May 16, 1997 order and the "hold-departure" order of April 10, 1997.
The pre-trial conference was
SECOND DIVISION
G.R. No. 129670 February 1, 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.
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 petitioner's room at the Metropolitan Hotel in Diliman,
Quezon City. Apparently, this was not the first time the police received reports of petitioner's
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-
70550.1wphi1.nt
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 petitioner's 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 o'clock 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 petitioner's 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
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 court's 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 petitioner's 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 petitioner's 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
petitioner's 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 Judge's arbitrary action but also because it emanated from a void
Order;
3. In ruling that the denial of petitioner's 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 court's 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 petitioner's 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 court's order of May 16, 1997 for the grant of bail because petitioner's
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 petitioner's 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 accused's 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 court's 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."
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 Air. 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.1wphi1.nt

SO ORDERED.
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 Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
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 petitioner's presence at the arraignment, petitioner should be denied bail in
the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's
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 petitioner's 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.

Petitioner's 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:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-101 December 20, 1945
HAYDEE HERRAS TEEHANKEE, petitioner,
vs.
LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO DIAZ, respondents.
Vicente J. Francisco for petitioner.
Respondent Judges in their own behalf.
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 the 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 then 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 basil recommended for the
provisional release of the petitioner be fixed at Fifty Thousand Pesos (50,000)."
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 (50,000)."
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 the 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. Excessive 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 judgement 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 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.lawphi1.net
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, date
September 3, 1945. The proviso above quoted from section 19 of the People's Court Act
(Commonwealth At 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 question 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 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 Cooleys 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 felony 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. The 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 the 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 the 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 limitation established by our own Constitutional, laws and rules of
court. From the last part of said quotation it follows, firstly, that before indictment or charge by the
corner's jury, in the 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 corner'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 110 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 offense 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.,
953; emphasis 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
provide 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 the statutory
construction that legislative enactments should be construed, wherever possible, in 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 the 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 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 the 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 judgement, the public interest would be better served by him
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 the 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 judgement 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 the 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.
 not yet "in the custody of the law," apparently because he filed his motion for admission to bail
before he was actually arrested or had voluntarily surrendered. It further noted that apart from the
circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the
Republic of the Philippines evidence of guilt was strong as borne out by the fact that no bail was recommended by the
prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the
SUPREME COURT prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's
application for bail contrary to the requirements of due process. Hence, this appeal.
Manila
Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et
SECOND DIVISION al.,9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter
jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law.
In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in
court is sufficient to vest the court with jurisdiction over the person of the accused and bring him
within the custody of the law."
G.R. No. 115407 August 28, 1995

Petitioner goes on to contend that the evidence on record negates the existence of such strong
MIGUEL P. PADERANGA, petitioner, evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of
the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for
vs. bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally
assert any claim to a denial of procedural due process. Finally, petitioner points out that the special
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. civil action for certiorari was filed in respondent court after an unjustifiable length of time.

On the undisputed facts , the legal principles applicable and the equities involved in this case, the
Court finds for petitioner.
REGALADO, J.:
1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person
in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any
The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No.
court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an
32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for
accused from the rigors of imprisonment until his conviction and yet secure his appearance at the
reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by
trial.10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted
certiorari through a petition which raises issues centering mainly on said petitioner's right to be
before custody over him has been acquired by the judicial authorities, either by his lawful arrest or
admitted to bail.
voluntary surrender.11 As this Court has put it in a case "it would be incongruous to grant bail to one
who is free."12
On January 28, 1990, petitioner was belatedly charged in an amended information as a co-
conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court,
The rationale behind the rule is that it discourages and prevents resort to the former pernicious
Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984
practice whereby an accused could just send another in his stead to post his bail, without
in Gingoog City of which petitioner was the mayor at the time. The original information, filed on
recognizing the jurisdiction of the court by his personal appearance therein and compliance with the
October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple
requirements therefor.13 Thus, in Feliciano vs. Pasicolan, etc., et al.,14 where the petitioner who had
murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo,
been charged with kidnapping with murder went into hiding without surrendering himself, and shortly
Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the
thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending
indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However,
trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission
only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted.
to bail.
Galarion later escaped from prison. The others have remained at large up to the present. 2

As a paramount requisite then, only those persons who have either been arrested, detained, or
In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended
other wise deprived of their freedom will ever have occasion to seek the protective mantle extended
information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner
by the right to bail. The person seeking his provisional release under the auspices of bail need not
was his former employer and thus knew him well, Roxas engaged the former's services as counsel
even wait for a formal complaint or information to be filed against him as it is available to "all
in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a
persons"15 where the offense is bailable. The rule is, of course, subject to the condition or limitation
signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated
that the applicant is in the custody of the law.16
petitioner as the supposed mastermind behind the massacre of the Bucag family. 3

On the other hand, a person is considered to be in the custody of the law (a) when he is arrested
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his
either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless
resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated
arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal
a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary
Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by
investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new
surrendering to the proper authorities. 17 in this light, the ruling, vis-a-vis the facts in Santiago vs.
prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said
Vasquez, etc., et al.,18 should be explained.
criminal case in a second amended information dated October 6, 1992. Petitioner assailed his
inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P.
Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-
B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte
sustained the filing of the second amended information against him. 4 Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital
recuperating from serious physical injuries which she sustained in a major vehicular mishap.
Consequently, she expressly sought leave "that she be considered as having placed herself under
Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant
the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On
for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed
the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the
on October 28, 1992 a motion for admission to bail with the trial court which set the same for
Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need
hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor
of her personal appearance in view of her physical incapacity and as a matter of humane
Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty.
consideration.
Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail.
Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the
Regional State Prosecution's Office appeared for the prosecution. 5 When the Sandiganbayan later issued a hold departure order against her, she question the
jurisdiction of that court over her person in a recourse before this Court, on the ground that "she
neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not
As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute
validly posted bail since she never personally appeared before said court" In rejecting her
costochondritis," his counsel manifested that they were submitting custody over the person of their
arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the
client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of
Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier
said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo,
recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court,
on the other hand, informed the trial court that in accordance with the directive of the chief of their
she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail,
office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor
the Court took pains to reiterate that the same cannot be posted before custody of the accused has
opposing the application for bail and that they were submitting the same to the sound discretion of
been acquired by the judicial authorities either by his arrest or voluntary surrender.
the trail judge.6

In the case of herein petitioner, it may be conceded that he had indeed filed his motion for
Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any
admission to bail before he was actually and physically placed under arrest. He may, however, at
further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial
that point and in the factual ambience therefore, be considered as being constructively and legally
court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6,
under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail
1992, petitioner, apparently still weak but well enough to travel by then, managed to personally
application with the trail court, for purposes of the hearing thereof he should be deemed to have
appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was
voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the
thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the
trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual
scheduled court hearings of the case.7
restraint of the arrestee or merely by his submission to the custody of the person making the
arrest.19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military
The subsequent motion for reconsideration of said resolution filed twenty (20) days later on offenders, by being "confined to quarters" or restricted to the military camp area.
November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for
admission to bail on the day after the hearing, was denied by the trial court in its omnibus order
It should be stressed herein that petitioner, through his counsel, emphatically made it known to the
dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon
prosecution and to the trail court during the hearing for bail that he could not personally appear as
elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus
he was then confined at the nearby Cagayan Capitol College General Hospital for acute
were the resolution and the order of the trial court granting bail to petitioner annulled on November
costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution
24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse
and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner,
of discretion.8
never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken
but the slightest effort to place petitioner in the physical custody of the authorities, since he was then
Respondent court observed in its decision that at the time of petitioner's application for bail, he was incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering
his confinement or placing him under guard.
The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently,
both the trial court and the prosecutors agreed on that point since they never attempted to have him
physically restrained. Through his lawyers, he expressly submitted to physical and legal control over
his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true
information of his actual whereabouts; and, more importantly, by unequivocally recognizing the
jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest
had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of
the law or concealed his whereabouts from the authorities since the day he was charged in court, up
to the submission application for bail, and until the day of the hearing thereof.
At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an
acute ailment, which facts were not at all contested as they were easily verifiable. And, as a
manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's
counsel readily informed the court that they were surrendering custody of petitioner to the president
of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for
admission to bail was filed not for the purpose or in the manner of the former practice which the law
proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had
happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and
thereby be able to avoid arrest should the application therefore be denied.
2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees
shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua
when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now
provides that all persons in custody shall, before conviction by a regional trial court of an offense not
punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right.
The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises
from the time one is placed in the custody of the law, springs from the presumption of innocence
accorded every accused upon whom should not be inflicted incarceration at the outset since after
trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22
Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an
accused is entitled to be released on bail as a matter of right, the present exceptions thereto being
the instances where the accused is charged with a capital offense or an offense punishable by
reclusion perpetua or life imprisonment23 and the evidence of guilt is strong. Under said general
rule, upon proper application for admission to bail, the court having custody of the accused should,
as a matter of course, grant the same after a hearing conducted to specifically determine the
conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand,
as the grant of bail becomes a matter of judicial discretion on the part of the court under the
exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in
the discretion of the court,24 is required with the participation of both the defense and a duly notified
representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong
for the provisional liberty of the applicant.25 Of course, the burden of proof is on the prosecution to
show that the evidence meets the required quantum. 26
Where such a hearing is set upon proper motion or petition, the prosecution must be give an
opportunity to present, within a reasonable time, all the evidence that it may want to introduce
before the court may resolve the application, since it is equally entitled as the accused to due
process.27 If the prosecution is denied this opportunity, there would be a denial of procedural due
process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At
the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution
and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either
granting or refusing bail, the same should contain a summary of the evidence for the prosecution,
followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though,
cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent
only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law
requires.31
In this appeal, the prosecution assails what it considers to be a violation of procedural due process
when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's
Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who
is claimed to be the sole government prosecutor expressly authorized to handle the case and who
received his copy of the motion only on the day after the hearing had been conducted. Accordingly,
the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of
any further evidence in opposition to the application for bail and to submit the matter to the sound
discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable
time" to oppose that application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the
collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the
basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through
radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on
the same date. This authorization, which was to be continuing until and unless it was expressly
withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of
Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of
Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their
appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue
of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana
entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence,
on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional
State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the
hearing held on November 5, 1992.
Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case,
he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office
on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day
when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court
that the prosecution was neither supporting nor opposing the application for bail and that they were
submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at
that particular posture of the case, was waiving the presentation of any countervailing evidence.
When the court a quo sought to ascertain whether or not that was the real import of the submission
by Prosecutor Abejo, the latter readily answered in the affirmative.
The following exchanges bear this out:
PROSECUTOR ERLINDO ABEJO:
I was informed to appear in this case just now Your Honor.
COURT:
Where is your Chief of Office? Your office received a copy of the motion as early as October 28.
There is an element of urgency here.
PROSECUTOR ABEJO:
I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State
Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I
do not know about this but before I came I received an instruction from our Chief to relay to this
court the stand of the office regarding the motion to admit bail. That office is neither supporting nor
opposing it and we are submitting to the sound discretion of the Honorable Court.
COURT:
Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter
your appearance in this matter?
PROSECUTOR ABEJO:
Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State
Prosecutor Erlindo Abejo.
COURT:
By that manifestation do you want the Court to understand that in effect, at least, the prosecution is
dispensing with the presentation of evidence to show that the guilt of the accused is strong, the
denial . . .
PROSECUTOR ABEJO:
I am amenable to that manifestation, Your Honor.
COURT:
Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for
resolution by this court?
PROSECUTOR ABEJO:
Yes, Your Honor.
COURT:
Without presenting any further evidence?
PROSECUTOR ABEJO:
Yes, Your Honor.34
It is further evident from the foregoing that the prosecution, on the instructions of Regional State
prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so
notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is
of significance is the manifestation that the prosecution was "submitting (the motion) to the sound
discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was
dispensing with the introduction of evidence en contra and this it did at the proper forum and stage
of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully
satisfied itself that such was the position of the prosecution.
3. In Herras Teehankee vs. Director of Prisons,35 it was stressed that where the trial court has
reasons to believe that the prosecutor's attitude of not opposing the application for bail is not
justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the
interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to
determine whether or not it is strong. And, in the very recent administrative matter Re: First
Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of
Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court,
citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the
motion of the accused, the trial court should nevertheless set the application for hearing and from
there diligently ascertain from the prosecution whether the latter is really not contesting the bail
application.
No irregularity, in the context of procedural due process, could therefore be attributed to the trial
court here as regards its order granting bail to petitioner. A review of the transcript of the
stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March
29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its
aforementioned order, the lower court exhausted all means to convince itself of the propriety of the
waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the
requisite summary of the evidence of both the prosecution and the defense, and only after sifting
through them did the court conclude that petitioner could be provisionally released on bail.
Parenthetically, there is no showing that, since then and up to the present, petitioner has ever
committed any violation of the conditions of his bail.
As to the contention that the prosecutor was not given the opportunity to present its evidence within
a reasonable period of time, we hold otherwise. The records indicate that the Regional State
Prosecutor's Office duly received its copy of the application for bail on the very same day that the it
was filed with the trial court on October 28, 1992. Counted from said date up to the day of the
hearing on November 5, 1992, the prosecution had more than one (1) week to muster such
evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly,
under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon
received his copy of the application only on November 6, 1992 is beside the point for, as already
established, the Office of the Regional State Prosecutor was authorized to appear for the People.
4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period
of time that elapsed before it questioned before the respondent court the resolution and the omnibus
order of the trial court through a special civil action for certiorari. The Solicitor General submits that
the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was
reasonable due to the attendant difficulties which characterized the prosecution of the criminal case
against petitioner. But then, the certiorari proceeding was initiated before the respondent court long
after trial on the merits of the case had ensued in the court below with the active participation of
prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the
special civil action for certiorari should not be instituted beyond a period of the three months, 38 the
same to be reckoned by taking into account the duration of time that had expired from the
commission of the acts complained to annul the same. 39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233,

promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the
omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as
said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said
judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of
the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED.

SO ORDERED

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.
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."
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).

We have already stated that, by the standards set forth in People vs. Vera, the present is not an And although the filing of charges is considered as but prima facie evidence, and therefore, may be
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time
actually without cause of action. It follows that the necessity for resolving the issue of constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome
constitutionality is absent, and procedural regularity would require that this suit be dismissed. the prima facie evidence against him.

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.
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.

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.
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

In respect of election to provincial, city, or municipal positions, to require that candidates should not Bilang 52 providing that "... the filing of charges for the commission of
be more than 65 years of age at the time they assume office, if applicable to everyone, might or such crimes before a civil court or military tribunal after preliminary
might not be a reasonable classification although, as the Solicitor General has intimated, a good investigation shall be prima facie evidence of such fact", is hereby
policy of the law would be to promote the emergence of younger blood in our political elective declared null and void, for being violative of the constitutional
echelons. On the other hand, it might be that persons more than 65 years old may also be good presumption of innocence guaranteed to an accused.
elective local officials.

SO ORDERED.
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 Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.
65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree.

Fernando, C.J., concurs and submits a brief separate opinion.

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. De Castro, J., abstain as far as petitioner Dumlao is concerned.
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.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
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.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2154 April 26, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO OTADORA, ET AL., defendants.
HILARIA CARREON, appellant.
Victorino C. Teleron for appellant.
Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Guillermo E.
Torres for appellee.
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.
 deny his former statements and make others which would make him guilty of perjury. The court,
deciding the question, said:

Republic of the Philippines

SUPREME COURT The privilege against self-crimination is a personal one. . . . But the privilege is an
Manila 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
EN BANC it or claim its privilege, for it cannot be known beforehand what he will do.

Prec. Rec. No. 714-A July 26, 1937
MARIA BERMUDEZ, complainant,
vs.
LEODEGARIO D. CASTILLO, respondent.
G. Viola Fernando for complainant.
Office of the Solicitor-General hilado for the Government.
The respondent in his own behalf.
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.
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.

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

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela,respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
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.)

The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
defendant did not opposethe extraction from his body of the substance later used as evidence
against him.

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest
its decision on the reason of the case rather than on blind adherence to tradition. The said reason of
the case there consisted in that it was the case of the examination of the body by physicians, which
could be and doubtless was interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute
any positive act, much less a testimonial act; she was 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 perform a positive, testimonial act, to write and give a specimen
of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it
was sought to exhibit something already in existence, while in the case at bar, the question deals
with something not yet in existence, and it is precisely sought to compel the petitioner to make,
prepare, or 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.

SECOND DIVISION
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 located in Dr. A. Santos Ave.,
Paraaque City. On December 24, 2001, they were arrested by Ormoc City policemen by authority
of a Warrant of Arrest dated November 19, 2001 issued by Judge Fortunito L. Madrona in Sp. Proc.
No. 3695-0 for Issuance of Letters of Administration, Distribution and Partition pending before the
Regional Trial Court of Ormoc City (Branch 12).1
The warrant of arrest stemmed from a motion filed by respondent Eleuteria P. Bolao, as Special
Administratrix of the estate of the late Anselma P. Allers, praying that petitioners be held guilty of
indirect contempt for not complying with the probate court's order dated October 9, 1999 directing
them to pay their monthly rentals to respondent Bolao. 2
It appears that pending the settlement of the estate of the deceased Allers, respondent Bolao
included the property leased by Taripe to petitioners in the inventory of the estate. The probate court
issued the assailed Order dated October 5, 1999, portions of which read as follows:
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.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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)
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.

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 Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ.,
in Salico (and not one of the said cases even implied the slightest departure from the doctrine of concur.
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