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[1] MCDONOUGH, J.

EN BANC The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano
(alias Bulag) are charged with the crime of illegal detention, committed,
G.R. No. 1272 January 11, 1904 according to the information, as follows:

THE UNITED STATES, complainant-appellee, The said defendants, together with other persons unknown armed with
vs. revolvers and daggers, went one night about the middle of November, 1902,
BALDOMERO NAVARRO, ET AL., defendants-appellants. to the house of one Felix Punsalan, situated in Matang-tubig, barrio of Malinta,
town of Polo, Province of Bulacan, and by force and violence kidnapped the
1.CRIMINAL PROCEDURE; TESTIMONY OF DEFENDANT; SPANISH said Felix Punsalan, without, up to the date of this information, having given
LAW.—Under the system of criminal procedure existing in the Philippine Islands any information as to his whereabouts or having proven that they set him at
under the Spanish Government it was lawful to require a suspected or accused liberty.
person to give evidence touching the crime of which he was charged or suspected.
The defendants on being arraigned pleaded not guilty.
2.ID.; INFORMATION.—Under the present system of criminal procedure the
complaint or information must charge the accused with acts committed by him In the course of the trial Teodoro Pangan, Gregorio Mendoza, and Flaviano
prior to the filing of the information, and which, of themselves constitute every Punsalan testified as witnesses for the prosecution. The witness Pangan said
necessary ingredient to the offense of which he is charged. that one night about the middle of November, 1902, while he was asleep in the
house of Felix Punsalan, situated in the barrio of Malinta, in front of Maysilo,
3.ID.; CONSTITUTIONAL LAW; RIGHTS OF ACCUSED PERSONS.—The he, being at that time a servant of the said Punsalan, was aroused by the
right of a defendant to be exempt from testifying applies equally to any barking of the dogs; that his master, Felix Punsalan, arose and opened the
compulsory disclosure of the guilt of the offender himself, whether sought directly window, and, upon seeing some people there, asked them who they were;
as the object of the inquiry or indirectly and incidentally for the purpose of they answered him by asking who was with him in the house, to which he
establishing facts involving an issue between other parties. replied that his servant was there; they asked him if he had a gun, and he
replied that he had no gun, and they asked him to come down and talk with
4.ID.; ID.; ID.—Where the law permits an accused person to testify as a witness
them, and the said Felix Punsalan, having gone down accordingly, did not
no presumption of guilt can be based upon his omission to testify.
return, and the witness added that he had not seen again since that time. This
witness says that he did not see the men who called to his master from below
5.CRIMINAL LAW; CONSTITUTIONAL LAW; ILLEGAL DETENTION.—
but only heard them.
The provisions of section 5 of the act of Congress of July 1, 1902, that no person
shall be compelled in any criminal cause to be a witness against himself, repeal
Gregorio Mendoza, the second witness, testifies that he was taken from his
by implication article 483 of the Penal Code, under which, upon proof by the
house one night in the month of November, 1902, by seven men, among who
Government of the illegal detention of a person by the defendant, a heavier penalty
were these defendants; that in addition to himself, the same party on that night
was imposed upon him in case of failure on his part to prove that he had set the
kidnapped Felix Punsalan and that the latter, with the witness, were taken by
person detained at liberty or to show his present whereabouts.
their captors to Pudag-babuy where the defendant Marcelo de Leon hung
them to a tree, demanding of them that they hand over their guns; that on that
same night they set the witness at liberty, but kept Felix Punsalan; that the
witness did not see Punsalan again since that time, and that before the
kidnapping he frequently saw him because he lived next door.

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Flaviano Punsalan, brother of Felix Punsalan, testified that the latter was in other words one convicted of simply depriving a person of his liberty may be
kidnapped on the night of November 17, 1902, and that he had not seen since imprisoned for a term of from six to twelve years and one convicted of depriving
that time; that subsequently, in January, 1903, on occasion of the witness a person of his liberty and who shall not state his whereabouts or prove that
having been called to the barracks of the Constabulary by the officers of that he had set said person at liberty may be punished by imprisonment for a term
corps, he heard a statement made there by the defendant Baldomero Navarro of seventeen years four months and one day, to life, as in this case. In other
in the presence of the superintendent of secret information, Captain Crame, words, for failure on the part of the defendant to testify regarding the
Inspector Brown, and Interpreter Austin, in the course of which statement whereabouts of the person deprived of his liberty, or to prove that he was set
Baldomero Navarro stated that he was the leader of the band that kidnapped at liberty, the punishment may be increased from imprisonment for a term of
Felix Punsalan and Gregorio Mendoza, and that his companions were Marcelo six years to life imprisonment.
de Leon, Fidel Feliciano, Remigio Delupio, and one Luis; that the said Felix
Punsalan died within a week from the time he was kidnapped, in consequence This provisions of the law has the effect of forcing a defendant to become a
of the ill treatment received. The witness testified that Navarro made the witness in his own behalf or to take a much severer punishment. The burden
statement freely and spontaneously, without threats or compulsion. The is put upon him of giving evidence if he desires to lessen the penalty, or, in
witness also testified that in the court of the justice of the peace in Malabon he other words, of criminating himself, for the very statement of the whereabouts
heard one Florencia Francisco testify that when his brother, Felix Punsalan, of the victim or the proof that the defendant set him at liberty amounts to a
died he was covered with bruises and was passing blood, and that his body confession that the defendant unlawfully detained the person.
was buried at a place called Ogong, in the village known as Cay-grande.
So the evidence necessary to clear the defendant, under article 483 of the
The defendant Marcelo de Leon, who testified as a witness in the case, stated Penal Code, would have the effect of convincing him under article 481.
that Felix Punsalan and Gregorio Mendoza were kidnapped by Baldomero
Navarro and Mariano Jacinto, one night in November, 1902, and that the The counsel for the defendants claims that such practice is illegal, since the
witness knew this because he also was on of the men kidnapped by these passage by Congress of the act of July 1, 1902, relating too the Philippines,
defendants. section 5 of which provides that ". . . no person shall be compelled in any
criminal case to be a witness against himself." Section 57 of General Orders,
The court below rendered judgment condemning each one of the defendants, No. 58, provides that a defendant in a criminal case shall be presumed to be
Baldomero Navarro, Marcelo de Leon, and Feliciano Felix (alias Bulag), to life innocent until the contrary is proved; and section 59 provides that the burden
imprisonment and payment of the costs of prosecution. Against this judgment of proof of guilt shall be upon the prosecution.
the defendants appealed.
In fact he contends that as these provisions are in conflict with those of article
Article 481 of the Penal Code provides that a private person who shall lock up 483 they have the effect of repealing that section.
or detain another, or in any way deprive him of his liberty shall be punished
with the penalty of prision mayor. Under the system of criminal procedure existing here under the Spanish
Government it was doubtless lawfull to require a suspected or accused person
The second paragraph of article 483 provides that one who illegally detains to give evidence touching the crime of which he was charged or suspected.
another and fails to give information concerning his whereabouts, or does not
prove that he set him at liberty, shall be punished with cadena temporal in its And so in order to arrive at a true interpretation of article 483 it is necessary to
maximum degree to life imprisonment. examine that system of procedure.

The punishment for the crime mentioned in article 483 of the Penal Code is In Escriche's Dictionary of Legislation and Jurisprudence, volume 3, page 577,
the penalty of cadena temporal in its maximum degree to cadena perpetua, or we find the following description of the distinctive features of the inquisitorial

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system of criminal procedure, which constitutes the machinery by which the "The defendant can not decline to answer by questions addressed him by the
legislator proposed to enforce the penalty prescribed in the article under judge, or by the prosecuting attorney, with the consent of the judge, or by the
consideration. He say: private prosecutor, even though he may believe the judge to be without
jurisdiction, in which case he may record a protest against the authority of the
A criminal prosecution is divided into two principal parts or sections court."
which are, first, the summary, and second, the penalty stages. The
principal purpose of the summary trial is to inquire whether a criminal The author above cited, Escriche, commenting upon this obligation on the part
act has been committed and to determine by whom the act has been of the defendant to testify, says that in case he stands mute the court can not
committed — that is to say, the object is to get together all the date put him to the torture as formerly, but can only inform the prisoner that his
possible for the purpose of proving that an act falling within the silence is unfavorable to him, that it is an indication of his guilt, that in
sanction of the penal law has been committed by such and such consequence thereof he will be regarded as guilt for all the purposes of the
persons. In the plenary stage the purpose is a contradictory discussion summary, and that his silence will be taken into account with all the other
of the question of the guilt or innocence of the defendant, and the evidence against him when the time comes for the rendition of judgment upon
rendition of a judgment of conviction or acquittal. It may well be that him.
although it appear in the summary stage of the proceeding that the act
has been performed by the accused, still in the plenary stage it may Now let us apply the rules of law above indicated to the case in question,
be shown that the act was not really criminal or that there was a lawful supposing that the crime had been committed prior to the passage of the
excuse for its commission. Philippine bill or General Orders, No. 58. The judicial authorities having reason
to believe that some one has been illegally detained or kidnapped proceed to
The record of the summary proceeding should contain evidence of the make a secret investigation of the case, arrest the suspected culprit, and
commission of a punishable act, all possible data tending to point out demand of him that he give any information he may have concerning the act
the delinquent, a record of all proceedings connected with his arrest under investigation and to state whatever may have been his own participation
and imprisonment, the answers of the accused to the interrogatories therein. The evidence shows that some one has been taken away from home
put to him as to any other witness to obtain from him a statement of and has not been heard of again, and the facts point to the prisoner as the
all he knows concerning the crime and those guilty of it. presumptive criminal. He is told to state what he knows of the matter. If he
does so, and proves that the person detained was liberated by him, or that
The record of the proceedings described above was then sent to the such person is living in such and such a place, then the prosecuting attorney
prosecuting attorney, or to the private accuser and in view of the facts which will know that he must draw a charge under the first or following sections of
appeared from the record the prosecution made out the formal charge, the article 481, according to whether the facts elicited by the preliminary or
facts elicited by the proceeding enabling the prosecuting attorney to determine summary investigation show only a detention in general, or for the specific
within what article of the Penal Code the criminal act fell. After the filing of such periods of time indicated in the latter part of the section. But if the prisoner fails
a charge further proceedings were had in which more evidence might be taken to prove the whereabouts of the person whom he is accused of making away
by either party and in which the accused had his opportunity to make a with, or that he liberated him, then the prosecuting attorney has a case falling
defense. within the last paragraph of article 483.

The summary proceeding was secret, but the plenary stage was conducted It follows, therefore, from an examination of the old law that no prosecution
publicly. under this article would have ever been possible without a concomitant
provision of the procedural law which made it the duty of the accused to testify
Article 544 of the royal decree of May 6, 1880, which provided the procedural and permitted the prosecution to draw an unfavorable deduction from his
law applicable in criminal cases in the Islands, reads as follows:

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refusal to do so. The crime defined by article 483 was composed of three To make out a case the Government must show that the prisoner has been
elements: guilty of every act or omission necessary to constitute the crime of which he is
charged, and it will not be disputed that the exercise of an absolute right can
(a) The illegal detention of a person by the accused. not form part of a crime. In this case the Government has proved that the
defendant was guilty of a breach of his duty to respect the rights of others by
(b) Lack of evidence up to the time of the summary investigation that showing that he, with others, carried a certain individual away from his house
this person had recovered his liberty. against his will, the accused not being vested with authority to restrain his
fellow-citizens of liberty. It is impossible for the Government to prove the other
(c) A failure on the part of the accused in the course of the summary elements of the crime, because the acts necessary to constitute them must be
proceeding to prove that he had liberated the person detained, or to anterior in point of time to the trial, and must constitute some breach of duty
give information at that time of his whereabouts, or a refusal to give under an existing law. It has been demonstrated that the omission which,
any evidence at all which left him in the same position as would an under the former law constituted the two remaining elements, is no longer
unsuccessful attempt to prove the facts above mentioned, and which penalized but is nothing more than the exercise of one of the most essential
were necessary to overcome the prima facie case made out by the rights pertaining to an accused person.
proof of the first two elements.
The provision that no one is bound to criminate himself is older than the
Now every one of these ingredients of the offense must exists before an Government of the United States. At an early day it became a part of the
information can be filed for a prosecution under this article. The real trial was common law of England.
the plenary and was very similar to out regular trial after arraignment. But the
summary, with its secret and inquisitorial methods, was vastly different from It was established on the grounds of public policy and humanity — of policy,
our preliminary investigation. If the right had been taken away to question the because if the party were required to testify, it would place the witness under
accused and compel him to testify, then element (c) above indicated, would the strongest temptation to commit the crime of perjury, and of humanity,
have always been lacking. And that right has been taken from the prosecution because it would prevent the extorting of confessions by duress.
by both General Orders, No. 58, and by the guaranty embodied in the
Philippine bill. That being the case the crime defined in article 483 can not now It had its origin in a protest against the inquisitorial methods of interrogating
be committed, because the possibility of adding to the element (a) arising from the accused person, which had long obtained in the continental system.
the act of the accused the other two elements equally essential to the offense (Jones's Law of Evidence, sec. 887; Black's Constitutional Law, 575.)
has been forever swept away by the extension to these Islands of the
constitutional barrier against an inquisitorial investigation of crime. In other words, the very object of adopting this provision of law was to wipe
out such practices as formerly prevailed in these Islands of requiring accused
Under the present system the information must charge the accused with acts persons to submit to judicial examinations, and to get testimony regarding the
committed by him prior to the filing of the information and which of themselves offense with which they were charged.
constitute an offense against the law. The Government can not charge a man
with one of the necessary elements of an offense and trust to his making out In Emery's case (107 Mass., 172) it was said that the principle applies equally
the rest by availing himself of his right to leave the entire burden of prosecuting to any compulsory disclosure of the guilt of the offender himself, whether
on the prosecution from beginning to end. sought directly as the object of the inquiry, or indirectly and incidentally for the
purpose of establishing facts involved in an issue between the parties.
In this case the prosecuting attorney charges the accused with kidnapping
some person and with not having given any information of the whereabouts of
that person, of having proved that he — the accused — has set him at liberty.

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If the disclosure thus made would be capable of being used against him as a Precisely the same of law applies to the case at bar. If the defendant does not
confession of crime, or an admission of facts tending to prove the commission do certain things, if he does not make certain statements or proofs, he is
of an offense, such disclosure would be an accusation against himself. severely punished.

In the present case, if the defendant, as said before disclosed the whereabouts It may be said that the defendant is only required to speak on one point in the
of the person taken, or shows that he was given his liberty, this disclosure may case, that the prosecution must prove the illegal detention, and that the burden
be used to obtain a conviction under article 481 of the Penal Code. of showing the whereabouts only is put upon the defendant.

The decision of the case of Boyd vs. The United States (116 U. S., 616) is Chief Justice Marshall, in the trial of Aaron Burr, expressed his views on this
authority for the contention in the present case. There the question raised was question as follows:
one of a violation of the revenue laws, it being claimed that false entry of
merchandise had been made, the punishment for which was fixed by law at a Many links frequently compose the chain of testimony which is
fine not exceeding $5,000 nor less than $50, or by imprisonment. necessary to convict an individual of a crime. It appears to the court to
be the true sense of the rule that not witness is compelled to furnish
It became important on the part of the prosecution to show the quality of the any one of them against himself. It is certainly not only a possible but
goods imported. Section 5 of the Revenue Law, passed in June, 1874, a probable case that a witness by declaring a single fact may complete
authorized the district attorney to obtain an order of court requiring the the testimony against himself as entirely as he would by stating every
defendants to produce their invoices, books, papers, etc., to be examined by circumstance which would be required for his conviction. The fact of
the district attorney in order to obtain such evidence as he desired. Such an itself would be unavailing, but all the other facts without it would be
order was served on the defendant. The invoices were produced under insufficient. While that remains concealed in his own bosom he is safe,
protest, the objection being that their introduction in evidence could not be but draw it from thence and he is exposed to a prosecution.1
compelled and that the statute was unconstitutional as it compelled the
defendant to testify against himself. If it be urged that the defendant is not compelled to testify, that he remain mute,
the answer is that, the illegal detention only being proved by the prosecution,
The law provided that for a failure or refusal to produce the invoices the if he does not make certain proof, if he remains mute, then not only the
allegations stated by the district attorney as to what he expected to prove by presumption but the fact of guilt follows as a consequence of his silence, and
them should be taken as confessed, unless the failure of refusal of the such a conclusion is not permitted under American law.
defendant to produce the same shall be explained to the satisfaction of the
court. In the case of the People vs. Courtney (94 N. Y., 490), decided by the court of
appeals of the State of New York, the question to be determined was whether
The court stated that a compulsory production of a man's private papers to or not a law permitting a person charged with crime to testify in his own behalf
establish a criminal charge against himself, or to forfeit his property is was constitutional or not. The law in question provided also that his omission
unconstitutional. or refusal to testify "should create no presumption against him." Judge
Andrews, in rendering the decision of the court, stated: "A law which, while
The law, it is true, only required the defendant to produce the invoices, but it permitting a person accused of a crime to be a witness in his own behalf,
declared that if he did not do so then the allegations which it is affirmed the should at the same time authorize a presumption of guilt from his omission to
district attorney will prove shall be taken as confessed. "This," said the court, testify, would be a law adjudging guilt without evidence, and while it might not
"is tantamount to compelling their production for the prosecution will always be be obnoxious to the constitutional provision against compelling a party in a
sure to state the evidence expected to be derived from them as strongly as the criminal case to give evidence against himself, would be a law reversing the
case will admit of."

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presumption of innocence, and would violate the fundamental principles
binding alike upon the legislature and the courts."

It is the duty of the prosecution, in order to convict one of a crime, to produce


evidence showing guilt beyond a reasonable doubt; and the accused can not
be called upon either by express words or acts to assist in the production of
such evidence; nor should his silence be taken as proof against him. He has
a right to rely on the presumption of innocence until the prosecution proves
him guilty of every element of the crime with which he is charged.

In the language of Mr. Justice Bradley, in the Boyd case, "any compulsory
discovery by extorting the party's oath . . . to convict him of a crime . . . is
contrary to the principles of free government; it is abhorrent to the instincts of
an Englishman; it is abhorrent to the instincts of an American. It may suit the
purposes to despotic power but it can not abide the pure atmosphere of
political liberty and personal freedom."

The judgment of the Court of First Instance is reversed and the defendants are
found guilty of the crime defined and punished by article 482 of the Penal
Code; applying the aggravating circumstance of nocturnity each and every one
of them is condemned to eighteen years of reclusion temporal, with the legal
accessory penalties, and to the payment of the costs of both instances.

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[2] free and rational choice, or impair his capacity for rational judgment would be
sufficient. So is moral coercion "tending to force testimony from the unwilling lips of
EN BANC the defendant" (State v. Wolfe, 266 N.W. 116, 104 ALR 464).

G.R. No. L-29169 August 19, 1968 Same; "Accused, as a prosecution witness" distinguished from "an ordinary
wibness".—An accused, as a prosecution witness, occupies a different tier of
ROGER CHAVEZ, petitioner, protection from an ordinary witness. Whereas an ordinary witness may be compelled
vs. to take the witness stand and claim the privilege as each question requiring an
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE incriminating answer is shot at him (Gonzales v. Secretary of Labor, 94 Phil. 325), an
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF accused may altogether refuse to take the witness stand and refuse to answer any and
MANILA, respondents. all questions (Cabal v. Kapunan, L-19052, Dec. 29, 1962). For, in reality, the purpose
of calling an accused as a witness for the People would be to incriminate him (Navarro,
Constitutional law; Privilege against self-incrimination; Its basis.—The Criminal Procedure, 1960 ed., p. 302). This rule may apply even to a co-defendant in
privilege against self-incrimination is based on the constitutional injunction that "No a joint trial.
person shall be compelled to be a witness against himself" (Sec. 1, No. 18, Art. III,
Phil. Constitution), fully echoed in Section 1, Ru!e 115, Rules of Court where, in all Same; Guide in the interpretation of the constitutional precept.—The guide in
criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a the interpretation of the constitutional precept that the accused shall not be compelled
witness against himself." to furnish evidence against himself "is not the probability of the evidence but it is the
capability of abuse" (Allen v. State, 171 ALR 1138).
Same; Its origin, nature, and purpose.—An early Philippine case
(U.S. v. Navarro, 3 Phil. 143) speaks of this constitutional injunction as "older than the Same; Waiver of the privilege against self-incrimination; Meaning; When
Government of the United States;" as having "its origin in a protest against the waiver is effective.—A waiver is ordinarily an intentional relinquishment or
inquisitorial methods of interrogating the accused person," and as having been adopted abandonment of a known right or privilege. To be effective, a waiver must be certain
in the Philippines" to wipe out such practices as formerly prevailed in these Islands of and unequivocal, and intelligently, understandably, and willinglymade; such waiver
requiring accused persons to submit to judicial examinations, and to give testimonies follows only where liberty of choice has been fully accorded. After a claim a witness
regarding the offenses with which they were charged." The rule positively intends to cannot properly be held to have waived his privilege on vague and uncertain evidence.
avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish It has been pointed out that courts indulge every reasonable presumption against
the missing evidence necessary for his conviction." This rule, otherwise stated, is the waiver of fundamental constitutional rights and that we do not presume acquiescence
constitutional right of the accused to remain silent. in the loss of fundamental rights.

So it is then that this right is not merely a formal technical rule the enforcement Same; Effect of violation of constitutional right to be represented by counsel—
of which is left to the discretion 01 the court; it is mandatory; it secures to a defendant upon the jurisdiction of the trial court.—A court's jurisdiction at the beginning of trial
a valuable and substantive right (14 Am. Jur. 869); it is fundamental to our scheme of may be lost in the course of the proceedings due to failure to complete the court—by
justice. Mr. Justice Harlan warned that "the constitutional privilege was intended to providing counsel for an accused who is unable to obtain counsel, who has not
shield the guilty and imprudent as well as the innocent and foresighted" intelligently waived this constitutional guaranty, and whose life or liberty is at stake.
(Marchetti v. United States, U.S. Supreme Court, No. 2-October Term, 1967, Jan. 29, If this requirement is not complied with, the court no longer has jurisdiction to proceed.
1968).
Remedial law; Habeas corpus; Remedy of an accused who is illegally
Same; Concept of compulsion.—Compulsion as it is understood here does not confined.—Section 1 of Rule 102 extends the writ of habeas corpus, unless otherwise
necessarily connote the use of violence; it may be the product of unintentional expressly provided by law, "to all cases of illegal confinement or detention by which
statements. Pressure which operates to overbear his will, disable him from making a any person is deprived of his liberty, or by which the rightful custody of any person is

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withheld from the person entitled thereto." Habeas corpus is a high prerogative writ. Upon arraignment, all the accused, except the three Does who have not been
It is traditionally considered as an exceptional remedy to release a person whose liberty identified nor apprehended, pleaded not guilty.1äwphï1.ñët
is illegally restrained such as when the accused's constitutional rights are disregarded.
Such defect results in the absence or loss of jurisdiction and therefore invalidates the On July 23, 1963, trial commenced before the judge presiding Branch IX of the
trial and the consequent conviction of the accused whose fundamental right was Court of First Instance of Rizal in Quezon City.
violated. That void judgment of conviction may challenged by collateral attack, which
precisely is the function of habeas corpus. This writ may issue even if another remedy The trial opened with the following dialogue, which for the great bearing it has
which is less effective may be availed of by the defendant. Thus, failure by the accused on this case, is here reproduced:.
to perfect his appeal before the Court of Appeals does not preclude a recourse to the
writ. The writ may be granted upon a judgment already final. COURT:

ORIGINAL and supplementary petitions in the Supreme Court. Mandamus and The parties may proceed.
habeas corpus.
FISCAL GRECIA:
SANCHEZ, J.:
Our first witness is Roger Chavez [one of the accused].
The thrust of petitioner's case presented in his original and supplementary
petitions invoking jurisdiction of this Court is that he is entitled, on habeas ATTY. CARBON [Counsel for petitioner Chavez]:
corpus, to be freed from imprisonment upon the ground that in the trial which
I am quite taken by surprise, as counsel for the accused Roger
resulted in his conviction1 he was denied his constitutional right not to be
Chavez, with this move of the Fiscal in presenting him as his witness. I
compelled to testify against himself. There is his prayer, too, that, should he
object.
fail in this, he be granted the alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals dismissing his appeal for failure to
COURT:
file brief, and of mandamus to direct the said court to forward his appeal to this
Court for the reason that he was raising purely questions of law. On what ground, counsel? .

The indictment in the court below — the third amended information — upon ATTY. CARBON:
which the judgment of conviction herein challenged was rendered, was for
qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH- On the ground that I have to confer with my client. It is really surprising
143003, with Plate No. H-16648 Pasay City '62 together with its accessories that at this stage, without my being notified by the Fiscal, my client is
worth P22,200.00. Accused were the following: Petitioner herein, Roger being presented as witness for the prosecution. I want to say in
Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. passing that it is only at this very moment that I come to know about
Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis this strategy of the prosecution.
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter
Doe, Charlie Doe and Paul Doe.2 COURT (To the Fiscal):

Averred in the aforesaid information was that on or about the 14th day of You are not withdrawing the information against the accused Roger
November, 1962, in Quezon City, the accused conspired, with intent of gain, Chavez by making [him a] state witness?.
abuse of confidence and without the consent of the owner thereof, Dy Sun
Hiok y Lim, in asporting the motor vehicle above-described. FISCAL GRECIA:

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I am not making him as state witness, Your Honor. him if and when the court feels that the answer of this witness to the
I am only presenting him as an ordinary witness. question would incriminate him.

ATTY. CARBON: Counsel has all the assurance that the court will not require the
witness to answer questions which would incriminate him.
As a matter of right, because it will incriminate my client, I object.
But surely, counsel could not object to have the accused called on the
COURT: witnessstand.

The Court will give counsel for Roger Chavez fifteen minutes within ATTY. CARBON:
which to confer and explain to his client about the giving of his
testimony. I submit.

xxx xxx xxx xxx xxx xxx

COURT: [after the recess] ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

Are the parties ready? . MAY IT PLEASE THE COURT:

FISCAL: This incident of the accused Roger Chavez being called to testify for
the prosecution is something so sudden that has come to the
We are ready to call on our first witness, Roger Chavez. knowledge of this counsel.

ATTY. CARBON: This representation has been apprised of the witnesses embraced in
the information.
As per understanding, the proceeding was suspended in order to
enable me to confer with my client. For which reason I pray this court that I be given at least some days
to meet whatever testimony this witness will bring about. I therefore
I conferred with my client and he assured me that he will not testify for move for postponement of today's hearing.
the prosecution this morning after I have explained to him the
consequences of what will transpire. COURT:

COURT: The court will give counsel time within which to prepare his cross-
examination of this witness.
What he will testify to does not necessarily incriminate him, counsel.
ATTY. CRUZ:
And there is the right of the prosecution to ask anybody to act as
witness on the witness-stand including the accused. I labored under the impression that the witnesses for the prosecution
in this criminal case are those only listed in the information.
If there should be any question that is incriminating then that is the
time for counsel to interpose his objection and the court will sustain I did not know until this morning that one of the accused will testify as
witness for the prosecution.

Page 9 of 73
COURT: COURT: The Fiscal may proceed.3

That's the reason why the court will go along with counsels for the And so did the trial proceed. It began with the "direct examination" of Roger
accused and will give them time within which to prepare for their cross- Chavez by "Fiscal Grecia".
examination of this witness.
Came the judgment of February 1, 1965. The version of the prosecution as
The court will not defer the taking of the direct examination of the found by the court below may be briefly narrated as follows:
witness.
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a
Call the witness to the witness stand. Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor
Romeo Vasquez) in mind, whom he knew was in the market for such a car,
EVIDENCE FOR THE PROSECUTION Chavez asked Lee whether his car was for sale. Lee answered affirmatively
and left his address with Chavez. Then, on November 12, Chavez met
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, Sumilang at a barbershop informed him about the Thunderbird. But Sumilang
presently detained at the Manila Police Department headquarters, said that he had changed his mind about buying a new car. Instead, he told
after being duly sworn according to law, declared as follows: Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an
indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see
ATTY. IBASCO [Counsel for defendant Luis Asistio]: Luis Asistio, who he knew was lending money on car mortgages and who, on
one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car.
WITH THE LEAVE OF THE COURT: Asistio however told the two that he had a better idea on how to raise the
money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy
This witness, Roger Chavez is one of the accused in this case No. Q-
movie star, introduce him as a buyer to someone who was selling a car and,
5311.
after the deed of sale is signed, by trickery to run away with the car. Asistio
would then register it, sell it to a third person for a profit. Chavez known to be
The information alleges conspiracy. Under Rule 123, Section 12, it
a car agent was included in the plan. He furnished the name of Johnson Lee
states:
who was selling his Thunderbird. 1äwphï1.ñët
'The act or declaration of a conspirator relating to the conspiracy and
In the morning of November 14, Chavez telephoned Johnson Lee and
during its existence, may be given in evidence against the co-
arranged for an appointment. Sometime in the afternoon. Chavez and
conspirator after the conspiracy is shown by evidence other than such
Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced
act or declaration.'
as the interested buyer. Sumilang's driver inspected the car, took the wheel for
COURT: a while. After Sumilang and Lee agreed on the purchase price (P21.000.00),
they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name
That is premature, counsel. Neither the court nor counsels for the the car was registered. Thereafter, they went to see a lawyer notary public in
accused know what the prosecution eventsto establish by calling this Quezon City, known to Chavez for the drafting of the deed of sale. After the
witness to the witness stand. deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun
Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses
ATTY. IBASCO: thereto.

I submit.

Page 10 of 73
As payment was to be made at Eugene's restaurant in Quezon City, all of them long as the check would be left with them and Sumilang would sign a
then drove in the Thunderbird car to that place. The deed of sale and other promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez
papers remained in the pockets of Johnson Lee. picked up the money the next day. Four or five days afterwards, Chavez
returned P4,000.00 to Sumilang because P6,000.00 was enough for the
At Eugene's, a man approached Sumilang with a note which stated that the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
money was ready at the Dalisay Theater. Sumilang then wrote on the same
note that the money should be brought to the restaurant. At the same time he About the end of October or at the beginning of November, Chavez asked
requested Lee to exhibit the deed of sale of the car to the note bearer.4 Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and
Cailles, with a note requesting that they accommodate him once more. He also
Then, the two Chinese were left alone in the restaurant. For Sumilang, who sent a check, again without funds. Baltazar gave the money after verifying the
had left the table to pose for pictures with some fans and come back, again authenticity of the note.
left never to return. So did Chavez, who disappeared after he left on the pretext
of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. On November 14, Chavez appeared at Sumilang's house with the news that
They went out to the place where the Thunderbird was parked, found that it the car was ready if Sumilang was ready with the rest of the money. So
was gone. They then immediately reported its loss to the police. Much later, Sumilang got P9,000.00 from his mother and another P4,000.00 from his
the NBI recovered the already repainted car and impounded it. aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the
balance upon the car's delivery. It was then that Chavez told Sumilang that the
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged car was already bought by a Chinese who would be the vendor.
that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak
monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash The purchase price finally agreed upon between Sumilang and Johnson Lee
and a golf set worth P800.00 as the latter's share in the transaction. On the was P21,000.00, plus P500.00 agents commission at the expense of the
14th of November, the registration of the car was transferred in the name of buyer. Sumilang told Lee that he already paid part of the price to Chavez.
Sumilang in Cavite City, and three days later, in the name of Asistio in
Caloocan. At Eugene's, Chavez asked Sumilang for the balance. Sumilang
accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the
From the court's decision, Ricardo Sumilang's version, corroborated in part by course of their conversation at the bar, Sumilang mentioned the proposed
Asistio, may be condensed as follows: transaction thru Chavez. Pascual warned that Chavez was a "smart" agent
and advised that Sumilang should have a receipt for his money. A certain
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.
station. The latter informed him that there was a Thunderbird from Clark Field
for sale for a price between P20,000.00 and P22,000.00. Chavez said that it After Sumilang returned from posing for some photographs with some of his
could be held for him with a down payment of P10,000.00. fans, Bimbo showed him the receipt already signed by Chavez. Sumilang
requested Pascual and Bimbo to sign the receipt as witnesses. And they did.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of This receipt was offered as an exhibit by the prosecution and by Sumilang.
a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as
a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him
then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay the deed of sale, the registration papers and the keys to the car. After shaking
City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked hands with Lee, Sumilang drove away in the car with his driver at the wheel.
the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on
condition that it should not be cashed immediately as there were not enough Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his
funds therefor. Baltazar and Cailles agreed to give the money the nextday as way to a film shooting at Bulacan. He saw Asistio with many companions.

Page 11 of 73
Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him penalty of not less than ten (10) years, one (1) day, as minimum and not more
for P22,500.00. As the offer was good, and knowing Asistio's and his friends' than fourteen (14) years, eight (8) months and one (1) day as maximum, to
reputation for always getting what they wanted, Sumilang consented to the indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
sale. Asistio tendered a down payment of P1,000.00; the balance he promised subsidiary imprisonment in case of insolvency, to undergo the accessory
to pay the next day after negotiating with some financing company. Before said penalties prescribed by law, and to pay the costs. The Thunderbird car then in
balance could be paid, the car was impounded. the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of P1,000.00 unless the latter
The trial court gave evidence to Sumilang's averment, strengthened by chose to pay P21,500.00, representing the balance of the contract price for
Baltazar's and Cailles' corroborations, that he paid good money for the car. the car.
Sumilang was thus cleared. So was Asistio whom the trial court believed to be
a mere buyer of the car. And so, the prosecution's theory of conspiracy was The foregoing sentence was promulgated on March 8, 1965. Roger Chavez
discounted. appealed to the Court of Appeals.

As to the other accused, the court found no case against Pedro On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez,
Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" counsel for Roger Chavez, to show cause within ten days from notice why
Pascual was also acquitted for in the first place he was not identified by Chavez' appeal should not be considered abandoned and dismissed. Reason
Johnson Lee in court. for this is that said lawyer received notice to file brief on December 28, 1967
and the period for the filing thereof lapsed on January 27, 1968 without any
As to Roger Chavez, however, the court had this to say: "Roger Chavez does brief having been filed.
not offer any defense. As a matter of fact, his testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt."5 The trial court On May 13, 1968, Atty. Marquez registered a detailed written explanation. She
branded him "a self-confessed culprit".6 The court further continued: also stated that if she were allowed to file appellant's brief she would go along
with the factual findings of the court below but will show however that its
It is not improbable that true to the saying that misery loves company conclusion is erroneous.8
Roger Chavez tried to drag his co-accused down with him by
coloring his story with fabrications which he expected would easily On May 14, 1968, the Court of Appeals, despite the foregoing explanation,
stick together what with the newspaper notoriety of one and the resolved to dismiss the appeal. A move to reconsider was unavailing. For, on
sensationalism caused by the other. But Roger June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed
Chavez' accusations of Asistio's participation is utterly to maintain its May 14 resolution dismissing the appeal, directed the City
uncorroborated. And coming, as it does, from a man who has had at Warden of Manila where Chavez is confined by virtue of the warrant of arrest
least two convictions for acts not very different from those charged in issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons
this information, the Court would be too gullible if it were to give full pending execution of the judgment below, and ordered remand of the case to
credence to his words even if they concerned a man no less notorious the Quezon City court for execution of judgment.
than himself.7
It was at this stage that the present proceedings were commenced in this
The trial court then came to the conclusion that if Johnson Lee was not paid Court.
for his car, he had no one but Roger Chavez to blame.
Upon the petitions, the return, and the reply, and after hearing on oral
The sum of all these is that the trial court freed all the accused except Roger arguments, we now come to grips with the main problem presented.
Chavez who was found guilty beyond reasonable doubt of the crime
of qualified theft. He was accordingly sentenced to suffer an indeterminate

Page 12 of 73
We concentrate attention on that phase of the issues which relates petitioner's which in England was a mere rule of evidence, became clothed in this country
assertion that he was compelled to testify against himself. For indeed if this with the impregnability of a constitutional enactment." (Brown vs. Walker, 161
one question is resolved in the affirmative, we need not reach the others; in U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive
which case, these should not be pursued here. language, tells us that this maxim was recognized in England in the early days
"in a revolt against the thumbscrew and the rack." 13 An old Philippine case
1. Petitioner's plea on this score rests upon his averment, with proof, of [1904] 14 speaks of this constitutional injunction as "older than the Government
violation of his right — constitutionally entrenched — against self-incrimination. of the United States"; as having "its origin in a protest against the inquisitorial
He asks that the hand of this Court be made to bear down upon his conviction; methods of interrogating the accused person"; and as having been adopted in
that he be relieved of the effects thereof. He asks us to consider the the Philippines "to wipe out such practices as formerly prevailed in these
constitutional injunction that "No person shall be compelled to be a witness Islands of requiring accused persons to submit to judicial examinations, and to
against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, give testimony regarding the offenses with which they were charged."
in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt
from being a witness against himself." . So it is then that this right is "not merely a formal technical rule the enforcement
of which is left to the discretion of the court"; it is mandatory; it secures to a
It has been said that forcing a man to be a witness against himself is at war defendant a valuable and substantive right; 15 it is fundamental to our scheme
with "the fundamentals of a republican government"; 10 that [i]t may suit the of justice. Just a few months ago, the Supreme Court of the United States
purposes of despotic power but it can not abide the pure atmosphere of (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he
political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the constitutional privilege was intended to shield the guilty and imprudent as well
historical background of this constitutional inhibition, thus: " "The maxim Nemo as the innocent and foresighted." 16
tenetur seipsum accusare had its origin in a protest against the inquisitorial
and manifestly unjust methods of interrogating accused persons, which has It is in this context that we say that the constitutional guarantee may not be
long obtained in the continental system, and, until the expulsion of the Stuarts treated with unconcern. To repeat, it is mandatory; it secures to every
from the British throne in 1688, and the erection of additional barriers for the defendant a valuable and substantive right. Tañada and Fernando
protection of the people against the exercise of arbitrary power, was not (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S.
uncommon even in England. While the admissions of confessions of the vs. Navarro, supra, which reaffirms the rule that the constitutional proscription
prisoner, when voluntarily and freely made, have always ranked high in the was established on broad grounds of public policy and humanity; of policy
scale of incriminating evidence, if an accused person be asked to explain his because it would place the witness against the strongest temptation to commit
apparent connection with a crime under investigation, the ease with which the perjury, and of humanity because it would be to extort a confession of truth by
questions put to him may assume an inquisitorial character, the temptation to a kind of duress every species and degree of which the law abhors. 17
press, the witness unduly, to browbeat him if he be timid or reluctant, to push
him into a corner, and to entrap him into fatal contradictions, which is so Therefore, the court may not extract from a defendant's own lips and against
painfully evident in many of the earlier state trials, notably in those of Sir his will an admission of his guilt. Nor may a court as much as resort to
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so compulsory disclosure, directly or indirectly, of facts usable against him as a
odious as to give rise to a demand for its total abolition. The change in the confession of the crime or the tendency of which is to prove the commission
English criminal procedure in that particular seems to be founded upon no of a crime. Because, it is his right to forego testimony, to remain silent, unless
statute and no judicial opinion, but upon a general and silent acquiescence of he chooses to take the witness stand — with undiluted, unfettered exercise of
the courts in a popular demand. But, however adopted, it has become firmly his own free, genuine will.
embedded in English, as well as in American jurisprudence. So deeply did the
iniquities of the ancient system impress themselves upon the minds of the Compulsion as it is understood here does not necessarily connote the use of
American colonists that the states, with one accord, made a denial of the right violence; it may be the product of unintentional statements. Pressure which
to question an accused person a part of their fundamental law, so that a maxim operates to overbear his will, disable him from making a free and rational

Page 13 of 73
choice, or impair his capacity for rational judgment would in our opinion be If there should be any question that is incriminating then that is the
sufficient. So is moral coercion "tending to force testimony from the unwilling time for counsel to interpose his objection and the court will sustain
lips of the defendant." 18 him if and when the court feels that the answer of this witness to the
question would incriminate him.
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a
defendant in a criminal case. He was called by the prosecution as the first Counsel has all the assurance that the court will not require the
witness in that case to testify for the People during the first day of trial thereof. witness to answer questions which would incriminate him.
Petitioner objected and invoked the privilege of self-incrimination. This he
broadened by the clear cut statement that he will not testify. But petitioner's But surely, counsel could not object to have the accused called on the
protestations were met with the judge's emphatic statement that it "is the right witness stand.
of the prosecution to ask anybody to act as witness on the witness
stand including the accused," and that defense counsel "could not object to Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I,
have the accused called on the witness stand." The cumulative impact of all 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of
these is that accused-petitioner had to take the stand. He was thus the facts remains concealed within his bosom, he is safe; but draw it from
peremptorily asked to create evidence against himself. The foregoing situation thence, and he is exposed" — to conviction.
molds a solid case for petitioner, backed by the Constitution, the law, and
jurisprudence. The judge's words heretofore quoted — "But surely counsel could not object
to have the accused called on the witness stand" — wielded authority. By those
Petitioner, as accused, occupies a different tier of protection from an ordinary words, petitioner was enveloped by a coercive force; they deprived him of his
witness. Whereas an ordinary witness may be compelled to take the witness will to resist; they foreclosed choice; the realities of human nature tell us that
stand and claim the privilege as each question requiring an incriminating as he took his oath to tell the truth, the whole truth and nothing but the truth,
answer is shot at him, 19 and accused may altogether refuse to take the no genuine consent underlay submission to take the witness stand.
witness stand and refuse to answer any and all questions. 20 For, in reality, the Constitutionally sound consent was absent.
purpose of calling an accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to avoid and prohibit the certainly 3. Prejudice to the accused for having been compelled over his objections to
inhuman procedure of compelling a person "to furnish the missing evidence be a witness for the People is at once apparent. The record discloses that by
necessary for his conviction." 22 This rule may apply even to a co-defendant in leading questions Chavez, the accused, was made to affirm his statement
a joint trial.23 given to the NBI agents on July 17, 1963 at 5:00 o'clock in the
afternoon. 26 And this statement detailed the plan and execution thereof by
And the guide in the interpretation of the constitutional precept that the Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his
accused shall not be compelled to furnish evidence against himself "is not the Thunderbird car. And he himself proceeded to narrate the same anew in open
probability of the evidence but it is the capability of abuse." 24 Thus it is, that it court. He identified the Thunderbird car involved in the case. 27
was undoubtedly erroneous for the trial judge to placate petitioner with these
words:. The decision convicting Roger Chavez was clearly of the view that the case
for the People was built primarily around the admissions of Chavez himself.
What he will testify to does not necessarily incriminate him, counsel. The trial court described Chavez as the "star witness for the prosecution".
Indeed, the damaging facts forged in the decision were drawn directly from the
And there is the right of the prosecution to ask anybody to act as lips of Chavez as a prosecution witness and of course Ricardo Sumilang for
witness on the witness-stand including the accused. the defense. There are the unequivocal statements in the decision that "even
accused Chavez" identified "the very same Thunderbird that Johnson Lee had
offered for sale"; that Chavez "testimony as witness for the prosecution

Page 14 of 73
establishes his guilt beyond reasonable doubt and that Chavez is "a self- 5. The course which petitioner takes is correct. Habeas corpus is a high
confessed culprit". 1äwphï1.ñët prerogative writ. 31 It is traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained such as when the
4. With all these, we have no hesitancy in saying that petitioner was forced to accused's constitutional rights are disregarded. 32 Such defect results in the
testify to incriminate himself, in full breach of his constitutional right to remain absence or loss of jurisdiction 33 and therefore invalidates the trial and the
silent. It cannot be said now that he has waived his right. He did not volunteer consequent conviction of the accused whose fundamental right was
to take the stand and in his own defense; he did not offer himself as a witness; violated. 34 That void judgment of conviction may be challenged by collateral
on the contrary, he claimed the right upon being called to testify. If petitioner attack, which precisely is the function of habeas corpus. 35 This writ may issue
nevertheless answered the questions inspite of his fear of being accused of even if another remedy which is less effective may be availed of by the
perjury or being put under contempt, this circumstance cannot be counted defendant. 36Thus, failure by the accused to perfect his appeal before the
against him. His testimony is not of his own choice. To him it was a case of Court of Appeals does not preclude a recourse to the writ. 37 The writ may be
compelled submission. He was a cowed participant in proceedings before a granted upon a judgment already final. 38 For, as explained in Johnson vs.
judge who possessed the power to put him under contempt had he chosen to Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must
remain silent. Nor could he escape testifying. The court made it abundantly be liberally given effect 40 so as to protect well a person whose liberty is at
clear that his testimony at least on direct examination would be taken right then stake. The propriety of the writ was given the nod in that case, involving a
and thereon the first day of the trial. violation of another constitutional right, in this wise:

It matters not that, after all efforts to stave off petitioner's taking the stand Since the Sixth Amendment constitutionally entitles one charged with
became fruitless, no objections to questions propounded to him were made. crime to the assistance of Counsel, compliance with this constitutional
Here involve is not a mere question of self-incrimination. It is a defendant's mandate is an essential jurisdictional prerequisite to a Federal Court's
constitutional immunity from being called to testify against himself. And the authority. When this right is properly waived, the assistance of
objection made at the beginning is a continuing one. 1äwphï1.ñët Counsel is no longer a necessary element of the Court's jurisdiction to
proceed to conviction and sentence. If the accused, however, is not
There is therefore no waiver of the privilege. “To be effective, a waiver must represented by Counsel and has not competently and intelligently
be certain and unequivocal, and intelligently, understandably, and willingly waived his constitutional right, the Sixth Amendment stands as a
made; such waiver following only where liberty of choice has been fully jurisdictional bar to a valid conviction and sentence depriving him of
accorded. After a claim a witness cannot properly be held to have waived his his liberty. A court's jurisdiction at the beginning of trial may be lost "in
privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. the course of the proceedings" due to failure to complete the court —
Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable as the Sixth Amendment requires — by providing Counsel for an
presumption against waiver" of fundamental constitutional rights and that we accused who is unable to obtain Counsel, who has not intelligently
"do not presume acquiescence in the loss of fundamental rights." A waiver is waived this constitutional guaranty, and whose life or liberty is at stake.
ordinarily an intentional relinquishment or abandonment of a known right or If this requirement of the Sixth Amendment is not complied with, the
privilege." Renuntiatio non praesumitur. court no longer has jurisdiction to proceed. The judgment of conviction
pronounced by a court without jurisdiction is void, and one imprisoned
The foregoing guidelines, juxtaposed with the circumstances of the case thereundermay obtain release of habeas corpus. 41
heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by
his own admission, defendant proved his guilt, still, his original claim remains Under our own Rules of Court, to grant the remedy to the accused Roger
valid. For the privilege, we say again, is a rampart that gives protection - even Chavez whose case presents a clear picture of disregard of a constitutional
to the guilty. 30 right is absolutely proper. Section 1 of Rule 102 extends the writ, unless
otherwise expressly provided by law, "to all cases of illegal confinement or

Page 15 of 73
detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that:
"A void judgment is in legal effect no judgment. By it no rights are divested.
From it no rights can be obtained. Being worthless in itself, all proceedings
founded upon it are equally worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing out of it are void. The parties
attempting to enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and
valid judgment of conviction for another offense. We should guard against the
improvident issuance of an order discharging a petitioner from confinement.
The position we take here is that petitioner herein is entitled to liberty thru
habeas corpus only with respect to Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, under which he was prosecuted and
convicted.

Upon the view we take of this case, judgment is hereby rendered directing the
respondent Warden of the City Jail of Manila or the Director of Prisons or any
other officer or person in custody of petitioner Roger Chavez by reason of the
judgment of the Court of First Instance of Rizal, Quezon City Branch, in
Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al., accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or detained for any cause or reason
other than the said judgment in said Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, in which event the discharge herein
directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Page 16 of 73
[3] Same; Same; Case of Almeda vs. Perez, distinguished.—In Almeda vs. Perez,
L-18428 (August 30, 1962) the theory that, after the filing of respondents’ answer to
EN BANC a petition for forfeiture under Republic Act No. 1379, said petition may not be
amended as to substance pursuant to our rules of criminal procedure, was rejected by
G.R. No. L-19052 December 29, 1962 this Court upon the ground that said forfeiture proceeding is civil in nature. This
doctrine refers, however, to the purely procedural aspect of said proceeding, and has
MANUEL F. CABAL, petitioner, no bearing on the substantial rights of the respondents therein particularly their
vs. constitutional right against self-incrimination.
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF
MANILA, respondents. ORIGINAL PETITION in the Supreme Court. Certiorari and prohibition with
preliminary injunction.
Anti-Graft Law; Forfeiture of Unexplained Wealth; Nature of Forfeiture as
Penalty.—The purpose of the charge against petition is to apply the provisions of The facts are stated in the opinion of the Court.
Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which
authorizes the forfeiture by the State of property of a public officer or employee which CONCEPCION, J.:
is manifestly out of proportion to his salary as such public officer or employee and his
other lawful income and the income from legitimately acquired property. Such This is an original petition for certiorari and prohibition with preliminary
forfeiture has been held, however, to partake of the nature of a penalty. injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of
First Instance of Manila, from further proceeding in Criminal Case No. 60111
Same; Exemption of defendants from obligation to be witness against of said court, and to set aside an order of said respondent, as well as the whole
themselves.—Proceedings for forfeiture of property are deemed criminal or penal and, proceedings in said criminal case. .
hence, the exemption of defendants in criminal cases from the obligation to be witness
against themselves are applicable thereto. On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed
with the Secretary of Nation Defense a letter-complaint charging petitioner
Same; Forfeiture of property in substance is a criminal proceeding for the Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, with
purpose of protection of the rights of the defendant against self-incrimination; Case "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer
of Boyd vs. U.S. and Thurston vs. Clark, cited.—In Boyd vs. U.S. (116 U.S. 616, 29 and gentleman dictatorial tendencies, giving false statements of his as sets
L. ed., 746), it was held that the information, in a proceeding to declare a forfeiture of and liabilities in 1958 and other equally reprehensible acts". On September 6,
certain property because of the evasion of a certain revenue law, “though technically 1961, the President of the Philippines created a committee of five (5)
a civil proceeding, is in substance and effect a criminal one”, and that suits for members, consisting of former Justice Marceliana R. Montemayor, as
penalties and forfeitures are within the reason of criminal proceedings for the purposes Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and
of that portion of the Fifth Amendment of the Constitution of the U.S. which declares Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the
that no person shall be compelled in a criminal case to be a witness against himself. charge of unexplained wealth contained in said letter-complaint and submit its
Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark report and recommendations as soon as possible. At the beginning of the
(107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the investigation, on September 15, 1961, the Committee, upon request of
Fifth Amendment applies ‘‘to all cases in which the action prosecuted is not to complainant Col. Maristela, or considered petitioner herein to take the witness
establish, recover or redress private and civil rights, but to try and punish persons stand and be sworn to as witness for Maristela, in support of his
charged with the commission of public offenses” and “a criminal case is an action, suit aforementioned charge of unexplained wealth. Thereupon, petitioner objected,
or cause instituted to punish an infraction of the criminal laws, and, with this object in personally and through counsel, to said request of Col. Maristela and to the
view, it matters not in what form a statute may clothe it; it is still a criminal case x x aforementioned order of the Committee, invoking his constitutional right
x”.

Page 17 of 73
against self-incrimination. The Committee insisted that petitioner take the This charge, docketed as Criminal Case No. 60111 of said court, was assigned
witness stand and be sworn to, subject to his right to refuse to answer such to Branch XVIII thereof, presided over by respondent Judge. On October 2,
questions as may be incriminatory. This notwithstanding, petitioner 1961, the latter issued an order requiring petitioner to show cause and/or
respectfully refused to be sworn to as a witness to take the witness stand. answer the charge filed against him within ten (10) days. Soon thereafter, or
Hence, in a communication dated September 18, 1961, the Committee on October 4, 1961, petitioner filed with respondent Judge a motion to quash
referred the matter to respondent City Fiscal of Manila, for such action as he the charge and/or order to show cause, upon the ground: (1) that the City
may deem proper. On September 28, 1961, the City Fiscal filed with the Court Fiscal has neither authority nor personality to file said char and the same is
of First Instance of Manila a "charge" reading as follows: null and void, for, if criminal, the charge has been filed without a preliminary
investigation, and, civil, the City Fiscal may not file it, his authority in respect
The undersigned hereby charges Manuel F. Cabal with contempt of civil cases being limited to representing the City of Manila; (2) that the facts
under section 580 of the Revised Administrative Code in relation to charged constitute no offense for section 580 of the Revised Administrative
sections I and 7, Rule 64 of the Rules of Court, committed as follows: Code, upon which the charge is based, violates due process, in that it is vague
and uncertain as regards the offense therein defined and the fine imposable
That on or about September 15, 1961, in the investigation therefor and that it fail to specify whether said offense shall be treated also
conducted at the U.P. Little Theater:, Padre Faura, Manila, by contempt of an inferior court or of a superior court (3) that more than one
the Presidential Committee, which was created by the offense is charged, for the contempt imputed to petitioner is sought to be
President of the Republic of the Philippines in accordance punished as contempt of an inferior court, as contempt of a superior court an
with law to investigate the charges of alleged acquisition by as contempt under section 7 of Rule 64 of the Rules Court; (4) that the
respondent of unexplained wealth and composed of Justice Committee had no power to order an require petitioner to take the witness
Marceliano Montemayor, as Chairman, and Justices stand and be sworn to, upon the request of Col. Maristela, as witness for the
Buenaventura Ocampo and Sotero Cabahug and Generals latter, inasmuch as said order violates petitioner's constitutional right against
Basilio Valdez and Guillermo Francisco, as members, with the self-incrimination.
power, among others, to compel the attendance of witnesses
and take their testimony under oath, respondent who was By resolution dated October 14, 1961. respondent Judge denied said motion
personally present at the time before the Committee in to quash. Thereupon, or on October 20, 1961, petitioner began the present
compliance with a subpoena duly issued to him, did then and action for the purpose adverted to above, alleging that, unless restrained by
there willfully, unlawfully, and contumaciously, without any this court, respondent Judge may summarily punish him for contempt, and that
justifiable cause or reason refusal and fail and still refuses and such action would not be appealable.
fails to obey the lawful order of the Committee to take the
witness stand, be sworn and testify as witness in said In their answer, respondents herein allege, inter alia, that the investigation
investigation, in utter disregard of the lawful authority of the being conducted by the Committee above referred to is administrative, not
Committee and thereby obstructing and degrading the criminal, in nature; that the legal provision relied upon by petitioner in relation
proceedings before said body. to preliminary investigations (Section '08-C, Republic Act No. 409, as
amended by Republic Act No. 1201) is inapplicable to contempt proceedings;
Wherefore, it is respectfully prayed that respondent be summarily that, under section 580 of the Revised Administrative Code. contempt against
adjudged guilty of contempt of the Presidential Committee and an administrative officer is to be dealt with as contempt of a superior court; that
accordingly disciplined as in contempt of court imprisonment until such petitioner herein is charged with only one offense; and that, tinder the
time as he shall obey the subject order of said committee. constitutional guarantee against self-incrimination, petitioner herein may
refuse, not to take the witness stand, but to answer incriminatory questions.

Page 18 of 73
At the outset, it is not disputed that the accused in a criminal case may refuse, Generally speaking, informations for the forfeiture of goods that seek
not only to answer incriminatory questions, but, also, to take the witness stand no judgment of fine or imprisonment against any person are deemed
(3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the to be civil proceedings in rem. Such proceedings are criminal in nature
issue before us boils down to whether or not the proceedings before the to the extent that where the person using the res illegally is the owner
aforementioned Committee is civil or criminal in character. or rightful possessor of it, the forfeiture proceeding is in the nature of
a punishment. They have been held to be so far in the nature criminal
In this connection, it should be noted that, although said Committee was proceedings that a general verdict on several count in an information
created to investigate the administrative charge of unexplained wealth, there is upheld if one count is good. According to the authorities such
seems to be no question that Col. Maristela does not seek the removal of proceedings, where the owner of the property appears, are so far
petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a considered as quasi-criminal proceeding as to relieve the owner from
matter of fact he no longer holds such office. It seems, likewise conceded that being a witness against himself and to prevent the compulsory
the purpose of the charge against petitioner is to apply the provisions of production of his books and papers. ... (23 Am. Jur. 612; emphasis
Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, ours.)
which authorizes the forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his salary as such public Although the contrary view formerly obtained, the late decisions are to
officer or employee and his other lawful income and the income from the effect that suits for forfeitures incurred by the commission of
legitimately acquired property. Such for forfeiture has been held, however, to offenses against the law are so far of quasi-criminal nature as to
partake of the nature of a penalty. be within the reason of criminal proceedings for all purposes of ... that
portion of the Fifth Amendment which declares that no person shall be
In a strict signification, a forfeiture is a divestiture property without compelled in any criminal case to be a witness against himself. .... It
compensation, in consequence of a default an offense, and the term has frequently been held upon constitutional grounds under the
is used in such a sense in this article. A forfeiture, as thus defined, is various State Constitution, that a witness or party called as witness
imposed by way of punishment not by the mere convention of the cannot be made to testify against himself as to matters which would
parties, but by the lawmaking power, to insure a prescribed course of subject his property to forfeiture. At early common law no person could
conduct. It is a method deemed necessary by the legislature to restrain be compelled to testify against himself or to answer any question
the commission of an offense and to aid in the prevention of such a which would have had a tendency to expose his property to
offense. The effect of such a forfeiture is to transfer the title to the a forfeiture or to form a link in a chain of evidence for that purpose, as
specific thing from the owner to the sovereign power (23 Am. Jur. 599) well as to incriminate him. Under this common-law doctrine of
(Emphasis ours.) protection against compulsory disclosures which would tend to subject
the witness to forfeiture, such protection was claimed and availed of
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring in some early American cases without placing the basis of the
of a liability to pay a definite sum of money as the consequence of protection upon constitutional grounds. (23 Am. Jur., 616; emphasis
violating the provisions of some statute or refusal to comply with some ours.)
requirement of law." It may be said to be a penalty imposed for
misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.) Proceedings for forfeitures are generally considered to be civil and in
the nature of proceedings in rem. The statute providing that no
As a consequence, proceedings for forfeiture of proper are deemed criminal judgment or other proceedings in civil cases shall be arrested or
or penal, and, hence, the exemption of defendants in criminal case from the reversed for any defect or want of form is applicable to them. In some
obligation to be witnesses against themselves are applicable thereto. aspects, however, suits for penalties and forfeitures are of quasi-
criminal nature and within the reason of criminal proceedings for all

Page 19 of 73
the purposes of ... that portion of the Fifth Amendment which declares, him to a penalty or forfeiture, where the penalty or forfeiture is imposed
that no person shall be compelled in any criminal case to be a witness as a vindication of the public justice of the state.
against himself. The proceeding is one against the owner, as well as
against the goods; for it is his breach of the laws which has to be In general, both at common law and under a constitution provision
proved to establish the forfeiture and his property is sought to be against compulsory self-incrimination, a person may not be compelled
forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.)lawphil.net to answer any question as a witness which would subject him to a
penalty orforfeiture, or testify in action against him for a penalty.
The rule protecting a person from being compelled to furnish evidence
which would incriminate him exists not only when he is liable criminally The privilege applies where the penalty or forfeiture recoverable, or is
to prosecution and punishment, but also when his answer would tend imposed in vindication of the public justice the state as a statutory fine
to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; or penalty, or a fine or penalty for violation of a municipal ordinance,
emphasis ours.) even though the action or proceeding for its enforcement is not
brought in a criminal court but is prosecuted through the modes of
As already observed, the various constitutions provide that no person procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.)
shall be compelled in any criminal case to be a witness against
himself. This prohibition against compelling a person to take the stand Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the
as a witness against himself applied only to criminal, quasi-criminal, information, in a proceeding to declaration a forfeiture of certain property
and penal proceedings, including a proceeding civil in form for because of the evasion of a certain revenue law, "though technically a civil
forfeiture of property by reason of the commission of an offense, but proceeding is in substance and effect a criminal one", and that suits for
not a proceeding in which the penalty recoverable is civil or remedial penalties and forfeitures are within the reason criminal proceedings for the
in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.) purposes of that portion the Fifth Amendment of the Constitution of the U.S.
which declares that no person shall be compelled in a criminal case to be a
The privilege of a witness not to incriminate himself is not infringed by witness against himself. Similarly, a proceeding for the removal of an officer
merely asking the witness a question which he refuses to answer. The was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in
privilege is simply an option of refusal, and not a prohibition of inquiry. substance criminal, for said portion of the Fifth Amendment applies "to all
A question is not improper merely because the answer may tend to cases in which the action prosecution is not to establish, recover or
incriminate but, where a witness exercises his constitutional right not redress private and civil rights, but to try and punish persons charged with
to answer, a question by counsel as to whether the reason for refusing the commission of public offenses" and "a criminal case is a action, suit or
to answer is because the answer may tend to incriminate the witness cause instituted to punish an infraction the criminal laws, and, with this object
is improper. in view, it matters not in what form a statute may clothe it; it is still a criminal
case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-
The possibility that the examination of the witness will be pursued to 1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an
the extent of requiring self-incrimination will not justify the refusal to extensive examination of pertinent cases, concludes that said constitutional
answer questions. However, where the position of the witness is provision applies whenever the proceeding is not "purely remedial", or
virtually that of an accused on trial, it would appear that he may invoke intended "as a redress for a private grievance", but primarily to punish "a
the privilege in support of a blanket refusal to answer any and all violation of duty or a public wrong and to deter others from offending in
questions. (C.J.S., p. 252; emphasis ours.) likewise manner. ...".

A person may not be compelled to testify in an action against him for We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428
a penalty or to answer any question as a witness which would subject (August 30, 1962) in which the theory that, after the filing of respondents'

Page 20 of 73
answer to a petition for forfeiture under Republic Act No. 1379, said petition
may not be amended as to substance pursuant to our rules of criminal
procedure, was rejected by this Court upon the ground that said forfeiture
proceeding in civil in nature. This doctrine refers, however, to the
purely procedural aspect of said proceeding, and has no bearing the
substantial rights of the respondents therein, particularly their constitutional
right against self-incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby
enjoined permanently from proceeding further in Criminal Case No. 60111 of
the Court of First Instance of Manila. It is so ordered.

Page 21 of 73
[4] APPEAL from a decision of the Court of First Instance of Manila. Montesa, J.

EN BANC

G.R. No. L-25018 May 26, 1969 FERNANDO, J.:

ARSENIO PASCUAL, JR., petitioner-appellee, The broad, all-embracing sweep of the self-incrimination clause,1 whenever
vs. appropriately invoked, has been accorded due recognition by this Court ever
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR since the adoption of the Constitution.2 Bermudez v. Castillo,3 decided in 1937,
GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants. was quite categorical. As we there stated: "This Court is of the opinion that in
order that the constitutional provision under consideration may prove to be a
Constitutional Law; Bill of Rights; Rights of accused; Rights against self- real protection and not a dead letter, it must be given a liberal and broad
incrimination; Applies to administrative proceedings.—The constitutional guarantee interpretation favorable to the person invoking it." As phrased by Justice Laurel
against self-incrimination extends to administrative proceedings which possess a in his concurring opinion: "The provision, as doubtless it was designed, would
criminal or penal aspect. be construed with the utmost liberality in favor of the right of the individual
intended to be served." 4
Same; Same; Same; Same; Same; Applies to administrative hearing against a
doctor.—In an administrative hearing against a medical practitioner for alleged Even more relevant, considering the precise point at issue, is the recent case
malpractice, x x x the x x x Board of Medical Examiners cannot, consistently with the of Cabal v. Kapunan,5where it was held that a respondent in an administrative
self-incrimination clause, compel the person proceeded against to take the witness proceeding under the Anti-Graft Law 6 cannot be required to take the witness
stand without his consent. stand at the instance of the complainant. So it must be in this case, where
petitioner was sustained by the lower court in his plea that he could not be
Same; Same; Same; Same; Same; Same; Reason.—A proceeding for compelled to be the first witness of the complainants, he being the party
malpractice possesses a criminal or penal aspect in the sense that the respondent would proceeded against in an administrative charge for malpractice. That was a
suffer the revocation of correct decision; we affirm it on appeal.

his license as a medical practitioner, for some an even greater deprivation than Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the
forfeiture of property. Court of First Instance of Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical Examiners, now
Same; Same; Same; Same; Extends to right not to take the witness stand.—The respondent-appellant. It was alleged therein that at the initial hearing of an
right against self-incrimination extends not only to the right to refuse to answer administrative case7 for alleged immorality, counsel for complainants
questions put to the accused while on the witness stand, but also to forego testimony, announced that he would present as his first witness herein petitioner-
to remain silent and refuse to take the witness stand when called as a witness by the appellee, who was the respondent in such malpractice charge. Thereupon,
prosecution. petitioner-appellee, through counsel, made of record his objection, relying on
the constitutional right to be exempt from being a witness against himself.
Same; Same; Same; Same; Reason.— Thereason is that, the right against self-
Respondent-appellant, the Board of Examiners, took note of such a plea, at
incrimination, along with other rights granted an accused, stands for a belief that while
the same time stating that at the next scheduled hearing, on February 12,
crime should not go unpunished and that the truth must be revealed, such desirable
1965, petitioner-appellee would be called upon to testify as such witness,
objectives should not be accomplished according to means or methods offensive to the
unless in the meantime he could secure a restraining order from a competent
high sense of respect accorded the human personality.
authority.

Page 22 of 73
Petitioner-appellee then alleged that in thus ruling to compel him to take the Hence this appeal both by respondent Board and intervenors, the Gatbontons.
witness stand, the Board of Examiners was guilty, at the very least, of grave As noted at the outset, we find for the petitioner-appellee.
abuse of discretion for failure to respect the constitutional right against self-
incrimination, the administrative proceeding against him, which could result in 1. We affirm the lower court decision on appeal as it does manifest fealty to
forfeiture or loss of a privilege, being quasi-criminal in character. With his the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for
assertion that he was entitled to the relief demanded consisting of perpetually certiorari and prohibition to annul an order of Judge Kapunan, it appeared that
restraining the respondent Board from compelling him to testify as witness for an administrative charge for unexplained wealth having been filed against
his adversary and his readiness or his willingness to put a bond, he prayed for petitioner under the Anti-Graft Act,9the complainant requested the
a writ of preliminary injunction and after a hearing or trial, for a writ of investigating committee that petitioner be ordered to take the witness stand,
prohibition. which request was granted. Upon petitioner's refusal to be sworn as such
witness, a charge for contempt was filed against him in the sala of respondent
On February 9, 1965, the lower court ordered that a writ of preliminary Judge. He filed a motion to quash and upon its denial, he initiated this
injunction issue against the respondent Board commanding it to refrain from proceeding. We found for the petitioner in accordance with the well-settled
hearing or further proceeding with such an administrative case, to await the principle that "the accused in a criminal case may refuse, not only to answer
judicial disposition of the matter upon petitioner-appellee posting a bond in the incriminatory questions, but, also, to take the witness stand."
amount of P500.00.
It was noted in the opinion penned by the present Chief Justice that while the
The answer of respondent Board, while admitting the facts stressed that it matter referred to an a administrative charge of unexplained wealth, with the
could call petitioner-appellee to the witness stand and interrogate him, the right Anti-Graft Act authorizing the forfeiture of whatever property a public officer or
against self-incrimination being available only when a question calling for an employee may acquire, manifestly out proportion to his salary and his other
incriminating answer is asked of a witness. It further elaborated the matter in lawful income, there is clearly the imposition of a penalty. The proceeding for
the affirmative defenses interposed, stating that petitioner-appellee's remedy forfeiture while administrative in character thus possesses a criminal or penal
is to object once he is in the witness stand, for respondent "a plain, speedy aspect. The case before us is not dissimilar; petitioner would be similarly
and adequate remedy in the ordinary course of law," precluding the issuance disadvantaged. He could suffer not the forfeiture of property but the revocation
of the relief sought. Respondent Board, therefore, denied that it acted with of his license as a medical practitioner, for some an even greater deprivation.
grave abuse of discretion.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to
There was a motion for intervention by Salvador Gatbonton and Enriqueta refer to an American Supreme Court opinion highly persuasive in
Gatbonton, the complainants in the administrative case for malpractice against character. 10 In the language of Justice Douglas: "We conclude ... that the Self-
petitioner-appellee, asking that they be allowed to file an answer as Incrimination Clause of the Fifth Amendment has been absorbed in the
intervenors. Such a motion was granted and an answer in intervention was Fourteenth, that it extends its protection to lawyers as well as to other
duly filed by them on March 23, 1965 sustaining the power of respondent individuals, and that it should not be watered down by imposing the dishonor
Board, which for them is limited to compelling the witness to take the stand, to of disbarment and the deprivation of a livelihood as a price for asserting it." We
be distinguished, in their opinion, from the power to compel a witness to reiterate that such a principle is equally applicable to a proceeding that could
incriminate himself. They likewise alleged that the right against self- possibly result in the loss of the privilege to practice the medical profession.
incrimination cannot be availed of in an administrative hearing.
2. The appeal apparently proceeds on the mistaken assumption by respondent
A decision was rendered by the lower court on August 2, 1965, finding the Board and intervenors-appellants that the constitutional guarantee against
claim of petitioner-appellee to be well-founded and prohibiting respondent self-incrimination should be limited to allowing a witness to object to questions
Board "from compelling the petitioner to act and testify as a witness for the the answers to which could lead to a penal liability being subsequently
complainant in said investigation without his consent and against himself." incurred. It is true that one aspect of such a right, to follow the language of

Page 23 of 73
another American decision, 11 is the protection against "any disclosures which WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.
the witness may reasonably apprehend could be used in a criminal Without pronouncement as to costs.
prosecution or which could lead to other evidence that might be so used." If
that were all there is then it becomes diluted.lawphi1.ñet

The constitutional guarantee protects as well the right to silence. As far back
as 1905, we had occasion to declare: "The accused has a perfect right to
remain silent and his silence cannot be used as a presumption of his
guilt." 12Only last year, in Chavez v. Court of Appeals, 13 speaking through
Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a
defendant "to forego testimony, to remain silent, unless he chooses to take the
witness stand — with undiluted, unfettered exercise of his own free genuine
will."

Why it should be thus is not difficult to discern. The constitutional guarantee,


along with other rights granted an accused, stands for a belief that while crime
should not go unpunished and that the truth must be revealed, such desirable
objectives should not be accomplished according to means or methods
offensive to the high sense of respect accorded the human personality. More
and more in line with the democratic creed, the deference accorded an
individual even those suspected of the most heinous crimes is given due
weight. To quote from Chief Justice Warren, "the constitutional foundation
underlying the privilege is the respect a government ... must accord to the
dignity and integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle
of humanity on which this right is predicated, precluding as it does all resort to
force or compulsion, whether physical or mental, current judicial opinion places
equal emphasis on its identification with the right to privacy. Thus according to
Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause
enables the citizen to create a zone of privacy which government may not force
to surrender to his detriment." 15 So also with the observation of the late Judge
Frank who spoke of "a right to a private enclave where he may lead a private
life. That right is the hallmark of our democracy." 16 In the light of the above, it
could thus clearly appear that no possible objection could be legitimately
raised against the correctness of the decision now on appeal. We hold that in
an administrative hearing against a medical practitioner for alleged
malpractice, respondent Board of Medical Examiners cannot, consistently with
the self-incrimination clause, compel the person proceeded against to take the
witness stand without his consent.

Page 24 of 73
[5]

EN BANC JOHNSON, J.:

G.R. No. 7081 September 7, 1912 This defendant was charged with the crime of rape. The complaint alleged:

THE UNITED STATES, plaintiff-appellee, That on or about September 15, 1910, and before the filing of this
vs. complaint, in the city of Manila, Philippine Islands, the said Tan Teng
TAN TENG, defendant-appellant. did willfully, unlawfully and criminally, and employing force, lie and
have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of
1.RAPE; "ABUSOS DESHONESTOS."—Held: Under the facts stated in the opinion, that age.
the defendant is guilty of the crime of "abusos deshonestos" and that the crime was
committed in the house of the offended party, and that therefore the maximum After hearing the evidence, the Honorable Charles S. Lobingier, judge, found
penalty of the law of six years of prisión correccional and the costs should be the defendant guilty of the offense of abusos deshonestos, as defined and
imposed. 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
2.ID.; ADMISSIBILITY OF EVIDENCE; RIGHT OF ACCUSED.—At the time of the arrest of correccional, and to pay the costs.
the defendant he was apparently suffering from some private disorder. A portion
of the substance was taken and scientifically examined, with the result that such From that sentence the defendant appealed and made the following
substance showed that he was actually suffering from the venereal disease known assignments of error in this court:
as gonorrhea. The result of the scientific examination was offered in evidence,
during the trial of the cause. The defendant objected to the admissibility of such I. The lower court erred in admitting the testimony of the physicians
evidence upon the ground that it was requiring him to give testimony against
about having taken a certain substance from the body of the accused
himself. The objection was overruled upon the ground that "the accused was not while he was confined in jail and regarding the chemical analysis made
compelled to make any admission or answer any questions, and the mere fact that
of the substance to demonstrate the physical condition of the accused
an object found upon his person was examined seems no more to infringe the rule
with reference to a venereal disease.
invoked, than would the introduction of stolen property taken from the person of
a thief."
II. The lower court erred in holding that the complainant was suffering
from a venereal disease produced by contact with a sick man.
The substance was taken from the body of the defendant without his objection. The
examination of the substance was made by competent medical authority and the
III. The court erred in holding that the accused was suffering from a
result showed that the defendant was suffering from said disease. Such evidence
venereal disease.
was clearly admissible. The prohibition against compelling a man in a criminal
cause to be a witness against himself is a prohibition against physical or moral
compulsion to extort communications from him, and not an exclusion of his body IV. The court erred in finding the accused guilty from the evidence.
as evidence, when it may be material. The prohibition contained in the Philippine
Bill (sec. 5) that a person shall not be compelled to be a witness against himself, From an examination of the record it appears that the offended party, Oliva
is simply a prohibition against legal process to extract from the defendant's own Pacomio, a girl seven years of age, was, on the 15th day of September , 1910,
lips, against his will, an admission of his guilt. 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
APPEAL from a judgment of the Court of First Instance of Manila. Lobingier, J. the habit of visiting the house of the sister of the offended party; that Oliva

Page 25 of 73
Pacomio, on the day in question, after having taken a bath, returned to her The offended party testified that the defendant had rested his private parts
room; that the defendant followed her into her room and asked her for some upon hers for some moments. The defendant was found to be suffering from
face powder, which she gave him; that after using some of the face powder gonorrhea. The medical experts who testified agreed that this disease could
upon his private parts he threw the said Oliva upon the floor, placing his private have been communicated from him to her by the contact described. Believing
parts upon hers, and remained in that position for some little time. Several as we do the story told by Oliva, we are forced to the conclusion that the
days later, perhaps a week or two, the sister of Oliva Pacomio discovered that disease with which Oliva was suffering was the result of the illegal and brutal
the latter was suffering from a venereal disease known as gonorrhea. It was conduct of the defendant. Proof, however, that Oliva constructed said
at the time of this discovery that Oliva related to her sister what happened upon obnoxious disease from the defendant is not necessary to show that he is
the morning of the 15th of September. The sister at once put on foot an guilty of the crime. It is only corroborative of the truth of Oliva's declaration.
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 The defendant attempted to prove in the lower court that the prosecution was
defendant was not present at first. later he arrived and Oliva identified him at brought for the purpose of compelling him to pay to the sister of Oliva a certain
once as the one who had attempted to violate her. sum of money.

Upon this information the defendant was arrested and taken to the police The defendant testifed and brought other Chinamen to support his declaration,
station and stripped of his clothing and examined. The policeman who that the sister of Oliva threatened to have him prosecuted if he did not pay her
examined the defendant swore from the venereal disease known as the sum of P60. It seems impossible to believe that the sister, after having
gonorrhea. The policeman took a portion of the substance emitting from the become convinced that Oliva had been outraged in the manner described
body of the defendant and turned it over to the Bureau of Science for the above, would consider for a moment a settlement for the paltry sum of P60.
purpose of having a scientific analysis made of the same. The result of the Honest women do not consent to the violation of their bodies nor those of their
examination showed that the defendant was suffering from gonorrhea. near relatives, for the filthy consideration of mere money.

During the trial the defendant objected strongly to the admissibility of the In the court below the defendant contended that the result of the scientific
testimony of Oliva, on the ground that because of her tender years her examination made by the Bureau of Science of the substance taken from his
testimony should not be given credit. The lower court, after carefully examining body, at or about the time he was arrested, was not admissible in evidence as
her with reference to her ability to understand the nature of an oath, held that proof of the fact that he was suffering from gonorrhea. That to admit such
she had sufficient intelligence and discernment to justify the court in accepting evidence was to compel the defendant to testify against himself. Judge
her testimony with full faith and credit. With the conclusion of the lower court, Lobingier, in discussing that question in his sentence, said:
after reading her declaration, we fully concur. The defense in the lower court
attempted to show that the venereal disease of gonorrhea might be The accused was not compelled to make any admissions or answer
communicated in ways other than by contact such as is described in the any questions, and the mere fact that an object found on his person
present case, and called medical witnesses for the purpose of supporting the was examined: seems no more to infringe the rule invoked, than would
contention. Judge Lobingier, in discussing that question said: the introduction in evidence of stolen property taken from the person
of a thief.
We shall not pursue the refinement of speculation as to whether or not
this disease might, in exceptional cases, arise from other carnal The substance was taken from the body of the defendant without his objection,
contact. The medical experts, as well as the books, agree that in the examination was made by competent medical authority and the result
ordinary cases it arises from that cause, and if this was an exceptional showed that the defendant was suffering from said disease. As was suggested
one, we think it was incumbent upon the defense to bring it within the by Judge Lobingier, had the defendant been found with stolen property upon
exception. his person, there certainly could have been no question had the stolen property

Page 26 of 73
been taken for the purpose of using the same as evidence against him. So In that case also (State vs. Miller) the defendant was required to place his hand
also if the clothing which he wore, by reason of blood stains or otherwise, had upon the wall of the house where the crime was committed, for the purpose of
furnished evidence of the commission of a crime, there certainly could have ascertaining whether or not his hand would have produced the bloody print.
been no objection to taking such for the purpose of using the same as proof. The court said, in discussing that question:
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 It was not erroneous to permit evidence of the coincidence between
as evidence, without violating the rule that a person shall not be required to the hand of the accused and the bloody prints of a hand upon the wall
give testimony against himself. 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
The question presented by the defendant below and repeated in his first him in the house.
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 It may be added that a section of the wall containing the blood prints was
court upon this question, said: 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
But the prohibition of compelling a man in a criminal court to be a in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271). The
witness against himself, is a prohibition of the use of physical or moral defendant caused the prints of the shoes to be made in the sand before the
compulsion, to extort communications from him, not an exclusion of jury, and the witnesses who had observed shoe prints in the sand at the place
his body as evidence, when it may be material. The objection, in of the commission of the crime were permitted to compare them with what the
principle, would forbid a jury (court) to look at a person and compare had observed at that place.
his features with a photograph in proof. Moreover we are not
considering how far a court would go in compelling a man to exhibit In that case also the clothing of the defendant was used as evidence against
himself, for when he is exhibited, whether voluntarily or by order, even him.
if the order goes too far, the evidence if material, is competent.
To admit the doctrine contended for by the appellant might exclude the
The question which we are discussing was also discussed by the supreme testimony of a physician or a medical expert who had been appointed to make
court of the State of New Jersey, in the case of State vs. Miller (71 N.J. law observations of a person who plead insanity as a defense, where such medical
Reports, 527). In that case the court said, speaking through its chancellor: 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
It was not erroneous to permit the physician of the jail in which the doctrine contended for by the appellants would also prevent the courts from
accused was confined, to testify to wounds observed by him on the making an examination of the body of the defendant where serious personal
back of the hands of the accused, although he also testified that he injuries were alleged to have been received by him. The right of the courts in
had the accused removed to a room in another part of the jail and such cases to require an exhibit of the injured parts of the body has been
divested of his clothing. The observation made by the witness of the established by a long line of decisions.
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 The prohibition contained in section 5 of the Philippine Bill that a person shall
removal of the clothes had been forcible and the wounds had been not be compelled to be a witness against himself, is simply a prohibition
thus exposed, it seems that the evidence of their character and against legal process to extract from the defendant's own lips, against his will,
appearance would not have been objectionable. an admission of his guilt.

Page 27 of 73
Mr. Wigmore, in his valuable work on evidence, in discussing the question We believe that the evidence clearly shows that the defendant was suffering
before us, said: 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
If, in other words, it (the rule) created inviolability not only for his present it is always difficult to secure positive and direct proof. Such crimes as
[physical control] in whatever form exercised, then it would be possible the present are generally proved by circumstantial evidence. In cases of rape
for a guilty person to shut himself up in his house, with all the tools the courts of law require corroborative proof, for the reason that such crimes
and indicia of his crime, and defy the authority of the law to employ in are generally committed in secret. In the present case, taking into account the
evidence anything that might be obtained by forcibly overthrowing his number and credibility of the witnesses, their interest and attitude on the
possession and compelling the surrender of the evidential articles — witness stand, their manner of testifying and the general circumstances
a clear reductio ad absurdum. In other words, it is not merely surrounding the witnesses, including the fact that both parties were found to
compulsion that is the kernel of the privilege, . . . but testimonial be suffering from a common disease, we are of the opinion that the defendant
compulsion. (4 Wigmore, sec. 2263.) 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
The main purpose of the provision of the Philippine Bill is to prohibit 439 of the Penal Code makes him guilty of the crime of "abusos
compulsory oral examination of prisoners before trial. or upon trial, for the deshonestos," and taking into consideration the fact that the crime which the
purpose of extorting unwilling confessions or declarations implicating them in defendant committed was done in the house where Oliva Pacomio was living,
the commission of a crime. (People vs. Gardner, 144 N. Y., 119.) 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.
The doctrine contended for by appellant would prohibit courts from looking at Therefore let a judgment be entered modifying the sentence of the lower court
the fact of a defendant even, for the purpose of disclosing his identity. Such and sentencing the defendant to be imprisoned for a period of six years
an application of the prohibition under discussion certainly could not be of prision correccional, and to pay the costs. So ordered.
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.

Page 28 of 73
[6] examination (Bradford vs. People, 43 Pacific Reporter, 1013), and to make him
EN BANC write his name with his consent during the trial of his case (Sprouse vs. Com., 81
Va., 374, 378); but in the first case, the defendant, in testifying as witness in his
G.R. No. 32025 September 23, 1929 own behalf waived his constitutional privilege not to be compelled to act as
witness; and in the second, he also waived said privilege because he acted
voluntarily.
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO 5.ID. ; ID. ; PREPARATION AND CREATION OF EVIDENCE BY
JOSE, Provincial Fiscal of Isabela,respondents. TESTIMONIAL ACT.—This constitutional prohibition embraces the
compulsory preparation and creation by a witness of self-incriminatory evidence
by means of a testimonial act. "For though the disclosure thus sought" (the
1.CRIMINAL PROCEDURE; COMPULSORY APPEARANCE OF production of documents and chattels) "be not oral in form, and though the
WITNESSES AT FlSCAL'S INVESTIGATIONS; REFUSAL OF WlTNESS TO documents or chattels be already in existence and not desired to be first written
WRITE FROM DICTATION.—The fiscal under section 1687 of the and created by a testimonial act or utterance of the person in response to the
Administrative Code, and the competent judge, at the request of the fiscal, may process, still no line can be drawn short of any process which treats him as a
compel witnesses to be present at the investigation of any crime or misdemeanor. witness; because in virtue of it he would be at any time liable to make oath to the
But this power must be exercised without prejudice to the constitutional rights of identity or authenticity or origin of the articles produced." (4 Wigmore on
persons cited to appear. The petitioner, in refusing to write down what the fiscal Evidence 864', 865, latest edition.) In the case before us, writing is something
had to dictate to him for the purpose of verifying his handwriting and determining more than moving the body, or hand, or fingers; writing is not a purely mechanical
whether he had written certain documents alleged to have been falsified, seeks act; it requires the application of intelligence and attention; writing means for the
protection—his constitutional privilege. petitioner here to furnish, through a testimonial act, evidence against himself.

2.ID.; RIGHTS OF DEFENDANT; TEXT OF CONSTITUTIONAL 6.ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE, REASON FOR
PROVISION.—This right was promulgated, both in the Organic Law of the EXISTENCE OF.—It cannot be contended in the present case that if permission
Philippines of July 1, 1902 and in paragraph 3, section 3 of the Jones Law, which to obtain a specimen of the petitioner's handwriting is not granted, the crime
provides (in Spanish); "Ni se le obligará (defendant) a declarar en contra suya, would go unpunished. The petitioner is a municipal treasurer, and it should not be
en ningún proceso criminal," and recognized in our Criminal Procedure (General difficult for the fiscal to obtain a genuine specimen of his handwriting by some
Orders, No. 58) in section 15 (No. 4) and section 56. The English text of the Jones other means. But even supposing that it is impossible to secure such specimen
Law reads as follows: "Nor shall he be compelled in any criminal case to be a without resorting to the means herein complained of by the petitioner, that is no
witness against himself," thus, the prohibition is not restricted to not compelling reason for trampling upon a personal right guaranteed by the constitution. It might
him to testify, but extends to not compelling him to be a witness. 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
3.ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE.—"The rights privilege. This constitutional privilege exists for the protection of innocent
intended to be protected by the constitutional provision that no man accused of persons.
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 7.ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-SUMMERS CASE AND
the evidence obscure, that it is the duty of courts liberally to construe the CASE AT BAR.—The difference between this case and that of
prohibition in favor of personal rights, and to refuse to permit any steps tending Villaflor vs. Summers (41 Phil., 62), is that in the latter the object was to have the
toward their invasion. Hence, there is the well-established doctrine that the petitioner's body examined by physicians, without being compelled to perform a
constitutional inhibition is directed not merely to giving of oral testimony, but positive act, but only an omission, that is, not to prevent the examination, which
embraces as well the furnishing of evidence by other means than by word of could be, and was, interpreted by this court as being no compulsion of the
mouth, the divulging, in short, of any fact which the accused has a right to hold petitioner to furnish evidence by means of a testimonial act; all of which is entirely
secret." (28 R. C. L., par. 20, page 434, and notes.) different from the case at bar, where it is sought to make the petitioner perform a
positive testimonial act, silent, indeed, but effective, namely, to write and give a
4.ID. ; ID. ; CASES INAPPLICABLE.—There have been cases where it was sample of his handwriting for comparison.
lawful to compel the accused to write in open court while he was under cross-

Page 29 of 73
ORIGINAL ACTION in the Supreme Court. Prohibition. 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
ROMUALDEZ, J.: 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.
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. 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
The order was given upon petition of said fiscal for the purpose of comparing
one constitution from 'testifying', or by another from 'furnishing
the petitioner's handwriting and determining whether or not it is he who wrote
evidence', or by another from 'giving evidence,' or by still another from
certain documents supposed to be falsified.
'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What is
There is no question as to the facts alleged in the complaint filed in these that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.)
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
As to its scope, this privilege is not limited precisely to testimony, but extends
fiscal and later granted by the court below, and again which the instant action
to all giving or furnishing of evidence.
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 The rights intended to be protected by the constitutional provision that
Hong (36 Phil., 735), cited by counsel for the respondents, and in the case of no man accused of crime shall be compelled to be a witness against
Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in question. 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
Of course, the fiscal under section 1687 of the Administrative Code, and the
personal rights, and to refuse to permit any steps tending toward their
proper judge, upon motion of the fiscal, may compel witnesses to be present
invasion. Hence, there is the well-established doctrine that the
at the investigation of any crime or misdemeanor. But this power must be
constitutional inhibition is directed not merely to giving of oral
exercised without prejudice to the constitutional rights of persons cited to
testimony, but embraces as well the furnishing of evidence by other
appear.
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,
And the petitioner, in refusing to perform what the fiscal demanded, seeks page 434 and notes.) (Emphasis ours.)
refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.
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
Therefore, the question raised is to be decided by examining whether the handwriting and determining whether he wrote certain documents supposed
constitutional provision invoked by the petitioner prohibits compulsion to to be falsified, constitutes evidence against himself within the scope and
execute what is enjoined upon him by the order against which these meaning of the constitutional provision under examination.
proceedings were taken.
Whenever the defendant, at the trial of his case, testifying in his own behalf,
Said provision is found in paragraph 3, section 3 of the Jones Law which (in denies that a certain writing or signature is in his own hand, he may on cross-
Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso examination be compelled to write in open court in order that the jury maybe
criminal" and has been incorporated in our Criminal Procedure (General able to compare his handwriting with the one in question.
Orders, No. 58) in section 15 (No. 4 ) and section 56.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013)
As to the extent of the privilege, it should be noted first of all, that the English inasmuch as the defendant, in offering himself as witness in his own behalf,
text of the Jones Law, which is the original one, reads as follows: "Nor shall be waived his personal privileges.
compelled in any criminal case to be a witness against himself."

Page 30 of 73
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the It is true that the eminent Professor Wigmore, in his work cited (volume 4, page
judge asked the defendant to write his name during the hearing, and the latter 878), says:
did so voluntarily.
Measuring or photographing the party is not within the privilege. Nor it
But the cases so resolved cannot be compared to the one now before us. We is the removal or replacement of his garments or shoes. Nor is the
are not concerned here with the defendant, for it does not appear that any requirement that the party move his body to enable the foregoing
information was filed against the petitioner for the supposed falsification, and things to be done. Requiring him to make specimens of handwriting is
still less as it a question of the defendant on trial testifying and under cross- no more than requiring him to move his body . . ." but he cites no case
examination. This is only an investigation prior to the information and with a in support of his last assertion on specimens of handwriting. We note
view to filing it. And let it further be noted that in the case of Sprouse vs. Com., that in the same paragraph 2265, where said authors treats of "Bodily
the defendant performed the act voluntarily. Exhibition." and under preposition "1. A great variety of concrete
illustrations have been ruled upon," he cites many cases, among them
We have also come upon a case wherein the handwriting or the form of writing that of People vs. Molineux (61 N. E., 286) which, as we have seen,
of the defendant was obtained before the criminal action was instituted against has no application to the case at bar because there the defendant
him. We refer to the case of People vs. Molineux (61 Northeastern Reporter, voluntary gave specimens of his handwriting, while here the petitioner
286). refuses to do so and has even instituted these prohibition proceedings
that he may not be compelled to do so.
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 Furthermore, in the case before us, writing is something more than moving the
a specimen of his handwriting. 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
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. determine whether or not he is the falsifier, as the petition of the respondent
The following appears in the body of said decision referred to (page 307 of the 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
volume cited):
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
The defendant had the legal right to refuse to write for Kinsley. He his work cited, says (volume 4, page 864):
preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded from
. . . 2264. Production or Inspection of Documents and Chattels. — 1.
the case. (Emphasis ours.)
It follows that the production of documents or chattels by a person
(whether ordinary witness or party-witness) in response to a
For the reason it was held in the case of First National Bank vs. Robert (41 subpoena, or to a motion to order production, or to other form
Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write of process treating him as a witness ( i.e. as a person appearing
his name, the doctrine being stated as follows: before a tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the privilege; and
The defendant being sworn in his own behalf denied the endorsement. this is universally conceded. (And he cites the case of People vs.
Gardner, 144 N. Y., 119; 38 N.E., 1003)
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 We say that, for the purposes of the constitutional privilege, there is a similarity
would not produce signatures made prior to the note in suit, and between one who is compelled to produce a document, and one who is
whether he would not write his name there in the court. The judge compelled to furnish a specimen of his handwriting, for in both cases, the
excluded all these inquiries, on objection, and it is of these rulings that witness is required to furnish evidence against himself.
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.

Page 31 of 73
And we say that the present case is more serious than that of compelling the that it was the case of the examination of the body by physicians, which could
production of documents or chattels, because here the witness is compelled be and doubtless was interpreted by this court, as being no compulsion of the
to write and create, by means of the act of writing, evidence which does not petitioner therein to furnish evidence by means of testimonial act. In reality she
exist, and which may identify him as the falsifier. And for this reason the same was not compelled to execute any positive act, much less a testimonial act;
eminent author, Professor Wigmore, explaining the matter of the production of she was only enjoined from something preventing the examination; all of which
documents and chattels, in the passage cited, adds: 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
For though the disclosure thus sought be not oral in form, and though and give a specimen of his handwriting for the purpose of comparison.
the documents or chattels be already in existence and not desired to Besides, in the case of Villamor vs. Summers, it was sought to exhibit
be first written and created by testimonial act or utterance of the something already in existence, while in the case at bar, the question deals
person in response to the process, still no line can be drawn short of with something not yet in existence, and it is precisely sought to compel the
any process which treats him as a witness; because in virtue it would petitioner to make, prepare, or produce by this means, evidence not yet in
be at any time liable to make oath to the identity or authenticity or existence; in short, to create this evidence which may seriously incriminate
origin of the articles produced. (Ibid., pp. 864-865.) (Emphasis ours.) him.

It cannot be contended in the present case that if permission to obtain a Similar considerations suggest themselves to us with regard to the case of
specimen of the petitioner's handwriting is not granted, the crime would go United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
unpunished. Considering the circumstance that the petitioner is a municipal not compelled to perform any testimonial act, but to take out of his mouth the
treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal morphine he had there. It was not compelling him to testify or to be a witness
to obtained genuine specimens of his handwriting. But even supposing it is or to furnish, much less make, prepare, or create through a testimonial act,
impossible to obtain specimen or specimens without resorting to the means evidence for his own condemnation.
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 Wherefore, we find the present action well taken, and it is ordered that the
may succeed in evading the hand of justice, but such cases are accidental and respondents and those under their orders desist and abstain absolutely and
do not constitute the raison d' etre of the privilege. This constitutional privilege forever from compelling the petitioner to take down dictation in his handwriting
exists for the protection of innocent persons. for the purpose of submitting the latter for comparison.

With respect to the judgments rendered by this court and cited on behalf of the Without express pronouncement as to costs. So ordered.
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

Page 32 of 73
[7] Same; Same; Same; Same; Same; A mission order is not an essential requisite
FIRST DIVISION for a valid buy-bust operation.—The accused also harps on the fact that there was no
mission order for the buy-bust operation and that there was no investigation report
G.R. No. 110357 August 17, 1994 made after the operation. A mission order is not an essential requisite for a valid buy-
bust operation. The execution of an investigation report is likewise not indispensable
considering further that SPO3 San Jose had testified that he prepared the booking
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, sheet, receipt of property seized, and the affidavit of arrest. To ask that every buy-bust
vs. operation be conducted in a textbook or blue ribbon manner is to ask for too much
CARLOS Y ARELLANO, accused-appellant. from our law enforcers.

Criminal Law; Evidence; Witnesses; Appellate courts will generally not disturb Same; Same; Same; Same; Same; The testimony or identity of the informer may
the findings of the trial court on the credibility of witnesses.—Long settled in criminal be dispensed with if other witnesses had sufficiently established how the crime was
jurisprudence is the rule that when the issue is one of credibility of witnesses, appellate committed.—The defense questions the non-presentation of the informer. There is no
courts will generally not disturb the findings of the trial court, considering that the merit in this objection. The testimony of the informer would at best be corroborative
latter is in a better position to decide the question, having heard the witnesses since the testimonies of Sgt. Latumbo and SPO1 Matundan had sufficiently established
themselves and observed their deportment and manner of testifying during the trial, how the crime was committed. The testimony or identity of the informer may be
unless it has plainly overlooked certain facts of substance and value that, if considered, dispensed with since his narration would be merely corroborative and cumulative with
might affect the result of the case. We do not find any such oversight on the part of the that of the poseur-buyer who was himself presented and who took the witness stand
trial court. for the precise purpose of attesting to the sale of the illegal drug.

Same; Same; Same; Presumption of regularity in the performance of official Same; Same; Bill of Rights; Self-Incrimination; There is no violation of the right
duties; Where the accused was not able to prove that the police officers had any against self-incrimination where the accused was made to undergo an ultraviolet ray
improper or ulterior motive in arresting him, the latter are presumed to have regularly examination.—The defense contends that the right of the accused against self-
performed their official duty.—The NARCOM agents have in their favor the incrimination was violated when he was made to undergo an ultraviolet ray
presumption of regularity in the performance of their official duties. The accused was examination. The defense also argues that Chief Chemist Teresita Alberto failed to
not able to prove that the police officers had any improper or ulterior motive in inform the accused of his right to counsel before subjecting him to the examination.
arresting him. The police officers are thus presumed to have regularly performed their These contentions are without merit. What is prohibited by the constitutional guarantee
official duty in the absence of any evidence to the contrary. against self-incrimination is the use of physical or moral compulsion to extort
communication from the witness, not an inclusion of his body in evidence, when it
Same; Same; Same; Dangerous Drugs Act; Buy-Bust Operations; Frame- may be material. Stated otherwise, it is simply a prohibition against legal process to
Up; An allegation that one has been framed must be proved by clear and convincing extract from the defendant’s own lips, against his will, an admission of guilt.
evidence.—Likewise, his contention that the marked money was wiped on his hands
and pocket was supported by nothing more than his bare allegation. We have stated Same; Same; Same; Right to Counsel; The conduct of an ultraviolet ray
that an allegation that one was framed can be made with ease. That allegation must examination to determine the presence of ultraviolet powder is not considered as
therefore be proved by clear and convincing evidence. The presumption that law custodial investigation warranting the presence of counsel.—Nor can the subjection
enforcers have regularly performed their duties perforce requires that proof of a frame- of the accused’s body to ultraviolet radiation, in order to determine the presence of
up must be strong. ultraviolet powder, be considered a custodial investigation so as to warrant the
presence of counsel.
Same; Same; Same; Same; Same; A prior surveillance is not a prerequisite for
the validity of an entrapment operation.—The accused also assails the fact that there Dangerous Drugs Act; Penalties; The penalty in Sec. 15 of R.A. 6425 is now
was no prior surveillance before the alleged entrapment was effected and contends that based on the quantity of the regulated drugs involved.—The penalty then in Section
this casts doubt on the regularity of the police operation. This contention is untenable. 15 is now based on the quantity of the regulated drugs involved, except where the
A prior surveillance is not a prerequisite for the validity of an entrapment operation. victim is a minor or where the regulated drug involved in any offense under Section
There is no rigid or textbook method of conducting buy-bust operations. Flexibility is 15 is the proximate cause of the death of the victim, in which case the maximum
a trait of good police work. The police officers may decide that time is of the essence penalty prescribed in Section 15 shall be imposed regardless of the quantity of the
and dispense with the need for prior surveillance. regulated drugs involved.

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APPEAL from a decision of the Regional Trial Court of Makati, Br. 136. buyer, and the rest, including the informer, forming the support group. Capt.
Miano gave to Sgt. Latumbo a P100 bill with serial number SN886097 (Exhibit
DAVIDE, JR., J.: "B") and which had been dusted with fluorescent powder to be used in the buy-
bust operation.
In an information filed on 10 May 1991 with the Regional Trial Court (RTC) of
Makati, accused Carlos Tranca y Arellano was charged with the violation of The team, riding in two cars, then proceeded to the target area. At the corner
Section 15, Article III of R.A. No. 6425, as amended, otherwise known as the of Kalayaan Avenue and J.B. Roxas Street, the informer spotted the accused,
Dangerous Drugs Act of 1972. The accusatory portion of the information reads: who was standing in front of a house, and pointed him out to the team
members. The team then circled back and alighted from their vehicles. As
That on or about 07 May 1991, in the Municipality of Makati, Metro planned, Sgt. Latumbo and the informer approached the accused while the
Manila, Philippines, a place within the jurisdiction of the Honorable rest of the team took vantage points so as to observe the operation and close
Court, the above-named accused, without the corresponding license, in at the opportune time.
prescription of being authorized by law, did, then and there, willfully,
unlawfully and feloniously sell, deliver and distribute The informer introduced Sgt. Latumbo to the accused and told the latter that
Methamphetamine Hydrochloride (shabu), which is a regulated drug, his companion was interested in buying shabu. The informer then asked the
in violation of the above-cited law. 1 accused if he had any for sale. The accused answered in the affirmative and
asked for the quantity to be bought. Sgt. Latumbo replied, "Pare, tapatan mo
The case was docketed as Criminal Case No. 2574 and assigned to Branch na lang itong piso ko." (In illegal drug parlance, "piso" means one hundred
136 of the said court. pesos) The accused momentarily left the pair and entered his house. When
the accused emerged, he gave a package (Exhibit "F- 2") to Sgt. Latumbo who
At the trial of the case on its merits after the accused had pleaded not guilty at in turn handed to the accused the P100 marked money. Sgt. Latumbo
his arraignment on 25 October 1991, 2 the prosecution presented as witnesses examined the package he received and upon ascertaining that it was really
for its evidence in chief Sgt. Jose Latumbo of the National Capital Region shabu, gave the pre-arranged signal by scratching his head. Capt. Miano and
NARCOM Unit (NCRNU) with office at Camp Crame, Quezon City, SPO1 the rest of the police officers then closed in on the accused. They introduced
Franciso Matundan, Police Lt. Julita De Villa, and Teresita Alberto, and themselves as NARCOM agents and arrested the accused. Upon interrogation
presented in rebuttal SPO1 Francisco Matundan and SPO3 Albert San Jose. by Capt. Miano, the accused voluntarily surrendered one plastic bag of shabu
The accused took the witness stand and presented his sister, Clarita Cheng, (Exhibit "F-3") and the P100 marked money (Exhibit "B"). The accused was
as his witness. handcuffed and taken to the NARCOM headquarters. 3

Through the testimonies of Sgt. Jose Latumbo and SPO1 Francisco On 7 May 1991, SPO1 Matundan requested Teresita Alberto, the Chief
Matundan, the prosecution established the following facts: Chemist of the Physical Identification Division of the PNP Crime Laboratory
Service at Camp Crame, to examine the person of the accused and a P100
On 6 May 1991 at 11:00 p.m., a "confidential agent" or informer went to the bill with serial number SN886097. She exposed the P100 bill to ultraviolet
office of the NCRNU and proceeded to the desk of their superior, Capt. radiation and found the presence of fluorescent powder thereon. She likewise
Jonathan Miano. Sgt. Jose Latumbo, SPO3 Oliver Tugade, SPO2 Albert San exposed the person of the accused to ultraviolet radiation and discovered
Jose, SPO1 Francisco Matundan, and PO3 Lilia Ochia were summoned by fluorescent powder on his hands, face, and on the opening of the left-side
Capt. Miano to a briefing. The latter told them that the informer had revealed pocket of the white shorts that he was then wearing. The results of her
that a certain "Jon-Jon" (later identified as the accused) was selling shabu examination are contained in her Physical Identification Report No. PI-073-91
along Kalayaan Avenue, Makati, Metro Manila. Capt. Miano then formed a (Exhibit "C"). 4 On the same date, SPO1 Matundan came to the office of Police
buy-bust team with himself as the team leader, Sgt. Latumbo as the poseur- Lt. Julita De Villa, a forensic chemist at the PNP Crime Laboratory Service in

Page 34 of 73
Camp Crame, to deliver specimens consisting of a 0.06-gram substance His handcuffs were then removed and he was brought back to his cell. After
wrapped in aluminum foil (Exhibit "F-2") and a 1.04-gram substance contained thirty minutes, he was brought to the PNP Crime Laboratory for ultraviolet ray
in a plastic bag (Exhibit "F-3"), together with a letter-request (Exhibit "E") examination and then returned to his cell. 6
asking her to examine the two specimens. She subjected both specimens to
three different laboratory tests, viz., chemical examination, thin-layer Clarita Cheng's testimony corroborates that of the accused, his brother. She
chromatograhic examination, and infrared spectrometric record analysis. Both declared that she asked the police officers why they were treating her brother
specimens were confirmed to be methamphetamine hydrochloride (shabu), as like that and told them that if they do not believe him, they should rather just
stated in her Initial Chemistry Report No. D-464-91 dated 7 May 1991 (Exhibit kill him. She wanted to accompany her brother but they would not let her.
"G") and her (Final) Chemistry Report No. D-464-91 (Exhibit "H"). 5 Matundan told her not to worry because her brother would be brought back.
He asked from her P1,000.00 for gasoline which she gave. His brother,
The accused denied the allegations against him and contended that he was however, was never returned. She searched for him and found that he was
framed by the police officers. According to him, on 6 May 1991, he was inside detained at Camp Crame. 7
his house from morning till night with his parents, three sisters (one of whom
is Clarita Cheng), a brother, two nieces, a nephew, his wife, and one of his On rebuttal, SPO3 San Jose and SPO1 Matundan denied that they barged
neighbors. At about 11:40 p.m., while he was fixing his videocassette recorder, into the accused's house and illegally arrested him. SPO1 Matundan denied
he heard a knocking at the front door. He called to ask who was knocking and that he received P1,000.00 from Clarita Cheng. SPO3 San Jose also denied
someone replied, "Joey." As he was busy, he asked his nephew, John David, that he wiped a P100 bill on the accused's hands and pocket while the latter
to open the door. When the latter did so, four men suddenly barged in. He did was detained. 8
not know the men then but he later came to know that they were Police Officers
Latumbo, Matundan, Tugade, and San Jose, who had said that he was "Joey." On 23 March 1993, the trial court promulgated its decision 9 finding the
San Jose grabbed him by the collar and asked if he was "Jon-Jon." He accused guilty as charged and sentencing him to suffer the penalty of life
answered that he was. They told him, "Kung puede kailangan namin ng pera, imprisonment and to pay a fine of P30,000.00.
kaya magturo ka na." He replied that he knew nothing. Capt. Miano, who by
then had appeared, slapped him while San Jose poked a pistol at him and The accused appealed the decision to this Court. He asseverates that the
said, "Kung gusto mo, patayin ka na lang namin." He, together with his parents constitutional presumption of innocence in his favor was not overcome by proof
and the occupants of the house, pleaded with the police officers to stop. He of guilt beyond reasonable doubt.
was then brought out of the house by the men. He wanted to bring his sister,
Clarita Cheng, with him but she was not allowed to board a police vehicle. He After assiduously going over the appellant's brief and the records of this case,
saw Matundan talking to her sister. Although he could not hear what they were we find no reason to overturn the trial court's judgment of conviction.
saying, he noticed his sister giving some money to Matundan. He was first
brought to a damaged building at the Metropolitan along Ayala Avenue, The trial court found the testimony given by the prosecution witnesses to be
Makati, where he was made to alight and talk to Capt. Miano who told him to more credible and logical. It said that the prosecution witnesses "testified
point to someone selling shabu; he answered that he knew no one selling candidly and in a straightforward manner that exuded all the marks of
shabu. After half an hour, he was brought to the NARCOM headquarters at truthfulness." 10
Camp Crame.
Long settled in criminal jurisprudence is the rule that when the issue is one of
At 10:40 a.m. the following day, he was investigated by Matundan. After he credibility of witnesses, appellate courts will generally not disturb the findings
was investigated, he was made to stand up and place his hands behind his of the trial court, considering that the latter is in a better position to decide the
back after which he was handcuffed. Latumbo then got a P100 bill from a question, having heard the witnesses themselves and observed their
drawer and wiped this on the accused's hands and left pocket of his shorts. deportment and manner of testifying during the trial, unless it has plainly

Page 35 of 73
overlooked certain facts of substance and value that, if considered, might operation. A mission order is not an essential requisite for a valid buy-bust
affect the result of the case. 11 We do not find any such oversight on the part operation. The execution of an investigation report is likewise not
of the trial court. indispensable considering further that SPO3 San Jose had testified that he
prepared the booking sheet, receipt of property seized, and the affidavit of
The NARCOM agents have in their favor the presumption of regularity in the arrest. 16 To ask that every buy-bust operation be conducted in a textbook or
performance of their official duties. 12The accused was not able to prove that blue ribbon manner is to ask for too much from our law enforcers.
the police officers had any improper or ulterior motive in arresting him. The
police officers are thus presumed to have regularly performed their official duty The defense questions the non-presentation of the informer. There is no merit
in the absence of any evidence to the contrary. The accused's allegation that in this objection. The testimony of the informer would at best be corroborative
the policemen barged into his house and demanded that he point to anybody since the testimonies of Sgt. Latumbo and SP01 Matundan had sufficiently
selling drugs is somewhat hard to believe. As noted by the trial court: established how the crime was committed. The testimony or identity of the
informer may be dispensed with since his narration would be merely
The . . . version advanced by the accused and his sister is not only by corroborative and cumulative with that of the poseur-buyer who was himself
itself weak and easily contrived, it suffers in logic and cause. Why presented and who took the witness stand for the precise purpose of attesting
would police officers barge into a private dwelling in the middle of the to the sale of the illegal drug. 17
night only to force somebody to inform on unnamed drug dealers?
They could much easier pick somebody on a street at a more The defense contends that the right of the accused against self-incrimination
convenient time when their target is alone and away from his family. was violated when he was made to undergo an ultraviolet ray examination.
And it is not logical that they would do it to extort money from the The defense also argues that Chief Chemist Teresita Alberto failed to inform
accused since by his own testimony none was demanded from the the accused of his right to counsel before subjecting him to the examination.
accused. As such, the defense raised merits scant considerations. 13 These contentions are without merit. What is prohibited by the constitutional
guarantee against self-incrimination is the use of physical or moral compulsion
Likewise, his contention that the marked money was wiped on his hands and to export communication from the witness, not an inclusion of his body in
pocket was supported by nothing more than his bare allegation. We have evidence, when it may be material. 18 Stated otherwise, it is simply a
stated that an allegation that one was framed can be made with ease. That prohibition against legal process to extract from the defendant's own lips,
allegation must therefore be proved by clear and convincing evidence. The against his will, an admission of guilt. 19 Nor can the subjection of the
presumption that law enforcers have regularly performed their duties perforce accused's body to ultraviolet radiation, in order to determine the presence of
requires that proof of a frame-up must be strong. 14 ultraviolet powder, be considered a custodial investigation so as to warrant the
presence of counsel.
The accused also assails the fact that there was not prior surveillance before
the alleged entrapment was effected and contends that this casts doubt on the In fine, we affirm the finding of the trial court that the accused was caught in
regularity of the police operation. This contention is untenable. A prior flagrante selling shabu to the members of the buy-bust team. The penalty
surveillance is not a prerequisite for the validity of an entrapment operation. imposed upon the accused, however, must be modified in view of the new
There is no rigid or textbook method of conducting buy-bust amendments introduced by R.A. No. 7659 20 to Section 15, Article III, and
operations. 15 Flexibility is a trait of good police work. The police officers may Section 20, Article IV of R.A. No. 6425, as amended. R.A. No. 7659 was
decide that time is of the essence and dispense with the need for prior approved on 13 December 1993 and took effect on 31 December 1993. As
surveillance. thus further amended, the penalty prescribed in Section 15 was changed from
"life imprisonment to death and a fine ranging from twenty thousand to thirty
The accused also harps on the fact that there was not mission order for the thousand pesos" to "reclusion perpetua to death and a fine ranging from five
buy-bust operation and that there was no investigation report made after the hundred thousand pesos to ten million pesos." However, pursuant to Section

Page 36 of 73
17 of R.A. No. 7659, which amends Section 20 of R.A. No. 6425, the new reason is that there is an overlapping error, probably through oversight
penalty shall be applied if the quantity of the dangerous drugs involved falls in the drafting, in the provisions on the penalty of reclusion
within the first paragraph of the amended Section 20, and if the quantity would perpetua as shown by its dual imposition, i.e., as the minimum of the
be lower than that specified in said first paragraph, the penalty shall be penalty where the quantity of the dangerous drugs involved is more
from "prision correccional to reclusion perpetua." The pertinent portion of the than those specified in the first paragraph of the amended Section 20
amended Section 20 reads as follows: and also as the maximum of the penalty where the quantity of the
dangerous drugs involved is less than those so specified in the first
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the paragraph.
Proceeds or Instrument of the Crime. — The penalties for offenses
under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 (3) Considering that the aforesaid penalty of prision
and 16 of Article III of this Act shall be applied if the dangerous drugs correccional to reclusion temporal shall depend upon the quantity of
involved is in any of the following quantities: the dangerous drugs involved, each of the component penalties
thereof — prision correccional, prision mayor, and reclusion
xxx xxx xxx temporal — shall be considered as a principal imposable penalty
depending on the quantity, such that the quantity of the drugs
3. 200 grams or more of shabu or methylamphetamine hydrochloride; enumerated in the second paragraph should then be divided into
three, with the resulting quotient, and double or treble the same, as
xxx xxx xxx the bases for determining the appropriate component penalty.

Otherwise, if the quantity involved is less than the foregoing quantities, (4) The modifying circumstances in the Revised Penal Code may be
the penalty shall range fromprision correccional to reclusion appreciated to determine the proper period of the corresponding
perpetua depending upon the quantity. imposable penalty or even to effect its reduction by one or more
degrees; provided, however, that in no case should such graduation
The penalty then in Section 15 is now based on the quantity of the regulated of penalties reduce the imposable penalty lower than prision
drugs involved, except where the victim is a minor or where the regulated drug correccional.
involved in any offense under Section 15 is the proximate cause of the death
of the victim, in which case the maximum penalty prescribed in Section 15 shall (5) In appropriate instances, the Indeterminate Sentence Law shall be
be imposed regardless of the quantity of the regulated drugs involved. 21 applied and considering that R.A. No. 7659 has unqualifiedly adopted
the penalties under the Revised Penal Code with their technical
In People vs. Martin Simon y Sunga, 22 decided on 29 July 1994, this Court signification and effects, then the crimes under the Dangerous Drugs
ruled as follows: Act shall now be considered as crimes punished by the Revised Penal
Code; hence, pursuant to Section 1 of the Indeterminate Sentence
(1) Provisions of R.A. No. 7659 which are favorable to the accused Law, the indeterminate penalty which may be imposed shall be one
shall be given retroactive effect pursuant to Article 22 of the Revised whose maximum shall be within the range of the imposable penalty
Penal Code. and whose minimum shall be within the range of the penalty next lower
in degree to the imposable penalty.
(2) Where the quantity of the dangerous drug involved is less than the
quantities stated in the first paragraph of Section 20 of R.A. No. 6425, With the foregoing as our touchstones, and it appearing from Chemistry Report
the penalty to be imposed shall range from prision No. D-464-91 (Exhibit "H") 23 signed by Police Lt. Julita T. De Villa, PNP
correccional to reclusion temporal, and not reclusion perpetua. The Forensic Chemist, that the quantity of the shabu recoverd from the accused in

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this case is only 1.10 grams, the imposable penalty under the second
paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17
of R.A. No. 7659, should be prision correccional.

Applying the Indeterminate Sentence Law, the accused may then be


sentenced to suffer an indeterminate penalty ranging from six (6) months
of arresto mayor as minimum to six (6) years of prision correccional as
maximum.

WHEREFORE, the challenged decision of Branch 136 of the Regional Trial


Court of Makati in Criminal Case No. 2754 is hereby AFFIRMED subject to the
modification of the penalty. Accused CARLOS TRANCA Y ARELLANO is
hereby sentenced to suffer an indeterminate penalty ranging from six (6)
months of arresto mayor as minimum to six (6) years of prision correccional as
maximum.

Costs against the accused.

SO ORDERED.

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[8] refuse to take the stand does not generally apply to parties in administrative cases or
FIRST DIVISION proceedings. The parties thereto can only refuse to answer if incriminating questions
are propounded. This Court applied the exception—a party who is not an accused in a
G.R. No. 136051 June 8, 2006 criminal case is allowed not to take the witness stand—in administrative cases/
proceedings that partook of the nature of a criminal proceeding or analogous to a
ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. criminal proceeding. It is likewise the opinion of the Court that said exception applies
ROSETE, Petitioners, vs. to parties in civil actions which are criminal in nature. As long as the suit is criminal
JULIANO LIM and LILIA LIM, Respondents. in nature, the party thereto can altogether decline to take the witness stand. It is not the
character of the suit involved but the nature of the proceedings that controls.
DECISION
Actions; Pleadings and Practice; Issues; Issues are joined when all the parties
Criminal Procedure; Rights of the Accused; Self-Incrimination; The right have pleaded their respective theories and the terms of the dispute are plain before the
against self-incrimination is accorded to every person who gives evidence, whether court.—Issues are joined when all the parties have pleaded their respective theories
voluntary or under compulsion of subpoena, in any civil, criminal or administrative and the terms of the dispute are plain before the court. In the present case, the issues
proceeding.—The right against self-incrimination is accorded to every person who have, indeed, been joined when petitioners, as well as the other defendants, filed their
gives evidence, whether voluntary or under compulsion of subpoena, in any civil, answers. The respective claims and defenses of the parties have been defined and the
criminal or administrative proceeding. The right is not to be compelled to be a witness issues to be decided by the trial court have been laid down.
against himself. It secures to a witness, whether he be a party or not, the right to refuse
to answer any particular incriminatory question, i.e., one the answer to which has a PETITION for review on certiorari of the decision and resolution of the Court of
tendency to incriminate him for some crime. However, the right can be claimed only Appeals.
when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a CHICO-NAZARIO, J.:
subpoena, decline to appear before the court at the time appointed, or to refuse to
testify altogether. The witness receiving a subpoena must obey it, appear as required, Before Us is a petition for review on certiorari which seeks to set aside the
take the stand, be sworn and answer questions. It is only when a particular question is Decision1 of the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August
addressed to which may incriminate himself for some offense that he may refuse to 1998 which upheld the Orders of Branch 77 of the Regional Trial Court (RTC)
answer on the strength of the constitutional guaranty. of Quezon City in Civil Case No. Q-95-25803 dated 22 July 19972 and 27
August 1997,3 allowing the taking of deposition upon oral examination of
Same; Same; Same; Under the Rules of Court, in all criminal prosecutions the petitioners Oscar P. Mapalo and Chito P. Rosete, and its Resolution4 dated 19
defendant is entitled among others, to the following.—An accused “occupies a October 1998 denying petitioners’ Motion for Reconsideration.
different tier of protection from an ordinary witness.” Under the Rules of Court, in all
criminal prosecutions the defendant is entitled among others—1) to be exempt from Relevant to the petition are the following antecedents:
being a witness against himself, and 2) to testify as witness in his own behalf; but if
he offers himself as a witness he may be cross-examined as any other witness; On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before
however, his neglect or refusal to be a witness shall not in any manner prejudice or be Branch 77 of the RTC of Quezon City a Complaint for Annulment, Specific
used against him. Performance with Damages against AFP Retirement and Separation Benefits
System (AFP-RSBS), Espreme Realty and Development Corporation
Same; Same; Same; As long as the suit is criminal in nature, the party thereto (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete,
can altogether decline to take the witness stand—it is not the character of the suit Bank of the Philippine Islands (BPI), and Register of Deeds of the Province of
involved but the nature of the proceedings that controls.—It is clear, therefore, that Mindoro Occidental, docketed as Civil Case No. Q-95-25803.5 It asked, among
only an accused in a criminal case can refuse to take the witness stand. The right to

Page 39 of 73
other things, that the Deed of Sale executed by AFP-RSBS covering certain Court.27 Same was denied in an order dated 12 August 1996.28 This denial
parcels of lands in favor of Espreme Realty and the titles thereof under the was appealed to the Court of Appeals on 26 August 1996, which was docketed
name of the latter be annulled; and that the AFP-RSBS and Espreme Realty as CA-G.R. SP No. 41821.29
be ordered to execute the necessary documents to restore ownership and title
of said lands to respondents, and that the Register of Deeds be ordered to Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela)
cancel the titles of said land under the name of Espreme Realty and to transfer on 9 September 1996.30
the same in the names of respondents.
On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral
On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that Examination giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will
the court has no jurisdiction over the subject matter of the action or suit and cause the deposition of petitioners Oscar Mapalo and Chito Rosete.31
that venue has been improperly laid.6 A Supplemental Motion to Dismiss was
filed by petitioner Alfredo P. Rosete on 23 January 1996. 7 Respondents On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection
opposed the Motion to Dismiss filed by petitioners 8 to which petitioners filed to Take Deposition Upon Oral Examination.32 They argued that the deposition
their Reply.9 Respondents filed a Comment on the Reply.10 AFP- may not be taken without leave of court as no answer has yet been served and
RSBS,11Espreme Realty,12 and, BPI13 filed their respective Motions to Dismiss the issues have not yet been joined since their Answer was filed ex abudanti
which respondents opposed. cautela, pending resolution of the Petition for Certiorari challenging the orders
dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss
In an Order dated 12 March 1996, the Motions to Dismiss filed by all the and for Reconsideration, respectively. This is in addition to the fact that they
defendants were denied.14 The Motions for Reconsideration filed by challenged via a Petition for Certiorari before the Court of Appeals the lower
petitioners15 and BPI,16 which respondents opposed,17 were also denied in an court’s Orders dated 23 July 1996 and 12 August 1996 which, respectively,
Order dated 24 May 1996.18 granted respondents’ Motion to Serve Supplemental Allegation Against
Defendants BPI and Chito Rosete, and for the latter to plead thereto, and
On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and denied Chito Rosete’s Motion for Reconsideration of the order dated 23 July
Cross-claim19 to which respondents filed their Reply and Answer to 1996. Moreover, they contend that since there are two criminal cases pending
Counterclaim.20 Respondents also filed a Motion21 to Serve Supplemental before the City Prosecutors of Mandaluyong City and Pasig City involving the
Allegation against BPI and petitioner Chito Rosete which the trial court granted same set of facts as in the present case wherein respondent Juliano Lim is the
in an order dated 28 July 1996.22 private complainant and petitioners are the respondents, to permit the taking
of the deposition would be violative of their right against self-incrimination
On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a because by means of the oral deposition, respondents would seek to establish
Petition23 for Certiorari and Prohibition in the Court of Appeals, docketed as the allegations of fact in the complaint which are also the allegations of fact in
CA-G.R. SP No. 40837, challenging the trial court’s Orders dated 12 March the complaint-affidavits in the said criminal cases.
1996 and 24 May 1996 that denied their Motions to Dismiss and
Reconsideration, respectively.24 They likewise informed the trial court that on Respondents filed their Comment on the Objection to Deposition Taking 33 to
6 June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex Abudanti which petitioners filed their Reply.34
Cautela.26lavvphi1.net
In an Order dated 22 July 1997, the lower court denied petitioners’ motion and
On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order objection to take deposition upon oral examination, and scheduled the taking
granting the Motion to Serve Supplemental Allegation against BPI and him be thereof.35 On 7 August 1997, petitioners filed a Motion for
reconsidered and set aside, and that respondents be ordered to reduce their Reconsideration.36 They filed a Supplemental Motion for Reconsideration on
supplemental allegations in the form and manner required by the Rules of 11 August 1997.37

Page 40 of 73
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or and 27 August 1997 (CA-G.R. SP No. 45400).52 The Motion for
Suspend the Taking of the Deposition Upon Oral Examination.38 Reconsideration53 which was opposed54 by respondents was denied on 19
October 1998.55
In an Order dated 27 August 1997, the lower court denied petitioners’ Motion
for Reconsideration and Supplemental Motion for Reconsideration, and Petitioners assail the ruling of the Court of Appeals via a Petition for Review
scheduled the taking of the Deposition Upon Oral Examination.39 on Certiorari. They anchor their petition on the following grounds:

On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike I.


Out Answer of Defendants Mapalo and Chito Rosete; (2) to Declare
Defendants Mapalo and Chito Rosete In Default; and (3) For Reception of THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
Plaintiffs’ Evidence Ex-parte,40 which petitioners opposed.41 DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997
On 29 September 1997, petitioners filed with the Court of Appeals a Petition THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF
for Certiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY
the lower court dated 22 July 1997 and 27 August 1997.42 THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE
LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR
In an Order dated 29 October 1997, the lower court: (1) ordered the striking DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY
out from the record of the Answer ex abudanti cautela filed by petitioners HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME
Mapalo and Chito Rosete for their continued unjustified refusal to be sworn OR IDENTICAL SET OF FACTS; AND
pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2) declared
defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to II.
present their evidence ex-parte as regards the latter.43 On 25 November 1997,
petitioners filed an Urgent Ex-parte Omnibus Motion (1) For Reconsideration; THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
(2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation of DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
Plaintiffs’ Evidence Ex-parte.44 The day after, petitioners filed an Amended JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997 THAT
Omnibus Motion.45 (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION
NEED NOT BE WITH LEAVE OF COURT BECAUSE AN ANSWER EX
On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte ABUDANTE CAUTELA HAS BEEN FILED; AND (B) JOINDER OF ISSUES IS
Presentation of Evidence46 which the lower court set for 11 December 1997.47 NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 2356 OF THE
RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.
In an Order dated 11 December 1997, the lower court denied petitioners’
urgent ex-parte omnibus motion.48 On even date, the ex-parte presentation of Petitioners argue that the Court of Appeals gravely erred when it found that
evidence against petitioners Mapalo and Chito Rosete was terminated. 49 the trial court did not abuse its discretion when it refused to recognize
petitioners Oscar Mapalo and Chito Rosete’s constitutional right against self-
On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition incrimination when, through its Orders dated 22 July 1997 and 27 August
before the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower 1997, it allowed and scheduled the taking of their depositions by way of oral
court’s Orders dated 29 October 1997 and 11 December 1997.51 examination. They explain they refuse to give their depositions due to the
pendency of two criminal cases against them, namely, Batasan Pambansa
On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari Blg. 22 and Estafa, because their answers would expose them to criminal
and Prohibition, and upheld the Orders of the lower court dated 22 July 1997 action or liability since they would be furnishing evidence against themselves

Page 41 of 73
in said criminal cases. They allege there can be no doubt that the questions to As to an accused in a criminal case, it is settled that he can refuse outright to
be asked during the taking of the deposition would revolve around the take the stand as a witness. In People v. Ayson,58 this Court clarified the rights
allegations in the complaint in the civil case which are identical to the of an accused in the matter of giving testimony or refusing to do so. We said:
allegations in the complaint-affidavits in the two criminal cases, thus, there is
a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover, An accused "occupies a different tier of protection from an ordinary witness."
they explain that while an ordinary witness may be compelled to take the Under the Rules of Court, in all criminal prosecutions the defendant is entitled
witness stand and claim the privilege against self-incrimination as each among others—
question requiring an incriminating answer is shot at him, an accused may
altogether refuse to answer any and all questions because the right against 1) to be exempt from being a witness against himself, and
self-incrimination includes the right to refuse to testify.
2) to testify as witness in his own behalf; but if he offers himself as a
In short, petitioners Mapalo and Chito Rosete refuse to have their depositions witness he may be cross-examined as any other witness; however,
taken in the civil case because they allegedly would be incriminating his neglect or refusal to be a witness shall not in any manner prejudice
themselves in the criminal cases because the testimony that would be elicited or be used against him.
from them may be used in the criminal cases. As defendants in the civil case,
it is their claim that to allow their depositions to be taken would violate their The right of the defendant in a criminal case "to be exempt from being a
constitutional right against self-incrimination because said right includes the witness against himself" signifies that he cannot be compelled to testify or
right to refuse to take the witness stand. produce evidence in the criminal case in which he is the accused, or one of
the accused. He cannot be compelled to do so even by subpoena or other
In order to resolve this issue, we must determine the extent of a person’s right process or order of the Court. He cannot be required to be a witness either for
against self-incrimination. A person’s right against self-incrimination is the prosecution, or for a co-accused, or even for himself. In other words –
enshrined in Section 17, Article III of the 1987 Constitution which reads: "No unlike an ordinary witness (or a party in a civil action) who may be compelled
person shall be compelled to be a witness against himself." to testify by subpoena, having only the right to refuse to answer a particular
incriminatory question at the time it is put to him – the defendant in a criminal
The right against self-incrimination is accorded to every person who gives action can refuse to testify altogether. He can refuse to take the witness stand,
evidence, whether voluntary or under compulsion of subpoena, in any civil, be sworn, answer any question. X x x (Underscoring supplied.)
criminal or administrative proceeding. The right is not to be compelled to be a
witness against himself. It secures to a witness, whether he be a party or not, It is clear, therefore, that only an accused in a criminal case can refuse to take
the right to refuse to answer any particular incriminatory question, i.e., one the the witness stand. The right to refuse to take the stand does not generally
answer to which has a tendency to incriminate him for some crime. However, apply to parties in administrative cases or proceedings. The parties thereto
the right can be claimed only when the specific question, incriminatory in can only refuse to answer if incriminating questions are propounded. This
character, is actually put to the witness. It cannot be claimed at any other time. Court applied the exception – a party who is not an accused in a criminal case
It does not give a witness the right to disregard a subpoena, decline to appear is allowed not to take the witness stand – in administrative cases/proceedings
before the court at the time appointed, or to refuse to testify altogether. The that partook of the nature of a criminal proceeding or analogous to a criminal
witness receiving a subpoena must obey it, appear as required, take the stand, proceeding.59 It is likewise the opinion of the Court that said exception applies
be sworn and answer questions. It is only when a particular question is to parties in civil actions which are criminal in nature. As long as the suit is
addressed to which may incriminate himself for some offense that he may criminal in nature, the party thereto can altogether decline to take the witness
refuse to answer on the strength of the constitutional guaranty.57 stand. It is not the character of the suit involved but the nature of the
proceedings that controls.60

Page 42 of 73
In the Ayson case, it is evident that the Court treats a party in a civil case as upon oral examination or written interrogatories. In the case before us,
an ordinary witness, who can invoke the right against self-incrimination only petitioners contend they have not yet served an answer to respondents
when the incriminating question is propounded. Thus, for a party in a civil case because the answers that they have filed with the trial court were made ex
to possess the right to refuse to take the witness stand, the civil case must abudanti cautela. In other words, they do not consider the answers they filed
also partake of the nature of a criminal proceeding. in court and served on respondents as answers contemplated by the Rules of
Court on the ground that same were filed ex abudanti cautela.
In the present controversy, the case is civil it being a suit for Annulment,
Specific Performance with Damages. In order for petitioners to exercise the We find petitioners’ contention to be untenable. Ex abudanti cautela means
right to refuse to take the witness stand and to give their depositions, the case "out of abundant caution" or "to be on the safe side."62 An answer ex abudanti
must partake of the nature of a criminal proceeding. The case on hand cautela does not make their answer less of an answer. A cursory look at the
certainly cannot be categorized as such. The fact that there are two criminal answers filed by petitioners shows that they contain their respective defenses.
cases pending which are allegedly based on the same set of facts as that of An answer is a pleading in which a defending party sets forth his
the civil case will not give them the right to refuse to take the witness stand defenses63 and the failure to file one within the time allowed herefore may
and to give their depositions. They are not facing criminal charges in the civil cause a defending party to be declared in default.64 Thus, petitioners, knowing
case. Like an ordinary witness, they can invoke the right against self- fully well the effect of the non-filing of an answer, filed their answers despite
incrimination only when the incriminating question is actually asked of them. the pendency of their appeal with the Court of Appeals on the denial of their
Only if and when incriminating questions are thrown their way can they refuse motion to dismiss.
to answer on the ground of their right against self-incrimination.
Petitioners’ argument that the issues of the case have not yet been joined must
On the second assigned error, petitioners contend that the taking of their oral necessarily fail in light of our ruling that petitioners have filed their answers
depositions should not be allowed without leave of court as no answer has yet although the same were made ex abudanti cautela. Issues are joined when all
been served and the issues have not yet been joined because their answers the parties have pleaded their respective theories and the terms of the dispute
were filed ex abudanti cautela pending final resolution of the petition for are plain before the court.65 In the present case, the issues have, indeed, been
certiorari challenging the trial court’s Orders dated 12 March 1996 and 24 May joined when petitioners, as well as the other defendants, filed their answers.
1996 that denied their motions to dismiss and for reconsideration, respectively. The respective claims and defenses of the parties have been defined and the
issues to be decided by the trial court have been laid down.
Section 1 of Rule 2461 of the Revised Rules of Court reads:
We cannot also sustain petitioners’ contention that the lower court erred when
Section 1. Depositions pending action, when may be taken. – By leave of court it said that the joinder of issues is not required in order that Section 1, Rule 23
after jurisdiction has been obtained over any defendant or over property which of the 1997 Rules of Civil Procedure may be availed of. Under said section, a
is the subject of the action, or without such leave after an answer has been deposition pending action may be availed of: (1) with leave of court when an
served, the testimony of any person, whether a party or not, may be taken, at answer has not yet been filed but after jurisdiction has been obtained over any
the instance of any party, by deposition upon oral examination or written defendant or property subject of the action, or (2) without leave of court after
interrogatories. The attendance of witnesses may be compelled by the use of an answer to the complaint has been served. In the instant case, the taking of
a subpoena as provided in Rule 23. Depositions shall be taken only in the deposition may be availed of even without leave of court because
accordance with these rules. The deposition of a person confined in prison petitioners have already served their answers to the complaint.
may be taken only by leave of court on such terms as the court prescribes.
WHEREFORE, all the foregoing considered, the instant petition is dismissed
From the quoted section, it is evident that once an answer has been served, for lack of merit. SO ORDERED.
the testimony of a person, whether a party or not, may be taken by deposition

Page 43 of 73
[9] Same; Same; Same; Seizure of the shotgun without search warrant unless it falls
FIRST DIVISION under the exception violates accused constitutional rights.—The Court observes that
the police investigators confiscated the shotgun from the premises of the residence of
the appellant without a search warrant. Such violation of the constitutional rights of a
G.R. No. 91374 February 25, 1991
person should be investigated and inquired into.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Same; Same; Same; Ballistic examination shows that it was fired from the very
vs. shotgun of the appellant.—-The Court is not persuaded that the police investigators in
JOHN GABRIEL GAMBOA, defendant-appellant. this case would willingly allow themselves to be instruments to frame the appelant for
so serious a crime as murder. It appears that the three empty shells were actually
Criminal Law; Murder; Evidence; Credibility of witnesses; Contradicting recovered from the vicinity of the scene of the crime. The ballistics examination shows
statements of prosecution witnesses on minor details rather than affect the credibility that it was fired from the very shotgun of the appellant. This evidence corroborates the
of these witnesses, are badges of candor.—By and large, the Court is not persuaded theory of the prosecution, very strongly, that the appellant was the assailant of the
that the appellant’s claim of contradictions and inconsistencies on the part of the victim.
prosecution witnesses puts into serious doubt their credibility.Different persons who
witnessed an incident from different angles and situations could not be expected to Same; Same; Even if the shotgun and the results of the ballistic examination are
give uniform details of what they saw and heard.Such minor discrepancies and disregarded, there is adequate evidence to justify conviction.—Even if the Court
inconsistencies are to be expected because of the human differences in perception. disregards the shotgun as having been illegally secured as well as the results of its
Such contradicting statements are on minor details, as hereinabove discussed, and ballistic examination in relation to the empty shells, still there is adequate evidence in
rather than affect the credibility of the witnesses, the same are badges of candor. the record to justify a verdict of conviction. Indeed, the Court did not even consider it
necessary to inquire into the motive of the appellant in the light of his positive
Same; Same; Same; Same; Delay of the witnesses to immediately report the identification by the prosecution witnesses.’
identity of the offender to the police investigators does not affect their credibility
especially so when the witnesses are related to the victim.—It is quite understandable Same; Same; Same; Paraffin test; Paraffin test conducted without the presence
when the witnesses do not immediately report the identity of the offender after a of the accused’s lawyer does not violate the right against self-incrimination.—As to
startling occurrence more especially when they are related to the victim as they just the paraffin test to which the appellant was subjected to he raises the question, under
had a traumatic experience. More so as in the case of Major Impas who is the victim’s the sixth assigned error, that it was not conducted in the presence of his lawyer. This
father and Soledad, his common-law wife. Nevertheless, a delay of about a few hours right is afforded to any person under investigation for the commission of an offense
before the identification of the offender by the prosecution witnesses does not thereby whose confession or admission may not be taken unless he is informed of his right to
affect their credibility. remain silent and to have competent and independent counsel of his own choice. His
right against self-incrimination is not violated by the taking of the paraffin test of his
Same; Same; Same; Confession; Verbal confession is inadmissible where the hands. This constitutional right extends only to testimonial compulsion and not when
confession was extracted through maltreatment; Case at bar.—The inadmissibility of the body of the accused is proposed to be examined as in this case. Indeed, the paraffin
the alleged verbal confession of the appel-lant is raised on the ground that he was test proved positively that he just recently fired a gun. Again, this kind of evidence
maltreated as a result of which he suffered twenty-seven injuries in the form of buttresses the case of the prosecution.
contusions, lacerations and abrasions. It does not appear, however, that the prosecution
proposed to rely on this alleged confession of the appel-lant, or that the trial court APPEAL from the decision of the Regional Trial Court of Cebu City, Br. 8.
considered the same at all in the resolution of the case. If it were to be considered at
all, it would be worthless because of the undeniable fact that the appellant was not GANCAYCO, J.:
only arrested without a warrant and entry into his house was effected without a search
warrant, but worse, he was maltreated since his arrest so much so that he suffered Essential in the success of the prosecution of an offense is the proof of the
multiple injuries. The police investigators responsible for this manhandling should be
identity of the offender. This is usually attained through the testimony of
investigated and held to account. Such involuntary confession cannot help the case of
the prosecution. It is a stain in the record of the law enforcement agents who handled eyewitnesses during, before, or even after the commission of the offense. In
the case. the absence of such primary evidence the prosecution generally falls back on
such other evidence as the ballistic examination of the murder weapon, a

Page 44 of 73
handwriting expert, the extrajudicial confession or similar resources. V
Otherwise, circumstantial evidence is resorted to which consists in the
piercing together of tiny bits of evidence with a view towards ascertaining the THE TRIAL COURT ERRED IN HOLDING THAT EXHIBIT "A" WAS
accused as the person responsible for the commission of the offense. THE ACTUAL MURDER WEAPON.

In the case now before this Court the defendant-appellant John Gabriel VI
Gamboa was charged with the crime of murder together with Miguel Celdran
in the Regional Trial Court of Cebu. After arraignment but during the trial, the THE TRIAL COURT ERRED IN NOT REJECTING THE PARAFFIN
case against Celdran was dismissed. Thereafter, a decision was rendered on TEST RESULTS AS INADMISSIBLE EVIDENCE.
August 30, 1989, finding Gamboa guilty of the crime of murder as penalized
under Article 248 of the Revised Penal Code and imposing upon him the VII
penalty of reclusion perpetua. He was also ordered to indemnify the heirs of
the deceased in the amount of P30,000.00, with costs against him. The fatal THE TRIAL COURT ERRED IN NOT ACQUIRING THE ACCUSED-
weapon, a shotgun, was ordered forfeited in favor of the government.1 APPELLANT.2

The defendant-appellant interposed this appeal from said judgment alleging At around 1:15 o'clock in the morning of August 21, 1988, Cristina Soledad,
that the trial court committed the following errors: common-law wife of Rene Impas, was conversing with the latter inside a
bedroom in Rene's house located at John Avenue, Cebu City. Suddenly
I someone kicked open the door and Soledad saw the appellant and Celdran.
From a standing position the appellant fired his shotgun at Rene. Rene was
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE hit on the right side of the chest so he slid slightly, his head leaning on the wall
TESTIMONIES OF THE PROSECUTION WITNESSES CRISTINA the appellant fired a second shot hitting the victim on the abdomen. The victim
SOLEDAD, ENRICO ACRE AND MARIO GASCON. fell face upward on the bed and died immediately.

II Soledad shouted for help. Rico Acre, a tenant in the same house, responded.
He entered the room as the appellant went out of the house. The former fired
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED- a third time.
APPELLANT HAD BEEN POSITIVELY IDENTIFIED AS THE
ASSAILANT OF THE VICTIM RENE IMPAS. Acre noticed the victim having difficulty in breathing, so he ran out of the house
and shouted for help. Mario Gascon, a neighbor, came and together with Acre
III they lifted the victim and loaded him in the car of the victim's father, police
Major Impas, which was parked in front of the house.
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-
APPELLANT HAD CONFESSED TO OR ADMITTED THE KILLING. As Gascon stepped out of his house to extend assistance, he saw the
appellant and another person running towards a yellow car. The appellant was
IV still holding the shotgun then. Soledad, together with Acre, Gascon and Maj.
Impas, who was living in the house nearest to the victim's house, boarded the
THE TRIAL COURT ERRED IN NOT REJECTING THE ALLEGED latter's car and brought the victim to the Southern Island Hospital, Cebu City.
MURDER WEAPON (EXHIBIT "A") AS INADMISSIBLE EVIDENCE.

Page 45 of 73
The medico legal report of Dr. Jesus Cerna of the PC-INP, Cebu showed that Hemoperitoneum, approximately 1000 cc.
the victim suffered the following gunshot wounds:
CAUSE OF DEATH:
Shotgun wounds:
Shot wounds, chest, abdomen and hand, right.3
(1) ENTRANCE. ovaloid, 2.0 x 1.8 cm., with 5 stray pellets wounds of
entrance around, in an area of the chest, right, 5.5 x 5.0 cm., edges Under the first assigned error, the appellant raises the issue relating to the
inverted, chest right anterior aspect, 6.0 cm. from the anterior median credibility of the prosecution witnesses in that their testimonies are full of
line and 128.0 cm. above right heel; directed backward, downward inconsistencies which elicit doubt as to their truthfulness.
and medially, involving skin and the underlying soft tissues, into
thoracic cavity, lacerating extensively the lungs, upper and lower lobes In the case of Soledad, the latter allegedly testified that the appellant shot the
right extensively and the ascending orta, and finally a plastic wad was victim twice, while the victim's father testified that he heard three successive
embeded and recovered from the upper lobe of right lung and three shots. There is no inconsistency here. It was established that the appellant
(3) pellets were recovered from the soft tissue of the back, thoracic shot the victim twice while inside the house and fired the third shot when he
region, left, 5.0 cm. from the posterior median line and 127.0 cm. was already outside the house. This accounts for the three shots heard by
above left heel. Major Impas.

(2) ENTRANCE, (pellets wounds) six in numbers, of varying sizes, The appellant also stated that Soledad testified on direct examination that
ranging from 0.6 x 0.5 cm. to 0.5 x 0.4 cm., edges inverted, dispersed when the victim was hit by the first shot his body leaned on the wall but on
in an area of the abdomen, anterior aspect, right, 5.0 x 4.5 cm. 7.5 cm. cross examination, she said that the victim was lying flat on the bed after the
from the anterior median line and 108.0 cm. above right heel, directed first shot. Whether the victim was leaning on the wall or lying down after the
backward, upward and laterally involving skin and the underlying soft first shot is of no material consequence. The fact remains that Soledad saw
tissues, into a thoracic abdominal cavity, lacerating extensively portion the appellant shoot the victim twice with a shotgun.
of small and large intestine, liver, and finally 4 pellets wound were
embeded and recovered from the soft tissues back, left thoracic Another alleged contradiction is that Soledad said she knew Acre to be a
abdominal region, 10.0 cm. from the posterior median line and 107.0 cousin of the victim but Acre himself denied such relationship. Again such
cm. above left heel, (one existed). inconsistency, if it is indeed an inconsistency at all, is on a minor matter.

(3) ENTRANCE. ovaloid, 9.0 x 3.0 cm. irregular in shape, edges The appellant states that while Acre testified that at the time of the shooting
inverted, hand, posterior aspect, right; directed forward, upward, thru he could clearly be seen from the victim's room, Soledad never mentioned
and thru. having seen Acre at or near the door of the victim's room. It is also indicated
that while Acre said that appellant made some remarks to him in a loud voice
Heart: auricular and venticular chambers, filled with dark-red liquid before the shooting, Soledad on the other hand testified that she did not hear
and clotted blood, with normal myocardium. any statement from the appellant before the shooting.

Gastrointestinal tract and other visceral organs pale. Suffice it to state that at the time of the shooting, the appellant and Celdran
were standing at the door, effectively blocking the view outside the room,
Stomach, empty. hence Soledad did not see Acre. Moreover, at the time Soledad's attention at
that moment was focused on her common-law husband who was shot twice
Hemothorax, approximately 1500 cm. and who fell on the bed. She was a witness to a startling occurrence. It is not

Page 46 of 73
improbable that because of shock she did not hear any remarks made by the By and large, the Court is not persuaded that the appellant's claim of
appellant outside the room. contradictions and inconsistencies on the part of the prosecution witnesses
puts into serious doubt their credibility, Different persons who witnessed an
The appellant makes much capital of the fact that Acre did not reveal the incident from different angles and situations could not be expected to give
identity of the appellant to the victim's father when they were together in the uniform details of what they saw and heard. Such minor discrepancies and
car on the way to the hospital. This is understandable considering that Soledad inconsistencies are to be expected because of the human differences in
had already revealed the appellant's identity to Major Impas when they perception. Such contradicting statements are on minor details, as
boarded the car. There was no need for Acre to give the same information to hereinabove discussed, and rather than affect the credibility of the witnesses,
the victim's father. the same are badges of candor.

In the case of Modesto Gascon, it is contended that he could not have seen Nevertheless, under the second assigned error, the appellant alleges that his
the appellant running away from the scene of the shooting since even before identification by the prosecution witnesses cannot be relied upon considering
Gascon went down from his house, the appellant was already running towards that they did not immediately inform the police investigators of the identity of
the get-away car and so it was allegedly impossible for Gascon to identify the the assailant upon their arrival. Although it may be true that the eyewitnesses
appellant. did not immediately identify the appellant as the assailant to the responding
policemen, it is also a matter of fact that Major Impas informed Cpl. Petallar
On cross-examination, Gascon stated that after hearing gunshots he ran out while they were on the way to the Southern Islands Hospital, where the victim
of his house to ascertain where the shots came from. He ran to the corner or was brought, that the assailant is the appellant.6 The second instance was
to the "second bend" outside the house of the victim's father and he saw the when Soledad went to the mobile patrol division and revealed to Cpl. Petallar
appellant at the "second bend." Gascon ran into the appellant while running to that the appellant was the one who shot her common-law husband.7
the house of the victim. He was only four to five arms-length away when he
saw the appellant, thus his positive identification of the appellant. It is quite understandable when the witnesses do not immediately report the
identity of the offender after a startling occurrence more especially when they
Another alleged discrepancy is between the version of Major Impas that the are related to the victim as they just had a traumatic experience. More so as
appellant and his companion were running towards the car and that of in the case of Major Impas who is the victim's father and Soledad, his common-
Gascon's testimony that the appellant was back-tracking towards the car. The law wife. Nevertheless, a delay of about a few hours before the identification
record discloses that what Major Impas meant to convey was that he saw the of the offender by the prosecution witnesses does not thereby affect their
appellant and his companion fleeing from the scene of the crime to their get- credibility.
away car while the description of Gascon that the appellant was "back-
tracking" towards the car was a description of how the appellant fled from the The inadmissibility of the alleged verbal confession of the appellant is raised
victim's house to the car, to make sure that they were not being followed. on the ground that he was maltreated as a result of which he suffered twenty-
seven injuries in the form of contusions, lacerations and abrasions. It does not
The alleged contradiction between Gascon's affidavit,4 wherein he mentioned appear, however, that the prosecution proposed to rely on this alleged
that he saw the appellant and another person running towards the car, and his confession of the appellant, or that the trial court considered the same at all in
testimony on cross-examination that he only saw the appellant, is of no the resolution of the case. If it were to be considered at all, it would be
material consequence considering that the appellant has been positively worthless because of the undeniable fact that the appellant was not only
identified as the assailant. Moreover, as it is generally pointed out, an affidavit arrested without a warrant and entry into his house was effected without a
taken ex-parte almost always cannot be relied upon as oftentimes it is search warrant, but worse, he was maltreated since his arrest so much so that
inaccurate.5 he suffered multiple injuries. The police investigators responsible for this
manhandling should be investigated and held to account. Such involuntary

Page 47 of 73
confession cannot help the case of the prosecution. It is a stain in the record paraffin test proved positively that he just recently fired a gun. Again, this kind
of the law enforcement agents who handled the case. of evidence buttresses the case of the prosecution.

Under the fifth assigned error, the appellant questions the admissibility of the WHEREFORE, the decision appealed from is AFFIRMED with the sole
shotgun as the alleged murder weapon.1âwphi1 He says it was not found in modification that the indemnity to the heirs of the offended party is increased
his possession but his house was searched and the shotgun was confiscated to P50,000.00, with costs against the appellant. Let a copy of this decision be
without a search warrant. furnished the Chairman of the Philippine National Police for his information
and appropriate action on the actuations of the law enforcement agents
He also alleges that the three (3) empty shells that were submitted for the hereinabove discussed.
ballistics examination were not recovered from the scene of the crime and their
production is a frameup by the police. Again, the Court observes that the police SO ORDERED.
investigators confiscated the shotgun from the premises of the residence of
the appellant without a search warrant. Such violation of the constitutional
rights of a person should be investigated and inquired into.

Nevertheless, the Court is not persuaded that the police investigators in this
case would willingly allow themselves to be instruments to frame the appellant
for so serious a crime as murder. It appears that the three empty shells were
actually recovered from the vicinity of the scene of the crime. The ballistics
examination shows that it was fired from the very shotgun of the appellant.
This evidence corroborates the theory of the prosecution, very strongly, that
the appellant was the assailant of the victim.

Even if the Court disregards the shotgun as having been illegally secured as
well as the results of its ballistic examination in relation to the empty shells, still
there is adequate evidence in the record to justify a verdict of conviction.
Indeed, the Court did not even consider it necessary to inquire into the motive
of the appellant in the light of his positive identification by the prosecution
witnesses.

As to the paraffin test to which the appellant was subjected to he raises the
question, under the sixth assigned error, that it was not conducted in the
presence of his lawyer. This right is afforded to any person under investigation
for the commission of an offense whose confession or admission may not be
taken unless he is informed of his right to remain silent and to have competent
and independent counsel of his own choice.8 His right against self-
incrimination is not violated by the taking of the paraffin test of his hands. This
constitutional right extends only to testimonial compulsion and not when the
body of the accused is proposed to be examined as in this case. 9 Indeed, the

Page 48 of 73
[10] evidence to show the probability of participation by an accused co-conspirator, that
SECOND DIVISION confession is receivable as evidence against him.

Same; Same; Same; Constitutional Law; Custodial Investigation; Once the


[G.R. No. 111193. January 28, 1997] prosecution has shown that there was compliance with the constitutional requirement
on pre-interrogation advisories, a confession is presumed to be voluntary and the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERDINAND declarant bears the burden of proving that his confession is involuntary and untrue.—
SUAREZ, alias "Jojo", LORETO REYES, alias "Dondon" and Once the prosecution has shown that there was compliance with the constitutional
"Larry"; WILFREDO LARA, alias "Cortal" and "Willy"; MARIA requirement on pre-interrogation advisories, a confession is presumed to be voluntary
VICTORIA G. SUAREZ; NOLI LICSI, alias "Nio"; VICENTE and the declarant bears the burden of proving that his confession is involuntary and
untrue. The burden is on the accused to destroy this presumption. A confession is
RODRIGUEZ, alias "Waway"; and MORRIS
admissible until the accused successfully proves that it was given as a result of
SANTOS, alias "Wanky", accused, violence, intimidation, threat, or promise of reward or leniency.
WILFREDO LARA, accused-appellant.
Same; Same; Same; Same; Same; Extrajudicial confessions independently
made without collusion, almost identical with each other in their essential details
DECISION which could have been known only to the declarants, and corroborated by other
evidence against the person or persons implicated to show the probability of the
Criminal Law; Evidence; Extrajudicial Confessions; Hearsay Rule; Res Inter latter’s actual participation in the commission of the crime are impressed with features
Alios Acta Rule; Doctrine of Interlocking Confessions; Although an extrajudicial of voluntariness in their execution.—Extrajudicial confessions independently made
confession is admissible only against the confessant, jurisprudence makes it without collusion, almost identical with each other in their essential details which
admissible as corroborative evidence of other facts that tend to establish the guilt of could have been known only to the declarants, and corroborated by other evidence
his co-accused.—It is important to note at the outset that this Court has no jurisdiction against the person or persons implicated to show the probability of the latter’s actual
to review the judgment of conviction imposed upon Suarez and Reyes for they have participation in the commission of the crime, are thus impressed with features of
not filed any notice of appeal for themselves. voluntariness in their execution. Also, the failure of an accused to complain to the
swearing officer or to file charges against the persons who allegedly maltreated him,
And while we are cognizant of the rule that the right to claim the inadmissibility although he had all the chances to do so, manifests voluntariness in the execution of
of an extrajudicial confession is personal in nature, in the sense that only the confessant the confession.
whose rights during an investigation were violated can raise an objection, we deem it
necessary to discuss in this appeal the circumstances surrounding the execution of Same; Same; Same; Same; Same; Right to Counsel; While the initial choice of
Reyes’ sworn statement in evaluating appellant Lara’s own extra curia declaration. the lawyer in cases where a person under custodial investigation cannot afford the
Although an extrajudicial confession is admissible only against the confessant, services of a lawyer is naturally lodged in the police investigators, the accused really
jurisprudence makes it admissible as corroborative evidence of other facts that tend to has the final choice as he may reject the counsel chosen for him and ask for another
establish the guilt of his co-accused. one; A lawyer provided by the investigators is deemed engaged by the accused where
he never raised any objection against the former’s appointment during the course of
Same; Same; Same; Same; Same; Same; The doctrine of interlocking the investigation and the accused thereafter subscribes to the veracity of his statement
confessions has been accepted and recognized as an exception to the res inter alios before the swearing officer.—We find no merit in herein appellant’s contention that
acta rule and the hearsay rule; Where the confession is used as circumstantial Atty. Saunar was not Reyes’ own choice as counsel for the interrogation. While the
evidence to show the probability of participation by an accused co-conspirator, that initial choice of the lawyer in cases where a person under custodial investigation
confession is receivable as evidence against him.—The lower court treated the cannot afford the services of a lawyer is naturally lodged in the police investigators,
confessions of the three accused as interlocking confessions sufficient to corroborate the accused really has the final choice as he may reject the counsel chosen for him and
and bolster the truth of each accused’s own incriminating statements. This doctrine of ask for another one. A lawyer provided by the investigators is deemed engaged by the
interlocking confessions has been accepted and recognized in numerous decisions of accused where he never raised any objection against the former’s appointment during
this Court as an exception to the res inter alios acta rule and the hearsay rule. Reyes’ the course of the investigation and the accused thereafter subscribes to the veracity of
confession is thus admissible against Lara to show the probable involvement of the his statement before the swearing officer.
latter in the perpetration of the crime. Where the confession is used as circumstantial

Page 49 of 73
Same; Same; Same; Same; Same; Same; To be an effective counsel, a lawyer Same; Robbery with Homicide; Conspiracy; Where one accused merely
need not challenge all the questions being propounded to his client—the presence of introduced the other co-accused to the principal by inducement, the Court cannot
a lawyer is not intended to stop an accused from saying anything which might conscientiously declare that the first accused was a co-conspirator or a principal by
incriminate him but, rather, it was adopted in our Constitution to preclude the slightest inducement or indispensable cooperation in the crime of robbery with homicide.—
coercion as would lead the accused to admit something false.—To be an effective From Reyes’ and appellant’s confessions, which we believe bear the mark of truth and
counsel, a lawyer need not challenge all the questions being propounded to his client. credibility, it can only be inferred that Lara merely introduced the group of Reyes to
The presence of a lawyer is not intended to stop an accused from saying anything Suarez. With such a nominal role, we cannot conscientiously declare that Lara was a
which might in-criminate him but, rather, it was adopted in our Constitution to co-conspirator or a principal by inducement or indispensable cooperation in the crime
preclude the slightest coercion as would lead the accused to admit something false. of robbery with homicide.
The counsel, however, should never prevent an accused from freely and voluntarily
telling the truth. Hence, absent any showing that the lawyers who assisted the accused Same; Same; Same; Accomplice; Where an accused does not fall under any of
were remiss in their duties, it can be safely concluded that the custodial investigation three concepts of principals defined in Article 17 of the Revised Penal Code, he may
of Reyes and Lara were regularly conducted. only be considered guilty as an accomplice.—Where the accused does not fall under
any of the three concepts of principals defined in Article 17 of the Revised Penal Code,
Same; Same; Same; Same; Same; It is not necessary that an eyewitness should he may only be considered guilty as an accomplice. And where there is no showing of
testify to having seen the accused committing the crime or had seen him under conspiracy or confabulation on his part, and the extent of the accused’s participation
circumstances indicating his having committed the crime before the accused may be in the crime is uncertain, he should be given the benefit of the doubt and be declared
held liable under the confession.—Even disregarding for a moment Reyes’ as a mere accomplice therein. We are sufficiently persuaded to declare appellant as a
extrajudicial declaration, appellant Lara can still be held accountable under his own mere accomplice in the crime charged.
sworn statement. Well-entrenched is the rule that it is not necessary that an eyewitness
should testify to having seen the accused committing the crime or had seen him under APPEAL from a decision of the Regional Trial Court of Pasig City, Br. 152.
circumstances indicating his having committed the crime, before the accused may be
held liable under his confession. This is how much weight and credence our REGALADO, J.:
jurisprudence gives to a confession. The Rules of Court provide that "(t)he declaration
of an accused acknowledging his guilt of the offense charged, or any offense In the early hours of December 8, 1987, Arlene Tuyor was awakened by
necessarily included therein, may be given in evidence against him.” loud knocking sounds on the door of her room. She was a domestic helper at
that time, working in the household of Estrellita Guzman at 22 Sta. Teresita
Same; Same; Same; Same; Same; Corpus Delicti; When the confession is made Street, Barrio Capitolyo, Pasig, Metro Manila. Also in the house then were the
outside of court proceedings, it must be accompanied by evidence of the corpus delicti
nieces of Estrellita, namely, Maria Prescilla Guzman (Babyruth), Maria Cristina
to be sufficient for conviction.—Of course, when the confession is made outside of
court proceedings, it must be accompanied by evidence of the corpus delicti to be Guzman (Cristy) and Maria Victoria Suarez (Marivic). Babyruth and Marivic
sufficient for conviction. If it is made freely and voluntarily, a confession constitutes had been adopted by Estrellita as her own daughters. Marivic's husband,
evidence of a high order since it is supported by the strong presumption that no sane Ferdinand Suarez (Jojo), and her three children likewise lived in Estrellita's
person or one of a normal mind will deliberately and knowingly confess himself to be bungalow-type house.
the perpetrator of a crime unless prompted by truth and conscience.
Upon opening the door, Tuyor was surprised to see Ferdinand Suarez,
Same; Same; Same; Same; Same; Right to Counsel; Reenactments; Pictures of her "Seorito Jojo," surrounded by two men wearing black nylon cloths over
the reenactment depicting the accused’s role in the commission of the crime cannot be their heads and faces. One of the men had a big body frame while the other
utilized as evidence of his participation where that reenactment was conducted without had a small physique. The men immediately entered her room, tied her up and
any lawyer assisting the accused.—The pictures of the reenactment depicting Lara’s asked for her money. She was also asked if she knew Jojo. Getting no
role in the commission of the crime cannot be utilized as evidence of his participation
response from Tuyor, the intruders left her room bringing Suarez with them.
as a principal therein as that reenactment was conducted without any lawyer assisting
appellant. We have held that reenactments are covered by the right against From her room, Tuyor heard the sound of the microwave oven located in
selfincrimination. Atty. Ranin himself admitted on the witness stand that no lawyer
the kitchen. She also heard the main door of the house slamming and
assisted Lara during the reenactment because he could not find any available lawyer
at that time who could act as his counsel. someone crying in the house. When Tuyor went out of her room, she saw
Marivic weeping in the living room. She proceeded to her employer's bedroom

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and found Estrellita bleeding and lying on her bed. All this time, accused As the police were getting no leads about the identity of the malefactors,
Suarez was just sitting on the chair of the piano. [1] the lawyer of the family of the deceased sought the help of the National Bureau
of Investigation (NBI). The case was assigned to Atty. Salvador Ranin. Atty.
Estrellita later died due to severe hemorrhage secondary to stab wounds.
Ranin concluded that the perpetrators could not have entered the house
Post-mortem examinations revealed that she had sustained an elliptical and
without the aid of somebody inside as the bolt lock of the kitchen door can only
gaping wound on the right side of her abdomen and another wound of the
be released from within. He had one suspect in mind, that is, Ferdinand
same nature on the left side of her back. Further examination also disclosed
Suarez, or Jojo. [12]
that the deceased suffered an incised wound on her left thumb.[2]
Ranin had discovered in the course of his investigation that there were no
When police investigators arrived at the scene of the crime, they found a
signs of injuries or rope marks on Suarez and that he was not on good terms
half-eaten chicken on the dining table, [3] four pieces of black nylon
with Estrellita when the crime happened. He was even found positive for
cloth, [4] pieces of blue and white ropes, [5]three pieces of cloth, [6] and two
deception after taking the polygraph test at the NBI. Suarez eventually
strands of ordinary wire. [7] They initially surmised that the intruders had
revealed to Ranin his involvement in the commission of the crime after Ranin
forcibly entered the house through its back door located in the kitchen. [8] They
told him that he had damaging information to the effect that Suarez had left
arrived at this conclusion after finding a piece of wire inserted in the knob of
the house in the evening of December 7, 1987.
the kitchen door [9] and its chain lock's anchor detached from the doorjamb.
However, the door's dead bolt lock was intact and in perfect condition. [10] In his sworn statement [13] before the NBI, Suarez said that one Loreto
Reyes, alias "Dondon" or Larry, approached him during the last week of
Ferdinand Suarez narrated to Patrolman Pablo Roxas [11] of the Eastern
November, 1987 and talked to him to allow Reyes and his group to rob their
Police District (EPD) at Meralco Avenue, Pasig what he claimed to have
house as they badly needed money for the Christmas season. It was only after
experienced on that fateful day, in this wise:
the group threatened to kill him that Suarez acceded to their demand, on the
At around 3:00 A.M. of December 8, 1987, he was awakened by someone condition that they would only steal but should not kill him.
holding his hands and putting a piece of rag in his mouth. When he opened
On November 29, 1987, Suarez gave to Reyes and his gang the keys to
his eyes, he saw somebody pointing a knife at him and another at his wife. He
the door of the house, the door of Babyruth's and Cristy's room, and the door
saw inside their room six men with nylon cloths over their faces. When he was
of Estrellita's room in order to have them duplicated. He returned to Reyes and
about to resist, one of the men hit him on the face and threatened to kill him,
the others on December 5, 1987 to receive instructions on what to do. He was
his wife and his children. After they had tied and gagged him and also covered
told that the group would go to their place in the early morning of December 8,
his eyes, the men brought him out to the dining room. He heard the door of
1987. On the agreed date, at around twelve o'clock noon, Suarez disengaged
Estrellita being pushed open, and then Estrellita shouting.
the bolt lock of the kitchen door and unlocked the door of their rooms as earlier
Afterwards, he was brought to the room shared by Cristy and Babyruth instructed by the gang.
and mauled in front of them. After that, he was brought to the room of Arlene
The felons arrived at the house at around two o'clock in the morning and
Tuyor. From the maid's room, he was again brought to the dining room where
proceeded to Suarez and Marivic' s room. Suarez saw four men with covers
he was tied to one of the chairs of the dining table. From there, he heard the
on their faces, but he recognized one of them as Reyes through his voice and
men cooking with the use of the microwave oven in the kitchen. After a while,
build. They immediately bound Marivic and when one of the members of the
Estrellita cried loudly and called for Marivic. He later heard the running of the
gang was about to tie up Suarez, Reyes stopped him.
engine of one of their cars and the main door being slammed shut. After the
men left at about five o'clock in the morning, he discovered that the trespassers After Suarez was dragged out of the room, he told the group who were
had taken some things in the house such as a television set, a radio, a the occupants of the different rooms in the house. Two men entered the room
betamax and other household items. of Babyruth and Cristy while Reyes and the fourth man went to Estrellita's
room. They were able to enter Estrellita's room with the use of their duplicate

Page 51 of 73
key and after they had kicked open the door of her room. Estrellita shrieked about the plan. However, they had duplicates made of the keys to the house,
when they went inside her room. which keys had been left by Suarez under one of Estrellita's cars. The plan
finally materialized on December 8, 1987 at about two o'clock in the morning.
The two men brought Suarez to his sisters-in-law's room to point out to
The persons who were to execute the plan were Noli Licsi, Vicente Rodriguez,
them what they could get from that room. Afterwards, he was brought to the
Morris Santos, and Reyes. Before they went to Capitolyo, the group took some
dining table. From there, he saw the men asking Estrellita for the keys of the
prohibited drugs and smoked marijuana.
gate of the house and the car. After they brought Estrellita back to her room,
two of the men brought Suarez to the maid's quarters. Aided by the sketch of the house provided by Suarez, the group went
directly to the back of the house and opened the back door with their duplicate
Reyes asked Suarez to cook a chicken he found in the refrigerator. While
key. As agreed upon earlier, Suarez had released the bolt and chain lock of
Suarez was cooking the chicken in the microwave oven, the men took off the
the said door to facilitate their entry into the house. Once inside, Suarez, who
covers on their faces, smoked marijuana and drank liquor. They were not able
was waiting for them there, instructed them to tie him and his wife. After doing
to finish eating the chicken because it was not evenly cooked. When Estrellita
so, they opened the bedrooms of Babyruth, Cristy and Estrellita. The men then
shouted the name of Marivic, Rodriguez, one of the companions of Reyes,
tied them up inside their respective rooms. Since Santos and Licsi were the
went to her room. Suarez heard only soft and fading moans from Estrellita after
ones who entered Cristy's and Babyruth's room, Reyes could not be sure what
that.
they got from those rooms.
Before they left, the marauders told Suarez not to tell the police or the
Reyes further revealed that before they went into the house, Suarez had
NBI or else they would kill his mother. They slammed the front door shut and
earlier loosened the screws of the chain lock on the door of Estrellita's room.
used the car of Estrellita to leave the house at around five o'clock in the
So, with their duplicate key and a little push from outside, Reyes and
morning.
Rodriguez were able to easily enter Estrellita's room. As Estrellita was
The NBI soon found out that "Dondon" or Larry is Loreto Reyes, a former surprised by the entry of the two men, she instinctively held the knife being
neighbor of Suarez in San Miguel, Pasig where he used to live before he brandished by Reyes which thereby cut her thumb. The two men then tied
transferred to his wife's residence at Barrio Capitolyo. [14] Reyes also admitted Estrellita.
his participation in the commission of the crime and gave a written
It was after the gang was able to tie all the occupants of the house that
statement [15] to the NBI.
they started taking the betamax, jewelry, computer machine, camera, watches
He began his confession by implicating Wilfredo Lara in the crime. He and other things inside the house. Estrellita Guzman pointed out to them where
said that while he, Arthur Lara, Morris Santos, and Eduardo Lozada were doing they could find her jewelry. They brought Suarez inside her room so that he
nothing in their place in San Miguel, Pasig, Lara approached them and told could also show them where Estrellita's other jewelry and valuables were, and
them that he had some good news. Lara told them that he was asked by then they covered her with a blanket.
Suarez to look for some men who could kill his Auntie Estrellita. Reyes could
After taking what they wanted, the scoundrels ate the chicken Suarez had
not believe what he heard, so Lara called Suarez to let him tell the gang about
cooked for them and drank the imported liquor he offered. They also smoked
his offer.
marijuana. While they were drinking, Suarez remembered the maid, Tuyor, so
Apparently, Suarez wanted his aunt killed so that he and his wife could he and two men went to her room and staged a show of their mauling Suarez
get at once any property that Marivic might inherit from Estrellita upon the in front of her. They then tied the maid and continued drinking outside.
latter's demise. In exchange for the job, Suarez would allow them to steal what Thereafter, Suarez told the gang to kill Estrellita. Reyes said that Santos and
they wanted from the house, in addition to giving them P100,000.00 after one Rodriguez were the ones who stabbed Estrellita because they told him later
month from the killing of Estrellita. that each of them stabbed the old lady once.

They initially planned to carry out the criminal plot on December 5, 1987 Before Reyes and the gang left the place, Marivic told them to get their
but the group of Reyes backed out on the agreed date when they felt unsure television ranger and to disarrange the things in their room to show that the

Page 52 of 73
couple was not spared by the criminals. Suarez ordered them to cut the As stated in the information, which was twice amended, the felony was-
telephone line and Reyes did so. Then, Suarez told Reyes to pull the chain allegedly committed as follows:
lock of the kitchen door to make it appear that the door had been forced open
from outside. Reyes complied with Suarez instructions. To hide the fact that a That on or about the 8th day of December, 1987 in the Municipality of Pasig,
duplicate key was used in opening the kitchen door, the perpetrators inserted Metro Manila, Philippines a place within the jurisdiction of this Honorable
a wire in the doorknob keyhole of the kitchen door upon the prodding of Court, the above-named accused, conspiring and confederating together with
Suarez. one Mauro Santos whose true identity and present whereabouts is still
unknown and mutually helping and aiding with one another, by means of
The intruders left the house at around four o'clock in the morning. In
force, violence and intimidation employed upon the person of one Estrellita
getting out of the house, the gang used the front door and rode in one of the
Guzman did then and there willfully, unlawfully and feloniously take, rob and
cars of Estrellita. From the statement of Reyes, it appears that the cabal wore
carry away from the house of said Estrellita Guzman the following articles, to
black nylon cloths over their heads and faces when they committed the
wit:
despicable crime.
a. Jewelry
Atty. Ranin was able to retrieve the duplicate keys used by the
gang [16] from the father of Reyes [17] after Reyes had admitted that the keys b. Computer machine
could be found in his father's house in Montalban. Wilfredo Lara was arrested
c. TC Sony Ranger
by the NBI at the house of his parents- in-law in Northern Samar. When
brought to the NBI office at Taft Avenue, Manila, he likewise confessed his d. Radio Cassette
participation in the crime and gave a sworn statement. [18]
e. Five (5) assorted cameras and other valuables
According to Lara, Suarez went to his house at San Miguel, Pasig on
December 2, 1987 to ask him if he knew people who would be willing and all in the total amount of P650,000.00 more or less, that on the occasion of
capable of robbing a house. Lara told him that there were some persons he the said robbery and for the purpose of enabling them to take, rob and carry
knew who could do the job and he brought Suarez to the group of Larry Reyes, away the articles above-mentioned, herein accused, conspiring and
Noli Licsi, Morris Santos and Vicente Rodriguez at Dr. Pilapil Street, San confederating together and mutually helping and aiding with one another,
Miguel, Pasig. When Reyes and Suarez started talking, Lara left the place. armed with bladed weapons, with intent to kill, did then and there willfully,
On December 4, 1987, Lara saw Suarez talking with the same group in unlawfully and feloniously stab said Estrellita Guzman, thereby causing the
front of a store. He overheard them planning the robbery of a house in Barrio latter to sustain fatal injuries which directly caused her death. [20]
Capitolyo on December 8, 1987. On December 7, 1987, he again saw Suarez Only accused Suarez, Reyes and Lara were brought within the
and the gang when they agreed to consummate their earlier plan. Lara denied jurisdiction of the lower court as the other accused went into hiding and were
that he joined the group that robbed the house in Barrio Capitolyo and added able to evade the joint manhunt set up by the police and the NBI. Suarez,
that he never received any share of the loot from them. He did not report the Reyes and Lara pleaded not guilty despite their earlier confessions before the
matter to the police for fear of reprisal. He even went to the place of his in-laws NBI. Although they admitted that they signed and placed their thumbmarks on
at Nabas, Samar to avoid the group. their respective statements, they tried to show during their trial that those
Based on the foregoing statements and on other evidence submitted by statements were procured through coercion, intimidation and violence by the
the NBI to the then provincial fiscal of the former municipality of Pasig, an NBI agents and without the assistance of counsel. Accused Suarez reiterated
information for the crime of robbery with homicide was filed against Ferdinand the earlier version he gave to the EPD, while accused Reyes and Lara raised
Suarez, Loreto Reyes, Wilfredo Lara, Maria Victoria G. Suarez, Noli Licsi, the defense of alibi by claiming that they were respectively at Montalban, Rizal
Vicente Rodriguez, and Morris Santos. The case was raffled to Branch 152 of and Samar at the time the crime was committed.
the Regional Trial Court of Pasig[19] and docketed as Criminal Case No. 72249.

Page 53 of 73
The prosecution however, presented witnesses who were present during must comply with the requirements found in Section 12, Article III of the
the taking of the statements of the accused and they testified that those Constitution before they can be considered probative of his guilt. [28] We see
statements were given freely and voluntarily, and were taken with observance no need to rule on the admissibility of Suarez' statement because Lara was
of the constitutional guarantees, during the custodial investigation. never mentioned or implicated therein. What interests us is that of Reyes,
since appellant Lara claims alleged violence, torture and maltreatment
Relying on the extrajudicial confessions of the accused and on the
suffered by him and Reyes at the hands of the NBI agents.
circumstantial evidence adduced by the prosecution, the trial court found the
three accused guilty beyond reasonable doubt of robbery with homicide, and After a thorough review of the records of the case, we agree with the lower
sentenced them to suffer the penalty of reclusion perpetua and to solidarily court' s factual finding and conclusion that the extrajudicial confessions of
pay to the heirs of the victim P30,000.00 as death indemnity, P420,00.00 for accused Reyes and appellant Lara were freely and voluntarily given and that
loss of earning capacity, and the costs. [21] their retraction and claims of violence and coercion were merely belated
contrivances and efforts at exculpation. Their claim that they were forced to
While Suarez and Reyes have already accepted the trial court's verdict,
sign their respective statements was sufficiently refuted by the witnesses for
Lara now questions the lower court's decision by challenging the admissibility
the prosecution who were present on the day and time the duo gave and
of their extrajudicial declarations marked as Exhibits O, P and Q. He claims
signed their sworn statements. [29]
that their extrajudicial confessions were obtained through force and
intimidation and without the benefit of an effective counsel. [22] Once the prosecution has shown that there was compliance with the
constitutional requirement on pre-interrogation advisories, a confession is
It is important to note at the outset that this Court has no jurisdiction to
presumed to be voluntary and the declarant bears the burden of proving that
review the judgment of conviction imposed upon Suarez and Reyes for they
his confession is involuntary and untrue. [30] The burden is on the accused to
have not filed any notice of appeal for themselves. [23] And while we are
destroy this presumption. [31] A confession is admissible until the accused
cognizant of the rule that the right to claim the inadmissibility of an extrajudicial
successfully proves that it was given as a result of violence, intimidation,
confession is personal in nature, in the sense that only the confessant whose
threat, or promise of reward or leniency. [32]
rights during an investigation were violated can raise an objection, [24] we deem
it necessary to discuss in this appeal the circumstances surrounding the The sworn statements signed by accused Reyes and appellant Lara state
execution of Reyes's sworn statement in evaluating appellant Lara's own extra that they had been informed of their rights guaranteed under the Constitution.
curia declaration. Although an extrajudicial confession is admissible only Reyes stated that he had been assisted by counsel during the custodial
against the confessant, jurisprudence makes it admissible as corroborative investigation and appellant Lara confirmed that he was assisted by a lawyer
evidence of other facts that tend to establish the guilt of his co-accused. [25] when he waived his constitutional rights. Additionally, several witnesses for the
People testified before the lower court that the constitutional mandates were
The lower court treated the confessions of the three accused as
observed during their investigation. Reyes and Lara were not even able to
interlocking confessions sufficient to corroborate and bolster the truth of each
show any evil or dubious motive corrosive of the credibility of these witnesses
accused's own incriminating statements. This doctrine of interlocking
whom the court a quo found more worthy of belief than the witnesses for the
confessions has been accepted and recognized in numerous decisions of this
defense.
Court as an exception to the res inter alios acta rule and the hearsay
rule. [26]Reyes' confession is thus admissible against Lara to show the Accused failed to submit any evidence, apart from their own testimony,
probable involvement of the latter in the perpetration of the crime. Where the that violence and intimidation had been inflicted upon them to extort their
confession is used as circumstantial evidence to show the probability of sworn confessions. They never complained to Prosecutor Capistrano nor to
participation by an accused co-conspirator, that confession is receivable as anyone else about the physical beatings that they claim had been inflicted
evidence against him. [27] upon them. They did not ask for medical assistance and there was no proof
that any such request was denied. Although Reyes submitted a medical
But while herein appellant does not deny the validity and operation of the
above rule in his situation, he maintains that his co-accused ' s confessions

Page 54 of 73
certificate to attest to supposed injuries, the court below did not believe it and Well-entrenched is the rule that it is not necessary that an eyewitness should
accepted it merely to prove its existence. [33] testify to having seen the accused committing the crime or had seen him under
circumstances indicating his having committed the crime, before the accused
Extrajudicial confessions independently made without collusion, almost
may be held liable under his confession. [41] This is how much weight and
identical with each other in their essential details which could have been known
credence our jurisprudence gives to a confession. The Rules of
only to the declarants, and corroborated by other evidence against the person
Court [42] provide that "(t)he declaration of an accused acknowledging his guilt
or persons implicated to show the probability of the latter' s actual participation
of the offense charged, or any offense necessarily included therein, may be
in the commission of the crime, are thus impressed with features of
given in evidence against him. "
voluntariness in their execution. [34] Also, the failure of an accused to complain
to the swearing officer [35] or to file charges against the persons who allegedly Of course, when the confession is made outside of court proceedings, it
maltreated him, although he had all the chances to do so, manifests must be accompanied by evidence of the corpus delicti to be sufficient for
voluntariness in the execution of the confession. [36] conviction. [43] If it is made freely and voluntarily, a confession constitutes
evidence of a high order since it is supported by the strong presumption that
We find no merit in herein appellant' s contention that Atty. Saunar was
no sane person or one of a normal mind will deliberately and knowingly
not Reyes' own choice as counsel for the interrogation. While the initial choice
confess himself to be the perpetrator of a crime unless prompted by truth and
of the lawyer in cases where a person under custodial investigation cannot
conscience. [44]
afford the services of a lawyer is naturally lodged in the police investigators,
the accused really has the final choice as he may reject the counsel chosen Withal, appellant Lara did not appeal in vain. Although he himself
for him and ask for another one. A lawyer provided by the investigators is admitted his role in the crime of robbery with homicide, we deem it just and
deemed engaged by the accused where he never raised any objection against equitable to delineate in this decision his exact criminal liability even though
the former's appointment during the course of the investigation and the he failed to clearly raise it before us.
accused thereafter subscribes to the veracity of his statement before the
We reject the prosecution' s theory and the trial court ' s conclusion that
swearing officer. [37]
appellant acted as a lookout during the commission of the special complex
Here, while the lawyers of the accused were provided by the NBI, the crime. The prosecution did not present any evidence showing that he took part
accused never signified their desire to have a lawyer of their own choice. Thus, in the planning or execution of the crime nor any proof indicating that he
we also disagree with appellant' s claim that the lawyer who assisted him in profited from the fruits of the crime, or of acts indicative of confederacy on his
his waiver came in only after he had executed his waiver. His own statement part.
shows that he waived his rights in the presence and with the advice of Atty.
The pictures of the reenactment depicting Lara' s role in the commission
Rodolfo Dahiroc.
of the crime [45] cannot be utilized as evidence of his participation as a principal
To be an effective counsel, a lawyer need not challenge all the questions therein as that reenactment was conducted without any lawyer assisting
being propounded to his client. The presence of a lawyer is not intended to appellant. We have held that reenactments are covered by the right against
stop an accused from saying anything which might incriminate him but, rather, self- incrimination.[46] Atty. Ranin himself admitted on the witness stand that no
it was adopted in our Constitution to preclude the slightest coercion as would lawyer assisted Lara during the reenactment because he could not find any
lead the accused to admit something false. [38] The counsel, however, should available lawyer at that time who could act as his counsel. [47]
never prevent an accused from freely and voluntarily telling the
From Reyes and appellant's confessions, which we believe bear the mark
truth. [39] Hence, absent any showing that the lawyers who assisted the
of truth and credibility, it can only be inferred that Lara merely introduced the
accused were remiss in their duties, it can be safely concluded that the
group of Reyes to Suarez. With such a nominal role, we cannot conscientiously
custodial investigation of Reyes and Lara were regularly conducted. [40]
declare that Lara was a co-conspirator or a principal by inducement or
Even disregarding for a moment Reyes' extrajudicial declaration, indispensable cooperation in the crime of robbery with homicide.
appellant Lara can still be held accountable under his own sworn statement.

Page 55 of 73
Where the accused does not fall under any of the three concepts of
principals defined in Article 17 of the Revised Penal Code, he may only be
considered guilty as an accomplice. [48]And where there is no showing of
conspiracy or confabulation on his part, and the extent of the accused's
participation in the crime is uncertain, he should be given the benefit of the
doubt and be declared as a mere accomplice therein. [49] We are sufficiently
persuaded to declare appellant as a mere accomplice in the crime charged.

WHEREFORE, the penalty imposed upon accused-appellant Wilfredo


Lara is hereby MODIFIED and he is sentenced to suffer an indeterminate
penalty of ten (10) years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum.

The death indemnity awarded by the court a quo is hereby INCREASED


to Fifty Thousand Pesos (P50,000.00) in line with present case law and policy,
to be assessed against the accused and herein appellant in accordance with
Article 110 of the Revised Penal Code.

In all other respects, the judgment of the lower court is hereby


AFFIRMED.

SO ORDERED.

Page 56 of 73
[11] conventional methods unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA test for identification
THIRD DIVISION and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct
[G.R. No. 162571. June 15, 2005] DNA typing using short tandem repeat (STR) analysis. The analysis is based on the
fact that the DNA of a child/person has two (2) copies, one copy from the mother and
ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND the other from the father. The DNA from the mother, the alleged father and child are
MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS analyzed to establish parentage. Of course, being a novel scientific technique, the use
MOTHER/GUARDIAN FE ANGELA of DNA test as evidence is still open to challenge. Eventually, as the appropriate case
PROLLAMANTE, respondents. comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it
was said, that courts should apply the results of science when competently obtained in
DECISION aid of situations presented, since to reject said result is to deny progress.

Actions; Pleadings and Practice; Recognition; That the two causes of action, Actions; Pleadings and Practice; Appeals; Certiorari; Grave Abuse of
one to compel recognition and the other to claim inheritance, may be joined in one Discretion; Where the power is exercised in an arbitrary manner by reason of passion,
complaint is not new in our jurisprudence.—That the two causes of action, one to prejudice, or personal hostility, and it must be so patent or gross as to amount to an
compel recognition and the other to claim inheritance, may be joined in one complaint evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act
is not new in our jurisprudence. As early as [1922] we had occasion to rule thereon at all in contemplation of law.—Grave abuse of discretion implies such capricious and
in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said: The question whether a whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other
person in the position of the present plaintiff can in any event maintain a complex words, where the power is exercised in an arbitrary manner by reason of passion,
action to compel recognition as a natural child and at the same time to obtain ulterior prejudice, or personal hostility, and it must be so patent or gross as to amount to
relief in the character of heir, is one which in the opinion of this court must be an evasion of a positive duty or to a virtual refusal to perform the duty enjoined
answered in the affirmative, provided always that the conditions justifying the joinder or to act at all in contemplation of law. The special civil action for certiorari is a
of the two distinct causes of action are present in the particular case. In other words, remedy designed for the correction of errors of jurisdiction and not errors of judgment.
there is no absolute necessity requiring that the action to compel acknowledgment The raison d’etre for the rule is when a court exercises its jurisdiction, an error
should have been instituted and prosecuted to a successful conclusion prior to the committed while so engaged does not deprive it of the jurisdiction being exercised
action in which that same plaintiff seeks additional relief in the character of heir. when the error is committed. If it did, every error committed by a court would deprive
Certainly, there is nothing so peculiar to the action to compel acknowledgment as to it of its jurisdiction and every erroneous judgment would be a void judgment. In such
require that a rule should be here applied different from that generally applicable in a scenario, the administration of justice would not survive. Hence, where the issue or
other cases. x x x The conclusion above stated, though not heretofore explicitly question involved affects the wisdom or legal soundness of the decision—not the
formulated by this court, is undoubtedly to some extent supported by our prior jurisdiction of the court to render said decision—the same is beyond the province of a
decisions. Thus, we have held in numerous cases, and the doctrine must be considered special civil action for certiorari. The proper recourse of the aggrieved party from a
well settled, that a natural child having a right to compel acknowledgment, but who decision of the CA is a petition for review on certiorari under Rule 45 of the Revised
has not been in fact legally acknowledged, may maintain partition proceedings for the Rules of Court. On the other hand, if the error subject of the recourse is one of
division of the inheritance against his coheirs x x x; and the same person may intervene jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or
in proceedings for the distribution of the estate of his deceased natural father, or mother agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the
x x x. In neither of these situations has it been thought necessary for the plaintiff to proper remedy available to the aggrieved party is a petition for certiorari under Rule
show a prior decree compelling acknowledgment. The obvious reason is that in 65 of the said Rules.
partition suits and distribution proceedings the other persons who might take by
inheritance are before the court; and the declaration of heirship is appropriate to such SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
proceedings.
CORONA, J.:
Civil Law; Family Code; Filiation; Paternity; DNA Testing; Parentage will still
be resolved using conventional methods unless we adopt the modern and scientific At issue in this petition for certiorari [1] is whether or not the Court of
ways available; fortunately, we have now the facility and expertise in using DNA test Appeals (CA) gravely erred in exercising its discretion, amounting to lack or
for identification and parentage testing.—Parentage will still be resolved using excess of jurisdiction, in issuing a decision[2] and resolution[3] upholding the

Page 57 of 73
resolution and order of the trial court,[4] which denied petitioners motion to On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country
dismiss private respondents complaint for support and directed the parties to Club parking lot to demand that he acknowledge Martin as his child. According
submit themselves to deoxyribonucleic acid (DNA) paternity testing. to Arnel, he could not get through Fe and the discussion became so heated
that he had no alternative but to move on but without bumping or hitting any
Respondents Fe Angela and her son Martin Prollamante sued Martins part of her body.[9] Finally, Arnel claimed that the signature and the community
alleged biological father, petitioner Arnel L. Agustin, for support and tax certificate (CTC) attributed to him in the acknowledgment of Martins birth
support pendente lite before the Regional Trial Court (RTC) of Quezon City, certificate were falsified. The CTC erroneously reflected his marital status as
Branch 106.[5] single when he was actually married and that his birth year was 1965 when it
should have been 1964.[10]
In their complaint, respondents alleged that Arnel courted Fe in 1992,
after which they entered into an intimate relationship. Arnel supposedly In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied
impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels having sired Martin but expressed willingness to consider any proposal to
insistence on abortion, Fe decided otherwise and gave birth to their child out settle the case.[11]
of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in
Quezon City. The babys birth certificate was purportedly signed by Arnel as On July 23, 2002, Fe and Martin moved for the issuance of an order
the father. Arnel shouldered the pre-natal and hospital expenses but later directing all the parties to submit themselves to DNA paternity testing pursuant
refused Fes repeated requests for Martins support despite his adequate to Rule 28 of the Rules of Court.[12]
financial capacity and even suggested to have the child committed for
adoption. Arnel also denied having fathered the child. Arnel opposed said motion by invoking his constitutional right against self-
incrimination.[13] He also moved to dismiss the complaint for lack of cause of
On January 19, 2001, while Fe was carrying five-month old Martin at the action, considering that his signature on the birth certificate was a forgery and
Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with that, under the law, an illegitimate child is not entitled to support if not
the open car door hitting Fes leg. This incident was reported to the police. In recognized by the putative father.[14] In his motion, Arnel manifested that he
July 2001, Fe was diagnosed with leukemia and has, since then, been had filed criminal charges for falsification of documents against Fe (I.S. Nos.
undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for 02-5723 and 02-7192) and a petition for cancellation of his name appearing in
support.[6] Martins birth certificate (docketed as Civil Case No. Q-02-46669). He attached
the certification of the Philippine National Police Crime Laboratory that his
In his amended answer, Arnel denied having sired Martin because his signature in the birth certificate was forged.
affair and intimacy with Fe had allegedly ended in 1998, long before Martins
conception. He claimed that Fe had at least one other secret lover. Arnel The trial court denied the motion to dismiss the complaint and ordered the
admitted that their relationship started in 1993 but he never really fell in love parties to submit themselves to DNA paternity testing at the expense of the
with (Fe) not only because (she) had at least one secret lover, a certain Jun, applicants. The Court of Appeals affirmed the trial court.
but also because she proved to be scheming and overly demanding and
possessive. As a result, theirs was a stormy on-and-off affair. What started as Thus, this petition.
a romantic liaison between two consenting adults eventually turned out to be
a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the In a nutshell, petitioner raises two issues: (1) whether a complaint for
point of even entertaining the idea of marrying him, that she resorted to various support can be converted to a petition for recognition and (2) whether DNA
devious ways and means to alienate (him) from his wife and family. Unable to paternity testing can be ordered in a proceeding for support without violating
bear the prospect of losing his wife and children, Arnel terminated the affair petitioners constitutional right to privacy and right against self-incrimination.[15]
although he still treated her as a friend such as by referring potential customers
to the car aircon repair shop[7] where she worked. Later on, Arnel found out The petition is without merit.
that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire
family went to the United States for a vacation. Upon their return in June 2000, First of all, the trial court properly denied the petitioners motion to dismiss
Arnel learned that Fe was telling people that he had impregnated her. Arnel because the private respondents complaint on its face showed that they had
refused to acknowledge the child as his because their last intimacy was a cause of action against the petitioner. The elements of a cause of action are:
sometime in 1998.[8] Exasperated, Fe started calling Arnels wife and family. (1) the plaintiffs primary right and the defendants corresponding primary duty,

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and (2) the delict or wrongful act or omission of the defendant, by which the of the putative father. The ratio decidendi in Paulino, therefore, is not the
primary right and duty have been violated. The cause of action is determined absence of a cause of action for failure of the petitioner to allege the fact of
not by the prayer of the complaint but by the facts alleged.[16] acknowledgment in the complaint, but the prescription of the action.

In the complaint, private respondents alleged that Fe had amorous Applying the foregoing principles to the case at bar, although petitioner
relations with the petitioner, as a result of which she gave birth to Martin out of contends that the complaint filed by herein private respondent merely alleges
wedlock. In his answer, petitioner admitted that he had sexual relations with that the minor Chad Cuyugan is an illegitimate child of the deceased and is
Fe but denied that he fathered Martin, claiming that he had ended the actually a claim for inheritance, from the allegations therein the same may be
relationship long before the childs conception and birth. It is undisputed and considered as one to compel recognition. Further, that the two causes of
even admitted by the parties that there existed a sexual relationship between action, one to compel recognition and the other to claim inheritance, may
Arnel and Fe. The only remaining question is whether such sexual relationship be joined in one complaint is not new in our jurisprudence.
produced the child, Martin. If it did, as respondents have alleged, then Martin
should be supported by his father Arnel. If not, petitioner and Martin are As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43
strangers to each other and Martin has no right to demand and petitioner has Phil. 763 [1922]) wherein we said:
no obligation to give support.
The question whether a person in the position of the present plaintiff can in
Preliminaries aside, we now tackle the main issues.
any event maintain a complex action to compel recognition as a natural child
and at the same time to obtain ulterior relief in the character of heir, is one
Petitioner refuses to recognize Martin as his own child and denies the
which in the opinion of this court must be answered in the affirmative, provided
genuineness and authenticity of the childs birth certificate which he purportedly
always that the conditions justifying the joinder of the two distinct causes of
signed as the father. He also claims that the order and resolution of the trial
action are present in the particular case. In other words, there is no absolute
court, as affirmed by the Court of Appeals, effectively converted the complaint
necessity requiring that the action to compel acknowledgment should
for support to a petition for recognition, which is supposedly proscribed by law.
have been instituted and prosecuted to a successful conclusion prior to
According to petitioner, Martin, as an unrecognized child, has no right to ask
the action in which that same plaintiff seeks additional relief in the
for support and must first establish his filiation in a separate suit under Article
character of heir. Certainly, there is nothing so peculiar to the action to
283[17] in relation to Article 265[18] of the Civil Code and Section 1, Rule
compel acknowledgment as to require that a rule should be here applied
105[19] of the Rules of Court.
different from that generally applicable in other cases. x x x
The petitioners contentions are without merit.
The conclusion above stated, though not heretofore explicitly formulated by
The assailed resolution and order did not convert the action for support this court, is undoubtedly to some extent supported by our prior decisions.
into one for recognition but merely allowed the respondents to prove their Thus, we have held in numerous cases, and the doctrine must be
cause of action against petitioner who had been denying the authenticity of the considered well settled, that a natural child having a right to compel
documentary evidence of acknowledgement. But even if the assailed acknowledgment, but who has not been in fact legally acknowledged,
resolution and order effectively integrated an action to compel recognition with may maintain partition proceedings for the division of the inheritance
an action for support, such was valid and in accordance with jurisprudence. against his coheirs x x x; and the same person may intervene in proceedings
In Tayag v. Court of Appeals,[20] we allowed the integration of an action to for the distribution of the estate of his deceased natural father, or mother x x
compel recognition with an action to claim ones inheritance: x. In neither of these situations has it been thought necessary for the plaintiff
to show a prior decree compelling acknowledgment. The obvious reason is
In Paulino, we held that an illegitimate child, to be entitled to support and that in partition suits and distribution proceedings the other persons who might
successional rights from the putative or presumed parent, must prove his take by inheritance are before the court; and the declaration of heirship is
filiation to the latter. We also said that it is necessary to allege in the complaint appropriate to such proceedings. (Underscoring supplied)
that the putative father had acknowledged and recognized the illegitimate child
because such acknowledgment is essential to and is the basis of the right to Although the instant case deals with support rather than inheritance, as
inherit. There being no allegation of such acknowledgment, the action in Tayag, the basis or rationale for integrating them remains the same.
becomes one to compel recognition which cannot be brought after the death Whether or not respondent Martin is entitled to support depends completely

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on the determination of filiation. A separate action will only result in a The first real breakthrough of DNA as admissible and authoritative
multiplicity of suits, given how intimately related the main issues in both cases evidence in Philippine jurisprudence came in 2002 with our en banc decision
are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to in People v. Vallejo[24] where the rape and murder victims DNA samples from
these proceedings. the bloodstained clothes of the accused were admitted in evidence. We
reasoned that the purpose of DNA testing (was) to ascertain whether an
On the second issue, petitioner posits that DNA is not recognized by this association exist(ed) between the evidence sample and the reference sample.
Court as a conclusive means of proving paternity. He also contends that The samples collected (were) subjected to various chemical processes to
compulsory testing violates his right to privacy and right against self- establish their profile.
incrimination as guaranteed under the 1987 Constitution. These contentions
have no merit. A year later, in People v. Janson,[25] we acquitted the accused charged
with rape for lack of evidence because doubts persist(ed) in our mind as to
Given that this is the very first time that the admissibility of DNA testing who (were) the real malefactors. Yes, a complex offense (had) been
as a means for determining paternity has actually been the focal issue in a perpetrated but who (were) the perpetrators? How we wish we had DNA or
controversy, a brief historical sketch of our past decisions featuring or other scientific evidence to still our doubts!
mentioning DNA testing is called for.
In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was
In the 1995 case of People v. Teehankee[21] where the appellant was faced with the issue of filiation of then presidential candidate Fernando Poe
convicted of murder on the testimony of three eyewitnesses, we stated as Jr., we stated:
an obiter dictum that while eyewitness identification is significant, it is not as
accurate and authoritative as the scientific forms of identification evidence In case proof of filiation or paternity would be unlikely to satisfactorily establish
such as the fingerprint or the DNA test result (emphasis supplied). or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of
Our faith in DNA testing, however, was not quite so steadfast in the the long dead parent could be resorted to. A positive match would clear up
previous decade. In Pe Lim v. Court of Appeals,[22] promulgated in 1997, we filiation or paternity. In Tijing vs. Court of Appeals, this Court has
cautioned against the use of DNA because DNA, being a relatively new acknowledged the strong weight of DNA testing
science, (had) not as yet been accorded official recognition by our courts.
Paternity (would) still have to be resolved by such conventional evidence as Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the
the relevant incriminating acts, verbal and written, by the putative father. conviction of the accused for rape with homicide, the principal evidence for
which included DNA test results. We did a lengthy discussion of DNA, the
In 2001, however, we opened the possibility of admitting DNA as process of DNA testing and the reasons for its admissibility in the context of
evidence of parentage, as enunciated in Tijing v. Court of Appeals:[23] our own Rules of Evidence:

A final note. Parentage will still be resolved using conventional methods unless Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic
we adopt the modern and scientific ways available. Fortunately, we have now information in all living organisms. A persons DNA is the same in each cell and
the facility and expertise in using DNA test for identification and parentage it does not change throughout a persons lifetime; the DNA in a persons blood
testing. The University of the Philippines Natural Science Research Institute is the same as the DNA found in his saliva, sweat, bone, the root and shaft of
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most
typing using short tandem repeat (STR) analysis. The analysis is based on the importantly, because of polymorphisms in human genetic structure, no two
fact that the DNA of a child/person has two (2) copies, one copy from the individuals have the same DNA, with the notable exception of identical twins.
mother and the other from the father. The DNA from the mother, the alleged
father and child are analyzed to establish parentage. Of course, being a novel xxx xxx xxx
scientific technique, the use of DNA test as evidence is still open to challenge.
Eventually, as the appropriate case comes, courts should not hesitate to rule
In assessing the probative value of DNA evidence, courts should
on the admissibility of DNA evidence. For it was said, that courts should apply
consider, inter alia, the following factors: how the samples were collected, how
the results of science when competently obtained in aid of situations
presented, since to reject said result is to deny progress. they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether proper standards and

Page 60 of 73
procedures were followed in conducting the tests, and the qualification of the The contention is untenable. The kernel of the right is not against all
analyst who conducted the tests. compulsion, but against testimonial compulsion. The right against self-
incrimination is simply against the legal process of extracting from the lips of
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified the accused an admission of guilt. It does not apply where the evidence sought
by the prosecution as an expert witness on DNA print or identification to be excluded is not an incrimination but as part of object evidence.
techniques. Based on Dr. de Ungrias testimony, it was determined that the
gene type and DNA profile of appellant are identical to that of the extracts Over the years, we have expressly excluded several kinds of object
subject of examination. The blood sample taken from the appellant showed evidence taken from the person of the accused from the realm of self-
that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 incrimination. These include photographs,[28]hair,[29] and other bodily
and CSF1PO 10/11, which are identical with semen taken from the victims substances.[30] We have also declared as constitutional several procedures
vaginal canal. Verily, a DNA match exists between the semen found in the performed on the accused such as pregnancy tests for women accused of
victim and the blood sample given by the appellant in open court during the adultery,[31]expulsion of morphine from ones mouth[32] and the tracing of ones
course of the trial. foot to determine its identity with bloody footprints.[33] In Jimenez v.
Caizares,[34] we even authorized the examination of a womans genitalia, in an
Admittedly, we are just beginning to integrate these advances in science and action for annulment filed by her husband, to verify his claim that she was
technology in the Philippine criminal justice system, so we must be cautious impotent, her orifice being too small for his penis. Some of these procedures
as we traverse these relatively uncharted waters. Fortunately, we can benefit were, to be sure, rather invasive and involuntary, but all of them were
from the wealth of persuasive jurisprudence that has developed in other constitutionally sound. DNA testing and its results, per our ruling
jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven in Yatar,[35] are now similarly acceptable.
instructive.
Nor does petitioners invocation of his right to privacy persuade us. In Ople
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was v. Torres,[36] where we struck down the proposed national computerized
ruled that pertinent evidence based on scientifically valid principles could be identification system embodied in Administrative Order No. 308, we said:
used as long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow at trial, In no uncertain terms, we also underscore that the right to privacy does not
including the introduction of new kinds of scientific techniques. DNA typing is bar all incursions into individual privacy. The right is not intended to stifle
one such novel procedure. scientific and technological advancements that enhance public service and the
common good... Intrusions into the right must be accompanied by proper
safeguards that enhance public service and the common good.
Under Philippine law, evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence. Applying
the Daubert test to the case at bar, the DNA evidence obtained through PCR Historically, it has mostly been in the areas of legality of searches and
testing and utilizing STR analysis, and which was appreciated by the court a seizures,[37] and the infringement of privacy of communication[38] where the
quo is relevant and reliable since it is reasonably based on scientifically valid constitutional right to privacy has been critically at issue. Petitioners case
principles of human genetics and molecular biology. involves neither and, as already stated, his argument that his right against self-
incrimination is in jeopardy holds no water. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason that they
Significantly, we upheld the constitutionality of compulsory DNA testing
are not in any way being violated. If, in a criminal case, an accused whose
and the admissibility of the results thereof as evidence. In that case, DNA
very life is at stake can be compelled to submit to DNA testing, we see no
samples from semen recovered from a rape victims vagina were used to reason why, in this civil case, petitioner herein who does not face such dire
positively identify the accused Joel Kawit Yatar as the rapist. Yatar claimed consequences cannot be ordered to do the same.
that the compulsory extraction of his blood sample for DNA testing, as well as
the testing itself, violated his right against self-incrimination, as embodied in
DNA paternity testing first came to prominence in the United States,
both Sections 12 and 17 of Article III of the Constitution. We addressed this as
where it yielded its first official results sometime in 1985. In the decade that
follows:
followed, DNA rapidly found widespread general acceptance.[39] Several cases
decided by various State Supreme Courts reflect the total assimilation of DNA
testing into their rules of procedure and evidence.

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The case of Wilson v. Lumb[40] shows that DNA testing is so commonly of child support services pursuant to title six-A of article three of the social
accepted that, in some instances, ordering the procedure has become a services law, the court shall immediately provide a copy of the order to the
ministerial act. The Supreme Court of St. Lawrence County, New York allowed child support enforcement unit of the social services district that provides the
a party who had already acknowledged paternity to subsequently challenge mother with such services.
his prior acknowledgment. The Court pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the Family Court (c) A determination of paternity made by any other state, whether established
examiner had the duty, upon receipt of the challenge, to order DNA tests:[41] through the parents acknowledgment of paternity or through an administrative
or judicial process, must be accorded full faith and credit, if and only if such
516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity acknowledgment meets the requirements set forth in section 452(a)(7) of the
executed pursuant to section one hundred eleven-k of the social services law social security act.
or section four thousand one hundred thirty-five-b of the public health law shall
establish the paternity of and liability for the support of a child pursuant to this (emphasis supplied)
act. Such acknowledgment must be reduced to writing and filed pursuant to
section four thousand one hundred thirty-five-b of the public health law with DNA testing also appears elsewhere in the New York Family Court Act:[42]
the registrar of the district in which the birth occurred and in which the birth
certificate has been filed. No further judicial or administrative proceedings are 532. Genetic marker and DNA tests; admissibility of records or reports of test
required to ratify an unchallenged acknowledgment of paternity. results; costs of tests.

(b) An acknowledgment of paternity executed pursuant to section one hundred a) The court shall advise the parties of their right to one or more genetic marker
eleven-k of the social services law or section four thousand one hundred thirty- tests or DNA tests and, on the courts own motion or the motion of any party,
five-b of the public health law may be rescinded by either signators filing of a shall order the mother, her child and the alleged father to submit to one or
petition with the court to vacate the acknowledgment within the earlier of sixty more genetic marker or DNA tests of a type generally acknowledged as
days of the date of signing the acknowledgment or the date of an reliable by an accreditation body designated by the secretary of the federal
administrative or a judicial proceeding (including a proceeding to establish a department of health and human services and performed by a laboratory
support order) relating to the child in which either signator is a party. For approved by such an accreditation body and by the commissioner of health or
purposes of this section, the "date of an administrative or a judicial proceeding" by a duly qualified physician to aid in the determination of whether the alleged
shall be the date by which the respondent is required to answer the petition. father is or is not the father of the child. No such test shall be ordered,
After the expiration of sixty days of the execution of the acknowledgment, however, upon a written finding by the court that it is not in the best
either signator may challenge the acknowledgment of paternity in court only interests of the child on the basis of res judicata, equitable estoppel, or
on the basis of fraud, duress, or material mistake of fact, with the burden of the presumption of legitimacy of a child born to a married woman. The
proof on the party challenging the voluntary acknowledgment. Upon receiving record or report of the results of any such genetic marker or DNA test ordered
a partys challenge to an acknowledgment, the court shall order genetic pursuant to this section or pursuant to section one hundred eleven-k of the
marker tests or DNA tests for the determination of the childs paternity social services law shall be received in evidence by the court pursuant to
and shall make a finding of paternity, if appropriate, in accordance with subdivision (e) of rule forty-five hundred eighteen of the civil practice law and
this article. Neither signators legal obligations, including the obligation for rules where no timely objection in writing has been made thereto and that if
child support arising from the acknowledgment, may be suspended during the such timely objections are not made, they shall be deemed waived and shall
challenge to the acknowledgment except for good cause as the court may find. not be heard by the court. If the record or report of the results of any such
If a party petitions to rescind an acknowledgment and if the court determines genetic marker or DNA test or tests indicate at least a ninety-five percent
that the alleged father is not the father of the child, or if the court finds that an probability of paternity, the admission of such record or report shall
acknowledgment is invalid because it was executed on the basis of fraud, create a rebuttable presumption of paternity, and shall establish, if
duress, or material mistake of fact, the court shall vacate the acknowledgment unrebutted, the paternity of and liability for the support of a child
of paternity and shall immediately provide a copy of the order to the registrar pursuant to this article and article four of this act.
of the district in which the childs birth certificate is filed and also to the putative
father registry operated by the department of social services pursuant to
(b) Whenever the court directs a genetic marker or DNA test pursuant to this
section three hundred seventy-two-c of the social services law. In addition, if
section, a report made as provided in subdivision (a) of this section may be
the mother of the child who is the subject of the acknowledgment is in receipt

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received in evidence pursuant to rule forty-five hundred eighteen of the civil being the father. Thus, when the settlement agreement between the present
practice law and rules if offered by any party. parties was entered in 1980, establishing paternity was a far more difficult
ordeal than at present. Contested paternity actions at that time were often no
(c) The cost of any test ordered pursuant to subdivision (a) of this section shall more than credibility contests. Consequently, in every contested paternity
be, in the first instance, paid by the moving party. If the moving party is action, obtaining child support depended not merely on whether the putative
financially unable to pay such cost, the court may direct any qualified public father was, in fact, the child's biological father, but rather on whether the
health officer to conduct such test, if practicable; otherwise, the court may mother could prove to a court of law that she was only sexually involved with
direct payment from the funds of the appropriate local social services district. one man--the putative father. Allowing parties the option of entering into
In its order of disposition, however, the court may direct that the cost of any private agreements in lieu of proving paternity eliminated the risk that the
such test be apportioned between the parties according to their respective mother would be unable meet her burden of proof.
abilities to pay or be assessed against the party who does not prevail on the
issue of paternity, unless such party is financially unable to pay. (emphasis It is worth noting that amendments to Michigans Paternity law have
supplied) included the use of DNA testing:[46]

In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA 722.716 Pretrial proceedings; blood or tissue typing determinations as to
tests were used to prove that H.W., previously thought to be an offspring of mother, child, and alleged father; court order; refusal to submit to typing or
the marriage between A.C.W. and C.E.W., was actually the child of R.E. with identification profiling; qualifications of person conducting typing or
whom C.E.W. had, at the time of conception, maintained an adulterous identification profiling; compensation of expert; result of typing or identification
relationship. profiling; filing summary report; objection; admissibility; presumption; burden
of proof; summary disposition.
In Erie County Department of Social Services on behalf of Tiffany M.H. v.
Greg G.,[44] the 4th Department of the New York Supreme Courts Appellate Sec. 6.
Division allowed G.G., who had been adjudicated as T.M.H.s father by default,
to have the said judgment vacated, even after six years, once he had shown (1) In a proceeding under this act before trial, the court, upon application
through a genetic marker test that he was not the childs father. In this case, made by or on behalf of either party, or on its own motion, shall order
G.G. only requested the tests after the Department of Social Services, six that the mother, child, and alleged father submit to blood or tissue typing
years after G.G. had been adjudicated as T.M.H.s father, sought an increase determinations, which may include, but are not limited to, determinations
in his support obligation to her. of red cell antigens, red cell isoenzymes, human leukocyte antigens,
serum proteins, or DNA identification profiling, to determine whether the
In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the alleged father is likely to be, or is not, the father of the child. If the court
constitutionality of a provision of law allowing non-modifiable support orders a blood or tissue typing or DNAidentification profiling to be
agreements pointed out that it was because of the difficulty of determining conducted and a party refuses to submit to the typing
paternity before the advent of DNA testing that such support agreements were or DNA identification profiling, in addition to any other remedies
necessary: available, the court may do either of the following:

As a result of DNA testing, the accuracy with which paternity can be proven (a) Enter a default judgment at the request of the appropriate party.
has increased significantly since the parties in this lawsuit entered into their
support agreement(current testing methods can determine the probability of
(b) If a trial is held, allow the disclosure of the fact of the refusal unless
paternity to 99.999999% accuracy). However, at the time the parties before us
good cause is shown for not disclosing the fact of refusal.
entered into the disputed agreement, proving paternity was a very significant
obstacle to an illegitimate child's access to child support. The first reported
results of modern DNA paternity testing did not occur until 1985. ("In fact, (2) A blood or tissue typing or DNA identification profiling shall be conducted
since its first reported results in 1985, DNA matching has progressed to by a person accredited for paternity determinations by a nationally recognized
'general acceptance in less than a decade'"). Of course, while prior blood- scientific organization, including, but not limited to, the American association
testing methods could exclude some males from being the possible father of of blood banks.
a child, those methods could not affirmatively pinpoint a particular male as

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xxx xxx xxx Contrary to Amundson's position, the fact that a default judgment was entered,
but subsequently vacated, (did) not foreclose Kohl from obtaining a money
(5) If the probability of paternity determined by the qualified person judgment for the amount withheld from his wages.
described in subsection (2) conducting the blood or tissue typing
or DNA identification profiling is 99% or higher, and In M.A.S. v. Mississippi Dept. of Human Services,[50] another case
the DNA identification profile and summary report are admissible as decided by the Supreme Court of Mississippi, it was held that even if paternity
provided in subsection (4), paternity is presumed. If the results of the was established through an earlier agreed order of filiation, child support and
analysis of genetic testing material from 2 or more persons indicate a visitation orders could still be vacated once DNA testing established someone
probability of paternity greater than 99%, the contracting laboratory shall other than the named individual to be the biological father. The Mississippi
conduct additional genetic paternity testing until all but 1 of the putative High Court reiterated this doctrine in Williams v. Williams.[51]
fathers is eliminated, unless the dispute involves 2 or more putative
fathers who have identical DNA. The foregoing considered, we find no grave abuse of discretion on the
part of the public respondent for upholding the orders of the trial court which
(6) Upon the establishment of the presumption of paternity as provided in both denied the petitioners motion to dismiss and ordered him to submit
subsection (5), either party may move for summary disposition under the court himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure,
rules. this section does not abrogate the right of either party to child support the remedy of certiorari is only available when any tribunal, board or officer
from the date of birth of the child if applicable under section 7. (emphasis has acted without or in excess of its or his jurisdiction, or with grave abuse of
supplied) discretion amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of
law.[52] In Land Bank of the Philippines v. the Court of Appeals [53] where we
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA
dismissed a special civil action for certiorari under Rule 65, we discussed at
test results showing paternity were sufficient to overthrow the presumption of
length the nature of such a petition and just what was meant by grave abuse
legitimacy of a child born during the course of a marriage:
of discretion:
The presumption of legitimacy having been rebutted by the results of the blood Grave abuse of discretion implies such capricious and whimsical exercise of
test eliminating Perkins as Justin's father, even considering the evidence in judgment as is equivalent to lack of jurisdiction or, in other words, where the
the light most favorable to Perkins, we find that no reasonable jury could find power is exercised in an arbitrary manner by reason of passion,
that Easter is not Justin's father based upon the 99.94% probability of paternity prejudice, or personal hostility, and it must be so patent or gross as to
concluded by the DNA testing. amount to an evasion of a positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court
upheld an order for genetic testing given by the Court of Appeals, even after
The special civil action for certiorari is a remedy designed for the correction of
trial on the merits had concluded without such order being given. Significantly, errors of jurisdiction and not errors of judgment. The raison detre for the rule
when J.C.F., the mother, first filed the case for paternity and support with the
is when a court exercises its jurisdiction, an error committed while so engaged
District Court, neither party requested genetic testing. It was only upon appeal does not deprive it of the jurisdiction being exercised when the error is
from dismissal of the case that the appellate court remanded the case and committed. If it did, every error committed by a court would deprive it of its
ordered the testing, which the North Dakota Supreme Court upheld.
jurisdiction and every erroneous judgment would be a void judgment. In such
a scenario, the administration of justice would not survive. Hence, where the
The case of Kohl v. Amundson,[49] decided by the Supreme Court of issue or question involved affects the wisdom or legal soundness of the
South Dakota, demonstrated that even default judgments of paternity could be decisionnot the jurisdiction of the court to render said decisionthe same is
vacated after the adjudicated father had, through DNA testing, established beyond the province of a special civil action for certiorari.
non-paternity. In this case, Kohl, having excluded himself as the father of
Amundsons child through DNA testing, was able to have the default judgment
against him vacated. He then obtained a ruling ordering Amundson to The proper recourse of the aggrieved party from a decision of the CA is a
reimburse him for the amounts withheld from his wages for child support. The petition for review on certiorari under Rule 45 of the Revised Rules of Court.
Court said (w)hile Amundson may have a remedy against the father of the On the other hand, if the error subject of the recourse is one of jurisdiction, or
child, she submit(ted) no authority that require(d) Kohl to support her child. the act complained of was perpetrated by a quasi-judicial officer or agency with

Page 64 of 73
grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for certiorari under
Rule 65 of the said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness,
passion, prejudice or personal hostility that would amount to grave abuse of
discretion on the part of the Court of Appeals. The respondent court acted
entirely within its jurisdiction in promulgating its decision and resolution, and
any error made would have only been an error in judgment. As we have
discussed, however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who
choose to deny their existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for such ostracized and
abandoned progeny. We have long believed in the merits of DNA testing and
have repeatedly expressed as much in the past. This case comes at a perfect
time when DNA testing has finally evolved into a dependable and authoritative
form of evidence gathering. We therefore take this opportunity to forcefully
reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED.


The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No.
80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

Page 65 of 73
[12] capacity as Trial Fiscal Regional Trial Court, Branch 139,
Makati, respondents.
EN BANC
G.R No. 75812-13 December 18, 1986
G.R. No. L-63419 December 18, 1986
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners,
FLORENTINA A. LOZANO, petitioner, vs.
vs. HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding temporarily presided by HONORABLE ASAALI S. ISNANI Branch 153,
Judge, Regional Trial Court, National Capital Judicial Region, Branch Court of First Instance of Pasig, Metro Manila, respondent.
XX, Manila, and the HONORABLE JOSE B. FLAMINIANO, in his capacity
as City Fiscal of Manila, respondents. G.R No. 75765-67 December 18, 1986
G.R. No. L-66839-42 December 18, 1986 LUIS M. HOJAS, petitioner,
vs.
LUZVIMINDA F. LOBATON petitioner, HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial
vs. Court of Cagayan de Oro City, Branch XX, HONORABLE JUDGE
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding ALFREDO LAGAMON, Presiding Judge, Regional Trial Court of
Executive Judge, Branch V, Region IV, Regional Trial Court, sitting at Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI T.
Lemery, Batangas, THE PROVINCIAL FISCAL OF BATANGAS, and CATHI, City Fiscal of Cagayan de Oro City, respondents.
MARIA LUISA TORDECILLA, respondents.
G.R. No. 75789 December 18, 1986
G.R No. 71654 December 18, 1986
THE PEOPLE OF THE PHILIPPINES, petitioner,
ANTONIO DATUIN and SUSAN DATUIN, petitioners, vs.
vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court,
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon National Capital Judicial Region, Branch 52, Manila and THELMA
City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON SARMIENTO, respondents.
CITY, respondents.
Constitutional Law; Criminal Law; Gravamen of B.P. 22 is the issuance of a
G.R. No. 74524-25 December 18, 1986 worthless check, not the non-payment of an obligation.—The gravamen of the offense
punished by BP 22 is the act of making and issuing a worthless check or a check that
OSCAR VIOLAGO, petitioner, is dishonored upon its presentation for payment. It is not the nonpayment of an
vs. obligation which the law punishes. The law is not intended or designed to coerce a
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal
City, Branch LXXXVIII, HONORABLE CITY FISCAL OF QUEZON sanctions, the making of worthless checks and putting them in circulation. Because of
CITY, respondents. its deleterious effects on the public interest, the practice is proscribed by the law. The
law punishes the act not as an offense against property, but an offense against public
G.R. No. 75122-49 December 18, 1986 order.

ELINOR ABAD, petitioner, Same; Same; The legislature may not validly punish nonpayment of a debt ex
vs. contractu, and an act may not be considered and punished as malum in se, but such
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as act may be penalized under police power as malum prohibitum because of harm it
Presiding Judge, Regional Trial Court, National Capital Judicial Region, causes to the public.—It may be constitutionally impermissible for the legislature to
Branch 139, Makati and FEDERICO L. MELOCOTTON JR., in his penalize a person for non-payment of a debt ex contractu. But certainly it is within the
prerogative of the lawmaking body to proscribe certain acts deemed pernicious and

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inimical to public welfare. Acts mala in se are not the only acts which the law can judicial decisions must be read in the context of the facts and the law involved and, in
punish. An act may not be considered by society as inherently wrong, hence, a broader sense, of the social, economic and political environment—in short, the
not malum in se, but because of the harm that it inflicts on the community, it can be milieu—under which they were made. We recognize the wisdom of the old saying that
outlawed and criminally punished as malum prohibitum. The state can do this in the what is sauce for the goose may not be sauce for the gander.
exercise of its police power.
Same; Same; Same; B.P. 22 does not conflict with constitutional prohibition
Same; Same; Police power defined.—The police power of the state has been against imprisonment for non-payment of debt Police power may override a
described as "the most essential, insistent and illimitable of powers" which enables it constitutional guarantee.—There are occasions when the police power of the state
to prohibit all things hurtful to the comfort, safety and welfare of society. It is a power may even override a constitutional guaranty. For example, there have been cases
not emanating from or conferred by the constitution, but inherent in the state, plenary, wherein we held that the constitutional provision on non-impairment of contracts must
"suitably vague and far from precisely defined, rooted in the conception that man in yield to the police power of the state. Whether the police power may override the
organizing the state and imposing upon the government limitations to safeguard constitutional inhibition against imprisonment for debt is an issue we do not have to
constitutional rights did not intend thereby to enable individual citizens or group of address. This bridge has not been reached, so there is no occasion to cross it. We hold
citizens to obstruct unreasonably the enactment of such salutary measures to ensure that BP 22 does not conflict with the constitutional inhibition against imprisonment
communal peace, safety, good order and welfare." for debt.

Same; Same; Negotiable Instruments; Any practice tending to destroy Same; Same; Same; Contracts; Checks are not mere contracts, but substitutes
confidence in checks as currency substitutes can be deterred to prevent havoc in trade for money. Non-impairment of contract clause applies only to lawful contracts.—We
and banking community.—By definition, a check is a bill of exchange drawn on a bank find no valid ground to sustain the contention that BP 22 impairs freedom of contract.
and payable on demand. It is a written order on a bank, purporting to be drawn against The freedom of con tract which is constitutionally protected is freedom to enter into
a deposit of funds for the payment of all events, of a sum of money to a certain person "lawful" contracts. Contracts which contravene public policy are not lawful. Besides,
therein named or to his order or to cash, and payable on demand. Unlike a promissory we must bear in mind that checks can not be categorized as mere contracts. It is a
note, a check is not a mere undertaking to pay an amount of money. It is an order commercial instrument which, in this modern day and age, has become a convenient
addressed to a bank and partakes of a representation that the drawer has funds on substitute for money; it forms part of the banking system and theref ore not entirely
deposit against which the check is drawn, sufficient to ensure payment upon its free from the regulatory power of the state.
presentation to the bank. There is therefore an element of certainty or assurance that
the instrument will be paid upon presentation. For this reason, checks have become Same; Same; Same; B.P. 22 reasonably differentiates between the swindler and
widely accepted as a medium of payment in trade and commerce. Although not legal the swindled. It does not violate the equal protection clause.—Neither do we find
tender, checks have come to be perceived as convenient substitutes for currency in substance in the claim that the statute in question denies equal protection of the laws
commercial and financial transactions. The basis or foundation of such perception is or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is
confidence. If such confidence is shaken, the usefulness of checks as currency contended that the payee is just as responsible for the crime as the drawer of the check,
substitutes would be greatly diminished or may become nil. Any practice therefore since without the indispensable participation of the payee by his acceptance of the
tending to destroy that confidence should be deterred, for the proliferation of worthless check there would be no crime. This argument is tantamount to saying that, to give
checks can only create havoc in trade circles and the banking community. equal protection, the law should punish both the swindler and the swindled. The
petitioners' posture ignores the well-accepted meaning of the clause "equal protection
Same; Same; B.P. 22 is constitutional.—In sum, we find the enactment of BP of the laws." The clause does not preclude classification of individuals, who may be
22 a valid exercise of the police power and is not repugnant to the constitutional accorded different treatment under the law as long as the classification is not
inhibition against imprisonment for debt. unreasonable or arbitrary.

Same; Same; Judgments; Foreign judgments on worthless checks legislation Same; Same; Same; B.P. 22 does not involve an undue delegation of legislative
must be read in context We recognize the wisdom of the old saying that what is sauce power of the payee.—lt is also suggested that BP 22 constitutes undue or improper
for the goose is not sauce for the gander.—lt is needless to warn that foreign delegation of legislative powers, on the theory that the offense is not completed by the
jurisprudence must be taken with abundant caution. A caveat to be observed is that sole act of the maker or drawer but is made to depend on the will of the payee. If the
substantial differences exist between our statute and the worthless check acts of those payee does not present the check to the bank for payment but instead keeps it, there
states where the jurisprudence have evolved. One thing to remember is that BP 22 was would be no crime. The logic of the argument stretches to absurdity the meaning of
not lifted bodily from any existing statute. Furthermore, we have to consider that "delegation of legislative power." What cannot be delegated is the power to legislate,

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or the power to make laws, which means, as applied to the present case, the power to trial courts, except in one case, which is the subject of G. R. No. 75789,
define the offense sought to be punished and to prescribe the penalty. By no stretch of wherein the trial court declared the law unconstitutional and dismissed the
logic or imagination can it be said that the power to define the crime and prescribe the case. The parties adversely affected have come to us for relief.
penalty therefore has been in any manner delegated to the payee. Neither is there any
provision in the statute that can be construed, no matter how remotely, as undue As a threshold issue the former Solicitor General in his comment on the
delegation of executive power. The suggestion that the statute unlawfully delegates its petitions, maintained the posture that it was premature for the accused to
enf orcement to the off ended party is f arfetched. elevate to this Court the orders denying their motions to quash, these orders
being interlocutory. While this is correct as a general rule, we have in justifiable
Same; Same; Same; The text of the 2nd paragraph of B.P. 22 was what was cases intervened to review the lower court's denial of a motion to quash. 1 In
approved on second reading as per minutes of the Batasan and a committee report, view of the importance of the issue involved here, there is no doubt in our mind
contrary to the argument that said text was clandestinely amended on 3rd reading.— that the instant petitions should be entertained and the constitutional challenge
A careful review of the record of the proceedings of the Interim Batasan on this matter to BP 22 resolved promptly, one way or the other, in order to put to rest the
shows that, indeed, there was some confusion among Batasan Members on what was doubts and uncertainty that exist in legal and judicial circles and the general
the exact text of the paragraph in question which the body approved on Second public which have unnecessarily caused a delay in the disposition of cases
Reading. Part of the confusion was due apparently to the fact that during the involving the enforcement of the statute.
deliberations on Second Reading (the amendment period), amendments were proposed
orally and approved by the body or accepted by the sponsor, hence, some members For the purpose of resolving the constitutional issue presented here, we do not
might not have gotten the complete text of the provisions of the bill as amended and find it necessary to delve into the specifics of the informations involved in the
approved on Second Reading. However, it is clear from the records that the text of the cases which are the subject of the petitions before us. 2 The language of BP
second paragraph of Section 1 of BP 22 is the text which was actually approved by the 22 is broad enough to cover all kinds of checks, whether present dated or
body on Second Reading on February 7, 1979, as reflected in the approved Minutes postdated, or whether issued in payment of pre-existing obligations or given in
for that day. In any event, before the bill was submitted for final approval on Third mutual or simultaneous exchange for something of value.
Reading, the Interim Batasan created a Special Committee to investigate the matter,
and the Committee in its report, which was approved by the entire body on March 22, I
1979, stated that "the clause in question was . . . an authorized amendment of the bill
and the printed copy thereof reflects accurately the provision in question as approved BP 22 punishes a person "who makes or draws and issues any check on
on Second Reading. We therefore, find no merit in the petitioners' claim that in the account or for value, knowing at the time of issue that he does not have
enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973 sufficient funds in or credit with the drawee bank for the payment of said check
Constitution were violated. in full upon presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds or credit or would have been dishonored
PETITION to review the order of the Regional Trial Court of Manila, Br. 52. for the same reason had not the drawer, without any valid reason, ordered the
Nitafan, J bank to stop payment." The penalty prescribed for the offense is imprisonment
of not less than 30 days nor more than one year or a fine or not less than the
amount of the check nor more than double said amount, but in no case to
exceed P200,000.00, or both such fine and imprisonment at the discretion of
YAP, J.: the court. 3

The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly The statute likewise imposes the same penalty on "any person who, having
known as the Bouncing Check Law, which was approved on April 3, 1979, is sufficient funds in or credit with the drawee bank when he makes or draws and
the sole issue presented by these petitions for decision. The question is issues a check, shall fail to keep sufficient funds or to maintain a credit to cover
definitely one of first impression in our jurisdiction. the full amount of the check if presented within a period of ninety (90) days
from the date appearing thereon, for which reason it is dishonored by the
These petitions arose from cases involving prosecution of offenses under the drawee bank. 4
statute. The defendants in those cases moved seasonably to quash the
informations on the ground that the acts charged did not constitute an offense, An essential element of the offense is "knowledge" on the part of the maker or
the statute being unconstitutional. The motions were denied by the respondent drawer of the check of the insufficiency of his funds in or credit with the bank

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to cover the check upon its presentment. Since this involves a state of mind time referring in explicit terms to the issuance of worthless checks. The
difficult to establish, the statute itself creates a prima facie presumption of such amendment penalized any person who 1) issues a check in payment of a debt
knowledge where payment of the check "is refused by the drawee because of or for other valuable consideration, knowing at the time of its issuance that he
insufficient funds in or credit with such bank when presented within ninety (90) does not have sufficient funds in the bank to cover its amount, or 2) maliciously
days from the date of the check. 5 To mitigate the harshness of the law in its signs the check differently from his authentic signature as registered at the
application, the statute provides that such presumption shall not arise if within bank in order that the latter would refuse to honor it; or 3) issues a postdated
five (5) banking days from receipt of the notice of dishonor, the maker or check and, at the date set for its payment, does not have sufficient deposit to
drawer makes arrangements for payment of the check by the bank or pays the cover the same.8
holder the amount of the check.
In 1932, as already adverted to, the old Penal Code was superseded by the
Another provision of the statute, also in the nature of a rule of evidence, Revised Penal Code. 9 The above provisions, in amended form, were
provides that the introduction in evidence of the unpaid and dishonored check incorporated in Article 315 of the Revised Penal Code defining the crime of
with the drawee bank's refusal to pay "stamped or written thereon or attached estafa. The revised text of the provision read as follows:
thereto, giving the reason therefor, "shall constitute prima facie proof of "the
making or issuance of said check, and the due presentment to the drawee for Art. 315. Swindling (estafa).—Any person who shall defraud another
payment and the dishonor thereof ... for the reason written, stamped or by any of the means mentioned hereinbelow shall be punished by:
attached by the drawee on such dishonored check." 6
xxx xxx xxx
The presumptions being merely prima facie, it is open to the accused of course
to present proof to the contrary to overcome the said presumptions. 2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commis sion of the fraud:
II
(a) By using fictitious name, or falsely pretending to possess
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks power, influence, qualifications, property, credit, agency,
that are worthless, i.e. checks that end up being rejected or dishonored for business or imaginary transactions, or by means of other
payment. The practice, as discussed later, is proscribed by the state because similar deceits;
of the injury it causes to t public interests.
xxx xxx xxx
Before the enactment of BP 22, provisions already existed in our statute books
which penalize the issuance of bouncing or rubber checks. Criminal law has (d) By postdating a check, or issuing a check in payment of
dealth with the problem within the context of crimes against property punished an obligation the offender knowing that at the time he had no
as "estafa" or crimes involving fraud and deceit. The focus of these penal funds in the bank, or the funds deposited by him were not
provisions is on the damage caused to the property rights of the victim. sufficient to cover the amount of the cheek without informing
the payee of such circumstances.
The Penal Code of Spain, which was in force in the Philippines from 1887 until
it was replaced by the Revised Penal Code in 1932, contained provisions The scope of paragraph 2 (d), however, was deemed to exclude checks issued
penalizing, among others, the act of defrauding another through false in payment of pre-existing obligations. 10 The rationale of this interpretation is
pretenses. Art. 335 punished a person who defrauded another "by falsely that in estafa, the deceit causing the defraudation must be prior to or
pretending to possess any power, influence, qualification, property, credit, simultaneous with the commission of the fraud. In issuing a check as payment
agency or business, or by means of similar deceit." Although no explicit for a pre-existing debt, the drawer does not derive any material benefit in return
mention was made therein regarding checks, this provision was deemed to or as consideration for its issuance. On the part of the payee, he had already
cover within its ambit the issuance of worthless or bogus checks in exchange parted with his money or property before the check is issued to him hence, he
for money. 7 is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated
on him by the drawer of the check.
In 1926, an amendment was introduced by the Philippine Legislature, which
added a new clause (paragraph 10) to Article 335 of the old Penal Code, this

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With the intention of remedying the situation and solving the problem of how The constitutional challenge to BP 22 posed by petitioners deserves a
to bring checks issued in payment of pre-existing debts within the ambit of Art. searching and thorough scrutiny and the most deliberate consideration by the
315, an amendment was introduced by the Congress of the Philippines in Court, involving as it does the exercise of what has been described as "the
1967, 11 which was enacted into law as Republic Act No. 4885, revising the highest and most delicate function which belongs to the judicial department of
aforesaid proviso to read as follows: the government." 15

(d) By postdating a check, or issuing a check in payment of an As we enter upon the task of passing on the validity of an act of a co-equal
obligation when the offender had no funds in the bank, or his funds and coordinate branch of the government, we need not be reminded of the
deposited therein were not sufficient to cover the amount of the check. time-honored principle, deeply ingrained in our jurisprudence, that a statute is
The failure of the drawer of the check to deposit the amount necessary presumed to be valid. Every presumption must be indulged in favor of its
to cover his check within three (3) days from receipt of notice from the constitutionality. This is not to say that we approach our task with diffidence or
bank and/or the payee or holder that said check has been dishonored timidity. Where it is clear that the legislature has overstepped the limits of its
for lack or insufficiency of funds shall be puma facie evidence of deceit authority under the constitution we should not hesitate to wield the axe and let
constituting false pretense or fraudulent act. it fall heavily, as fall it must, on the offending statute.

However, the adoption of the amendment did not alter the situation materially. III
A divided Court held in People vs. Sabio, Jr. 12 that Article 315, as amended
by Republic Act 4885, does not cover checks issued in payment of pre-existing Among the constitutional objections raised against BP 22, the most serious is
obligations, again relying on the concept underlying the crime of estafa through the alleged conflict between the statute and the constitutional provision
false pretenses or deceit—which is, that the deceit or false pretense must be forbidding imprisonment for debt. It is contended that the statute runs counter
prior to or simultaneous with the commission of the fraud. to the inhibition in the Bill of Rights which states, "No person shall be
imprisoned for debt or non-payment of a poll tax." 16 Petitioners insist that,
Since statistically it had been shown that the greater bulk of dishonored checks since the offense under BP 22 is consummated only upon the dishonor or non-
consisted of those issued in payment of pre-existing debts, 13 the amended payment of the check when it is presented to the drawee bank, the statute is
provision evidently failed to cope with the real problem and to deal effectively really a "bad debt law" rather than a "bad check law." What it punishes is the
with the evil that it was intended to eliminate or minimize. non-payment of the check, not the act of issuing it. The statute, it is claimed,
is nothing more than a veiled device to coerce payment of a debt under the
With the foregoing factual and legal antecedents as a backdrop, the then threat of penal sanction.
Interim Batasan confronted the problem squarely. It opted to take a bold step
and decided to enact a law dealing with the problem of bouncing or worthless First of all it is essential to grasp the essence and scope of the constitutional
checks, without attaching the law's umbilical cord to the existing penal inhibition invoked by petitioners. Viewed in its historical context, the
provisions on estafa. BP 22 addresses the problem directly and frontally and constitutional prohibition against imprisonment for debt is a safeguard that
makes the act of issuing a worthless check malum prohibitum. 14 evolved gradually during the early part of the nineteenth century in the various
states of the American Union as a result of the people's revulsion at the cruel
The question now arises: Is B P 22 a valid law? and inhumane practice, sanctioned by common law, which permitted creditors
to cause the incarceration of debtors who could not pay their debts. At common
Previous efforts to deal with the problem of bouncing checks within the ambit law, money judgments arising from actions for the recovery of a debt or for
of the law on estafa did not evoke any constitutional challenge. In contrast, BP damages from breach of a contract could be enforced against the person or
22 was challenged promptly. body of the debtor by writ of capias ad satisfaciendum. By means of this writ,
a debtor could be seized and imprisoned at the instance of the creditor until
Those who question the constitutionality of BP 22 insist that: (1) it offends the he makes the satisfaction awarded. As a consequence of the popular ground
constitutional provision forbidding imprisonment for debt; (2) it impairs freedom swell against such a barbarous practice, provisions forbidding imprisonment
of contract; (3) it contravenes the equal protection clause; (4) it unduly for debt came to be generally enshrined in the constitutions of various states
delegates legislative and executive powers; and (5) its enactment is flawed in of the Union. 17
that during its passage the Interim Batasan violated the constitutional provision
prohibiting amendments to a bill on Third Reading.

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This humanitarian provision was transported to our shores by the Americans Has BP 22 transgressed the constitutional inhibition against imprisonment for
at the turn of t0he century and embodied in our organic laws. 18 Later, our debt? To answer the question, it is necessary to examine what the statute
fundamental law outlawed not only imprisonment for debt, but also the prohibits and punishes as an offense. Is it the failure of the maker of the check
infamous practice, native to our shore, of throwing people in jail for non- to pay a debt? Or is it the making and issuance of a worthless check in
payment of the cedula or poll tax. 19 payment of a debt? What is the gravamen of the offense? This question lies at
the heart of the issue before us.
The reach and scope of this constitutional safeguard have been the subject of
judicial definition, both by our Supreme Court 20 and by American State The gravamen of the offense punished by BP 22 is the act of making and
courts.21 Mr. Justice Malcolm speaking for the Supreme Court in Ganaway vs. issuing a worthless check or a check that is dishonored upon its presentation
Queen, 22 stated: "The 'debt' intended to be covered by the constitutional for payment. It is not the non-payment of an obligation which the law punishes.
guaranty has a well-defined meaning. Organic provisions relieving from The law is not intended or designed to coerce a debtor to pay his debt. The
imprisonment for debt, were intended to prevent commitment of debtors to thrust of the law is to prohibit, under pain of penal sanctions, the making of
prison for liabilities arising from actions ex contractu The inhibition was never worthless checks and putting them in circulation. Because of its deleterious
meant to include damages arising in actions ex delicto, for the reason that effects on the public interest, the practice is proscribed by the law. The law
damages recoverable therein do not arise from any contract entered into punishes the act not as an offense against property, but an offense against
between the parties but are imposed upon the defendant for the wrong he has public order.
done and are considered as punishment, nor to fines and penalties imposed
by the courts in criminal proceedings as punishments for crime." Admittedly, the distinction may seem at first blush to appear elusive and
difficult to conceptualize. But precisely in the failure to perceive the vital
The law involved in Ganaway was not a criminal statute but the Code of distinction lies the error of those who challenge the validity of BP 22.
Procedure in Civil Actions (1909) which authorized the arrest of the defendant
in a civil case on grounds akin to those which justify the issuance of a writ of It may be constitutionally impermissible for the legislature to penalize a person
attachment under our present Rules of Court, such as imminent departure of for non-payment of a debt ex contractu But certainly it is within the prerogative
the defendant from the Philippines with intent to defraud his creditors, or of the lawmaking body to proscribe certain acts deemed pernicious and
concealment, removal or disposition of properties in fraud of creditors, etc. The inimical to public welfare. Acts mala in se are not the only acts which the law
Court, in that case, declared the detention of the defendant unlawful, being can punish. An act may not be considered by society as inherently wrong,
violative of the constitutional inhibition against imprisonment for debt, and hence, not malum in se but because of the harm that it inflicts on the
ordered his release. The Court, however, refrained from declaring the statutory community, it can be outlawed and criminally punished as malum prohibitum.
provision in question unconstitutional. The state can do this in the exercise of its police power.

Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory The police power of the state has been described as "the most essential,
provision which made illegal and punishable the refusal of an employer to pay, insistent and illimitable of powers" which enables it to prohibit all things hurtful
when he can do so, the salaries of his employees or laborers on the fifteenth to the comfort, safety and welfare of society. 24 It is a power not emanating
or last day of every month or on Saturday every week, was challenged for from or conferred by the constitution, but inherent in the state, plenary,
being violative of the constitutional prohibition against imprisonment for debt. "suitably vague and far from precisely defined, rooted in the conception that
The constitutionality of the law in question was upheld by the Court, it being man in organizing the state and imposing upon the government limitations to
within the authority of the legislature to enact such a law in the exercise of the safeguard constitutional rights did not intend thereby to enable individual
police power. It was held that "one of the purposes of the law is to suppress citizens or group of citizens to obstruct unreasonably the enactment of such
possible abuses on the part of the employers who hire laborers or employees salutary measures to ensure communal peace, safety, good order and
without paying them the salaries agreed upon for their services, thus causing welfare." 25
them financial difficulties. "The law was viewed not as a measure to coerce
payment of an obligation, although obviously such could be its effect, but to The enactment of BP 22 is a declaration by the legislature that, as a matter of
banish a practice considered harmful to public welfare. public policy, the making and issuance of a worthless check is deemed public
nuisance to be abated by the imposition of penal sanctions.
IV

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It is not for us to question the wisdom or impolicy of the statute. It is sufficient The 'check flasher' does a great deal more than contract a debt; he
that a reasonable nexus exists between means and end. Considering the shakes the pillars of business; and to my mind, it is a mistaken charity
factual and legal antecedents that led to the adoption of the statute, it is not of judgment to place him in the same category with the honest man
difficult to understand the public concern which prompted its enactment. It had who is unable to pay his debts, and for whom the constitutional
been reported that the approximate value of bouncing checks per day was inhibition against' imprisonment for debt, except in cases of fraud was
close to 200 million pesos, and thereafter when overdrafts were banned by the intended as a shield and not a sword.
Central Bank, it averaged between 50 minion to 80 million pesos a day. 26
In sum, we find the enactment of BP 22 a valid exercise of the police power
By definition, a check is a bill of exchange drawn on a bank and payable on and is not repugnant to the constitutional inhibition against imprisonment for
demand. 27 It is a written order on a bank, purporting to be drawn against a debt.
deposit of funds for the payment of all events, of a sum of money to a certain
person therein named or to his order or to cash and payable on This Court is not unaware of the conflicting jurisprudence obtaining in the
demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay various states of the United States on the constitutionality of the "worthless
an amount of money. It is an order addressed to a bank and partakes of a check" acts. 31 It is needless to warn that foreign jurisprudence must be taken
representation that the drawer has funds on deposit against which the check with abundant caution. A caveat to be observed is that substantial differences
is drawn, sufficient to ensure payment upon its presentation to the bank. There exist between our statute and the worthless check acts of those states where
is therefore an element of certainty or assurance that the instrument wig be the jurisprudence have evolved. One thing to remember is that BP 22 was not
paid upon presentation. For this reason, checks have become widely accepted lifted bodily from any existing statute. Furthermore, we have to consider that
as a medium of payment in trade and commerce. Although not legal tender, judicial decisions must be read in the context of the facts and the law involved
checks have come to be perceived as convenient substitutes for currency in and, in a broader sense, of the social economic and political environment—in
commercial and financial transactions. The basis or foundation of such short, the milieu—under which they were made. We recognize the wisdom of
perception is confidence. If such confidence is shakes the usefulness of the old saying that what is sauce for the goose may not be sauce for the
checks as currency substitutes would be greatly diminished or may become gander.
nit Any practice therefore tending to destroy that confidence should be
deterred for the proliferation of worthless checks can only create havoc in trade As stated elsewhere, police power is a dynamic force that enables the state to
circles and the banking community. meet the exigencies of changing times. There are occasions when the police
power of the state may even override a constitutional guaranty. For example,
Recent statistics of the Central Bank show that one-third of the entire money there have been cases wherein we held that the constitutional provision on
supply of the country, roughly totalling P32.3 billion, consists of peso demand non-impairment of contracts must yield to the police power of the
deposits; the remaining two. 29 These de deposit thirds consists of currency in state. 32 Whether the police power may override the constitutional inhibition
circulation. ma deposits in the banks constitute the funds against which among against imprisonment for debt is an issue we do not have to address. This
others, commercial papers like checks, are drawn. The magnitude of the bridge has not been reached, so there is no occasion to cross it.
amount involved amply justifies the legitimate concern of the state in
preserving the integrity of the banking system. Flooding the system with We hold that BP 22 does not conflict with the constitutional inhibition against
worthless checks is like pouring garbage into the bloodstream of the nation's imprisonment for debt.
economy.
V
The effects of the issuance of a worthless check transcends the private
interests of the parties directly involved in the transaction and touches the We need not detain ourselves lengthily in the examination of the other
interests of the community at large. The mischief it creates is not only a wrong constitutional objections raised by petitioners, some of which are rather flimsy.
to the payee or holder, but also an injury to the public. The harmful practice of
putting valueless commercial papers in circulation, multiplied a thousand fold, We find no valid ground to sustain the contention that BP 22 impairs freedom
can very wen pollute the channels of trade and commerce, injure the banking of contract. The freedom of contract which is constitutionally protected is
system and eventually hurt the welfare of society and the public interest. As freedom to enter into "lawful" contracts. Contracts which contravene public
aptly stated — 30 policy are not lawful. 33 Besides, we must bear in mind that checks can not be
categorized as mere contracts. It is a commercial instrument which, in this

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modem day and age, has become a convenient substitute for money; it forms body or accepted by the sponsor, hence, some members might not have
part of the banking system and therefore not entirely free from the regulatory gotten the complete text of the provisions of the bill as amended and approved
power of the state. on Second Reading. However, it is clear from the records that the text of the
second paragraph of Section 1 of BP 22 is the text which was actually
Neither do we find substance in the claim that the statute in question denies approved by the body on Second Reading on February 7, 1979, as reflected
equal protection of the laws or is discriminatory, since it penalizes the drawer in the approved Minutes for that day. In any event, before the bin was
of the check, but not the payee. It is contended that the payee is just as submitted for final approval on Third Reading, the Interim Batasan created a
responsible for the crime as the drawer of the check, since without the Special Committee to investigate the matter, and the Committee in its report,
indispensable participation of the payee by his acceptance of the check there which was approved by the entire body on March 22, 1979, stated that "the
would be no crime. This argument is tantamount to saying that, to give equal clause in question was ... an authorized amendment of the bill and the printed
protection, the law should punish both the swindler and the swindled. The copy thereof reflects accurately the provision in question as approved on
petitioners' posture ignores the well-accepted meaning of the clause "equal Second Reading. 37 We therefore, find no merit in the petitioners' claim that in
protection of the laws." The clause does not preclude classification of the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the
individuals, who may be accorded different treatment under the law as long as 1973 Constitution were violated.
the classification is no unreasonable or arbitrary. 34
WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789
It is also suggested that BP 22 constitutes undue or improper delegation of and setting aside the order of the respondent Judge dated August 19, 1986.
legislative powers, on the theory that the offense is not completed by the sole The petitions in G.R. Nos. 63419, 66839-42, 71654, 74524-25, 75122-49,
act of the maker or drawer but is made to depend on the will of the payee. If 75812-13 and 75765-67 are hereby dismissed and the temporary restraining
the payee does not present the check to the bank for payment but instead order issued in G.R. Nos. 74524-25 is lifted. With costs against private
keeps it, there would be no crime. The logic of the argument stretches to petitioners.
absurdity the meaning of "delegation of legislative power." What cannot be
delegated is the power to legislate, or the power to make laws. 35 which means, SO ORDERED.
as applied to the present case, the power to define the offense sought to be
punished and to prescribe the penalty. By no stretch of logic or imagination
can it be said that the power to define the crime and prescribe the penalty
therefor has been in any manner delegated to the payee. Neither is there any
provision in the statute that can be construed, no matter how remotely, as
undue delegation of executive power. The suggestion that the statute
unlawfully delegates its enforcement to the offended party is farfetched.

Lastly, the objection has been raised that Section 9 (2) of Article VII of the
1973 Constitution was violated by the legislative body when it enacted BP 22
into law. This constitutional provision prohibits the introduction of amendments
to a bill during the Third Reading. It is claimed that during its Third Reading,
the bill which eventually became BP 22 was amended in that the text of the
second paragraph of Section 1 of the bill as adopted on Second Reading was
altered or changed in the printed text of the bill submitted for approval on Third
Reading.

A careful review of the record of the proceedings of the Interim Batasan on this
matter shows that, indeed, there was some confusion among Batasan
Members on what was the exact text of the paragraph in question which the
body approved on Second Reading. 36 Part of the confusion was due
apparently to the fact that during the deliberations on Second Reading (the
amendment period), amendments were proposed orally and approved by the

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