the public interest would be better served by
his withholding the evidence that he has until the trial in the
merits, he would prefer not to oppose the application for
bail. At the hearing of the application the Solicitor General
will be free to adopt one course or the other. If he opposes,
the burden of proof will be on him to show that petitioner is
not entitled to bail. Petitioner will have the right to offer
evidence to prove her right thereto. In fine, the hearing is for
the purpose of enabling the People's Court to exercise its
sound discretion as to whether or not under the Constitution
and laws in force petitioner is entitled to provisional release
under bail.
Wherefore, it is the judgment of this Court that: (a) the order
of the People's Court, dated October 9, 1945, denying
petitioner's petition for provisional release under bail, and the
order of said Court, dated October 13, 1945, denying
petitioner's motion for reconsideration of said order of
October 9, 1945, which we declare to have been entered with
grave abuse of discretion, be set aside; and (b) that for the
proper application of the pertinent constitutional, statutory,
and reglementary provisions alluded to in the body of this
decision, a hearing of petitioner's application for bail be held
before the People's Court with due notice to the Solicitor
General, as well as to the petitioner, as hereinabove outlined,
said hearing, whether summary or otherwise, to be such as
would enable the People's Court to exercise its sound
discretion in the disposal of the aforesaid petition. Without
costs. So ordered.
Moran, C. J., and Briones, J., concur.
Jaranilla, Feria, Pablo, and Bengzon, JJ., concur only in the
result..
[G.R. No. 96080. April 19, 1991.]
ATTY. MIGUEL P. PADERANGA, Petitioner, v.
HON. FRANKLIN M. DRILON, HON. SILVESTRE H.
BELLO III, ATTY. HENRICK F. GINGOYON, HELEN
B. CANOY and REBECCA B. TAN,
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
PRELIMINARY INVESTIGATION; NOT A TRIAL OF THE
CASE ON THE MERITS. Preliminary investigation is
generally inquisitorial, and it is often the only means of
discovering the persons who may be reasonably
charged with a crime, to enable the fiscal to prepare
his complaint or information. It is not a trial of the
case on the merits and has no purpose except that of
determining whether a crime has been committed and
whether there is probable cause to believe that the
accused is guilty thereof, and it does not place the
person against whom it is taken in jeopardy.
2. ID.; ID.; ID.; FISCAL HAS DISCRETION TO FILE
CASE IN COURT. The institution of a criminal action
depends upon the sound discretion of the fiscal. He has
the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court.
3. ID.; ID.; ID.; ID.; CRIMINAL PROSECUTION
GENERALLY MAY NOT BE RESTRAINED; EXCEPTIONS.
The general rule is that an injunction will not be
granted to restrain a criminal prosecution. The case of
Brocka, Et. Al. v. Enrile, Et. Al. cites several exceptions
to the rule, to wit: a. To afford adequate protection to
the constitutional rights of the accused; b. When
necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions; c. When
there is a prejudicial question which is sub-judice; d.
When the acts of the officer are without or in excess of
authority; e. Where the prosecution is under an invalid
law, ordinance or regulation; f. When double jeopardy
is clearly apparent; g. Where the court has no
jurisdiction over the offense; h. Where it is a case of
persecution rather than prosecution; i. Where the
charges are manifestly false and motivated by the lust
for vengeance; and j. When there is clearly no prima
facie case against the accused and a motion to quash
on that ground has been denied.
4. ID.; ID.; ID.; FILING OF COUNTER-AFFIDAVIT IN
INSTANT CASE; SUFFICIENT COMPLIANCE WITH RULE.
Petitioner likewise claims that he was deprived of
the opportunity to file his counter-affidavit to the
subpoena of April 25, 1989. It will be noted that
petitioner had already filed his counter-affidavit,
pursuant to the subpoena issued to him on April 17,
1989, wherein he controverted the charge against him
and dismissed it as a malicious design of his political
opponents and enemies to link him to the crime. We
hold that this is sufficient compliance with the
procedural requirement of the Rules of Court,
specifically Section 3(b) of Rule 112 thereof. Besides,
petitioner failed to show that the subpoena issued on
April 25, 1989 involved a separate complaint charging
an offense different and distinct from that charged in
the complaint attached to the first subpoena issued to
him earlier.
5. ID.; ID.; ID.; VERACITY AND CREDIBILITY OF
WITNESSES AND TESTIMONIES BEST ADDRESSED TO
TRIAL COURT. Secondly, the veracity and credibility
of the witnesses and their testimonies are matters of
defense best addressed to the trial court for its
appreciation and evaluation.
6. ID.; ID.; ID.; CLARIFICATORY QUESTIONS; FISCAL
HAS DISCRETION WHETHER OR NOT TO PROPOUND
CLARIFICATORY QUESTION TO PARTIES OR
WITNESSES. Thirdly, the right of petitioner to ask
clarificatory questions is not absolute. The fiscal has
the discretion to determine whether or not he will
propound these questions to the parties or witnesses
concerned. As clearly provided for under Section 3(e),
Rule 112 of the Rules of Court:" (e) If the investigating
officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during
which the parties shall be afforded an opportunity to
be present but without the right to examine or cross-
examine. If the parties so desire, they may submit
questions to the investigating officer which the latter
may propound to the parties or witnesses
concerned."cralaw virtua1aw library

7. ID.; ID.; ID.; ABSENCE OF PRELIMINARY
INVESTIGATION ADDRESSED TO THE TRIAL COURT.
Lastly, it has been held that "the proper forum before
which absence of preliminary investigation should be
ventilated is the Court of First Instance, not this Court.
Reason is not wanting for this view. Absence of a
preliminary investigation does not go to the jurisdiction
of the court but merely to the regularity of the
proceedings. It could even be waived. Indeed, it is
frequently waived. These are matters to be inquired
into by the trial court, not an appellate court."cralaw
virtua1aw library
8. ID.; ID.; ID.; QUANTUM OF EVIDENCE IS SUCH
ONLY AS MAY ENGENDER A WELL GROUNDED BELIEF
THAT AN OFFENSE HAS BEEN COMMITTED AND
ACCUSED IS PROBABLY GUILTY THEREOF. A
preliminary investigation is defined as an inquiry or
proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded
belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial.
The quantum of evidence now required in preliminary
investigation is such evidence sufficient to "engender a
well founded belief" as to the fact of the commission of
a crime and the respondents probable guilt thereof. A
preliminary investigation is not the occasion for the full
and exhaustive display of the parties evidence; it is for
the presentation of such evidence only as may
engender a well grounded belief that an offense has
been committed and that the accused is probably
guilty thereof.
9. ID.; ID.; ID.; ACCUSED HAS NO RIGHT TO CROSS
EXAMINE COMPLAINANTS WITNESSES. It is a
fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the
witnesses which the complainant may present. Section
3, Rule 112 of the Rules of Court expressly provides
that the respondent shall only have the right to submit
a counter-affidavit, to examine all other evidence
submitted by the complainant and, where the fiscal
sets a hearing to propound clarificatory questions to
the parties or their witnesses, to be afforded an
opportunity to be present but without the right to
examine or cross-examine. Thus, even if petitioner
was not given the opportunity to cross-examine
Galarion and Hanopol at the time they were presented
to testify during the separate trial of the case against
Galarion and Roxas, he cannot assert any legal right to
cross-examine them at the preliminary investigation
precisely because such right was never available to
him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court
during the trial proper and not in the preliminary
investigation.
10. ID.; ID.; ID.; TECHNICAL RULES ON EVIDENCE
ARE NOT BINDING ON THE FISCAL. Furthermore,
the technical rules on evidence are not binding on the
fiscal who has jurisdiction and control over the conduct
of a preliminary investigation. If by its very nature a
preliminary investigation could be waived by the
accused, we find no compelling justification for a strict
application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules
of Court, the record of the preliminary investigation
does not form part of the record of the case in the
Regional Trial Court, then the testimonies of Galarion
and Hanopol may not be admitted by the trial court if
not presented in evidence by the prosecuting fiscal.
And, even if the prosecution does present such
testimonies, petitioner can always object thereto and
the trial court can rule on the admissibility thereof; or
the petitioner can, during the trial, petition said court
to compel the presentation of Galarion and Hanopol for
purposes of cross-examination.
DECISION
REGALADO, J.:
In this special civil action for mandamus and
prohibition with prayer for a writ of preliminary
injunction/restraining order, petitioner seeks to enjoin
herein public respondents from including the former as
an accused in Criminal Case No. 86-39 for multiple
murder, through a second amended information, and
to restrain them from prosecuting him.
The records disclose that on October 16, 1986, an
information for multiple murder was filed in the
Regional Trial Court, Gingoog City, against Felipe
Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie
Torion, John Doe, Peter Doe and Richard Doe, for the
deaths on May 1, 1984 of Renato Bucag, his wife
Melchora Bucag, and their son Renato Bucag II. Venue
was, however, transferred to Cagayan de Oro City per
Administrative Matter No. 87-2-244.
Only Felipe Galarion was tried and found guilty as
charged. The rest of the accused remained at large.
Felipe Galarion, however, escaped from detention and
has not been apprehended since then.
In an amended information filed on October 6, 1988,
Felizardo Roxas, alias "Ely Roxas," "Fely Roxas" and
"Lolong Roxas," was included as a co-accused. Roxas
retained petitioner Paderanga as his counsel.
As counsel for Roxas, petitioner filed, among others,
an Omnibus Motion to dismiss, to Quash the Warrant
of Arrest and to Nullify the Arraignment on October 14,
1988. The trial court in an order dated January 9,
1989, denied this omnibus motion but directed the City
Prosecutor "to conduct another preliminary
investigation or reinvestigation in order to grant the
accused all the opportunity to adduce whatever
evidence he has in support of his defense."cralaw
virtua1aw library
In the course of the preliminary investigation, through
a signed affidavit, Felizardo Roxas implicated herein
petitioner in the commission of the crime
charged.chanrobles law library : red
The City Prosecutor of Cagayan de Oro City inhibited
himself from further conducting the preliminary
investigation against petitioner at the instance of the
latters counsel, per his resolution dated July 7, 1989.
In his first indorsement to the Department of Justice,
dated July 24, 1989, said city prosecutor requested the
Department of Justice to designate a state prosecutor
to continue the preliminary investigation against herein
petitioner.
In a resolution dated September 6, 1989, 1 respondent
State Prosecutor Henrick F. Gingoyon, who was
designated to continue with the conduct of the
preliminary investigation against petitioner, directed
the amendment of the previously amended information
to include and implead herein petitioner as one of the
accused therein. Petitioner moved for reconsideration,
2 contending that the preliminary investigation was not
yet completed when said resolution was promulgated,
and that he was deprived of his right to present a
corresponding counter-affidavit and additional
evidence crucial to the determination of his alleged
"linkage" to the crime charged. The motion was,
however, denied by respondent Gingoyon in his order
dated January 29, 1990. 3
From the aforesaid resolution and order, petitioner
filed a Petition for Review 4 with the Department of
Justice. Thereafter, he submitted a Supplemental
Petition with Memorandum, 5 and then a Supplemental
Memorandum with Additional Exculpatory/Exonerating
Evidence Annexed, 6 attaching thereto an affidavit of
Roxas dated June 20, 1990 and purporting to be a
retraction of his affidavit of March 30, 1990 wherein he
implicated herein petitioner.
On August 10, 1990, the Department of Justice,
through respondent Undersecretary Silvestre H. Bello
III, issued Resolution No. 648 7 dismissing the said
petition for review. His motion for reconsideration
having been likewise denied, petitioner then filed the
instant petition for mandamus and prohibition.
Petitioner raises two basic issues, namely: (1) that the
preliminary investigation as to him was not complete;
and (2) that there exists no prima facie evidence or
probable cause to justify his inclusion in the second
amended information.chanrobles.com.ph : virtual law
library
Preliminary investigation is generally inquisitorial, and
it is often the only means of discovering the persons
who may be reasonably charged with a crime, to
enable the fiscal to prepare his complaint or
information. It is not a trial of the case on the merits
and has no purpose except that of determining
whether a crime has been committed and whether
there is probable cause to believe that the accused is
guilty thereof, and it does not place the person against
whom it is taken in jeopardy. 8 addressed to the trial court for its appreciation and
The institution of a criminal action depends upon the
sound discretion of the fiscal. He has the quasi-judicial
discretion to determine whether or not a criminal case
should be filed in court. 9 Hence, the general rule is
that an injunction will not be granted to restrain a
criminal prosecution. 10 The case of Brocka, Et. Al. v.
Enrile, Et. Al. 11 cites several exceptions to the rule, to
wit:chanrob1es virtual 1aw library
a. To afford adequate protection to the constitutional
rights of the accused;
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions;
c. When there is a prejudicial question which is sub-
judice;
d. When the acts of the officer are without or in excess
of authority;
e. Where the prosecution is under an invalid law,
ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the
offense;
h. Where it is a case of persecution rather than
prosecution;
i. Where the charges are manifestly false and
motivated by the lust for vengeance; and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has
been denied.
A careful analysis of the circumstances obtaining in the
present case, however, will readily show that the same
does not fall under any of the aforesaid exceptions.
Hence, the petition at bar must be dismissed.
1. Petitioner avers that he was deprived of a full
preliminary investigation by reason of the fact that at
the time the resolution of September 6, 1989 was
issued, there were still several incidents pending
resolution such as the validity of the testimonies and
affidavits of Felizardo Roxas and Rogelio Hanopol as
bases for preliminary investigation, the polygraph test
of Roxas which he failed, and the clarificatory
questions which were supposed to be propounded by
petitioners counsel to Roxas and Hanopol. Petitioner
likewise claims that he was deprived of the opportunity
to file his counter-affidavit to the subpoena of April 25,
1989. These contentions are without merit.c
Firstly, it will be noted that petitioner had already filed
his counter-affidavit, pursuant to the subpoena issued
to him on April 17, 1989, wherein he controverted the
charge against him and dismissed it as a malicious
design of his political opponents and enemies to link
him to the crime. We hold that this is sufficient
compliance with the procedural requirement of the
Rules of Court, specifically Section 3(b) of Rule 112
thereof. Besides, petitioner failed to show that the
subpoena issued on April 25, 1989 involved a separate
complaint charging an offense different and distinct
from that charged in the complaint attached to the first
subpoena issued to him earlier.
Secondly, the veracity and credibility of the witnesses
and their testimonies are matters of defense best
evaluation.
Thirdly, the right of petitioner to ask clarificatory
questions is not absolute. The fiscal has the discretion
to determine whether or not he will propound these
questions to the parties or witnesses concerned. As
clearly provided for under Section 3(e), Rule 112 of
the Rules of Court:jgc:chanrobles.com.ph
"(e) If the investigating officer believes that there are
matters to be clarified, he may set a hearing to
propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded
an opportunity to be present but without the right to
examine or cross-examine. If the parties so desire,
they may submit questions to the investigating officer
which the latter may propound to the parties or
witnesses concerned."cralaw virtua1aw library
Lastly, it has been held that "the proper forum before
which absence of preliminary investigation should be
ventilated is the Court of First Instance, not this Court.
Reason is not wanting for this view. Absence of a
preliminary investigation does not go to the jurisdiction
of the court but merely to the regularity of the
proceedings. It could even be waived. Indeed, it is
frequently waived. These are matters to be inquired
into by the trial court, not an appellate court." 12
2. Petitioner further submits that there is no prima
facie evidence, or probable cause, or sufficient
justification to hold him to a tedious and prolonged
public trial, on the basis of the following grounds: the
questioned resolution of respondent Gingoyon is full of
factual misrepresentations or misapprehensions;
respondents reliance on the decision of the Regional
Trial Court against Felipe Galarion suffers from
constitutional and procedural infirmities considering
that petitioner was not a party thereto, much less was
he given any opportunity to comment on or rebut the
prosecution evidence; reliance on Rogelio Hanopols
testimony is likewise "contemptible," it being merely
hearsay in addition to the fact that petitioner was
never given the opportunity to cross-examine Hanopol
at the time he testified in court; and the affidavit of
Roxas dated March 30, 1989, which is the only
evidence against petitioner, has been rendered
nugatory by his affidavit of retraction dated June 20,
1990.
A preliminary investigation is defined as an inquiry or
proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded
belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial. 13
The quantum of evidence now required in preliminary
investigation is such evidence sufficient to "engender a
well founded belief" as to the fact of the commission of
a crime and the respondents probable guilt thereof. A
preliminary investigation is not the occasion for the full
and exhaustive display of the parties evidence; it is for
the presentation of such evidence only as may
engender a well grounded belief that an offense has
been committed and that the accused is probably
guilty thereof. 14 We are in accord with the state
prosecutors findings in the case at bar that there
exists prima facie evidence of petitioners involvement
in the commission of the crime, it being sufficiently
supported by the evidence presented and the facts
obtaining therein.chanrobles.com:cralaw:red
Likewise devoid of cogency is petitioners argument
that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the
opportunity of cross-examination.
It is a fundamental principle that the accused in a
preliminary investigation has no right to cross-examine
the witnesses which the complainant may present.
Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right
to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the
fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to
examine or cross-examine. Thus, even if petitioner
was not given the opportunity to cross-examine
Galarion and Hanopol at the time they were presented
to testify during the separate trial of the case against
Galarion and Roxas, he cannot assert any legal right to
cross-examine them at the preliminary investigation
precisely because such right was never available to
him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court
during the trial proper and not in the preliminary
investigation.
Furthermore, the technical rules on evidence are not
binding on the fiscal who has jurisdiction and control
over the conduct of a preliminary investigation. If by
its very nature a preliminary investigation could be
waived by the accused, we find no compelling
justification for a strict application of the evidentiary
rules. In addition, considering that under Section 8,
Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the
record of the case in the Regional Trial Court, then the
testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence
by the prosecuting fiscal. And, even if the prosecution
does present such testimonies, petitioner can always
object thereto and the trial court can rule on the
admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of
Galarion and Hanopol for purposes of cross-
examination.
WHEREFORE, the instant petition is hereby DISMISSED
for lack of merit.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Grio-Aquino, Medialdea and Davide,
Jr., JJ., concur.
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., vs. COMMISSION ON ELECTIONS
MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction
and/or Restraining Order filed by petitioners, in their own
behalf and all others allegedly similarly situated, seeking to
enjoin respondent Commission on Elections (COMELEC) from
implementing certain provisions of Batas Pambansa Big. 51,
52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a
former Governor of Nueva Vizcaya, who has filed his certificate
of candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a
taxpayer, a qualified voter and a member of the Bar who, as
such, has taken his oath to support the Constitution and obey
the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also
a taxpayer, a qualified voter, and a resident of San Miguel,
Iloilo.
Petitioner Dumlao specifically questions the constitutionality of
section 4 of Batas Pambansa Blg. 52 as discriminatory and
contrary to the equal protection and due process guarantees of
the Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to
violation of section 10 of Art. XI I-C of the
Constitution and disqualification mentioned
in existing laws, which are hereby declared
as disqualification for any of the elective
officials enumerated in section 1 hereof.
Any retired elective provincial city or
municipal official who has received payment
of the retirement benefits to which he is
entitled under the law, and who shall have
been 6,5 years of age at the commencement
of the term of office to which he seeks to be
elected shall not be qualified to run for the
same elective local office from which he has
retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is
directed insidiously against him, and that the classification
provided therein is based on "purely arbitrary grounds and,
therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the
validity of the following statutory provisions:
Sec 7. Terms of Office Unless sooner
removed for cause, all local elective officials
hereinabove mentioned shall hold office for a
term of six (6) years, which shall commence
on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of
disloyalty to the State, including acts
amounting to subversion, insurrection,
rebellion or other similar crimes, shall not be
qualified to be a candidate for any of the
offices covered by this Act, or to participate
in any partisan political activity therein:
provided that a judgment of conviction for
any of the aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the commission of
such crimes before a civil court or military
tribunal after preliminary investigation shall
be prima fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing
and Emphasis supplied).
Section 1. Election of certain Local Officials
... The election shall be held on January
30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period
The election period shall be fixed by the
Commission on Elections in accordance with
Section 6, Art. XII-C of the Constitution. The
period of campaign shall commence on
December 29, 1979 and terminate on
January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and
Salapantan, Jr. also question the accreditation of some political
parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section
9(1)Art. XIIC of the Constitution, which provides that a "bona
fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation
will not be taken up in this case but in that of Bacalso, et als.
vs. COMELEC et als. No. L-52232) where the issue has been
squarely raised,
Petitioners then pray that the statutory provisions they have
challenged be declared null and void for being violative of the
Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from
basic procedural infirmities, hence, traditionally unacceptable
for judicial resolution. For one, there is a misjoinder of parties
and actions. Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan Petitioner Dumlao does not
join petitioners Igot and Salapantan in the burden of their
complaint, nor do the latter join Dumlao in his. The respectively
contest completely different statutory provisions. Petitioner
Dumlao has joined this suit in his individual capacity as a
candidate. The action of petitioners Igot and Salapantan is
more in the nature of a taxpayer's suit. Although petitioners
plead nine constraints as the reason of their joint Petition, it
would have required only a modicum more of effort tor
petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the
interest of orderly procedure.
For another, there are standards that have to be followed inthe
exercise of the function of judicial review, namely (1) the
existence of an appropriate case:, (2) an interest personal and
substantial by the party raising the constitutional question: (3)
the plea that the function be exercised at the earliest
opportunity and (4) the necessity that the constiutional
question be passed upon in order to decide the case (People
vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied
with, which is, that the parties have raised the issue of
constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three
criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the
determination of actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first
paragraph of section 4 of Batas Pambansa Blg. 52, quoted
earlier, as being contrary to the equal protection clause
guaranteed by the Constitution, and seeks to prohibit
respondent COMELEC from implementing said provision. Yet,
Dumlao has not been adversely affected by the application of
that provision. No petition seeking Dumlao's disqualification
has been filed before the COMELEC. There is no ruling of that
constitutional body on the matter, which this Court is being
asked to review on Certiorari. His is a question posed in the
abstract, a hypothetical issue, and in effect, a petition for an
advisory opinion from this Court to be rendered without the
benefit of a detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion
of now Chief Justice Fernando in Peralta vs. Comelec, 82
SCRA 30, 96 [1978]) of respondent COMELEC as provided for
in section 2, Art. XII-C, for the Constitution the pertinent portion
of which reads:
"Section 2. The Commission on Elections shall have the
following power and functions:
1) xxx
2) Be the sole judge of all contests relating to
the elections, returns and qualifications of all
members of the National Assembly and
elective provincial and city officials.
(Emphasis supplied)
The aforequoted provision must also be related to section 11 of
Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of
the Commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within thirty days from his
receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns
the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement" (People vs.
Vera, supra).
In the case of petitioners Igot and Salapantan, it was only
during the hearing, not in their Petition, that Igot is said to be a
candidate for Councilor. Even then, it cannot be denied that
neither one has been convicted nor charged with acts of
disloyalty to the State, nor disqualified from being candidates
for local elective positions. Neither one of them has been calle
ed to have been adversely affected by the operation of the
statutory provisions they assail as unconstitutional Theirs is a
generated grievance. They have no personal nor substantial
interest at stake. In the absence of any litigate interest, they
can claim no locus standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted
this case as a taxpayer's suit, and that the rule enunciated in
People vs. Vera, above stated, has been relaxed in Pascual
vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a
statute may be contested only by one who
will sustain a direct injury in consequence of
its enforcement. Yet, there are many
decisions nullifying at the instance of
taxpayers, laws providing for the
disbursement of public funds, upon the
theory that "the expenditure of public funds,
by an officer of the State for the purpose of
administering an unconstitutional act
constitutes a misapplication of such funds,"
which may be enjoined at the request of a
taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest
essential to give the requisite standing to
attack the constitutionality of a statute, the
general rule is that not only persons
individually affected, but also taxpayers have
sufficient interest in preventing the illegal
expenditure of moneys raised by taxation
and they may, therefore, question the
constitutionality of statutes requiring
expenditure of public moneys. (Philippine
Constitution Association, Inc., et als., vs.
Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case,
namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg.
52, do not directly involve the disbursement of public funds.
While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protections against
abuses of legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such funds by
respondent COMELEC (see Pascual vs. Secretary of Public
Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek
to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]),
citingPhilippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]). Besides, the institution of a taxpayer's suit,
per se is no assurance of judicial review. As held by this Court
in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through
our present Chief Justice, this Court is vested with discretion
as to whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled
rule that the constitutionality of an act of the legislature will not
be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to
a determination of the case; i.e., the issue of constitutionality
must be the very lis mota presented."
We have already stated that, by the standards set forth
in People vs. Vera, the present is not an "appropriate case" for
either petitioner Dumlao or for petitioners Igot and Salapantan.
They are actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that this suit be
dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the
challenged provisions, the Courts not being entirely without
discretion in the matter. Thus, adherence to the strict
procedural standard was relaxed in Tinio vs. Mina (26 SCRA
512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in
the Tinio and Gonzalez cases having been penned by our
present Chief Justice. The reasons which have impelled us are
the paramount public interest involved and the proximity of the
elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is
discriminatory against him personally is belied by the fact that
several petitions for the disqualification of other candidates for
local positions based on the challenged provision have already
been filed with the COMELEC (as listed in p. 15, respondent's
Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the
safer guard of equal protection is neither well taken. The
constitutional guarantee of equal protection of the laws is
subject to rational classification. If the groupings are based on
reasonable and real differentiations, one class can be treated
and regulated differently from another class. For purposes of
public service, employees 65 years of age, have been validly
classified differently from younger employees. Employees
attaining that age are subject to compulsory retirement, while
those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions,
to require that candidates should not be more than 65 years of
age at the time they assume office, if applicable to everyone,
might or might not be a reasonable classification although, as
the Solicitor General has intimated, a good policy of the law
would be to promote the emergence of younger blood in our
political elective echelons. On the other hand, it might be that
persons more than 65 years old may also be good elective
local officials.
Coming now to the case of retirees. Retirement from
government service may or may not be a reasonable
disqualification for elective local officials. For one thing, there
can also be retirees from government service at ages, say
below 65. It may neither be reasonable to disqualify retirees,
aged 65, for a 65 year old retiree could be a good local official
just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has
retired from a provincial, city or municipal office, there is
reason to disqualify him from running for the same office from
which he had retired, as provided for in the challenged
provision. The need for new blood assumes relevance. The
tiredness of the retiree for government work is present, and
what is emphatically significant is that the retired employee has
already declared himself tired and unavailable for the same
government work, but, which, by virtue of a change of mind, he
would like to assume again. It is for this very reason that
inequality will neither result from the application of the
challenged provision. Just as that provision does not deny
equal protection neither does it permit of such denial (see
People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated
are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does
not forbid all legal classification. What is proscribes is a
classification which is arbitrary and unreasonable. That
constitutional guarantee is not violated by a reasonable
classification based upon substantial distinctions, where the
classification is germane to the purpose of the law and applies
to all Chose belonging to the same class (Peralta vs. Comelec,
82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and
Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs.
Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to
allow the emergence of younger blood in local governments.
The classification in question being pursuant to that purpose, it
cannot be considered invalid "even it at times, it may be
susceptible to the objection that it is marred by theoretical
inconsistencies" (Chief Justice Fernando, The Constitution of
the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a
showing of the clear invalidity of the questioned provision. Well
accepted is the rule that to justify the nullification of a law,
there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal breach. Courts are
practically unanimous in the pronouncement that laws shall not
be declared invalid unless the conflict with the Constitution is
clear beyond reasonable doubt (Peralta vs. COMELEC, 82
SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd,
Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the compentence of the legislature to prescribe
qualifications for one who desires to become a candidate for
office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned,
the second paragraph of section 4 of Batas Pambansa Blg. 52,
quoted in full earlier, and which they challenge, may be divided
in two parts. The first provides:
a. judgment of conviction jor any of the
aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal
principle. We are aware of the presumption of validity that
attaches to a challenged statute, of the well-settled principle
that "all reasonable doubts should be resolved in favor of
constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs.
Vera, supra). We are constrained to hold that this is one such
clear case.
Explicit is the constitutional provision that, in all criminal
prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by
himself and counsel (Article IV, section 19, 1973 Constitution).
An accusation, according to the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes
the constitutional presumption of innocence, as a candidate is
disqualified from running for public office on the ground alone
that charges have been filed against him before a civil or
military tribunal. It condemns before one is fully heard. In
ultimate effect, except as to the degree of proof, no distinction
is made between a person convicted of acts of dislotalty and
one against whom charges have been filed for such acts, as
both of them would be ineligible to run for public office. A
person disqualified to run for public office on the ground that
charges have been filed against him is virtually placed in the
same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory
penalty of suspension of the right to hold office during the term
of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima
facie evidence, and therefore, may be rebutted, yet. there is
"clear and present danger" that because of the proximity of the
elections, time constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome the prima
facie evidence against him.
Additionally, it is best that evidence pro and con of acts of
disloyalty be aired before the Courts rather than before an
administrative body such as the COMELEC. A highly possible
conflict of findings between two government bodies, to the
extreme detriment of a person charged, will thereby be
avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be substituted
for a judicial determination.
Being infected with constitutional infirmity, a partial declaration
of nullity of only that objectionable portion is mandated. It is
separable from the first portion of the second paragraph of
section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas
pambansa Bilang 52 is hereby declared valid. Said paragraph
reads:
SEC. 4. Special disqualification. In
addition to violation of Section 10 of Article
XII(C) of the Constitution and
disqualifications mentioned in existing laws
which are hereby declared as disqualification
for any of the elective officials enumerated in
Section 1 hereof, any retired elective
provincial, city or municipal official, who has
received payment of the retirement benefits
to which he is entitled under the law and who
shall have been 65 years of age at the
commencement of the term of office to which
he seeks to be elected, shall not be qualified
to run for the same elective local office from
which he has retired.
2) That portion of the second paragraph of
section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for the
commission of such crimes before a civil
court or military tribunal after preliminary
investigation shall be prima facie evidence of
such fact", is hereby declared null and void,
for being violative of the constitutional
presumption of innocence guaranteed to an
accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero,
JJ., concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is
concerned.
G.R. No. 7081 September 7, 1912
THE UNITED STATES vs. TAN TENG
JOHNSON, J.:
This defendant was charged with the crime of rape. The
complaint alleged:
That on or about September 15, 1910, and before the
filing of this complaint, in the city of Manila, Philippine
Islands, the said Tan Teng did willfully, unlawfully and
criminally, and employing force, lie and have carnal
intercourse with a certain Oliva Pacomio, a girl 7
years of age.
After hearing the evidence, the Honorable Charles S.
Lobingier, judge, found the defendant guilty of the offense
of abusos deshonestos, as defined and punished under article
439 of the Penal Code, and sentenced him to be imprisoned
for a period of 4 years 6 months and 11 days of prision
correccional, and to pay the costs.
From that sentence the defendant appealed and made the
following assignments of error in this court:
I. The lower court erred in admitting the testimony of
the physicians about having taken a certain
substance from the body of the accused while he was
confined in jail and regarding the chemical analysis
made of the substance to demonstrate the physical
condition of the accused with reference to a venereal
disease.
II. The lower court erred in holding that the
complainant was suffering from a venereal disease
produced by contact with a sick man.
III. The court erred in holding that the accused was
suffering from a venereal disease.
IV. The court erred in finding the accused guilty from
the evidence.
From an examination of the record it appears that the offended
party, Oliva Pacomio, a girl seven years of age, was, on the
15th day of September , 1910, staying in the house of her
sister, located on Ilang-Ilang Street, in the city of Manila; that
on said day a number of Chinamen were gambling had been in
the habit of visiting the house of the sister of the offended
party; that Oliva Pacomio, on the day in question, after having
taken a bath, returned to her room; that the defendant followed
her into her room and asked her for some face powder, which
she gave him; that after using some of the face powder upon
his private parts he threw the said Oliva upon the floor, placing
his private parts upon hers, and remained in that position for
some little time. Several days later, perhaps a week or two, the
sister of Oliva Pacomio discovered that the latter was suffering
from a venereal disease known as gonorrhea. It was at the
time of this discovery that Oliva related to her sister what
happened upon the morning of the 15th of September. The
sister at once put on foot an investigation to find the Chinaman.
A number of Chinamen were collected together. Oliva was
called upon to identify the one who had abused her. The
defendant was not present at first. later he arrived and Oliva
identified him at once as the one who had attempted to violate
her.
Upon this information the defendant was arrested and taken to
the police station and stripped of his clothing and examined.
The policeman who examined the defendant swore from the
venereal disease known as gonorrhea. The policeman took a
portion of the substance emitting from the body of the
defendant and turned it over to the Bureau of Science for the
purpose of having a scientific analysis made of the same. The
result of the examination showed that the defendant was
suffering from gonorrhea.
During the trial the defendant objected strongly to the
admissibility of the testimony of Oliva, on the ground that
because of her tender years her testimony should not be given
credit. The lower court, after carefully examining her with
reference to her ability to understand the nature of an oath,
held that she had sufficient intelligence and discernment to
justify the court in accepting her testimony with full faith and
credit. With the conclusion of the lower court, after reading her
declaration, we fully concur. The defense in the lower court
attempted to show that the venereal disease of gonorrhea
might be communicated in ways other than by contact such as
is described in the present case, and called medical witnesses
for the purpose of supporting the contention. Judge Lobingier,
in discussing that question said:
We shall not pursue the refinement of speculation as
to whether or not this disease might, in exceptional
cases, arise from other carnal contact. The medical
experts, as well as the books, agree that in ordinary
cases it arises from that cause, and if this was an
exceptional one, we think it was incumbent upon the
defense to bring it within the exception.
The offended party testified that the defendant had rested his
private parts upon hers for some moments. The defendant was
found to be suffering from gonorrhea. The medical experts who
testified agreed that this disease could have been
communicated from him to her by the contact described.
Believing as we do the story told by Oliva, we are forced to the
conclusion that the disease with which Oliva was suffering was
the result of the illegal and brutal conduct of the defendant.
Proof, however, that Oliva constructed said obnoxious disease
from the defendant is not necessary to show that he is guilty of
the crime. It is only corroborative of the truth of Oliva's
declaration.
The defendant attempted to prove in the lower court that the
prosecution was brought for the purpose of compelling him to
pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support
his declaration, that the sister of Oliva threatened to have him
prosecuted if he did not pay her the sum of P60. It seems
impossible to believe that the sister, after having become
convinced that Oliva had been outraged in the manner
described above, would consider for a moment a settlement for
the paltry sum of P60. Honest women do not consent to the
violation of their bodies nor those of their near relatives, for the
filthy consideration of mere money.
In the court below the defendant contended that the result of
the scientific examination made by the Bureau of Science of
the substance taken from his body, at or about the time he was
arrested, was not admissible in evidence as proof of the fact
that he was suffering from gonorrhea. That to admit such
evidence was to compel the defendant to testify against
himself. Judge Lobingier, in discussing that question in his
sentence, said:
The accused was not compelled to make any
admissions or answer any questions, and the mere
fact that an object found on his person was examined:
seems no more to infringe the rule invoked, than
would the introduction in evidence of stolen property
taken from the person of a thief.
The substance was taken from the body of the defendant
without his objection, the examination was made by competent
medical authority and the result showed that the defendant
was suffering from said disease. As was suggested by Judge
Lobingier, had the defendant been found with stolen property
upon his person, there certainly could have been no question
had the stolen property been taken for the purpose of using the
same as evidence against him. So also if the clothing which he
wore, by reason of blood stains or otherwise, had furnished
evidence of the commission of a crime, there certainly could
have been no objection to taking such for the purpose of using
the same as proof. No one would think of even suggesting that
stolen property and the clothing in the case indicated, taken
from the defendant, could not be used against him as
evidence, without violating the rule that a person shall not be
required to give testimony against himself.
The question presented by the defendant below and repeated
in his first assignment of error is not a new question, either to
the courts or authors. In the case of Holt vs. U.S. (218 U.S.,
245), Mr. Justice Holmes, speaking for the court upon this
question, said:
But the prohibition of compelling a man in a criminal
court to be a witness against himself, is a prohibition
of the use of physical or moral compulsion, to extort
communications from him, not an exclusion of his
body as evidence, when it may be material. The
objection, in principle, would forbid a jury (court) to
look at a person and compare his features with a
photograph in proof. Moreover we are not considering
how far a court would go in compelling a man to
exhibit himself, for when he is exhibited, whether
voluntarily or by order, even if the order goes too far,
the evidence if material, is competent.
The question which we are discussing was also discussed by
the supreme court of the State of New Jersey, in the case of
State vs. Miller (71 N.J. law Reports, 527). In that case the
court said, speaking through its chancellor:
It was not erroneous to permit the physician of the jail
in which the accused was confined, to testify to
wounds observed by him on the back of the hands of
 the accused, although he also testified that he had the
accused removed to a room in another part of the jail
and divested of his clothing. The observation made by
the witness of the wounds on the hands and testified
to by him, was in no sense a compelling of the
accused to be a witness against himself. If the
removal of the clothes had been forcible and the
wounds had been thus exposed, it seems that the
evidence of their character and appearance would not
have been objectionable.
In that case also (State vs. Miller) the defendant was required
to place his hand upon the wall of the house where the crime
was committed, for the purpose of ascertaining whether or not
his hand would have produced the bloody print. The court said,
in discussing that question:
It was not erroneous to permit evidence of the
coincidence between the hand of the accused and the
bloody prints of a hand upon the wall of the house
where the crime was committed, the hand of the
accused having been placed thereon at the request of
persons who were with him in the house.
It may be added that a section of the wall containing the blood
prints was produced before the jury and the testimony of such
comparison was like that held to be proper in another case
decided by the supreme court of New Jersey in the case of
Johnson vs. State (30 Vroom, N.J. Law Reports, 271). The
defendant caused the prints of the shoes to be made in the
sand before the jury, and the witnesses who had observed
shoe prints in the sand at the place of the commission of the
crime were permitted to compare them with what the had
observed at that place.
In that case also the clothing of the defendant was used as
evidence against him.
To admit the doctrine contended for by the appellant might
exclude the testimony of a physician or a medical expert who
had been appointed to make observations of a person who
plead insanity as a defense, where such medical testimony
was against necessarily use the person of the defendant for
the purpose of making such examination. (People vs. Agustin,
199 N.Y., 446.) The doctrine contended for by the appellants
would also prevent the courts from making an examination of
the body of the defendant where serious personal injuries were
alleged to have been received by him. The right of the courts in
such cases to require an exhibit of the injured parts of the body
has been established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that
a person shall not be compelled to be a witness against
himself, is simply a prohibition against legal process to extract
from the defendant's own lips, against his will, an admission of
his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing
the question before us, said:
If, in other words, it (the rule) created inviolability not
only for his [physical control] in whatever form
exercised, then it would be possible for a guilty
person to shut himself up in his house, with all the
tools and indicia of his crime, and defy the authority of
the law to employ in evidence anything that might be
obtained by forcibly overthrowing his possession and
compelling the surrender of the evidential articles a
clear reductio ad absurdum. In other words, it is not
merely compulsion that is the kernel of the privilege, .
. . but testimonial compulsion. (4 Wigmore, sec.
2263.)
The main purpose of the provision of the Philippine Bill is to
prohibit compulsory oral examination of prisoners before trial.
or upon trial, for the purpose of extorting unwilling confessions
or declarations implicating them in the commission of a crime.
(People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by appellant would prohibit courts
from looking at the fact of a defendant even, for the purpose of
disclosing his identity. Such an application of the prohibition
under discussion certainly could not be permitted. Such an
inspection of the bodily features by the court or by witnesses,
can not violate the privilege granted under the Philippine Bill,
because it does not call upon the accused as a witness it
does not call upon the defendant for his testimonial
responsibility. Mr. Wigmore says that evidence obtained in this
way from the accused, is not testimony but his body his body
itself.
As was said by Judge Lobingier:
The accused was not compelled to make any
admission or answer any questions, and the mere fact
that an object found upon his body was examined
seems no more to infringe the rule invoked than
would the introduction of stolen property taken from
the person of a thief.
The doctrine contended for by the appellant would also prohibit
the sanitary department of the Government from examining the
body of persons who are supposed to have some contagious
disease.
We believe that the evidence clearly shows that the defendant
was suffering from the venereal disease, as above stated, and
that through his brutal conduct said disease was
communicated to Oliva Pacomio. In a case like the present it is
always difficult to secure positive and direct proof. Such crimes
as the present are generally proved by circumstantial
evidence. In cases of rape the courts of law require
corroborative proof, for the reason that such crimes are
generally committed in secret. In the present case, taking into
account the number and credibility of the witnesses, their
interest and attitude on the witness stand, their manner of
testifying and the general circumstances surrounding the
witnesses, including the fact that both parties were found to be
suffering from a common disease, we are of the opinion that
the defendant did, on or about the 15th of September, 1910,
have such relations as above described with the said Oliva
Pacomio, which under the provisions of article 439 of the Penal
Code makes him guilty of the crime of "abusos
deshonestos," and taking into consideration the fact that the
crime which the defendant committed was done in the house
where Oliva Pacomio was living, we are of the opinion that the
maximum penalty of the law should be imposed. The maximum
penalty provided for by law is six years of prision correccional.
Therefore let a judgment be entered modifying the sentence of
the lower court and sentencing the defendant to be imprisoned
for a period of six years of prision correccional, and to pay the
costs. So ordered.
Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.
G.R. No. L-2154 April 26, 1950
THE PEOPLE OF THE PHILIPPINES vs. ANTONIO
OTADORA, ET AL.,
BENGZON, J.:
In August, 1947 in the Court of First Instance of Leyte, Antonio
Otadora and Hilaria Carreon were charged with the murder of
the spouses Leon Castro and Apolonia Carreon. Otadora
pleaded guilty, and was sentenced to life imprisonment.
Denying her guilt, Hilaria Carreon was tried, found guilty and
sentenced to death and other accessory penalties. The court
declared that with promises of monetary reward, she had
induced Antonio Otadora to do the killing. Motive for the
instigation was the grudge she bore against the deceased
spouse on account of disputes with them over inherited
property. This woman convict appealed in due time.
Her attorney filed here a voluminous brief wherein he
attempted painstakingly to break down the position of the
prosecution and to expound the theory that Antonio Otadora is
the only person responsible for the slaying, and that Hilaria
Carreon is just "the unfortunate victim of a vicious frame-up
concocted against her." She necessarily had to offer a
satisfactory explanation for the conduct of Otadora, who has
pleaded guilty and has declared for the prosecution against
her, explaining the circumstances under which she had
promised to him compensation for liquidating the unfortunate
couple.
There is no question about these facts:
Early in the morning of June 16, 1947, Leon Castro and his
wife Apolonia Carreon were shot dead in their house in the City
of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio
Otadora was arrested in Ormoc City while preparing to escape
to Camotes Island, Cebu. The next day he confessed in an
extra-judicial statement (Exhibit 1) wherein he implicated the
herein accused and appellant Hilaria Carreon asserting that,
with offers of pecuniary gain, the latter had induced him to
commit the crime. On June 25, 1947, a complaint for double
murder was filed against both defendants in the justice of the
peace court of Ormoc, Leyte. Preliminary investigation was
waived and the record was forwarded to the court of first
instance, where on September 3, 1947, Otadora pleaded guilty
with the assistance of counsel. Hilaria Carreon pleaded not
guilty, and asked for a separate trial, which was immediately
held, with Otadora as the first witness for the prosecution.
The evidence presented on behalf of the People proved that:
(1) Apolonia Carreon was the sister of Hilaria. Due to a family
quarrel, Apolonia filed in August, 1946, a criminal complaint for
serious threats against Hilaria and her husband Francisco
Galos (Exhibit P-1). These were arrested and had to file a
bond. The case was later withdrawn by Apolonia upon the
advice of friendly mediators.
In December of 1946, Leon Castro as guardian ad litem of
some minors surnamed Carreon filed a civil complaint for
partition of real property and damages against Hilaria Carreon.
This suit was set for hearing on June 24, 1947.
(2) Antonio Otadora met Hilaria Carreon sometime in April,
1947, through Amando Garbo. Thereafter they converse on
several occasions. In the early part of May, 1947, she saw him
going to barrio Matica-a and then she told him that if he would
liquidate the spouses Leon Castro and Apolonia Carreon she
would give him P3,000. He did not agree. In the last week of
May he was invited to Hilaria's house. The proposal was
renewed, better conditions being offered. (1/3 of P10,000 plus
carabaos, plus P300.) He must have demurred alleging that he
had no adequate weapon, Hilaria is reported to have engaged
to supply it.
(3) Around the first week of June, 1947, Hilaria Carreon sent
for Otadora. She gave him the revolver Exhibit A; but the
revolver turned out to be defective so he handed it back to
Hilaria. The latter ordered it repaired by Benigno Baltonado
who had previously sold it to her. Three days later, Baltonado
returned the gun in good condition with more than ten bullets,
and appellant in turn delivered the weapon to Otadora who
was then in her house, advising him at the same time to carry
out soon their plan so that Leon Castro may not attend the
hearing of the civil case. Appellant also gave Otadora the bolo
Exhibit B, a pair of trousers of her husband Francisco Galos
(Exhibit C), a hat Exhibit D and a flashlight Exhibit E.
(4) Otadora set out to do his part in the morning of June 16; but
Apolonia was not in her residence. He reported to appellant the
next day and the latter urged him to execute it that day, giving
him P6.50 for transportation. That night, at about one o'clock,
Antonio climbed up the house of the Castros, passing through
the window. He saw them sleeping side by side. He opened
the door to the kitchen to prepare his exit. Returning to the
place where the couple lay, he stumbled on Leon Castro, who
exclaimed, "who are you?". Otadora replied, "I am" "I don't
have any purpose except you, get up and fight." As Castro was
about to stand up, Otadora fired. Apolonia was awakened, and
embraced her husband who meantime had fallen. Otadora
shot her too. The couple died immediately of shock and
hemorrhage.
(5) After committing the murders, Otadora returned to barrio
Matica-a intending to go to Hilaria's home; but as he was
nearing the kitchen, Francisco Galos signalled him to go away.
(He was seen, crossing the cornfield near Hilaria Carreon's
house by Juanita Garbo, who so testified in court.) Otadora
went to his home in Sitio Hubas. On June 20, at a dance, he
received word from Hilaria through her husband Galos, that he
was wanted by the police, and that he should decamp. the next
morning he passed by the residence of Hilaria, and the latter
gave him P5, plus two packages of cigarettes, adding that he
should not attempt to visit her further, because she was being
watched. The next day, she again sent him P45 through
Amando Garbo, who delivered the money at the back of the
house of Menes Tahur in Canangca-an. After receiving the
money, Otadora prepared to escape to Camotes Islands. But
he was caught before he could run away.
The above statement of principal facts is a condensation of the
testimonies of Antonio Otadora, Benigno Baltonado, Amando
Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and
others. It is substantially in accord with the findings of His
Honor, the trial judge. Of course it is founded mainly upon the
declarations of Antonio Otadora that necessarily are
persuasive inasmuch as he himself admits his direct
participation and his assertions are fully corroborated by a
series of circumstances competently established.
Hilaria denied connection with the assassination. And naturally
the defense exerted effort to discredit Otadora's version, by
submitting the following theory:
Antonio Otadora planned a revenge upon Castro because the
latter as a spy caused the death of his father Sergio Otadora at
the hands of the Japanese. He, however, found himself in the
necessity of eliminating Apolonia Carreon because the latter
was a witness to his deed. On the other hand, Antonio Otadora
(and the other witnesses who are his relatives) also desire to
take revenge upon Hilaria Carreon because the latter, during
the Japanese occupation, saved Leon Castro from death at the
hands of the guerrillas. The defense says that to those who
had been prejudiced by the espionage activities of Leon
Castro, Hilaria Carreon appears to be just as responsible as
Leon Castro.
The theory can not be lawfully accepted. Firstly, Otadora
denies that his father died at the hands of the Japanese.
Secondly, the alleged "saving" of Leon Castro was not
sufficiently established. Loreto Micabel, the superior officer of
the guerrillas, who ordered the release of Leon Castro, did not
mention Hilaria as one of those who interceded for the prisoner
(p. 286, stenographic notes). Thirdly, nobody in his right
senses holds Pedro criminally responsible for the crime of
Juan simply because a few days before the crime Pedro saved
Juan from drowning.
On the other hand, the grudge which Otadora supposedly held
against Castro, readily explains why for a consideration he
undertook to kill. It is likewise probable that knowing such
desire for vengeance, Hilaria selected him to carry out the
dangerous and delicate job. And if it is true that Hilaria saved
Leon Castro during the Japanese occupation, it is very likely
that she hated her "ungrateful" brother-in-law and sister, (who
on two subsequent occasions brought her to court), so much
that she hired Otadora to eliminate them.
The assertions of Otadora are decisively ratified by Benigno
Baltonado who swore that it was Hilaria who had purchased
the murderous gun from him for P55, and who ordered him to
fix it; that on the third day he returned the gun to her in her
home with rounds of ammunition; and that Otadora was there
on that occasion. The remarks and arguments of counsel on
pages 87-92 of his brief do not, in our opinion, destroy
Baltonado's credibility.
Then there is the witness Amando Garbo, whose brother
Esteban is married to the sister of Hilaria, and whose sister
married a younger brother of Hilaria. Amando Garbo declared
that he was on friendly terms with Hilaria, taking care of her
fighting cock; that in December, 1946 in the fiesta of
Palompon, she tried to persuade him to kill the spouses
Castro; that he declined; that she asked him to look for another
for another whom she could hire; that he introduced Hilaria to
Antonio Otadora; that it was he who, at the request of Hilaria,
secretly delivered P45 in paper bills of different denominations
to Antonio Otadora after the crime was committed.
And Juanita Garbo, niece of Hilaria Carreon, confirmed the
various meetings of Otadora and Hilaria in the latter's house.
And there is the witness Macario Bensig who swore that in
May, 1947, at Tabogocon, Ormoc City, during the wedding of
his brother Benito with Luisa Pilapil in May, 1947, Hilaria
Carreon told him that if he would kill Leon Castro and Apolonia
Carreon he would be given money as a reward.
Again there is the witness Sgt. Tomada who said that when the
accused Hilaria Carreon was arrested on June 25, 1947, she
was committed to his custody because there was no adequate
place in the municipal jail for her; that she requested him
confidentially to get a lock of hair of Antonio Otadora explaining
to him that if that hair is burned Otadora would become insane,
and therefore would not be able to declare against her.
Further corroboration of appellant's criminal connection with
the bloody affair is the undisputed possession by Otadora of
the pants of Francisco Galos (Exhibit C) and his hat Exhibit D.
It appears that when Francisco Galos denied ownership of the
pants he was ordered to put it on; and the judge found that it
fitted him perfectly. This incident gave the defense opportunity
for extended argument that the constitutional protection against
self-incrimination had been erroneously disregarded. But we
discover in the record no timely objection upon that specific
ground. And it is to be doubted whether the accused could
benefit from the error, if any. Furthermore, and this is
conclusive, "measuring or photographing the party is not within
the privilege" (against self-incrimination). "Nor is the removal or
replacement of his garments or shoes. Nor is the requirement
that the party move his body to enable the foregoing things to
be done." (Wigmore on Evidence, Vol. 4, p. 878, quoted in
Beltran vs. Samson and Jose, 53 Phil., 570, 576).
In conclusion, we are fully satisfied from a reading of the
whole expediente that the appellant induced Antonio Otadora
to commit the double murder, and furnished him with the
deadly firearm. She is just as guilty as if she herself had
perpetrated the murderous assaults. The slaying is qualified by
the circumstance of treachery. It is aggravated by evident
premeditation; but for lack of sufficient votes the appellant is
sentenced to suffer life imprisonment for each murder, (not
exceeding 40 years, art. 70, Rev. Penal Code), and to
indemnify the heirs of the Castros in the sum of P4,000. The
appealed judgment will be thus modified.
Moran, C.J., Ozaeta, Pablo, Tuason, Montemayor, and Reyes,
JJ., concur.
Prec. Rec. No. 714-A July 26, 1937
MARIA BERMUDEZ vs. LEODEGARIO D. CASTILLO
DIAZ, J.:
In the course of the investigation which was being conducted
by the office of the Solicitor-General against the respondent, in
connection with this administrative case, said respondent filed,
in addition to other evidence in support of this defense, the six
letters which, for purposes of identification, were marked as
Exhibits 32, 34, 35, 36 and 37. He then contended, as he now
continues to contend, that said six letters are the
complainant's, but the latter denied it while she was testifying
as a witness in rebuttal. she admitted, however, that the letters
marked as Exhibits 38, 39 and 40 were in her own handwriting.
As the respondent believed that the three letters admitted by
the complainant to be hers were insufficient for purposes of
comparison with those questioned in this case and as he was
determined to show that said Exhibits 38, 39 and 40 were the
complainant's, he required her to copy them in her own
handwriting in the presence of the investigator. The
complainant, upon advice of her attorney, refused to submit to
the trial to which it was desired to subject her, invoking her
right not to incriminate herself and alleging that Exhibits 38, 39
and 40 and the other letters already in the respondent's
possession, were more than sufficient for what he proposed to
do. The investigator, upholding the complainant, did not
compel her to submit to the trial required, thereby denying the
respondent's petition. As respondent did not agree to this
decision of the investigator, he instituted these proceedings
praying that the investigator and the Solicitor-General in whose
representation he acted, be ordered to require and compel the
complainant to furnish new specimens of her handwriting by
copying said Exhibits 32 to 37 for that purpose.
The question raised before this court is not new. In the case
of Beltran vs. Samson and Jose ([1929], 53 Phil., 570), a
similar question was raised before this court. The respondents
therein desired to compel the petitioner to write by hand what
was then dictated to him. The petitioner, invoking the
constitutional provision contained in section 3, paragraph 3, of
the Jones Law which reads: ". . . nor shall be compelled in any
criminal case to witness against himself", refused to write and
instituted prohibition proceedings against the therein
respondents. This court granted the petition and ordered the
respondents to desist and abstain absolutely from compelling
the petitioner to take down dictation by hand for the purpose of
comparing his handwriting. The reasons then adduced therein
can and must be adduced in this case to decide the same
question; and all the more so because Article III, section 1, No.
18, of the Constitution of the Philippines is worded in such a
way that the protection referred to therein extends to all cases,
be they criminal, civil or administrative. The constitution
provides: "No person shall be compelled to be a witness
against himself." It should be noted that before it was
attempted to require the complainant to copy the six
documents above-stated, she had sworn to tell the truth before
the investigator authorized to receive statements under oath,
and under said oath she asserted that the documents in
question had not been written by her. Were she compelled to
write and were it proven by means of what she might write later
that said documents had really been written by her, it would be
impossible for her to evade prosecution for perjury, inasmuch
as it would be warranted by article 183 of the Revised Penal
Code, which reads:
The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period shall be
imposed upon any person who, knowingly making
untruthful statements and not being included in the
provisions of the next preceding articles, shall testify
under oath, or make an affidavit, upon any material
matter before a competent person authorized to
administer an oath in cases in which the law so
requires.
Any person who, in case of a solemn affirmation
made a lieu of an oath shall commit any of the
falsehoods mentioned in this and the preceding
articles of this section, shall suffer the respective
penalties provided therein.
The respondent invokes in his support the doctrine laid sown
in Ex Parte Crow (14 Pac. [2d series], 918), to the effect that ".
. . a witness may not arbitrarily refuse to answer a question on
the ground that his answer might incriminate him when the
court can determine as a matter of law that 'no direct answer
which the witness may make can tend to criminate him.'" It
must be taken into account that the question asked the
petitioner in said case, as stated by the prosecuting attorney,
was only a preliminary question, as it was simply attempted to
learn from her who was with her on a certain occasion, and on
what date, to the best of her recollection, had she visited Dr.
Groose. She refused to answer said questions alleging that her
answer might incriminate her. The court upheld her saying:
We are therefore of the opinion that the trial court
erred when it determined as a matter of law that
petitioners answer to the questions propounded could
have no tendency to incriminate her. They clearly
might have such tendency, and it was petitioners right
and privilege to decline to answer any of the above-
mentioned questions upon the ground stated. We fully
realize the difficulty encountered in the prosecution of
cases under section 274 of the Penal Code when
those present and capable of establishing the facts
are unwilling to testify because of fear of subjecting
themselves to prosecution. But the constitutional and
statutory guaranties accorded to petitioner cannot be
swept aside merely because they may result in
making difficult, or even impossible, the conviction of
the accused.
The respondent likewise invokes in his support doctrine laid
down in re Mackenzie (100 Vt. Rep., 325). This court is of the
opinion that what had been said in the above-cited case is not
applicable to the case under consideration. The petitioner
Mackenzie, upon being required after he had pleaded guilty of
intoxication to disclose the person or persons who had
furnished him the liquor, said that they were stranger to him,
whom he met late in the evening in Barre. The court,
considering his alleged disclosure unsatisfactory, ordered him
committed to jail until he should tell the truth or until further
orders. He instituted habeas corpus proceedings in his favor
alleging in his pleading that as he had already made a truthful
disclosure, the result of his commitment would be to compel
him to deny his former statements and make others which
would make him guilty of perjury. The court, deciding the
question, said:
The privilege against self-crimination is a personal
one. . . . But the privilege is an option of refusal, not a
prohibition of inquiry. Hence, when an ordinary
witness is on the stand, and self-criminating act
relevant to the issue is desired to be shown by him,
the question may be asked, and then it is for the
witness to say whether he will answer it or claim its
privilege, for it cannot be known beforehand what he
will do.
It further state that "the proper place in which to claim the
privilege is in the trial court, when the question is propounded,
not here." This is exactly the case of the herein complainant.
She opportunely invoked the privilege when it was desired to
subject her to trial by copying the six letters in question, which
Mackenzie failed to do.
It is true that in said case of Mackenzie, it was likewise stated
that "No reason appears why the examination on disclosure
should not be subject to the ordinary rule of cross-examination.
The person making the disclosure is in the petition of a witness
called by the State, and is subject to the rule permitting the
impeachment of such a witness. It is no invasion of the
constitutional guaranty against self-crimination to compel the
witness to answer questions relating to the truthfulness of his
previous testimony." This court, however, is of the opinion that
the foregoing is not applicable to the case of the herein
complainant, firstly, because she has made no disclosure; she
confined herself to denying the letters in question were hers
when the respondent, appressing in court with them, said
rather than insinuated, that they were hers, presenting in
support of his statement, other letters which, by reason of the
handwriting, were to all appearances similar thereto; and
secondly, because her testimony, denying that she was the
author of the letters in question, may be attacked by means of
other evidence in the possession of the respondent, which is
not precisely that coming from the complaint herself.
The reason for the privilege appears evident. The purpose
thereof is positively to avoid and prohibit thereby the repetition
and recurrence of the certainly inhuman procedure of
compelling a person, in a criminal or any other case, to furnish
the missing evidence necessary for his conviction. If such is its
purpose, then the evidence must be sought elsewhere; and if it
is desired to discover evidence in the person himself, then he
must be promised and assured at least absolute immunity by
one authorized to do so legally, or he should be asked, one for
all, to furnish such evidence voluntarily without any condition.
This court is the opinion that in order that the constitutional
provision under consideration may prove to be a real protection
and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.
In view of the foregoing consideration and holding, as it is
hereby held, that the complainant is perfectly entitled to the
privilege invoked by her, the respondent's petition is denied. So
ordered.
Avancea, C.J., Villa-Real, Imperial and Concepcion, JJ.,
concur.
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN vs. FELIX SAMSON, Judge of the
Second Judicial District, and FRANCISCO JOSE,
Provincial Fiscal of Isabela,
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner
complains that the respondent judge ordered him to appear
before the provincial fiscal to take dictation in his own
handwriting from the latter.
The order was given upon petition of said fiscal for the purpose
of comparing the petitioner's handwriting and determining
whether or not it is he who wrote certain documents supposed
to be falsified.
There is no question as to the facts alleged in the complaint
filed in these proceedings; but the respondents contend that
the petitioner is not entitled to the remedy applied for,
inasmuch as the order prayed for by the provincial fiscal and
later granted by the court below, and again which the instant
action was brought, is based on the provisions of section 1687
of the Administrative Code and on the doctrine laid down in the
cases of People vs. Badilla (48 Phil., 718); United States vs.
Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36
Phil., 735), cited by counsel for the respondents, and in the
case of Villaflor vs. Summers (41 Phil., 62) cited by the judge
in the order in question.
Of course, the fiscal under section 1687 of the Administrative
Code, and the proper judge, upon motion of the fiscal, may
compel witnesses to be present at the investigation of any
crime or misdemeanor. But this power must be exercised
without prejudice to the constitutional rights of persons cited to
appear.
And the petitioner, in refusing to perform what the fiscal
demanded, seeks refuge in the constitutional provision
contained in the Jones Law and incorporated in General
Orders, No. 58.
Therefore, the question raised is to be decided by examining
whether the constitutional provision invoked by the petitioner
prohibits compulsion to execute what is enjoined upon him by
the order against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones
Law which (in Spanish) reads: "Ni se le obligara a declarar en
contra suya en ningun proceso criminal" and has been
incorporated in our Criminal Procedure (General Orders, No.
58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all,
that the English text of the Jones Law, which is the original
one, reads as follows: "Nor shall be compelled in any criminal
case to be a witness against himself."
This text is not limited to declaracion but says "to be a
witness." Moreover, as we are concerned with a principle
contained both in the Federal constitution and in the
constitutions of several states of the United States, but
expressed differently, we should take it that these various
phrasings have a common conception.
In the interpretation of the principle, nothing turns
upon the variations of wording in the constitutional
clauses; this much is conceded (ante, par. 2252). It is
therefore immaterial that the witness is protected by
one constitution from 'testifying', or by another from
'furnishing evidence', or by another from 'giving
evidence,' or by still another from 'being a witness.'
These various phrasings have a common conception,
in respect to the form of the protected disclosure.
What is that conception? (4 Wigmore on Evidence, p.
863, 1923 ed.)
As to its scope, this privilege is not limited precisely to
testimony, but extends to all giving or furnishing of evidence.
The rights intended to be protected by the
constitutional provision that no man accused of crime
shall be compelled to be a witness against himself is
so sacred, and the pressure toward their relaxation so
great when the suspicion of guilt is strong and the
evidence obscure, that is the duty of courts liberally to
construe the prohibition in favor of personal rights,
and to refuse to permit any steps tending toward their
invasion. Hence, there is the well-established doctrine
that the constitutional inhibition is directed not merely
to giving of oral testimony, but embraces as well the
furnishing of evidence by other means than by word
of mouth, the divulging, in short, of any fact which the
accused has a right to hold secret. (28 R. C. L.,
paragraph 20, page 434 and notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether
the writing from the fiscal's dictation by the petitioner for the
purpose of comparing the latter's handwriting and determining
whether he wrote certain documents supposed to be falsified,
constitutes evidence against himself within the scope and
meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in
his own behalf, denies that a certain writing or signature is in
his own hand, he may on cross-examination be compelled to
write in open court in order that the jury maybe able to
compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific
Reporter, 1013) inasmuch as the defendant, in offering himself
as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va.,
374,378), where the judge asked the defendant to write his
name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now
before us. We are not concerned here with the defendant, for it
does not appear that any information was filed against the
petitioner for the supposed falsification, and still less as it a
question of the defendant on trial testifying and under cross-
examination. This is only an investigation prior to the
information and with a view to filing it. And let it further be
noted that in the case of Sprouse vs. Com., the defendant
performed the act voluntarily.
We have also come upon a case wherein the handwriting or
the form of writing of the defendant was obtained before the
criminal action was instituted against him. We refer to the case
of People vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as
in the aforesaid case of Sprouse vs. Com., the defendant
voluntarily offered to write, to furnish a specimen of his
handwriting.
We cite this case particularly because the court there gives
prominence to the defendant's right to decline to write, and to
the fact that he voluntarily wrote. The following appears in the
body of said decision referred to (page 307 of the volume
cited):
The defendant had the legal right to refuse to write for
Kinsley. He preferred to accede to the latter's request,
and we can discover no ground upon which the
writings thus produced can be excluded from the
case. (Emphasis ours.)
For the reason it was held in the case of First National Bank
vs. Robert (41 Mich., 709; 3 N. W., 199), that the defendant
could not be compelled to write his name, the doctrine being
stated as follows:
The defendant being sworn in his own behalf denied
the endorsement.
He was then cross-examined the question in regard to
his having signed papers not in the case, and was
asked in particular whether he would not produce
signatures made prior to the note in suit, and whether
he would not write his name there in the court. The
judge excluded all these inquiries, on objection, and it
is of these rulings that complaint is made. The object
of the questions was to bring into the case extrinsic
signatures, for the purpose of comparison by the jury,
and we think that the judge was correct in ruling
against it.
It is true that the eminent Professor Wigmore, in his work cited
(volume 4, page 878), says:
Measuring or photographing the party is not within the
privilege. Nor it is the removal or replacement of his
garments or shoes. Nor is the requirement that the
party move his body to enable the foregoing things to
be done. Requiring him to make specimens of
handwriting is no more than requiring him to move his
body . . ." but he cites no case in support of his last
assertion on specimens of handwriting. We note that
in the same paragraph 2265, where said authors
treats of "Bodily Exhibition." and under preposition "1.
A great variety of concrete illustrations have been
ruled upon," he cites many cases, among them that of
People vs. Molineux (61 N. E., 286) which, as we
have seen, has no application to the case at bar
because there the defendant voluntary gave
specimens of his handwriting, while here the
petitioner refuses to do so and has even instituted
these prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is something more
than moving the body, or the hands, or the fingers; writing is
not a purely mechanical act, because it requires the application
of intelligence and attention; and in the case at bar writing
means that the petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as the petition of
the respondent fiscal clearly states. Except that it is more
serious, we believe the present case is similar to that of
producing documents or chattels in one's possession. And as
to such production of documents or chattels. which to our mind
is not so serious as the case now before us, the same eminent
Professor Wigmore, in his work cited, says (volume 4, page
864):
. . . 2264. Production or Inspection of Documents and
Chattels. 1. It follows that the production of
documents or chattels by a person (whether ordinary
witness or party-witness) in response to a subpoena,
or to a motion to order production, or to other form
of process treating him as a witness ( i.e. as a person
appearing before a tribunal to furnish testimony on his
moral responsibility for truthtelling), may be refused
under the protection of the privilege; and this is
universally conceded. (And he cites the case of
People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege,
there is a similarity between one who is compelled to produce
a document, and one who is compelled to furnish a specimen
of his handwriting, for in both cases, the witness is required to
furnish evidence against himself.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because
here the witness is compelled to write and create, by means of
the act of writing, evidence which does not exist, and which
may identify him as the falsifier. And for this reason the same
eminent author, Professor Wigmore, explaining the matter of
the production of documents and chattels, in the passage
cited, adds:
For though the disclosure thus sought be not oral in
form, and though the documents or chattels be
already in existence and not desired to be first written
and created by testimonial act or utterance of the
person in response to the process, still no line can be
drawn short of any process which treats him as a
witness; because in virtue it would be at any time
liable to make oath to the identity or authenticity or
origin of the articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
It cannot be contended in the present case that if permission to
obtain a specimen of the petitioner's handwriting is not granted,
the crime would go unpunished. Considering the circumstance
that the petitioner is a municipal treasurer, according to Exhibit
A, it should not be a difficult matter for the fiscal to obtained
genuine specimens of his handwriting. But even supposing it is
impossible to obtain specimen or specimens without resorting
to the means complained herein, that is no reason for
trampling upon a personal right guaranteed by the constitution.
It might be true that in some cases criminals may succeed in
evading the hand of justice, but such cases are accidental and
do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent
persons.
With respect to the judgments rendered by this court and cited
on behalf of the respondents, it should be remembered that in
the case of People vs. Badilla (48 Phil., 718), it does not
appear that the defendants and other witnesses were
questioned by the fiscal against their will, and if they did not
refuse to answer, they must be understood to have waived
their constitutional privilege, as they could certainly do.
The privilege not to give self-incriminating evidence,
while absolute when claimed, maybe waived by any
one entitled to invoke it. (28 R. C. L., paragraph 29,
page 442, and cases noted.)
produce by this means, evidence not yet in existence; in short,
to create this evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to
the case of United States vs. Ong Siu Hong (36 Phil., 735),
wherein the defendant was not compelled to perform
any testimonial act, but to take out of his mouth the morphine
he had there. It was not compelling him to testify or to be a
witness or to furnish, much less make, prepare, or create
through a testimonial act, evidence for his own condemnation.
Wherefore, we find the present action well taken, and it is
ordered that the respondents and those under their orders
desist and abstain absolutely and forever from compelling the
petitioner to take down dictation in his handwriting for the
purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.
Avancea, C. J., Johnson, Street, Villamor, Johns, and Villa-
Real, JJ., concur.
G.R. No. 154037 April 30, 2003
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF BENJAMIN VERGARA, JONA SARVIDA,
MILAGROS MAJOREMOS, MAJORIE JALALON, MAY JOY
MENDOZA (@ May Joy Sandi), and JOY SABALLA (@
Josephine Saballa), MABELYN B. VERGARA, RIO
SARVIDA, FRANCISCO MAJOREMOS, in their respective
behalves and in behalf of ROY JALALON, ROMMEL
MENDOZA and DELFIN SABALLA,petitioners,
vs.
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge,
Regional Trial Court of Ormoc, Branch 12; SPO3 ANGELO
S. LLENOS and the CITY JAIL WARDEN OF ORMOC; and
ELEUTERIA P. BOLAO, respondents.
AUSTRIA-MARTINEZ, J.:

Petitioners are the tenants of Berlito P. Taripe on a property

The same holds good in the case of United States vs. Tan
located in Dr. A. Santos Ave., Paraaque City. On December
Teng (23 Phil., 145), were the defendant did not opposethe
24, 2001, they were arrested by Ormoc City policemen by
extraction from his body of the substance later used as
authority of a Warrant of Arrest dated November 19, 2001
evidence against him.
issued by Judge Fortunito L. Madrona in Sp. Proc. No. 3695-0
for Issuance of Letters of Administration, Distribution and
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly Partition pending before the Regional Trial Court of Ormoc City
stated that the court preferred to rest its decision on the reason (Branch 12).1
of the case rather than on blind adherence to tradition. The
said reason of the case there consisted in that it was the case
The warrant of arrest stemmed from a motion filed by
of the examination of the body by physicians, which could be
respondent Eleuteria P. Bolao, as Special Administratrix of
and doubtless was interpreted by this court, as being no
the estate of the late Anselma P. Allers, praying that petitioners
compulsion of the petitioner therein to furnish evidence by
be held guilty of indirect contempt for not complying with the
means of testimonial act. In reality she was not compelled to
probate court's order dated October 9, 1999 directing them to
execute any positive act, much less a testimonial act; she was
pay their monthly rentals to respondent Bolao.2
only enjoined from something preventing the examination; all
of which is very different from what is required of the petitioner
of the present case, where it is sought to compel him to It appears that pending the settlement of the estate of the
perform a positive, testimonial act, to write and give a deceased Allers, respondent Bolao included the property
specimen of his handwriting for the purpose of comparison. leased by Taripe to petitioners in the inventory of the estate.
Besides, in the case of Villamor vs. Summers, it was sought to The probate court issued the assailed Order dated October 5,
exhibit something already in existence, while in the case at bar, 1999, portions of which read as follows:
the question deals with something not yet in existence, and it is
precisely sought to compel the petitioner to make, prepare, or
 1. SUBMITTED FOR RESOLUTION is an omnibus
motion filed by the Petitioner-Administratrix, informing
among others, the submission of the Inventory of the
Estate of the decedent, referred as Motion-Annex 'A'
thereof. The Inventory shows that the properties left
by the deceased consists of Real and Personal
Properties, as well as Credits and Collectibles,
itemized under letter heading A, B, and C of the
Inventory, respectively.
2. The Real Properties are occupied by some
lessees, namely: Cargo Bridge Philippines
Corporation, represented by its President Mr.
Bernhard Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs.
Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie
Jalalon, Mrs. Jona Sarvida, Mrs. Analyn Malunes,
Mrs. Edna Rubi, Mrs. Josephine Saballa, Mr.
Benjamin Vergara, Mr. Jerry Peligro, Mrs. Mary Joy
Sandi, and Mr. Jaime Cabarse, all inside the Allers'
Property Compound at 8110 Dr. A. Santos Ave., San
Dionisio, Paraaque City.
xxx xxx xxx
5. It is further shown that all known intervenors,
lessees and heirs were served of the motion and
notified of the hearing, with no opposition except
intervenor Berlito P. Taripe, based on his claim
against the estate, which may be treated in due time
for claims against the estate. However, the motion
under consideration refers to the return to the court of
the true Inventory of the Estate of the deceased within
three (3) months as directed under Section 1, Rule 83
which sets a specific period of time to submit,
otherwise it is violated. The opposition is not tenable.
6. Finding the motion meritorious, the same is hereby
GRANTED. As prayed for, the Inventory of the Estate
attached therewith as Motion-Annex 'A' (sic) and
considered as a compliance of the required return of
the true Inventory of the estate of the decedent.
7. Further, the lessees above-cited and listed in the
Inventory are directed to pay their respective monthly
rental regularly starting the month of August, 1999,
including arrears if any, to the duly appointed Special
Administratrix Mrs. Eleuteria P. Bolao, until further
notice.
xxx xxx xxx
Let copies of this Order together with the Inventory
served to all above-cited.
SO ORDERED.3 (Emphasis Ours)
Copies of the order were sent on October 12, 1999 to
petitioners via registered mail.4
Five months later, on motion of respondent Bolao, as Special
Administratrix, the probate court issued a writ of execution on
March 3, 2000 to enforce the aforesaid order dated October 5,
1999. The Sheriff submitted a return dated August 10, 2000
stating that on June 5, 2000, he met with petitioners but failed
to collect the rentals due on the property as Taripe had already
collected from them three months advance rentals. 5
On August 4, 2000, respondent Bolao filed a motion to
require petitioners to explain why they should not be cited in
indirect contempt for disobeying the October 5, 1999 order of
the probate court.6 Petitioners were served copies of the
motion by registered mail.7 The probate court granted the
motion in its Resolution dated September 7, 2000, portions of
which read as follows:
The Motion to Exclude Certain Parcels of Land as
part of the Estate of the decedent is also denied for
lack of merit. The properties sought to be excluded by
intervenor Bertito P. Taripe are titled/registered in the
name of the decedent and therefore they should be
included in the inventory of the intestate estate of
Anselma Allers. If intervenor has claims against the
estate, he should file a separate action against the
Administratrix in accordance with Rule 87 of the
Revised Rules of Court. As it is, intervenor cannot
claim ownership over properties registered in the
name of the decedent by mere motion.
The Return of the Deputy Sheriff of the Writ of
Execution is noted.
Petitioner's motion to let the lessees explain why they
should not be cited for contempt for disobeying the
Court's order is granted. All lessees listed on the Writ
of Execution are hereby ordered to explain within
twenty (20) days from receipt of this order why they
should not be cited for indirect contempt of the Court
for disobeying the Court's Order dated October 5,
1999, and the Writ of Execution dated May 29, 2000.
SO ORDERED. (Emphasis Ours)
Petitioners were furnished copies of the said Order on
September 27, 2000 by registered mail.8
Six months later, in a letter dated March 18, 2001, some of the
petitioners, together with the other tenants of the property,
informed the probate court that they are "freezing" their
monthly rentals as they are in a quandary as to whom to pay
the rentals.9
Respondent Bolao then filed on March 20, 2001, a motion to
cite petitioners in contempt, which was set for hearing on May
11, 2001.10 In its Order dated May 11, 2001, the probate court
found petitioners guilty of indirect contempt and ordered them
to pay a fine of P30,000.00 each and to undergo imprisonment
until they comply with the probate court's order for them to pay
rentals.11
Petitioners again wrote the probate court on June 11, 2001
asking that the indirect contempt "slapped" against them be
withdrawn. They stated that their failure to attend the May 11,
2001 hearing was due to financial constraints, most of them
working on construction sites, receiving minimum wages, and
repeated that the reason why they are freezing the monthly
rentals is that they are uncertain as to whom to remit it. 12
Upon motion of respondent Bolao, the probate court, per its
Order dated November 16, 2001, issued a warrant of arrest on
November 19, 2001. On December 24, 2001, petitioners were
arrested.
On December 26, 2001, petitioners filed with the Court of
Appeals a petition for the issuance of a writ of habeas
corpus.13 On January 3, 2002, the appellate court ordered the
temporary release of petitioners.14 After due proceedings, the
appellate court rendered its decision on March 26, 2002
denying the petition for lack of merit. The dispositive portion of
the decision reads:
WHEREFORE, the instant petition for issuance of a
writ of habeas corpus is hereby DENIED for lack of
merit. This Court's resolution ordering the temporary
release of the lessees is hereby RECALLED. The
lessees are ordered REMANDED to the custody of
the Jail Warden of Ormoc City until they have
complied with the orders of the probate court.
No pronouncement as to costs.
SO ORDERED.15
Their motion for reconsideration having been denied,
petitioners filed herein petition for review on certiorari under
Rule 45 of the Rules of Court, based on the following grounds:
I. THE APPELLATE COURT ERRED IN NOT
HOLDING THAT THE ORDER DATED OCTOBER 5,
1999 (ANNEX "E") PARTICULARLY THE PORTION
THEREOF WHICH SUMMARILY DIRECTED THE
LESSEES TO TURNOVER THEIR MONTHLY
RENTALS OF THE APARTMENTS OF BERLITO P.
TARIPE TO ELEUTERIA P. BOLAO AS SPECIAL
ADMINISTRATRIX, IS UNLAWFUL;
II. THE APPELLATE COURT ERRED IN NOT
HOLDING THAT THE MOTION FOR INDIRECT
CONTEMPT OF COURT FILED BY RESPONDENT
ELEUTERIA P. BOLAO AGAINST THE LESSEES
IS NOT THE PROPER REMEDY AND THAT THE
ORDER OF THE COURT A QUO GRANTING SAID
MOTION AND DECLARING THAT THE LESSEES
ARE GUILTY OF INDIRECT CONTEMPT IS A
REVERSIBLE ERROR.
III. THE APPELLATE COURT ERRED IN NOT
HOLDING THAT THE ORDER OF THE COURT A
QUO TO ISSUE WARRANT OF ARREST AND THE
SAID WARRANT SO ISSUED AS WELL AS THE
ACTUAL ARREST OF SAID LESSEES IN
COMPLIANCE THEREWITH, ARE UNLAWFUL;
IV. THE APPELLATE COURT ERRED IN NOT
HOLDING THE TEMPORARY RELEASE OF THE
LESSEES PERMANENT.16
The crux of petitioners' arguments is that they were not notified
of the motion filed by respondent Special Administratrix
Bolao, submitting an inventory of the estate of the late
Anselma P. Allers, which includes the property occupied by
them. Such being the case, petitioners contend that the order
dated October 5, 1999 granting the motion and directing them
to pay the rentals to Bolao is unlawful hence, their refusal to
comply with it is not contumacious.17 They also assail the
appointment of respondent Bolao as Special Administratrix for
having been made without the required bond,18 and that she
has no authority to file the motion for indirect contempt, as her
powers are limited.19
When service of notice is an issue, the rule is that the person
alleging that the notice was served must prove the fact of
service.20 The burden of proving notice rests upon the party
asserting its existence.21 In civil cases, service made through
registered mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person mailing of facts
showing compliance with Section 7 of Rule 13. In the present
case, as proof that petitioners were served with copies of the
omnibus motion submitting an inventory of the estate of
deceased Allers, respondent Bolao presented photocopies of
the motion with a certification by counsel that service was
made by registered mail, together with the registry
receipts.22 While the affidavit and the registry receipts proved
that petitioners were served with copies of the motion, it does
not follow, however, that petitioners in fact received the motion.
Respondent Bolao failed to present the registry return cards
showing that petitioners actually received the
motion.23 Receipts for registered letters and return receipts do
not prove themselves, they must be properly authenticated in
order to serve as proof of receipt of the letters. 24 Respondent
also failed to present a certification of the postmaster that
notice was duly issued and delivered to petitioners such that
service by registered mail may be deemed completed.25
Nonetheless, even in the absence of proof of actual receipt by
the petitioners, the subject orders issued by the probate court
are valid and enforceable. Petitioners cannot deny the fact that
they had actual knowledge of the said orders. They have
admitted in their letter dated March 18, 2001 addressed to the
probate court that they received the court's order dated
October 5, 1999 "barely 2 months before," 26 or sometime in
January 2001. Instead of complying with the said order, they
"froze" payment of their rentals for the reason that they are
caught in the middle of the dispute and are not sure to whom to
give the rentals. When respondent Bolao filed the motion to
cite them in indirect contempt, setting the hearing on May 11,
2001, again, records show that they had actual knowledge of
the same. In their second letter, dated June 11, 2001,
addressed to the probate court, they acknowledged that they
knew of the hearing set on May 11, 2001, and the reason for
their failure to attend was due to financial constraints.27 They
likewise admitted in said letter that they knew of the court's
order dated May 11, 2001 finding them guilty of indirect
contempt.28 Petitioners therefore cannot cry denial of due
process as they were actually notified of the proceedings
before the probate court. Thus, under the circumstances, it is
not imperative to require proof of a formal notice. It would be
an idle ceremony where an adverse party, as in this case, had
actual knowledge of the proceedings.29
When petitioners refused to remit the rentals to respondent
Bolao per Order dated October 5, 1999, a written charge of
indirect contempt was duly filed before the trial court and
hearing on the motion set on May 11, 2001. As previously
stated, petitioners did not attend said hearing despite
knowledge thereof; instead, they wrote the court on June 11,
2001 asking that the contempt findings against them be
withdrawn. Clearly, they were given the opportunity to be
heard, and as aptly stated by the court, they were given more
than sufficient time to comply with the Order dated October 5,
1999.30
Despite the foregoing, we find that the trial court's finding of
contempt and the order directing the imprisonment of petitioner
to be unwarranted. The salutary rule is that the power to
punish to contempt must be exercised on the preservative, not
vindictive principle, and on the corrective and not retaliatory
idea of punishment. Court must exercise their contempt
powers judiciously and sparingly, with utmost self-restraint.31
In Halili vs. Court of Industrial Relations,32 the Court quoted the
pronouncements of some American courts, to wit:
Except where the fundamental power of the court to
imprison for contempt has been restricted by statute,
and subject to constitutional prohibitions where a
contemnor fails or refuses to obey an order of the
court for the payment of money he may be imprisoned
to compel obedience to such order. [Fla.Revell v.
Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v.
Branch, 132 S.E. 303; 144 Va. 244]. (17 C.J.S. 287).
xxx xxx xxx
. . . It has been said that imprisonment for contempt
as a means of coercion for civil purpose cannot be
resorted to until all other means fail [Mich.Atchison,
etc. R. co. v. Jennison, 27 N.W. 6, 60 Mich. 232], but
the court's power to order the contemnor's detension
continues so long as the contumacy persists [Ark.
Lane v. Alexander, 271 S.W. 710, 168 Ark. 700] (17
C.J.S. 289).33
which we hereby adopt as proper guidelines in the
determination of whether the Court of Appeals erred in
affirming the order of the trial court finding petitioners guilty of
indirect contempt of court and directing their imprisonment for
their contumacious refusal to pay the rentals to the
administratrix.
In Philippine jurisdiction, Section 20, Article 3 of the 1987
Philippine Constitution expressly provides that no person shall
be imprisoned for debt. Debt, as used in the Constitution,
refers to civil debt or one not arising from a criminal
offense.34 It means any liability to pay arising out of a contract,
express or implied.35 In the present case, petitioners, as
recognized lessees of the estate of the deceased, were
ordered by the probate court to pay the rentals to the
administratrix. Petitioners did not comply with the order for the
principal reason that they were not certain as to the rightful
person to whom to pay the rentals because it was a certain
Berlito P. Taripe who had originally leased the subject property
to them. Clearly, the payment of rentals is covered by the
constitutional guarantee against imprisonment.
Moreover, petitioners cannot be validly punished for contempt
under Section 8, Rule 71 of the Rules of Court to wit:
SEC. 8. Imprisonment until order obeyed. When
the contempt consists in the refusal or omission to do
an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it. (7a)
because herein subject order is not a special judgment
enforceable, under Section 11, Rule 39, which provides:
SEC. 11. Execution of special judgment. When a
judgment requires the performance of any act other
than those mention in the two preceding sections, a
certified copy of judgment shall be attached to the writ
of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon
any other person required thereby, or by law to obey
the same, and such party or person may be punished
for contempt if he disobeys such judgment.
Section 9 of Rule 39 refers to the execution of judgments for
money, thus:
SEC. 9. Execution of judgments for money, how
enforced. (a) Immediate payment on demand.
The officer shall enforce an execution of a judgment
for money by demanding from the judgment obligor
the immediate payment of the full amount stated in
the writ of execution and all lawful fees. The judgment
obligor shall pay in cash, certified bank check payable
to the judgment obligee, or any other form of payment
acceptable to the latter, the amount of the judgment
debt under proper receipt directly to the judgment
obligee or his authorized representative if present at
the time of payment. The lawful fees shall be handed
under proper receipt to the executing sheriff who shall
turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
If the judgment obligee or his authorized
representative is not present to receive payment, the
judgment obligor shall deliver the aforesaid payment
to the executing sheriff. The latter shall turn over all
the amounts coming into his possession within the
same day to the clerk of court of the court that issued
the writ, or if the same is not practicable, deposit said
amounts to a fiduciary account in the nearest
government depository bank of the Regional Trial
court of the locality.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court
that issued the writ whose clerk of court shall then
deliver said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any, shall
be delivered to the judgment obligor while the lawful
fees shall be retained by the clerk of court for
disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check
be made payable to him.
(b) Satisfaction by levy. If the judgment obligor
cannot pay all or part of the obligation in cash,
certified bank check or other mode or payment
acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from
execution giving the latter the option to immediately
choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the
judgment obligor does not exercise the option, the
officer shall first levy on the personal properties, if
any, and then on the real properties if the personal
properties are insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor
which has been levied upon.
When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful
fees, he must sell only so much of the personal or real
 property as is sufficient to satisfy the judgment and
lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either real
or personal property, may be levied upon in like
manner and with like effect as under a writ of
attachment.
(c) Garnishment of debts and credits. The officer
may levy on debts due the judgment obligor and other
credits, including bank deposits, financial interests,
royalties, commissions and other personal property
not capable of manual delivery in the possession or
control of third parties. Levy shall be made by serving
notice upon the person owing such debts or having in
his possession or control such credits to which the
judgment obligor is entitled. The garnishment shall
cover only such amount as will satisfy the judgment
and all lawful fees.
The garnishee shall make a written report to the court
within five (5) days from service of the notice of
garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state
how much funds or credits the garnishee holds for the
judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from
service of notice on said garnishee requiring such
delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees holding
deposits or credits sufficient to satisfy the judgment,
the judgment obligor, if available, shall have the right
to indicate the garnishee or garnishees who shall be
required to deliver the amount due; otherwise, the
choice shall be made by the judgment obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee. (8a, 15a)
while Section 10 of the same Rule refers to execution of
judgments for specific acts such as conveyance, delivery of
deeds or other specific acts vesting title; sale of real or
personal property, delivery or restitution of real property,
removal of improvements on property subject of execution and
delivery of personal property.
The order directing the payment of rentals falls within the
purview of Section 9 as quoted above. Until and unless all the
means provided for under Section 9, Rule 39 have been
resorted to and failed, imprisonment for contempt as a means
of coercion for civil purposes cannot be resorted to by the
courts.36 In Sura vs. Martin, Sr.,37 we held that:
Where an order for the arrest and imprisonment of
defendant for contempt of court (for failure to satisfy a
judgment for support on ground of insolvency) would,
in effect, violate the Constitution.
Thus, petitioners could not be held guilty of contempt of court
for their continued refusal to comply with the probate court's
order to pay rentals to the administratrix nor could they be held
guilty of contempt for disobeying the writ of execution issued
by the probate court, which directs therein the Sheriff, thus:
Should lessees fail to pay the aforementioned
amounts on rentals, then of the goods and chattels of
said lessees you may cause to be made the sum
sufficient to cover the aforestated amounts, but if no
sufficient personal properties are found thereof to
satisfy this execution, then of the real properties you
make the sums of money in the manner required by
law and make return of your proceeding under this
writ within the reglementary period.38
It was the sheriff's duty to enforce the writ.39
Under Section 9(b), Rule 39, of the Rules of Court, in cases
when the execution calls for payment of money and the obligor
cannot pay all or part of the obligation in cash, certified bank
check or other mode or payment acceptable to the judgment
obligee, the officer shall levy upon the properties of the
judgment obligor of every kind and nature whatsoever which
may be disposed of for value and not otherwise exempt from
execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to
satisfy the judgment. If the judgment obligor does not exercise
the option, the officer shall first levy on the personal properties,
if any, and then on the real properties if the personal properties
are insufficient to answer for the judgment. The sheriff shall sell
only a sufficient portion of the personal or real property of the
judgment obligor which has been levied upon. When there is
more property of the judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he must sell only so much
of the personal or real property as is sufficient to satisfy the
judgment and lawful fees. Real property, stocks, shares, debts,
credits, and other personal property, or any interest in either
real or personal property, may be levied upon in like manner
and with like effect as under a writ of attachment.
The writ of execution issued by the trial court in this case
commanded its sheriff to collect from petitioners the rentals
due from the property, and should they fail to pay, from
petitioners' personal/real properties sufficient to cover the
amounts sought to be collected.40 It was not addressed to
petitioners. It pertained to the sheriff to whom the law entrusts
the execution of judgments,41 and it was due to the latter's
failure that the writ was not duly enforced.
In fine, the Court of Appeals committed a reversible error in
affirming the Decision dated November 16, 2001 of the trial
court.
WHEREFORE, finding the petition for review on certiorari to be
with merit, the decision dated March 26, 2002 rendered by the
Court of Appeals is REVERSED and SET ASIDE. Its
Resolution dated January 3, 2002 ordering the temporary
release of petitioners is made permanent. The Warrant of
Arrest dated November 19, 2001 issued by the Regional Trial
Court of Ormoc City (Branch 12) in Sp. Proc. No. 3695-0 is
DEEMED RECALLED.
No costs.
SO ORDERED.
Bellosillo, Quisumbing and Callejo, Sr., JJ ., concur.
G.R. No. L-24447 June 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
WILLY OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the
Philippines, is an order, dated January 8, 1965, of the Court of
First Instance of Pangasinan dismissing, upon motion of the
defense, an indictment for rape against Willy Obsania.
On November 22, 1964, barely a day after the occurence of
the alleged crime, Erlinda Dollente, the 14-year old victim, and
her parents, Ciriaco Dollente and Carmelita Lureta, filed in the
municipal court of Balungao, Pangasinan a complaint for rape
with robbery, 1 alleging
That on or about the 21st day of November 1964, at
around 2:00 to 3:00 in the afternoon, particularly in
sitio Cawakalan, barrio of Capulaan, municipality of
Balungao, Province of Pangasinan, Philippines and
within the jurisdiction of the Honorable Court, the said
accused Willy Obsania, armed with a dagger, by
means of violence and intimidation, willfully,
unlawfully and feloniously did then and there have
carnal knowledge of the complainant Erlinda Dollente,
against her will and on the roadside in the ricefields at
the above-mentioned place while she was alone on
her way to barrio San Raymundo.
After the case was remanded to the Court of First Instance of
Pangasinan for further proceedings, the assistant provincial
fiscal filed an information for rape against the accused,
embodying the allegations of the above complaint, with an
additional averment that the offense was committed "with lewd
designs".
The accused pleaded not guilty upon arraignment, and
forthwith his counsel moved for the dismissal of the case,
contending that the complaint was fatally defective for failure to
allege "lewd designs" and that the subsequent information filed
by the fiscal which averred "lewd designs" did not cure the
jurisdictional infirmity. The court a quogranted the motion and
ordered dismissal of the action, ruling that "the failure of the
complaint filed by the offended party to allege that the acts
committed by the accused were with 'lewd designs' does not
give this Court jurisdiction to try the case." From this order, the
fiscal brought the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd
designs" an indispensable element which should be alleged in
the complaint?, and, second, does the present appeal place
the accused in double jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial
judge, in his order of dismissal, rely basically on the ruling
in People vs. Gilo (L-18202, April 30, 1964). In the case which
involved a prosecution for acts of lasciviousness this Court, in
passing, opined that "lewd design" is
... an indispensable element of all crimes against
chastity, such as abduction, seduction and rape,
including acts of lasciviousness ... an element that
characterizes all crimes against chastity, apart from
the felonious or criminal intent of the offender, and
such element must be always present in order that
they may be considered in contemplation of law.
Nothing in the foregoing statement can be reasonably
interpreted as requiring an explicit allegation of "lewd design"
in a complaint for rape. We hold in no uncertain terms that in a
complaint for rape it is not necessary to allege "lewd design" or
"unchaste motive", for to require such averment is to demand a
patent superfluity. Lascivious intent inheres in rape and the
unchaste design is manifest in the very act itself the carnal
knowledge of a woman through force or intimidation, or when
the woman is deprived of reason or otherwise unconscious, or
when the woman is under twelve years of age. 2
It is clear that the complaint here satisfies the requirements of
legal sufficiency of an indictment for rape as it unmistakably
alleges that the accused had carnal knowledge of the
complainant by means of violence and intimidation. We
therefore hold that the trial judge erred in dismissing the case
on the proffered grounds that the complaint was defective for
failure to allege "lewd design" and, as a consequence of such
infirmity, that the court a quo did not acquire jurisdiction over
the case. The error of the trial judge was in confusing the
concept of jurisdiction with that of insufficiency in substance of
an indictment.
We come now to the more important issue of double jeopardy.
The accused maintains that "assuming, arguendo, that the
argument is right that the court a quo has jurisdiction, the
appeal of the Government constitutes double jeopardy."
An appeal by the prosecution in a criminal case is not available
if the defendant would thereby be placed in double
jeopardy. 3 Correlatively, section 9, Rule 117 of the Revised
Rules of Court provides:
When a defendant shall have been convicted or
acquitted, or the case against him dismissed or
otherwise terminated without the express consent of
the defendant, by a court of competent jurisdiction,
upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a
conviction, and after the defendant had pleaded to the
charge, the conviction or acquittal of the defendant or
the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or
for any offense which necessarily includes or is
necessarily included in the offense charged in the
former complaint or information.
In order that the protection against double jeopardy may inure
in favor of an accused, the following requisites must have
obtained in the original prosecution: (a) a valid complaint or
information; (b) a competent court; (c) the defendant had
pleaded to the charge; and (d) the defendant was acquitted, or
convicted, or the case against him was dismissed or otherwise
terminated without his express consent.
The complaint filed with the municipal court in the case at bar
was valid; the court a quo was a competent tribunal with
jurisdiction to hear the case; the record shows that the accused
pleaded not guilty upon arraignment. Hence, the only
remaining and decisive question is whether the dismissal of the
case was without the express consent of the accused.
The accused admits that the controverted dismissal was
ordered by the trial judge upon his motion to dismiss. However,
he vehemently contends that under the prevailing
jurisprudence, citing People vs. Bangalao, et al. (94 Phil. 354,
February 17, 1954), People vs. Labatete (L-12917, April 27,
1960), People vs. Villarin (L-19795, July 31, 1964), and People
vs. Cloribel (L-20314, August 31, 1964), an erroneous
dismissal of a criminal action, even upon the instigation of the
accused in a motion to quash or dismiss, does not bar him
from pleading the defense of double jeopardy in a subsequent
appeal by the Government or in a new prosecution for the
same offense. The accused suggests that the above-
enumerated cases have abandoned the previous ruling of this
Court to the effect that when a case is dismissed, other than on
the merits, upon motion of the accused personally or through
counsel, such dismissal is to be regarded as with the express
consent of the accused and consequently he is deemed to
have waived 4 his right to plead double jeopardy and/or he is
estopped 5 from claiming such defense on appeal by the
Government or in another indictment for the same offense.
This particular aspect of double jeopardy dismissal or
termination of the original case without the express consent of
the defendant has evoked varied and apparently conflicting
rulings from this Court. We must untangle this jurisprudential
maze and fashion out in bold relief a ruling not susceptible of
equivocation. Hence, a searching extended review of the
pertinent cases is imperative.
The doctrine of waiver of double jeopardy was enunciated and
formally labelled as such for the first time in 1949 in People vs.
Salico, supra, with three justices dissenting. 6 In that case, the
provincial fiscal appealed from the order of the trial court
dismissing, upon motion of the defendant made immediately
after the prosecution had rested its case, an indictment for
homicide, on the ground that the prosecution had failed to
prove that the crime was committed within the territorial
jurisdiction of the trial court, or, more specifically, that the
municipality of Victorias in which the crime was allegedly
committed was compromised within the province of Negros
Occidental. Rejecting the claim of the accused that the appeal
placed him in double jeopardy, this Court held that the
dismissal was erroneous because the evidence on record
showed that the crime was committed in the town of Victorias
and the trial judge should have taken judicial notice that the
said municipality was included within the province of Negros
Occidental and therefore the offense charged was committed
within the jurisdiction of the court of first instance of the said
province. In ruling that the appeal by the Government did not
put the accused in peril of a second jeopardy, this Court
stressed that with "the dismissal of the case by the court below
upon motion of the defendant, the latter has not been in
jeopardy," and "assuming, arguendo, that the defendant had
been already in jeopardy in the court below and would be
placed in double jeopardy by the appeal, the defendant has
waived his constitutional right not to be put in danger of being
convicted twice for the same offense." Mr. Justice Felicisimo
Feria, speaking for the majority, reasoned that
... when the case is dismissed with the express
consent of the defendant, the dismissal will not be a
bar to another prosecution for the same offense;
because, his action in having the case dismissed
constitutes a waiver of his constitutional right or
privilege, for the reason that he thereby prevents the
court from proceeding to the trial on the merits and
rendering a judgment of conviction against him.
The Salico doctrine was adhered to and affirmed in People vs.
Marapao (85 Phil. 832, March 30, 1950), Gandicela vs.
Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al.
(91 Phil. 53, March 28, 1952), Co Te Hue vs. Encarnacion (94
Phil. 258, January 26, 1954), and People vs. Desalisa (L-
15516, December 17, 1966).
In Marapao, the defendant was indicted for slight physical
injuries in the municipal court of Sibonga, Cebu. After the
prosecution had rested its case, a continuance was had, and
when trial was resumed, the court, upon motion of the defense,
ordered the case dismissed for failure of the prosecution to
appear. However, the court reconsidered this order upon
representation of the fiscal who appeared moments later, and
ordered the defense to present its evidence. The accused
moved to get aside the latter order on the ground that it placed
him in double jeopardy. Acceding to this motion, the court
dismissed the case. Subsequently, the accused was charged
in the Court of First Instance of Cebu with the offense of
assault upon a person in authority, based on the same facts
alleged in the former complaint for slight physical injuries.
Again, upon motion of the accused, the trial court dismissed
the new indictment on the ground of double jeopardy. From
this order, the prosecution appealed. In upholding the appeal
of the Government, this Court observed that although the
information for assault necessarily embraced the crime of slight
physical injuries for which the accused was indicted in the
justice of the peace court,
... it appears that the appellee was neither convicted
nor acquitted of the previous charge against him for
slight physical injuries, for that case was dismissed
upon his own request before trial could be finished.
Having himself asked for such dismissal, before a
judgment of conviction or acquittal could have been
rendered, the appellee is not entitled to invoke the
defense of double jeopardy...
In Gandicela, this Court had occasion to reiterate
the Salico ruling:
But where a defendant expressly consents to, by
moving for, the dismissal of the case against him, as
in the present case, even if the court or judge states
in the order that the dismissal is definite or does not
say that the dismissal is without prejudice on the part
of the fiscal to file another information, the dismissal
will not be a bar to a subsequent prosecution of the
defendant for the same offense. (People vs. Ylagan,
58 Phil. 851; People vs. Salico, 84 Phil. 722.).
And in denying the motion for reconsideration filed by the
accused in that case, this Court held:
According to Section 9 of Rule 13, if a criminal case is
dismissed otherwise than upon the merits at any
stage before judgment, without the express consent
of the defendant, by a court of competent jurisdiction,
upon a valid complaint or information, and after the
defendant has pleaded to the charge, the dismissal of
 the case shall be definite or a bar to another
prosecution for the same offense; but if it is dismissed
upon the petition or with the express consent of the
defendant, the dismissal will be without prejudice or
not a bar to another prosecution for the same offense,
because, in the last case, the defendant's action in
having the case dismissed constitutes a waiver of his
constitutional right not to be prosecuted again for the
same offense.
In Pinuela, as in Salico, the prosecution had presented its
evidence against the defendant, and the trial court, upon
motion of the accused, dismissed the criminal action for lack of
evidence showing that the crime charged was committed within
its territorial jurisdiction. On appeal by the Government, this
Court found that the evidence showed otherwise and, like
in Salico, the majority rejected the plea of double jeopardy
interposed by the accused on the ground that his virtual
instigation of the erroneous dismissal amounted to a waiver of
his right against a second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge
of estafa filed against him having been dismissed, albeit
provisionally, without his express consent, its revival
constituted double jeopardy which bars a subsequent
prosecution for the same offense. This claim was traversed by
the Solicitor General who contended that considering what had
transpired in the conference between the parties, the
provisional dismissal was no bar to the subsequent
prosecution for the reason that the dismissal was made with
the defendant's express consent. This Court sustained the
view of the Solicitor General, thus:
We are inclined to uphold the view of the Solicitor
General. From the transcript of the notes taken at the
hearing in connection with the motion for dismissal, it
appears that a conference was held between
petitioner and the offended party in the office of the
fiscal concerning the case and that as a result of that
conference the offended party filed the motion to
dismiss. It also appears that as no action has been
taken on said motion, counsel for petitioner invited the
attention of the court to the matter who acted thereon
only after certain explanation was given by said
counsel. And when the order came the court made it
plain that the dismissal was merely provisional in
character. It can be plainly seen that the dismissal
was effected not only with the express consent of the
petitioner but even upon the urging of his counsel.
This attitude of petitioner, or his counsel, takes this
case out of the operation of the rule.
In essence, this Court held that where a criminal case is
dismissed provisionally not only with the express consent of
the accused but even upon the urging of his counsel, there can
be no double jeopardy under section 9, Rule 113, if the
indictment against him is revived by the fiscal. This decision
subscribes substantially to the doctrine on waiver established
in Salico.
The validity and currency of the Salico doctrine were intimated
in the recent case of People vs. Fajardo (L-18257, June 29,
1966), and six months later were reaffirmed in People vs.
Desalisa, supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal,
observed:
The record does not reveal that appellees expressly
agreed to the dismissal of the information as ordered
by the trial Judge or that they performed any act
which could be considered as express consent within
the meaning of the rule. While they did file a motion
asking that the case be quashed or that a
reinvestigation thereof be ordered, the court granted
neither alternative. What it did was to order the
prosecution to amend the complaint. This order was
in effect a denial of the motion to quash, and it was
only after the prosecution failed to amend that the
court dismissed the case on that ground.
Consequently, even under the theory enunciated in
some decisions of this Court (People vs. Salico, etc.)
that if a valid and sufficient information is erroneously
dismissed upon motion of the defendant he is
deemed to have waived the plea of double jeopardy in
connection with an appeal from the order of dismissal,
appellees here are not precluded from making such
plea.
To paraphrase, had the dismissal been anchored on the
motion to dismiss, the defendants would not have been entitled
to protection against double jeopardy.
Then in Desalisa, this Court, in a unanimous decision penned
by Mr. Justice Jesus Barrera, held that
... The ruling in the case of Salico, that the act of the
defendant in moving for the dismissal of the case
constitutes a waiver of the right to avail of the defense
of double jeopardy, insofar as it applies to dismissals
which do not amount to acquittal or dismissal of the
case on the merits, cannot be considered to have
been abandoned by the subsequent decisions on the
matter. (Emphasis supplied)
xxx xxx xxx
... an appeal of the prosecution from the order of
dismissal (of the criminal complaint) by the trial court
will not constitute double jeopardy if (1) the dismissal
is made upon motion, or with the express consent, of
the defendant, and (2) the dismissal is not an acquittal
or based upon consideration of the evidence or of the
merits of the case; and (3) the question to be passed
upon by the appellate court is purely legal; so that
should the dismissal be found incorrect, the case
would have to be remanded to the court of origin for
further proceedings, to determine the guilt or
innocence of the defendant. (Emphasis supplied)
The doctrine of estoppel in relation to the plea of double
jeopardy was first enunciated in Acierto which held that when
the trial court dismisses a case on a disclaimer of jurisdiction,
upon the instigation of the accused, the latter is estopped on
appeal from asserting the jurisdiction of the lower court in
support of his plea of second jeopardy. The doctrine of
estoppel is in quintessence the same as the doctrine of waiver:
the thrust of both is that a dismissal, other than on the merits,
sought by the accused in a motion to dismiss, is deemed to be
with his express consent and bars him from subsequently
interposing the defense of double jeopardy on appeal or in a
new prosecution for the same offense.
In Acierto, the defendant was charged before a United States
court-martial with having defrauded the Government of the
United States, through falsification of documents, within a
military base of the United States in the Philippines. The
challenge by the accused against the jurisdiction of the military
tribunal was brushed aside, and he was convicted. On review,
the verdict was reversed by the Commanding General who
sustained Acierto's position on the ground of lack of
jurisdiction. Subsequently, he was convicted of estafa and
falsification based on the same facts by the Court of first
Instance of Rizal. On appeal to this Court, he claimed former
jeopardy in the court-martial proceedings, asserting that the
military court actually had jurisdiction. In a
unanimous 7 decision, this Court, through Mr. Justice Pedro
Tuason, ruled:
This is the exact reverse of the position defendant
took at the military trial. As stated, he there attacked
the court-martial's jurisdiction with the same vigor that
he now says the court-martial did have jurisdiction;
and thanks to his objections, so we incline to believe,
the Commanding General, upon consultation with,
and the recommendation of, the Judge Advocate
General in Washington, disapproved the court-martial
proceedings.
xxx xxx xxx
Irrespective of the correctness of the views of the
Military authorities, the defendant was estopped from
demurring to the Philippine court's jurisdiction and
pleading double jeopardy on the strength of his trial
by the court-martial, A party will not be allowed to
make a mockery of justice by taking inconsistent
positions which if allowed would result in brazen
deception. It is trifling with the courts, contrary to the
elementary principles of right dealing and good faith,
for an accused to tell one court that it lacks authority
to try him and, after he has succeeded in his effort, to
tell the court to which he has been turned over that
the first has committed error in yielding to his plea.
(Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes,
et al. (96 Phil. 827, April 30, 1955); People vs. Reyes, et al. (98
Phil. 646, March 23, 1956); People vs. Casiano (L-15309,
February 16, 1961), and People vs. Archilla (L-15632,
February 28, 1961).
The defendants in People vs. Amada Reyes, et al., were
charged as accessories to the crime of theft committed by their
brother, Anselmo, the principal accused. The latter pleaded
guilty to simple theft and was sentenced accordingly. The
former pleaded not guilty and subsequently filed a motion to
quash on the ground that being brothers and sisters of the
principal accused, they were exempt from criminal
responsibility for the acts charged against them in the
information. Thereupon, the prosecution moved to amend the
information so as to allege that the defendants profited from
the effects of the crime. In view of this development, counsel
for the defendants moved to withdraw their motion to quash,
and objected to the proposed amendment which sought to
change materially the information after plea without the
consent of the accused. Without acting on the petition to
withdraw the motion to quash, the trial court denied the motion
of the prosecution on the ground that the proposed
amendment would substantially affect the fundamental rights of
the accused who were exempt from liability under the
information because of their relation to the principal culprit.
Then the prosecution moved for the dismissal of the case
against the alleged accessories with reservation to file a new
information. The court ordered the dismissal without ruling on
the reservation. Subsequently, a new information was filed
virtually reproducing the previous one except that now there
was an added allegation of intent to gain. The lower court
quashed the new information upon motion of the accused on
the ground of double jeopardy. On appeal by the prosecution,
this Court, thru Mr. Justice J. B. L. Reyes, held that the plea of
double jeopardy was erroneously sustained because
In the first place, the accused-appellees herein filed a
motion to quash on the ground that they incurred no
criminal liability under the facts alleged in the
information in the preceding case, No. Q-972, and the
trial court instead of allowing the withdrawal of the
motion to quash, virtually sustained the same when it
denied the fiscal's motion to amend, thereby forcing
the latter to dismiss the case; hence, it can not be
held that the former case was terminated without the
express consent of the accused. Secondly, the
defendants themselves showed that the information in
the previous case was insufficient to charge them with
any criminal offense, in view of their relationship with
the principal accused; and it is well established
doctrine that for jeopardy to attach, there must be an
information sufficient in form and substance to sustain
a conviction. Lastly, the herein accused having
successfully contended that the information in the
former case was insufficient to sustain a conviction,
they cannot turn around now and claim that such
information was after all, sufficient and did place them
in danger of jeopardy of being convicted thereunder.
If, as they formerly contended, no conviction could be
had in the previous case, they are in estoppel to
contend now that the information in the second case
places them in jeopardy for the second time. Their
case comes within the spirit of the rule laid down in
People vs. Acierto.
Again, in People vs. Reyes, et al., supra, this Court, speaking
thru Mr. Chief Justice Paras, reiterated the Aciertoruling thus:
Where the complaint or information is in truth valid
and sufficient, but the case is dismissed upon the
petition of the accused on the ground that the
complaint or information is invalid and insufficient,
such dismissal will not bar another prosecution for the
same offense and the defendant is estopped from
alleging in the second information that the former
dismissal was wrong because the complaint or
information was valid.
In this particular case, upon motion of the defendants, the trial
court dismissed the information because it did not allege the
use of violence, notwithstanding the fact that the offense
charged was coercion under article 287 of the Revised Penal
Code. On appeal, however, this Court ruled that the dismissal
was erroneous because "although the offense named in the
information is coercion, it does not necessarily follow that the
applicable provision is the first paragraph, since the second
paragraph also speaks of 'coercions'. Inasmuch as the recitals
in the information do not include violence, the inevitable
conclusion is that the coercion contemplated is that described
and penalized in the second paragraph."
We come now to the case of People vs. Casiano. In this case
the accused was charged with estafa in a complaint filed with
the justice of the peace court of Rosales, Pangasinan. The
accused waived her right to preliminary investigation and the
record was accordingly forwarded to the Court of First Instance
of Pangasinan where the provincial fiscal filed an information
for "illegal possession and use of false treasury or bank notes."
Upon arraignment the defendant pleaded not guilty.
Subsequently, the defense filed a motion to dismiss on the
thesis that there had been no preliminary investigation of the
charge of illegal possession and use of false treasury or bank
notes, and that the absence of such preliminary investigation
affected the jurisdiction of the trial court. The motion was
granted on the ground that the waiver made by the defendant
in the justice of the peace court did not deprive her of the right
to a preliminary investigation of an entirely different crime. On
appeal to this Court, it was held that the dismissal was
erroneous because the allegations of the information filed in
the Court of First Instance were included in those of the
complaint filed in the justice of the peace court where the
defendant had already waived her right to a preliminary
investigation. On the question of whether the appeal placed the
defendant in double jeopardy, this Court, thru Mr. Chief Justice
(then Associate Justice) Concepcion, observed that the
situation of Casiano was identical to that of the accused
in Acierto
... were she to plead double jeopardy in this case, for
such plea would require the assertion of jurisdiction of
the court of first instance to try her and that the same
erred in yielding to her plea therein for lack of
authority therefor. In the language of our decision in
the Acierto case, it is immaterial whether or not the
court a quohad said authority. It, likewise, makes no
difference whether or not the issue raised by
defendant in the lower court affected its jurisdiction.
The fact is that she contested its jurisdiction and that,
although such pretense was erroneous, she led the
court to believe that it was correct and to act in
accordance with such belief. The elementary
principles of fair dealing and good faith demand,
accordingly, that she be estopped now from taking the
opposite stand in order to pave the way for a plea of
double jeopardy, unless the rule of estoppel laid down
in the Acierto case is revoked. As a matter of fact,
said rule applies with greater force to the case at bar
than to the Acierto case, because the same involved
two (2) separate proceedings before courts deriving
their authority from different sovereignties, whereas
the appeal in the case at bar is a continuation of the
proceedings in the lower court, which like this
Supreme Court, is a creature of the same
sovereignty. In short the inconsistency and
impropriety would be more patent and glaring in this
case than in that of Acierto, if appellant herein
pleaded double jeopardy in this instance.
This Court then forthnightly stated that "the rule of estoppel
applied in the Acierto case should be maintained, because:
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics,
which demand good faith of the higher order in the
practice of law.
3. It is well settled that parties to a judicial proceeding
may not, on appeal, adopt a theory inconsistent with
that which they sustained in the lower court.
xxx xxx xxx
4. The operation of the principle of estoppel on the
question of jurisdiction seemingly depends whether
the lower court actually had jurisdiction or not. If it
had no jurisdiction, but the case was tried and
decided upon the theory that it had jurisdiction, the
parties are not barred on appeal, from assailing such
jurisdiction, for the same "must exist as a matter of
law, and may not be conferred by consent of the
parties or by estoppel" (5 C.J.S. 861-863). However, if
the lower court had jurisdiction, and the case was
heard and decided upon a given theory, such, for
instance, as that the court had no jurisdiction, the
party who induced it to adopt such theory will not be
permitted, on appeal, to assume an inconsistent
position that the lower court had jurisdiction. Here,
the principle of estoppel applies. The rule that
jurisdiction is conferred by law, and does not depend
upon the will of the parties, has no bearing thereon.
Twelve days after Casiano, this Court, in People vs. Archilla,
supra, invoked anew the doctrine of estoppel. In this case
Alfreda Roberts, together with Jose Archilla, was charged with
bigamy. After pleading not guilty, Roberts, through his counsel,
filed a motion praying that the complaint be quashed with
regard to her on the ground that the facts alleged therein did
not constitute the offense charged for failure to aver that
"insofar as Alfreda Roberts is concerned, her marriage to Jose
Luis Archilla was her second marriage ..." On appeal, the
prosecution contended that the trial court erred in granting the
motion to quash, because the complaint was sufficient and at
least charged the accused as an accomplice. The defendant
maintained that even if that were true, the quashing of the
information amounted to her acquittal which prevented the
prosecution from taking the said appeal as it would place her in
double jeopardy. Mr. Justice Felix Bautista Angelo, writing for
the majority, ruled that the trial court erred, and proceeded to
emphasize that the accused
... cannot now be allowed to invoke the plea of double
jeopardy after inducing the trial court to commit an
error which otherwise it would not have committed. In
other words, appellee can not adopt a posture of
double dealing without running afoul with the doctrine
of estoppel. It is well-settled that the parties to a
justiciable proceeding may not, on appeal, adopt a
theory inconsistent with that which they sustained in
the lower court (Williams v. McMicking, 17 Phil. 408;
Molina v. Somes, etc.). Consequently, appellee is
now estopped from invoking the plea of double
jeopardy upon the theory that she would still be
convicted under an information which she branded to
be insufficient in the lower court.
The accused in this case now before us nevertheless insists
that the Salico doctrine and "necessarily analogous doctrines"
were abandoned by this Court in Bangalao, Labatete,
Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged
that the rape was committed "by means of force and
intimidation" while the information filed by the fiscal alleged that
the offended party was a "minor and demented girl" and that
the defendants "successively had sexual intercourse with her
by means of force and against the will of Rosita Palban." After
the accused had pleaded not guilty, the defense counsel
moved for the dismissal of the case on the ground that the trial
court lacked jurisdiction to try the offense of rape charged by
the fiscal since it was distinct from the one alleged in the
complaint which did not aver that the victim was a demented
girl". The lower court sustained the motion and dismissed the
case for lack of jurisdiction. On appeal by the prosecution, this
Court held that the trial judge erred in dismissing the case for
lack of jurisdiction, but ruled, however, that the appeal could
not prosper because it placed the accused in double jeopardy.
As the court below had jurisdiction to try the case
upon the filing of the complaint by the mother of the
offended party, the defendants-appellees would be
placed in double jeopardy if the appeal is allowed.
After mature analysis, we cannot agree that this Court
in Bangalao impliedly abandoned the Salico doctrine on
waiver. Bangalao was decided solely on the question of
jurisdiction. This Court, however, after holding that the lower
tribunal had jurisdiction, decided outright to repress the appeal
by the Government on the ground of double jeopardy without
considering whether the appealed order of dismissal was
issued with or without the express consent of the accused (this
aspect of double jeopardy not being in issue). Hence, the ruling
in Salico that the dismissal was with the express consent of
the accused because it was granted upon his instigation thru a
motion to dismiss was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs.
Ferrer (100 Phil. 124, October 23, 1956). In this case, after the
prosecution had rested, the accused filed a motion to dismiss
on the ground that the territorial jurisdiction of the trial court
had not been published. Acting on this motion, the lower court
dismissed the case. The prosecution appealed. This Court
found that the evidence on record, contrary to the finding of the
trial court, amply proved the jurisdiction of the lower tribunal.
However, without the defendant interposing the plea of double
jeopardy, this Court held that "the Government however
meritorious its case cannot appeal the order of dismissal
without violating the right of the defendant not to be placed in
double jeopardy." Again, like in Bangalao, this Court did not
consider the nature of dismissal whether it was with or
without the express consent of the defendant.
The accused in the case at bar avers that the Salico doctrine
was formally and expressly abandoned in People vs. Labatete,
supra. In the latter case, the trial court, upon motion of the
defendant, dismissed the original information for estafa on the
ground that it did not allege facts constituting the offense
charged. The information recited that the accused had
contracted a loan from the complainant, giving as security the
improvements and products of his property (a piece of land),
without averring that the said property, which was allegedly
mortgaged by the accused to the Rehabilitation Finance
Corporation, formed part of the security. Consequently, the
fiscal filed an amended complaint alleging that the accused
also gave as security the land in question, which he later
mortgaged to the damage and prejudice of the complaining
creditor. This amended information was also dismissed upon
motion of the defendant on the ground of double jeopardy. This
Court, in sustaining the appealed order of dismissal, held:
If the amended information were to be admitted, the
accused will be deprived of his defense of double
jeopardy because by the amended information he is
sought to be made responsible for the same act of
borrowing on a mortgage for which he had already
begun to be tried and acquitted by the dismissal of the
original information.
xxx xxx xxx
... the trial court found that the accused could not be
found guilty of any offense under the information. The
judgment entered was not one of dismissal but of
acquittal, and whether the judgment is correct or
incorrect, the same constitutes a bar to the
presentation of the amended information sought to be
introduced by the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr.
Justice Alejo Labrador, expounded:
... The judgment of the trial court (in People vs.
Salico) was in fact an acquittal because of the failure
on the part of the fiscal to prove that the crime was
committed within the jurisdiction of the court. The
judgment was in fact a final judgment of acquittal. The
mere fact that the accused asked for his acquittal
after trial on the merits (after the prosecution had
rested its case) is no reason for saying that the case
was "dismissed" with his express consent and he may
again be subjected to another prosecution.
From the above named statement, it is clear that what
in Salico was repudiated in Labatete was the premise that the
dismissal therein was not on the merits
and not the conclusion that a dismissal, other than on the
merits, sought by the accused, is deemed to be with his
express consent and therefore constitutes a waiver of his right
to plead double jeopardy in the event of an appeal by the
prosecution or a second indictment for the same offense. This
Court, in Labatete, merely pointed out that the controverted
dismissal in Salico was in fact an acquittal." Reasoning a
contrario, had the dismissal not amounted to acquittal, then the
doctrine of waiver would have applied and prevailed. As a
matter of fact we believe with the majority in Salico that the
dismissal therein was not on the merits and therefore did not
amount to an acquittal:
If the prosecution fails to prove that the offense was
committed within the territorial jurisdiction of the court
and the case is dismissed, the dismissal is not an
acquittal, inasmuch as if it were so the defendant
could not be again prosecuted for the same offense
before a court of competent jurisdiction; and it is
elemental that in such case the defendant may again
be prosecuted for the same offense before a court of
competent jurisdiction.
Granting, however, that the Salico doctrine was abandoned
in Labatete, it was resurrected in Desalisa.
Moreover, Labatete never mentioned the doctrine of estoppel
enunciated in Acierto which had been repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been
dropped from the corpus of our jurisprudence, the accused
cites People vs. Villarin, supra. Here the accused appealed to
the Court of First instance his conviction in the inferior court for
acts of lasciviousness with consent. After conducting the
preliminary investigation, the fiscal charged the accused with
corruption of minors. Villarin pleaded not guilty, and before the
case could be heard, his counsel filed a motion to dismiss on
the ground that the information did not allege facts constituting
the crime charged. Acting on this motion, the trial court
dismissed the case. On appeal by the prosecution, this Court
thru Mr. Justice Felix Angelo Bautista, held that the dismissal
was erroneous, but that this error
... cannot now be remedied by setting aside the order
dismissal of the court a quo and by remanding the
case to it for further proceedings as now suggested
by the prosecution considering that the case was
dismissed without the express consent of the accused
even if it was upon the motion of his counsel, for to do
so would place the accused in double jeopardy. The
only exception to the rule on the matter is when the
dismissal is with the consent of the accused, and here
this consent has not been obtained. (Emphasis
supplied)
Villarin gives the impression, as gleaned from the above
statement, that this Court therein sustained the plea of double
jeopardy on the ground that dismissal was without the express
consent of the defendant as it was ordered "upon the motion of
his counsel" and not upon motion of the defendant himself.
This conclusion is rather unfortunate and must be rectified, for
the settled rule is that the acts of counsel in a criminal
prosecution bind his client. Thus, in People vs. Romero (89
Phil. 672, July 31, 1951), this Court held categorically that
The fact that the counsel for the defendant, and not
the defendant himself personally moved for the
dismissal of the case against him, had the same
effect as if the defendant had personally moved for
such dismissal, inasmuch as the act of the counsel in
the prosecution of the defendant's cases was the act
of the defendant himself , for the only case in which
the defendant cannot be represented by his counsel
is in pleading guilty according to Section 3, Rule 114,
of the Rules of Court. (Emphasis supplied)
On this consideration alone, we cannot agree with the accused
in the case at bar that this Court in Villarin intended to abandon
the Salico ruling. Had the motion to dismiss filed by Villarin's
counsel been considered as one made by the defendant
himself, as should have been done, the Villarin case should
have been resolved consistent with the doctrine of waiver
in Salico and/or that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the
case at bar invokes People vs. Clolibel, supra, where this
Court, in sustaining the plea of double jeopardy interposed by
the defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be
reinstated, the petitioner adopts the ruling once
followed by the Court to the effect that a dismissal
upon the defendant's own motion is a dismissal
consented to by him and, consequently, will not be a
bar to another prosecution for the same offense,
because, his action in having the case dismissed
constitutes a waiver of his constitutional right or
privilege, for the reason that he thereby prevents the
court from proceeding to the trial on the merits and
rendering a judgment of conviction against him.
(People v. Salico, 84 Phil. 772) But, this authority has
long been abandoned and the ruling therein expressly
repudiated.
Thus, in the case of People v. Robles, G.R. No. L-
12761, June 29, 1959, citing People v. Bangalao, L-
5610, February 17, 1954; People v. Diaz, L-6518,
March 30, 1954; People v. Abano, L-7862, May 17,
1955; and People v. Ferrer, L-9072, October 23,
1956, We said:
... In reaching the above conclusion, this
Court has not overlooked the ruling in
People vs. Salico, 47 O.G. 4765, to the
effect that a dismissal upon defendant's
motion will not be a bar to another
prosecution for the same offense as said
dismissal was not without the express
consent of the defendant, which ruling the
prosecution now invokes in support of its
appeal; but said ruling is not now controlling,
having been modified or abandoned in
subsequent cases wherein this Court
sustained the theory of double jeopardy
despite the fact that dismissal was secured
upon motion of the accused. (Emphasis
supplied)
Also, the rule that a dismissal upon defendant's
motion will not be a bar to another prosecution for the
same offense as said dismissal is not without the
express consent of the defendant, has no application
to a case where the dismissal, as here, is predicated
on the right of a defendant to a speedy trial. (People
vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959).
(emphasis supplied)
The above statements must be taken in the proper context and
perspective. As previously explained, Bangalao, Ferrer, and
even Labatete, did not actually abandon the doctrine of waiver
in Salico (and not one of the said cases even implied the
slightest departure from the doctrine of estoppel established
in Acierto). In Diaz, Abao, Tacneng and Robles which are
cited above, like in Cloribel, the dismissals therein, all sought
by the defendants, were considered acquittals because they
were all predicated on the right of a defendant to a speedy trial
and on the failure of the Government to prosecute. Therefore,
even if such dismissals were induced by the accused, the
doctrines of waiver and estoppel were obviously inapplicable
for these doctrines presuppose a dismissal not amounting to
an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held
in People vs. Diaz (94 Phil. 714, March 30, 1954):
Here the prosecution was not even present on the
day of trial so as to be in a position to proceed with
the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the
prosecution without asking for postponement or giving
any explanation, just failed to appear. So the
dismissal of the case, though at the instance of
defendant Diaz may, according to what we said in the
Gandicela case, be regarded as an acquittal.
(emphasis supplied)
A similar result was reached by this Court thru Mr. Justice
Sabino Padilla, in People vs. Abano (97 Phil. 28, May 27,
1955), in this wise:
After a perusal of the documents attached to the
petition for a writ of certiorari, we fail to find an abuse
of discretion committed by the respondent judge. He
took pains to inquire about the nature of the ailment
from which the complaining witness claimed she was
suffering. He continued the trial three times, to wit: on
27 May, 1 and 12 June. The defendant was entitled to
a speedy trial. When on 15 June, the last day set for
the resumption of the trial, the prosecution failed to
secure the continuance thereof and could not produce
further evidence because of the absence of the
complaining witness, the respondent judge was
justified in dismissing the case upon motion of the
defense ... The defendant was placed in jeopardy for
the offense charged in the information and the
annulment or setting aside of the order of dismissal
would place him twice in jeopardy of punishment for
the same offense. (emphasis supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr.
Justice Pastor Endencia, speaking for a unanimous Court,
stressed that
... when criminal case No. 1793 was called for hearing
for the third time and the fiscal was not ready to enter
into trial due to the absence of his witnesses, the
herein appellees had the right to object to any further
postponement and to ask for the dismissal of the case
by reason of their constitutional right to a speedy trial;
and if pursuant to that objection and petition for
dismissal the case was dismissed, such dismissal
ammounted to an acquittal of the herein appellees
which can be invoked, as they did, in a second
prosecution for the same offense. (emphasis
supplied)
And this Court proceeded to distinguish the case from People
vs. Salico, thus:
We are fully aware that pursuant to our ruling in the
case of Peo. v. Salico, 45 O.G. No. 4, 1765-1776, and
later reiterated in Peo vs. Romero, L-4517-20, July
31, 1951, a dismissal upon defendant's motion will not
be a bar to another prosecution for the same offense
as said dismissal was not without the express consent
of the defendant. This ruling, however, has no
application to the instant case, since the dismissal in
those cases was not predicated, as in the case at bar,
on the right of a defendant to a speedy trial, but on
different grounds. In the Salico case, the dismissal
was based on the ground that the evidence for the
prosecution did not show that the crime was
committed within the territorial jurisdiction of the court
which, on appeal, we found that it was, so the case
was remanded for further proceedings; and in the
Romero case the dismissal was due to the non-
production of other important witnesses by the
prosecution on a date fixed by the court and under the
understanding that no further postponement at the
instance of the government would be entertained. In
both cases, the right of a defendant to a speedy trial
was never put in issue. (emphasis supplied)
The gravamen of the foregoing decisions was reiterated
in People vs. Robles (L-12761, June 29, 1959) where the trial
court, upon motion of the defendant, dismissed the case on the
ground that the failure of the prosecution to present its
evidence despite several postponements granted at its
instance, denied the accused a speedy trial. In rejecting the
appeal of the Government, this Court held:
In the circumstances, we find no alternative than to
hold that the dismissal of Criminal Case No. 11065 is
not provisional in character but one which is
tantamount to acquittal that would bar further
prosecution of the accused for the same offense.
In Cloribel, the case dragged for three years and eleven
months, that is, from September 27, 1958 when the information
was filed to August 15, 1962 when it was called for trial, after
numerous postponements, mostly at the instance of the
prosecution. On the latter date, the prosecution failed to
appear for trial, and upon motion of defendants, the case was
dismissed. This Court held "that the dismissal here complained
of was not truly a 'dismissal' but an acquittal. For it was entered
upon the defendants' insistence on their constitutional right to
speedy trial and by reason of the prosecution's failure to
appear on the date of trial." (Emphasis supplied.)
Considering the factual setting in the case at bar, it is clear that
there is no parallelism between Cloribel and the cases cited
therein, on the one hand, and the instant case, on the other.
Here the controverted dismissal was predicated on the
erroneous contention of the accused that the complaint was
defective and such infirmity affected the jurisdiction of the
court a quo, and not on the right of the accused to a speedy
trial and the failure of the Government to prosecute. The
appealed order of dismissal in this case now under
consideration did not terminate the action on the merits,
whereas in Cloribel and in the other related cases the
dismissal amounted to an acquittal because the failure to
prosecute presupposed that the Government did not have a
case against the accused, who, in the first place, is presumed
innocent.
The application of the sister doctrines of waiver and estoppel
requires two sine qua non conditions: first, the dismissal must
be sought or induced by the defendant personally or through
his counsel; and second, such dismissal must not be on the
merits and must not necessarily amount to an acquittal.
Indubitably, the case at bar falls squarely within the periphery
of the said doctrines which have been preserved unimpaired in
the corpus of our jurisprudence.
ACCORDINGLY, the order appealed from is set aside. This
case is hereby remanded to the court of origin for further
proceedings in accordance with law. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Angeles and Fernando, JJ., concur.