must read moreno rules 113-115

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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 118821 February 18, 2000

MAYOR BAI UNGGIE D. ABDUA a!" ODIN ABDUA, petitioners,vs.#ON. $APA M. GUIANI, %! &%' (a)a(%*y a' Pre'%"%!+ $u"+e, o Bra!(& 1- o *&e Re+%o!a Tr%aCour* o Co*aba*o C%*y, respondent.

GON/AGAREYES, J.:

t bench is a petition for certiorari and prohibition to set aside the !arrant of arrest issued b" hereinrespondent #apal M. $uiani, then presidin% &ud%e of 'ranch () of the Re%ional Trial *ourt of

*otabato *it", orderin% the arrest of petitioners !ithout bail in *ri+inal *ase No. -/ for +urder.

The antecedent facts of the case are as follo!s0

On ) #une (11), a co+plaint for +urder, doc2eted as I.S. No. 1)3(-/(, !as filed before the*ri+inal Investi%ation Service *o++and, RMM Re%ional Office 4II a%ainst herein petitioners andsi5 6/7 other persons(in connection !ith the death of a certain bdul Di+alen, the for+er *OM898*Re%istrar of :abuntalan, Ma%uindanao. The co+plaint alle%ed that herein petitioners paid the si5other respondents the total a+ount of P;;,;;;.;; for the death of bdul Di+alen.-

ctin% on this co+plaint, the Provincial Prosecutor of Ma%uindanao, Salic2 <. Panda, in a Resolutiondated u%ust (11)), dis+issed the char%es of +urder a%ainst herein petitioners and five other

respondents on a findin% that there !as no prima facie case for +urder a%ainst the+. ProsecutorPanda, ho!ever, reco++ended the filin% of an infor+ation for +urder a%ainst one of therespondents, a certain :asan Ma+a. Pursuant to this Resolution, an infor+ation for +urder !asthereafter filed a%ainst :asan Ma+a before the sala of respondent #ud%e. 1âwphi1.nêt

In an Order dated (- Septe+ber (11)=, respondent #ud%e ordered that the case, no! doc2eted as*ri+inal *ase No. --, be returned to the Provincial Prosecutor for further investi%ation. In thisOrder, respondent &ud%e noted that althou%h there !ere ei%ht 6>7 respondents in the +urder case,the infor+ation filed !ith the court ?char%ed onl" one 6(7 of the ei%ht 6>7 respondents in the na+e of:asan Ma+a !ithout the necessar" resolution re@uired under Section ), Rule (( of the RevisedRules of *ourt to sho! ho! the investi%atin% prosecutor arrived at such a conclusion.? s such, therespondent &ud%e reasons, the trial court cannot issue the !arrant of arrest a%ainst :asan Ma+a.

<pon the return of the records of the case to the Office of the Provincial Prosecutor forMa%uindanao, it !as assi%ned to nd ssistant Prosecutor 8no2 T. Di+ara! for further investi%ation.In addition to the evidence presented durin% the initial investi%ation of the +urder char%e, t!o ne!affidavits of !itnesses !ere sub+itted to support the char%e of +urder a%ainst herein petitioners andthe other respondents in the +urder co+plaint. Thus, Prosecutor Di+ara! treated the sa+e as arefilin% of the +urder char%e and pursuant to la!, issued subpoena to the respondents na+edtherein./ On Dece+ber /, (11), herein petitioners sub+itted and filed their &oint counter3affidavits.



fter evaluation of the evidence, Prosecutor Di+ara!, in a Resolution dated > Dece+ber(11), found a prima facie case for +urder a%ainst herein petitioners and three 6-7 otherrespondents.> He thus reco++ended the filin% of char%es a%ainst herein petitioners 'ai <n%%ie

bdula and Odin bdula, as principals b" induce+ent, and a%ainst the three 6-7 others, as principalsb" direct participation.

9i2e!ise in this > Dece+ber (11) Resolution, Provincial Prosecutor Salic2 <. Panda, !hoconducted the earlier preli+inar" investi%ation of the +urder char%e, added a notation statin% that he!as inhibitin% hi+self fro+ the case and authoriAin% the investi%atin% prosecutor to dispose of thecase !ithout his approval. The reasons he cited !ere that the case !as previousl" handled b" hi+and that the victi+ !as the father3in3la! of his son.1

On #anuar" (11=, an infor+ation for +urder dated > Dece+ber (11) (; !as filed a%ainst thepetitioner spouses and :asan Ma+a, *uenco <s+an and #un Ma+a before 'ranch () of theRe%ional Trial *ourt of *otabato *it", then the sala of respondent &ud%e. This infor+ation !as si%nedb" investi%atin% prosecutor 8no2 T. Di+ara!. notation !as li2e!ise +ade on the infor+ation b"Provincial Prosecutor Panda, !hich e5plained the reason for his inhibition.((

The follo!in% da", or on - #anuar" (11=, the respondent &ud%e issued a !arrant(

for the arrest ofpetitioners. <pon learnin% of the issuance of the said !arrant, petitioners filed on ) #anuar" (11= an<r%ent Ex-parteMotion(- for the settin% aside of the !arrant of arrest on ) #anuar" (11=. In this+otion, petitioners ar%ued that the enforce+ent of the !arrant of arrest should be held in abe"anceconsiderin% that the infor+ation !as pre+aturel" filed and that the petitioners intended to file apetition for revie! !ith the Depart+ent of #ustice.

petition for revie!() !as filed b" the petitioners !ith the Depart+ent of #ustice on (( #anuar"(11=.(= Despite said filin%, respondent &ud%e did not act upon. petitionerBs pendin% Motion to Set

side the Carrant of rrest.

Hence, this Petition for Certiorari and Prohibition !herein petitioners pra" for the follo!in%0

(. upon filin% of this petition, a te+porar" restrainin% order be issued en&oinin% thei+ple+entation and e5ecution of the order of arrest dated #anuar" -, (11= and en&oinin% therespondent &ud%e fro+ further proceedin% !ith *ri+inal *ase No. -/ entitled People of thePhilippines vs. Bai Unggie . !b"ula, et al . upon such bond as +a" be re@uired b" theHonorable *ourt

. this petition be %iven due course and the respondent be re@uired to ans!er

-. after due hearin%, the order of arrest dated #anuar" -, (11= be set aside and declaredvoid ab initio and the respondent &ud%e be dis@ualified fro+ hearin% *ri+inal *ase No. -/entitled People of the Philippines vs. Bai Unggie . !b"ula, et al .(/

In a Resolution( dated ; Eebruar" (11=, this *ourt resolved to re@uire respondent &ud%e to sub+ita co++ent to the petition. The *ourt further resolved to issue a te+porar" restrainin%order (> en&oinin% the respondent &ud%e fro+ i+ple+entin% and e5ecutin% the Order of rrest dated -#anuar" (11= and fro+ further proceedin% !ith *ri+inal *ase No. -/.

t the onset, it +ust be noted that petitions for certiorari and prohibition re@uire that there be noappeal, nor an" plain, speed" and ade@uate re+ed" in the ordinar" course of la! available to thepetitioner.(1 In the instant case, it cannot be said that petitioners have no other re+ed" available to



the+ as there is pendin% before the lo!er court an <r%ent Motion; pra"in% for the liftin% and settin%aside of the !arrant of arrest. Ordinaril", !e !ould have dis+issed the petition on this %round and letthe trial court decide the pendin% +otion. Ho!ever, due to the len%th of ti+e that the issues raised inthe petition have been pendin% before the courts, it behooves us to decide the case on the +erits inorder to preclude an" further dela" in the resolution of the case.

Respondent #apal M. $uiani retired fro+ the &udiciar" on (/ pril (11/. Eor this reason, respondentis no lon%er the presidin% &ud%e of the Re%ional Trial *ourt 'ranch () of *otabato *it" and thepra"er of petitioner as to respondentBs dis@ualification fro+ hearin% *ri+inal *ase No. -/ is no!+oot and acade+ic. Thus, there re+ain t!o issues left for the deter+ination of the *ourt0 first , thele%alit" of the second infor+ation for +urder filed before respondentBs court and secon" , the validit"of the !arrant of arrest issued a%ainst petitioners.

Cith respect to the first issue, petitioners aver that it is the respondent &ud%e hi+self !ho isorchestratin% the filin% of the alle%ed +urder char%e a%ainst the+. In support, petitioners cite five 6=7instances !herein respondent &ud%e alle%edl" issued ille%al orders in a man"amus case pendin% inrespondentBs sala filed a%ainst petitioner Ma"or 'ai <n%%ie bdula. These alle%edl" ille%al ordersfor+ed the basis for a cri+inal co+plaint !hich the" filed on / October (11) a%ainst respondent and

ten 6(;7 others before the Office of the O+buds+an for Mindanao.

(

In this co+plaint, hereinpetitioners alle%ed that the respondent &ud%e ille%all" ordered the release of the total a+ount ofP(,((1,(=.;; fro+ the +unicipal funds of :abuntalan, Mindanao to a certain 'a"oraiA Saripada, apurported niece of respondent &ud%e. The Office of the O+buds+an for Mindanao, in anOrder dated ( Dece+ber (11), found ?sufficient basis to proceed !ith the preli+inar"investi%ation of the case? and directed the respondents therein to file their respective counter3affidavits and controvertin% evidence. Ero+ these facts, petitioners ar%ue, it is clear that it is therespondent &ud%e hi+self !ho is orchestratin% and +anipulatin% the char%es a%ainst the petitioner.

Petitioners further state that respondent &ud%e e5hibited e5tre+e hostilit" to!ards the+ after thefilin% of the said co+plaint before the O+buds+an. Petitioners clai+ that i++ediatel" after theissuance of the Order of the O+buds+an re@uirin% respondent &ud%e to file his counter3affidavit,respondent alle%edl" berated petitioner 'ai <n%%ie bdula in open court !hen she appeared before

hi+ in another case lle%edl", in full vie! of the la!"ers and liti%ants, respondent &ud%e uttered thefollo!in% !ords in the Ma%uindanaoan dialect0

If I cannot put "ou in &ail !ithin "our ter+, I !ill cut +" nec2. s lon% as I a+ a &ud%e here,!hat I !ant !ill be follo!ed.-

Respondent &ud%e, in co+pliance !ith the Order of this *ourt, filed a *o++ent dated - March(11=.) In this *o++ent, he ar%ues that petitionersB enu+eration of ?incontrovertible facts? is actuall"a list of +isleadin% facts !hich the" are atte+ptin% to !eave into *ri+inal *ase No. -/ for thepurpose of picturin% respondent as a partial &ud%e !ho abused his discretion to favor petitionerBsaccuser.= He clai+s that the anti3%raft char%e filed b" petitioners a%ainst hi+ is a harass+ent suitconcocted b" the+ !hen the" failed to la" their hands on the a+ount of P(,((1,(=.;; of +unicipal

funds !hich respondent had previousl" ruled as ri%htfull" belon%in% to the +unicipal councilors of:abuntalan, Ma%uindanao. Respondent vehe+entl" denies havin% personall" profited fro+ therelease of the +unicipal funds. Moreover, respondent points out that the alle%ations in the co+plaintsee+ to i+pl" that the Vice Ma"or of :abuntalan, 'a"oraiA Sarupada, !as a part" tothe man"amus case filed !ith respondentBs court !hen in truth, there !as no case filed b" the vice+a"or pendin% in his court. Einall", respondent denies beratin% petitioner 'ai <n%%ie bdula andutterin% the !ords attributed to hi+ in the petition. ccordin% to respondent, the last ti+e petitioner'ai <n%%ie bdula appeared in his sala on Dece+ber >, (11), in connection !ith the liftin% of an



order for her apprehension in another case, he neither berated nor scolded her and in fact, he evenlifted the said order of arrest.

In its *o++ent !ith <r%ent Motion for the 9iftin% of the Te+porar" Restrainin% Order dated = #une(11=,/ the Office of the Solicitor3$eneral states that petitionerBs alle%ation that the respondent &ud%e!as biased and pre&udiced !as pure speculation as no proof !as presented that respondent

assu+ed the role of prosecutor. Moreover, the OS$ ar%ued that the fact that the respondent &ud%eand petitioners had pendin% cases a%ainst each other did not necessaril" result in the respondentBsbias and pre&udice.

n anal"sis of these ar%u+ents sho!s that these should have been properl" raised in a +otion forthe dis@ualification or inhibition of respondent &ud%e. s previousl" stated ho!ever, the issue as to!hether respondent should be dis@ualified fro+ proceedin% !ith the case has been rendered +ootand acade+ic as he is no lon%er hearin% the case a%ainst petitioners. s such, there is no need for aprolon%ed discussion on this issue. It is sufficient to sa" that in order to dis@ualif" a &ud%e on the%round of bias and pre&udice, petitioner +ust prove the sa+e b" clear and convincin%evidence. This is a heav" burden !hich petitioners have failed to dischar%e. This *ourt has to besho!n acts or conduct of the &ud%e clearl" indicative of arbitrariness or pre&udice before the latter

can be branded the sti%+a of bein% biased and partial.

>

Petitioners ne5t ar%ue that the act of respondent in motu proprio orderin% a reinvesti%ation of the+urder char%e a%ainst the+ is another indication of the latterBs bias and pre&udice. 1 The" clai+ thatthe filin% of their co+plaint a%ainst respondent +otivated the latterBs Order of (- Septe+ber (11)!hich ordered the return of the records of the +urder case to the provincial prosecutor. Eurther+ore,the" posit that the latter had no authorit" to order the reinvesti%ation considerin% that sa+e hadalread" been dis+issed as a%ainst the+ b" the provincial prosecutor in his Resolution dated

u%ust (11).

revie! of the pertinent dates in the petition ho!ever sho! that respondent could not have been+otivated b" the O+buds+anBs co+plaint !hen he issued the (- Septe+ber (11) Order. Petitioner'ai <n%%ie bdula filed the co+plaint before the O+buds+an of *otabato *it" on October /,

(11)-; or about a +onth after the issuance of the (- Septe+ber (11) Order. s such, !henrespondent issued the said Order, the sa+e could not have been a retaliator" act considerin% that atthat ti+e, there !as as "et no co+plaint a%ainst hi+.

Cith respect to the alle%ation that the respondent had no le%al authorit" to order a reinvesti%ation ofthe cri+inal char%e considerin% that the said char%e had been previousl" dis+issed as a%ainst the+,!e hold that respondent did not abuse his discretion in doin% so.-(

It is true that under the circu+stances, the respondent &ud%e, upon seein% that there !ere norecords attached to the co+plaint, could have si+pl" ordered the office of the provincial prosecutorto for!ard the sa+e. <pon receipt of these records, respondent &ud%e !ould then have sufficientbasis to deter+ine !hether a !arrant of arrest should issue. Ho!ever, fro+ the bare ter+s of the

@uestioned order alone, !e fail to see an" ille%al reason that could have +otivated the &ud%e inissuin% the sa+e. The order +erel" stated that the records of the case should be returned to theOffice of the Provincial Prosecutor for further investi%ation or reinvesti%ation. He did not undul"interfere !ith the prosecutorBs dut" to conduct a preli+inar" investi%ation b" orderin% the latter to filean infor+ation a%ainst an" of the respondents or b" choosin% the fiscal !ho should conduct thereinvesti%ation !hich are acts certainl" be"ond the po!er of the court to do. - It !as still theprosecutor !ho had the final sa" as to !ho+ to include in the infor+ation.--



s pointed out b" the Office of the Solicitor $eneral, petitioners onl" i+puted bias a%ainst therespondent &ud%e and not a%ainst the investi%atin% prosecutor.-) *onse@uentl", this i+putation is ofno +o+ent as the discretion to file an infor+ation is under the e5clusive control and supervision ofthe prosecutor and not of respondent &ud%e. Eurther+ore, petitioners cannot clai+ that the" !eredenied due process in the reinvesti%ation of the char%es a%ainst the+ as the" activel" participatedtherein b" sub+ittin% their &oint counter3affidavit.

Petitioners li2e!ise alle%e that the infor+ation char%in% petitioners !ith +urder is null and voidbecause it !as filed !ithout the authorit" of the Provincial Prosecutor. The" note that in theResolution dated > Dece+ber (11) and in the correspondin% infor+ation, it clearl" appears that thesa+e !ere not approved b" the Provincial Prosecutor as it !as si%ned onl" b" the investi%atin%prosecutor, no2 T. Di+ara!.

PetitionersB contention is not !ell3ta2en.

The pertinent portion of the Rules of *ourt on this +atter state that ?6n7o co+plaint or infor+ationshall be filed or dis+issed b" an investi%atin% fiscal without the prior written authorit# or approval ofthe provincial or cit" fiscal or chief state prosecutor 6e+phasis ours7.? In other !ords, a co+plaint or

infor+ation can onl" be filed if it is approved or authoriAed b" the provincial or cit" fiscal or chiefstate prosecutor.

In the case at bench, !hile the Resolution and the Infor+ation !ere not approved b" ProvincialProsecutor Salic2 <. Panda, the filin% of the sa+e even !ithout his approval !as authoriAed. 'oththe Resolution and infor+ation contain the follo!in% notation0F

The herein Provincial Prosecutor is inhibitin% hi+self fro+ this case and Investi%atin%Prosecutor 8no2 Di+ara! +a" dispose of the case !ithout his approval on the follo!in%%round0

That this case has been previousl" handled b" hi+, and !hose findin%s differ fro+ the

findin%s of Investi%atin% Prosecutor Di+ara! and the victi+ is a relative b" affinit", he bein%a father3in3la! of his son.

6Si%ned7 Salic2 <. PandaProvincial Prosecutor

It +ust be stressed that the Rules of *ourt spea2 of authorit" or approval b" the provincial, cit", orchief state prosecutor. The notation +ade b" Prosecutor Panda clearl" sho!s that Investi%atin%Prosecutor Di+ara! !as authoriAed to ?dispose of the case !ithout his approval.? In issuin% theresolution and in filin% the infor+ation, the investi%atin% prosecutor !as actin% !ell !ithin theauthorit" %ranted to hi+ b" the provincial prosecutor. Thus, this resolution is sufficient co+pliance!ith the aforecited provision of the Rules of *ourt.

Havin% thus ruled on the validit" of the infor+ation filed a%ainst the respondents, !e no! addressthe issue as to the le%alit" of the !arrant of arrest issued b" respondent &ud%e b" virtue of the saidinfor+ation.

On this issue, petitioners, citin% the case of !lla"o vs. io$no -= ar%ue that the !arrant for his arrestshould be recalled considerin% that the respondent &ud%e ?did not personall" e5a+ine the evidencenor did he call the co+plainant and his !itnesses in the face of their incredible accounts.? s proof,he points to the fact that the infor+ation !as filed at around )0;; p.+. of the #anuar" , (11= and the



order of arrest !as i++ediatel" issued the follo!in% da" or on #anuar" -, (11=. Moreover, petitionerar%ues, respondent &ud%e did not even issue an order statin% that there is probable cause for theissuance of the !arrant of arrest, a clear violation of the %uidelines set forth in the !lla"o case.

Respondent, in his *o++ent, denies an" irre%ularit" in the issuance of the !arrant of arrest. Hear%ues as follo!s0

Critten authorit" havin% been %ranted b" the Provincial Prosecutor, as re@uired b" the thirdpara%raph of Section ), Rule (( of 6the7 Rules on *ri+inal Procedure, and there havin%been no reason for the respondent to doubt the validit" of the certification +ade b" the

ssistant Prosecutor that a preli+inar" investi%ation !as conducted and that probable cause!as found to e5ist as a%ainst those char%ed in the Infor+ation filed, and reco%niAin% theprosecutionBs le%al authorit" to initiate and control cri+inal prosecution 6Rule ((;, Section =7and considerin% that the court cannot interfere in said prosecutionBs authorit" 6People vs.Moll, /> Phil. //7, the respondent issued the !arrant for the arrest of the accused pursuantto para%raph 6a7, section /, Rule ((-/

The OS$, in defendin% the act of respondent &ud%e, ar%ues that the alle%ation that respondent did

not personall" e5a+ine the evidence is not supported b" current &urisprudence. In support, the OS$invo2es the pronounce+ent in %oliven vs. &a$asiar - that ?6I7n satisf"in% hi+self of the e5istence ofprobable cause, the &ud%e is not re@uired to personall" e5a+ine the co+plainant and his !itnesses.?Moreover, the OS$ points out that the &ud%e en&o"s a !ide de%ree of latitude in the deter+ination ofprobable cause for the issuance of !arrants of arrest dependin% on the circu+stances of eachcase.->

The OS$ further ar%ues that the case of !lla"o vs. io$no, relied upon b" petitioners, has noapplication in the case at bar considerin% that in the cited case, the docu+ents sub+itted before thecourt failed to establish an" probable cause as the" !ere conflictin% and contradictor". Si%nificantl",the OS$ continues, petitioners could not point out a sin%le fla! in the evidence presented b" theprosecutor to ne%ate the e5istence of probable cause. Einall", the OS$ points out that petitionerBsunfounded alle%ations cannot prevail over the !ell3settled rule that official dut" is presu+ed to be

re%ularl" perfor+ed.-1

fter a careful anal"sis of these ar%u+ents, !e find +erit in the contention of petitioners.

The pertinent provision of the *onstitution reads0

Sec. Grticle III. The ri%ht of the people to be secure in their persons, houses, papers, andeffects a%ainst unreasonable searches and seiAures of !hatever nature and for an" purposeshall be inviolable, an" no search warrant or warrant of arrest shall issue except upon

probable cause to be "etermine" personall# b# the 'u"ge after examination un"er oath oraffirmation of the complainant an" the witnesses he ma# pro"uceand particularl" describin%the place to be searched and the persons or thin%s to be seiAed. 68+phasis supplied.7

It +ust be stressed that the (1> *onstitution re@uires the &ud%e to deter+ine probable cause?personall",? a re@uire+ent !hich does not appear in the correspondin% provisions of our previousconstitutions. This e+phasis evinces the intent of the fra+ers to place a %reater de%ree ofresponsibilit" upon trial &ud%es than that i+posed under previous *onstitutions.);

In %oliven vs. &a$asiar , this *ourt pronounced0



Chat the *onstitution underscores is the e5clusive and personal responsibilit" of the issuin% &ud%e to satisf" hi+self of the e5istence of probable cause. In satisf"in% hi+self of thee5istence of probable cause for the issuance of a !arrant of arrest, the &ud%e is not re@uiredto personall" e5a+ine the co+plainant and his !itnesses. Eollo!in% established doctrineand procedure, he shall0 6(7 personall" evaluate the report and the supportin% docu+entssub+itted b" the fiscal re%ardin% the e5istence of probable cause and, on the basis thereof,

issue a !arrant of arrest or 67 if on the basis thereof he finds no probable cause, he +a"disre%ard the fiscalBs report and re@uire the sub+ission of supportin% affidavits of !itnessesto aid hi+ in arrivin% at a conclusion as to the e5istence of probable cause.

(o vs. People )( su++ariAes e5istin% &urisprudence on the +atter as follo!s0

9est !e be too repetitive, !e onl" !ish to e+phasiAe three vital +atters once +ore0 )irst , asheld in *nting , the deter+ination of probable cause b" the prosecutor is for a purposedifferent fro+ that !hich is to be +ade b" the &ud%e. Chether there is reasonable %round tobelieve that the accused is %uilt" of the offense char%ed and should be held for trial is !hatthe prosecutor passes upon. The &ud%e, on the other hand, deter+ines !hether a !arrant ofarrest should be issued a%ainst the accused, i .e., !hether there is a necessit" for placin%

hi+ under i++ediate custod" in order not to frustrate the ends of &ustice. Thus, even if bothshould base their findin%s on one and the sa+e proceedin% or evidence, there should be noconfusion as to their distinct ob&ectives.

%econ" , since their ob&ectives are different, the &ud%e cannot rel" solel" on the report of theprosecutor in findin% probable cause to &ustif" the issuance of a !arrant of arrest. Obviousl"and understandabl", the contents of the prosecutorBs report !ill support his o!n conclusionthat there is reason to char%e the accused for an offense and hold hi+ for trial. Ho!ever, the

&ud%e +ust decide independentl". Hence, he +ust have supportin% evidence, other than theprosecutorBs bare report, upon !hich to le%all" sustain his o!n findin%s on the e5istence 6ornone5istence7 of probable cause to issue an arrest order. This responsibilit" of deter+inin%personall" and independentl" the e5istence or none5istence of probable cause is lod%ed inhi+ b" no less than the +ost basic la! of the land. Parentheticall", the prosecutor could

ease the burden of the &ud%e and speed up the liti%ation process b" for!ardin% to the latternot onl" the infor+ation and his bare resolution findin% probable cause, but also so +uch ofthe records and the evidence on hand as to enable the His Honor to +a2e his personal andseparate &udicial findin% on !hether to issue a !arrant of arrest.

+astl# , it is not re@uired that the complete or entire records of the case durin% the preli+inar"investi%ation be sub+itted to and e5a+ined b" the &ud%e. Ce do not intend to undul" burdentrial courts b" obli%in% the+ to e5a+ine the co+plete records of ever" case all the ti+esi+pl" for the purpose of orderin% the arrest of an accused. Chat is re@uired, rather, is thatthe &ud%e +ust have sufficient supportin% docu+ents 6such as the co+plaint, affidavits,counter3affidavits, s!orn state+ents of !itnesses or transcript of steno%raphic notes, if an"7upon !hich to +a2e his independent &ud%+ent or, at the ver" least, upon !hich to verif" the

findin%s of the prosecutor as to the e5istence of probable cause. The point is0 he cannot rel"solel" and entirel" on the prosecutorBs reco++endation, as Respondent *ourt did in thiscase. lthou%h the prosecutor en&o"s the le%al presu+ption of re%ularit" in the perfor+anceof his official duties and functions, !hich in turn %ives his report the presu+ption of accurac",the *onstitution, !e repeat, co++ands the &ud%e to personall" deter+ine probable cause inthe issuance of !arrants of arrest. This *ourt has consistentl" held that a &ud%e fails in hisbounden dut" if he relies +erel" on the certification or the report of the investi%atin% officer.6citations o+itted7



In the case at bench, respondent ad+its that he issued the @uestioned !arrant as there !as ?noreason for 6hi+7 to doubt the validit" of the certification +ade b" the ssistant Prosecutor that apreli+inar" investi%ation !as conducted and that probable cause !as found to e5ist as a%ainst thosechar%ed in the infor+ation filed.? The state+ent is an ad+ission that respondent relied solel" andco+pletel" on the certification +ade b" the fiscal that probable cause e5ists as a%ainst thosechar%ed in the infor+ation and issued the challen%ed !arrant of arrest on the sole basis of the

prosecutorBs findin%s and reco++endations. He adopted the &ud%+ent of the prosecutor re%ardin%the e5istence of probable cause as his o!n.

lthou%h the prosecutor en&o"s the le%al presu+ption of re%ularit" in the perfor+ance of his officialduties, !hich in turn %ives his report the presu+ption of accurac", nothin% less than the funda+entalla! of the land co++ands the &ud%e to personall" deter+ine probable cause in the issuance of!arrants of arrest. &ud%e fails in this constitutionall" +andated dut" if he relies +erel" on thecertification or report of the investi%atin% officer.

To be sure, !e cannot deter+ine beforehand ho! cursor" or e5haustive the respondentBse5a+ination of the records should be.) The e5tent of the &ud%eBs e5a+ination depends on thee5ercise of his sound discretion as the circu+stances of the case re@uire. In the case at bench, the

respondent had before hi+ t!o different infor+ations and resolutions char%in% t!o different sets ofsuspects. In the face of these conflictin% resolutions, it behooves hi+ not to ta2e the certification ofthe investi%atin% prosecutor at face value. The circu+stances thus re@uire that respondent loo2be"ond the bare certification of the investi%atin% prosecutor and e5a+ine the docu+ents supportin%the prosecutorBs deter+ination of probable cause. The inordinate haste that attended the issuance of the !arrant of arrest and respondentBs o!n ad+ission are circu+stances that tend to belie an"pretense of the fulfill+ent of this dut".1âwphi1.nêt

*learl", respondent &ud%e, b" +erel" statin% that he had no reason to doubt the validit" of thecertification +ade b" the investi%atin% prosecutor has abdicated his dut" under the *onstitution todeter+ine on his o!n the issue of probable cause before issuin% a !arrant of arrest. *onse@uentl",the !arrant of arrest should be declared null and void.

CH8R8EOR8, pre+ises considered, the petition for certiorari and prohibition is $RNT8D. Thete+porar" restrainin% order !e issued on ; Eebruar" (11= in favor of petitioners insofar as ifen&oins the i+ple+entation and e5ecution of the order of arrest dated - #anuar" (11= is +adeper+anent. *ri+inal *ase No. -/ is R8MND8D to 'ranch () of the Re%ional Trial *ourt of*otabato *it" for a proper deter+ination of !hether a !arrant of arrest should be issued and forfurther proceedin%s.

SO ORD8R8D.

&elo, itug, Panganiban an" Purisima, ., concur.

Foo*!o*e'

( The si5 other respondents in I.S. No. 1)3(-/( are <ndon% Du+a+ba Ma%elna, :on%anMaban%, 'adrudin Ma+ad, $uialal :udarat, :asan Ma+a and *uenco <s+an.

Records, p. =.



- /ollo, pp. =3=>.

) nne5 ?9? Petition /ollo, pp. =3/;.

= nne5 ?M?, Petition /ollo, p. /(.

/ /ollo, p. /.

nne5 ?N?, Petition, /ollo, pp. /3/.

> The three other respondents are :asan Ma+a, *uenco <s+an and #un Ma+a.

1 /ollo, p. /.

(; nne5 ?O,? Petition /ollo, pp. />3/1.

(( /ollo, p. /1.

( nne5 ?P?, Petition /ollo, p. ;.

(- nne5 ??, Petition /ollo, pp. (3=.

() nne5 ?R?, Petition /ollo, pp. /3>>.

(= The Petition for Revie! !as subse@uentl" dis+issed b" the Depart+ent of #ustice in aResolution dated / #une (11.

(/ /ollo, pp. 3>.

(

/ollo, p. >(.

(> /ollo, pp. >3>-.

(1 Sec. (, Rule /=, Rules of *ourt.

; nne5 ??, Petition /ollo, pp. (3-.

( nne5 ?I?, Petition /ollo, pp. )3=.

nne5 ?#?, Petition /ollo, pp. =-3=).

- /ollo, p. >.

) /ollo, pp. 1=3(;(.

= /ollo, p. -.

/ /ollo, pp. ((/3(-.



Cebb vs. People, / S*R )-.

> paricio vs. ndal, (= S*R =/1.

1 /ollo, p. (.

-; /ollo, p. (.

-( Placer vs. Villanueva, Dece+ber 1, (1>-.

- bu%otal vs. Tiro, // S*R (1/.

-- 9i+, Sr. vs. *ourt of ppeals, S*R 1.

-) /ollo, p. ((1.

/ollo, pp. / and /1.

-= - S*R (1.

-/ /ollo, pp. 1/31.

- (/ S*R -1>.

-> 9i+ vs. Eeli5, (> S*R 1.

-1 9a Tondena Distillers, Inc. vs. *ourt of ppeals, ;1 S*R =)).

); Ho vs. People, >; S*R -/=.

)( *bi" .

) 9i+, Sr. vs. Eeli5, supra.




Manila

8N 'N*

G.R. No'. -03-34 February 1, 11

5ICENTE IM, SR. a!" MAYOR SUSANA IM, petitioners,vs.#ON. NEMESIO S. FEI6 a!" #ON. ANTONIO AFANE, respondents.

G.R. No'. -2777 February 1, 11

$OY T. FERNANDE/, FORENCIO T. FERNANDE/, $R., NONION A. BAGAI#OG, MAYORNESTOR C. IM a!" MAYOR ANTONIO #O, petitioners,vs.#ON. NEMESIO S. FEI6 a!" PROSECUTOR ANTONIO C. AFANE, respondents.

)rancisco /. +lamas for petitioners in 0./. os. 23453-56.

oll# 7. )ernan"e8, Elenito Bagalihog, 9rlan"o &. anao an" (echanova, Ballici" : !ssociates for petitioners in 0./. os. 23;<<-<2.

GUTIERRE/, $R., J.:

Ma" a #ud%e !ithout ascertainin% the facts throu%h his o!n personal deter+ination and rel"in%solel" on the certification or reco++endation of a prosecutor that a probable cause e5ists issue a!arrant of arrestJ

On March (, (1>1, at about 0-; oBcloc2 in the +ornin%, at the vicinit" of the airport road of theMasbate Do+estic irport, located at the +unicipalit" of Masbate province of Masbate,*on%ress+an Moises 8spinosa, Sr. and his securit" escorts, na+el" Provincial $uards ntonio

*ortes, $aspar +aro, and rte+io Euentes !ere attac2ed and 2illed b" a lone assassin. DanteSiblante another securit" escort of *on%ress+an 8spinosa, Sr. survived the assassination plot,althou%h, he hi+self suffered a %unshot !ound.

n investi%ation of the incident then follo!ed.

Thereafter, and for the purpose of preli+inar" investi%ation, the desi%nated investi%ator, Harr" O.Tantiado, TS%, of the P* *ri+inal Investi%ation Service at *a+p 'a%on% Ibalon 9e%aApi *it" filed ana+ended co+plaint !ith the Municipal Trial *ourt of Masbate accusin%, a+on% others, Vicente 9i+,



Sr., Ma"or Susana 9i+ of Masbate 6petitioners in $.R. Nos. 1);=)=7, #oll" T. EernandeA, ElorencioT. EernandeA, #r., Nonilon . 'a%aliho%, Ma"or Nestor *. 9i+ and Ma"or ntonio :ho 6petitioners in$.R. Nos. 1)//3/17 of the cri+e of +ultiple +urder and frustrated +urder in connection !ith theairport incident. The case !as doc2eted as *ri+inal *ase No. 1((.

fter conductin% the preli+inar" investi%ation, the court issued an order dated #ul" -(, (1>1 statin%

therein that0

. . . after !ei%hin% the affidavits and ans!ers %iven b" the !itnesses for the prosecutiondurin% the preli+inar" e5a+ination in searchin% @uestions and ans!ers, concludes that aprobable cause has been established for the issuance of a !arrant of arrest of na+edaccused in the a+ended co+plaint, na+el", #i++" *abarles, Ronnie EernandeA, Nonilon'a%aliho%, #oll" EernandeA, Elorencio EernandeA, #r., Vicente 9i+, Sr., Susana 9i+, Nestor9i+, ntonio :ho, #ai+e 9i!ana%, Kald" Du+ala% and Rene Tualla aliasTido". 6/ollo, p. =>,$.R. Nos. 1);=)3=7

5 5 5 5 5 5 5 5 5

In the sa+e Order, the court ordered the arrest of the petitioners and reco++ended the a+ount ofP;;,;;;.;; as bail for the provisional libert" of each of the accused.

Petitioners #oll" EernandeA and Nonilon 'a%aliho% filed a +otion for the reduction of bail !hich !as%ranted b" the court and the" !ere allo!ed to post bail in the a+ount of P(=;,;;;.;; each. 85ceptfor #i++" *abarles, all the rest of the accused posted bail at P;;,;;;.;; each.

On u%ust 1, (1>1, the entire records of the case consistin% of t!o hundred si5t" one 6/(7 pa%es!ere trans+itted to the Provincial Prosecutor of Masbate. Respondent ctin% Eiscal ntonio *.

lfane !as desi%nated to revie! the case.

On Septe+ber , (1>1, Eiscal lfane issued a Resolution !hich affir+ed the findin% of a prima

facie case a%ainst the petitioners but differed in the desi%nation of the cri+e in that the ruled that?. . . all of the accused should not onl" be char%ed !ith Multiple Murder Cith Erustrated Murder? butfor a case of M<RD8R for each of the 2illin% of the four victi+s and a ph"sical in&uries case forinflictin% %unshot !ound on the buttoc2s of Dante Siblante.? 6nne5 ?H?, *o++ent of Eiscal lfane,p. (>/, /ollo, $.R. Nos. 1);=)3=7 +otion to reconsider the Resolution filed b" petitioners Vicente9i+, Sr. and Ma"or Susana 9i+ !as denied.

On October -;, (1>1, Eiscal lfane filed !ith the Re%ional Trial *ourt of Masbate, four 6)7 separateinfor+ations of +urder a%ainst the t!elve 6(7 accused !ith a reco++endation of no bail.

On Nove+ber (, (1>1, petitioners Vicente 9i+, Sr. and Susana 9i+ filed !ith us a verified petitionfor chan%e of venue. 6*ase No. .M. No. >13((3(;3MT*, for+erl", $.R. Nos. 1;=>31;7

On Dece+ber (), (1>1, !e issued an en banc Resolution authoriAin% the chan%e of venue fro+ theRe%ional Trial *ourt of Masbate to the Re%ional Trial *ourt of Ma2ati to avoid a +iscarria%e of

&ustice, to !it0

ctin% on the petition for chan%e of venue of the trial of *ri+inal *ases Nos. =>((, =>(,=>(-, and =>() fro+ the Re%ional Trial *ourt, Masbate, Masbate to an" of the Re%ional Trial*ourts at ueAon *it" or Ma2ati, the *ourt Resolved to 6a7 $RNT the aforesaid petition fortransfer of venue in order to avoid +iscarria%e of &ustice 6rticle VIII, Section =6)7 of the



Philippine *onstitution7 6b7 DIR8*T the *ler2 of *ourt, Re%ional Trial *ourt, Masbate,Masbate to trans+it the records of the aforesaid cases to the 85ecutive #ud%e, Re%ionalTrial *ourt, Ma2ati, for rafflin% a+on% the other branches of the court and 6c7 ORD8R theRe%ional Trial *ourt of Masbate, Masbate to desist fro+ further ta2in% co%niAance of the saidcases until such ti+e that the petition is finall" resolved.

The cases !ere raffled to 'ranch =/ presided b" respondent #ud%e Ne+esio S. Eeli5.

Petitioners Vicente 9i+, Sr. and Susana 9i+ filed !ith the respondent court several +otions and+anifestations !hich in substance pra"ed for the follo!in%0

(. n order be issued re@uirin% the trans+ittal of the initial records of the preli+inar" in@uir"or investi%ation conducted b" the Municipal #ud%e 'arsa%a of Masbate for the bestenli%hten+ent of this Honorable *ourt in its personal deter+ination of the e5istence of aprobable cause or prima facie evidence as !ell as its deter+ination of the e5istence of %uilt,pursuant to the +andator" +andate of the constitution that no !arrant shall issue unless theissuin% +a%istrate shall have hi+self been personall" convinced of such probable cause.

. Movants be %iven a+ple opportunit" to file their +otion for preli+inar" investi%ation as a+atter of ri%ht and

-. In the event that this court +a" later be convinced of the e5istence of a probable cause, tobe allo!ed to file a +otion for reduction of bail or for ad+ission of bail. 6p. (, /ollo, $.R.Nos. 1);=)3=7

In another +anifestation, the 9i+s reiterated that the court conduct a hearin% to deter+ine if therereall" e5ists a prima facie case a%ainst the+ in the li%ht of docu+ents !hich are recantations ofso+e !itnesses in the preli+inar" investi%ation. The +otions and +anifestations !ere opposed b"the prosecution.

On #ul" =, (11;, the respondent court issued an order den"in% for lac2 of +erit the +otions and+anifestations and issued !arrants of arrest a%ainst the accused includin% the petitioners herein.The respondent #ud%e said0

In the instant cases, the preli+inar" investi%ation !as conducted b" the Municipal Trial *ourtof Masbate, Masbate !hich found the e5istence of probable cause that the offense of+ultiple +urder !as co++itted and that all the accused are probabl" %uilt" thereof, !hich!as affir+ed upon revie! b" the Provincial Prosecutor !ho properl" filed !ith the Re%ionalTrial *ourt four separate infor+ations for +urder. *onsiderin% that both the t!o co+petentofficers to !ho+ such dut" !as entrusted b" la! have declared the e5istence of probablecause, each infor+ation is co+plete in for+ and substance, and there is no visible defect onits face, this Court fin"s it 'ust an" proper to rel# on the prosecutor=s certification in eachinformation !hich reads0 6pp. (13;, /ollo, $.R Nos. 1);=)3= 8+phasis supplied7

5 5 5 5 5 5 5 5 5

The petitioners then filed these consolidated petitions @uestionin% the #ul" =, (11; Order.

In a Resolution dated #ul" (, (11; in $.R. Nos. 1);=)3=, !e issued ?. . . a T8MPORRLR8STRININ$ ORD8R, effective i++ediatel" and continuin% until further orders fro+ this *ourt,orderin% the respondent &ud%e or his dul" authoriAed representatives or a%ents to *8S8 and



D8SIST fro+ enforcin% or i+ple+entin% the !arrant of arrest !ithout bail issued a%ainst thepetitioners in his Order dated #ul" =, (11; in *ri+inal *ases Nos. =>((3().

In another Resolution dated #ul" -(, (11; in $.R. Nos. 1)//3/1, !e resolved0

5 5 5 5 5 5 5 5 5

. . . To ISS<8 !rits of 6(7 PR89IMINRL MNDTORL IN#<N*TION, orderin% and directin%the respondent &ud%e to recallset aside andor annul the le%al effects of the !arrants ofarrest !ithout bail issued a%ainst and served upon herein petitioners #oll" T. EernandeA,Elorencio T. EernandeA, #r. and Nonilon 'a%aliho% and release the+ fro+ confine+ent atP*3*IS Detention *enter, *a+p *ra+e, ueAon *it" and 67 T8MPORRL R8STRININ$ORD8R, effective i++ediatel" and continuin% until further orders fro+ this *ourt, orderin%the respondent &ud%e or his dul" authoriAed representatives or a%ents, to *8S8 NDD8SIST fro+ enforcin% or i+ple+entin% the !arrants of arrest !ithout bail issued a%ainstpetitioners Ma"ors Nestor *. 9i+ and ntonio T. :ho.

The pri+ar" issue in these consolidated petitions centers on !hether or not a &ud%e +a" issue a

!arrant of arrest !ithout bail b" si+pl" rel"in% on the prosecutionBs certification and reco++endationthat a probable cause e5ists.

This is not a novel @uestion. In the case of Placer v. illanueva 6(/ S*R )/- G(1>-7, !e ruled thata &ud%e +a" rel" upon the fiscalBs certification of the e5istence of probable cause and, on the basisthereof, issue a !arrant of arrest. Ho!ever, the certification does not bind the &ud%e to co+e out !iththe !arrant of arrest. This decision interpreted the ?search and seiAure? provision of the (1-*onstitution !hich provides0

. . . no search !arrant or !arrant of arrest shall issue e5cept upon probable cause to bedeter+ined b" the &ud%e, or such other responsible officer as +a" be authoriAed b" la!, after e5a+ination under oath or affir+ation of the co+plainant and the !itnesses he +a"

produce . . .

Ce ruled0

. . . The issuance of a !arrant is not a +ere +inisterial function it calls for the e5ercise of &udicial discretion on the part of the issuin% +a%istrate. This is clear fro+ the follo!in%provisions of Section /, Rule (( of the Rules of *ourt.

>arrant of arrest, when issue" . If the &ud%e be satisfied fro+ the preli+inar" e5a+inationconducted b" hi+ or b" the investi%atin% officer that the offense co+plained of has beenco++itted and that there is reasonable %round to believe that the accused has co++itted it,he +ust issue a !arrant or order for his arrest.

<nder this section, the &ud%e +ust satisf" hi+self of the e5istence of probable cause beforeissuin% a !arrant or order of arrest. If on the face of the infor+ation the &ud%e finds noprobable cause, he +a" disre%ard the fiscalBs certification and re@uire the sub+ission of theaffidavits of !itnesses to aid hi+ in arrivin% at a conclusion as to the e5istence of a probablecause. This has been the rule since <.S. v. Oca+po 6(> Phil. (7 and +ar%a v. bbas 61>Phil. -17. nd this evidentl" is the reason for the issuance b" respondent of the @uestionedorders of pril (-, (=, (/, (1, (1> and #ul" (-, (1>. Cithout the affidavits of theprosecution !itnesses and other evidence !hich, as a +atter of lon%3standin% practice had



been attached to the infor+ation filed in his sala, respondent found the infor+ationsinade@uate bases for the deter+ination of probable cause. Eor as the ensuin% events !ouldsho!, after petitioners had sub+itted the re@uired affidavits, respondent !asted no ti+e inissuin% the !arrants of arrest in the case !here he !as satisfied that probable cause e5isted.

The case of %oliven v. &a$asiar 6(/ S*R -1- G(1>>(7 !as decided after the effectivit" of the (1>

*onstitution. Ce stated0

The second issue, raised b" petitioner 'eltran, calls for an interpretation of the constitutionalprovision on the issuance of !arrants of arrest. The pertinent provision reads0

rt. III, Sec. . The ri%ht of the people to be secure in their persons, houses, papers andeffects a%ainst unreasonable searches and seiAures of !hatever nature and for an" purposeshall be inviolable, and no search !arrant or !arrant of arrest shall issue e5cept uponprobable cause to be deter+ined personall" b" the &ud%e after e5a+ination under oath oraffir+ation of the co+plainant and the !itnesses he +a" produce, and particularl" describin%the place to be searched and the persons or thin%s to be seiAed.

The addition of the !ord ?personall"? after the !ord ?deter+ined? and the deletion of the%rant of authorit" b" the (1- *onstitution to issue !arrants to ?other respondent officers as+a" be authoriAed b" la!?, has apparentl" convinced petitioner 'eltran that the *onstitutionno! re@uires the &ud%e to personall" e5a+ine the co+plainant and his !itnesses in hisdeter+ination of probable cause for the issuance of arrest. This is not an accurateinterpretation.

Chat the *onstitution underscores is the e5clusive and personal responsibilit" of the issuin% &ud%e to satisf" hi+self of the e5istence of probable cause. In satisf"in% hi+self of thee5istence of probable cause for the issuance of a !arrant of arrest, the &ud%e is not re@uiredto personall" e5a+ine the co+plainant and his !itnesses. Eollo!in% established doctrineand procedures, he shall0 6(7 personall" evaluate the report and the supportin% docu+entssub+itted b" the fiscal re%ardin% the e5istence of probable cause and, on the basis thereof,issue a !arrant of arrest or 67 if on the basis thereof he finds no probable cause, he +a"disre%ard the fiscalBs report and re@uire the sub+ission of supportin% affidavits of !itnessesto aid hi+ in arrivin% at a conclusion as to the e5istence of probable cause.

Sound polic" dictates this procedure, other!ise &ud%es !ould be undul" laden !ith thepreli+inar" e5a+inations and investi%ation of cri+inal co+plaints instead of concentratin% onhearin% and decidin% cases filed before their courts.

The decision in People v. (onorable Enri?ue B. *nting , et al. 6$.R. No. >>1(1, #ul" =, (11;7,reiterated the above interpretation of ?personal? deter+ination b" the #ud%e0

Ce e+phasiAe i+portant features of the constitutional +andate that ?. . . no search !arrant

or !arrant of arrest shall issue e5cept upon probable cause to be deter+ined personall" b"the &ud%e . . .? 6rticle III, Section , *onstitution7

Eirst, the deter+ination of probable cause is a function of the #ud%e. It is not for theProvincial Eiscal or Prosecutor nor for the 8lection Supervisor to ascertain. 9nl# the u"gean" the u"ge alone ma$es this "etermination.



Second, the preli+inar" in@uir" +ade b" a Prosecutor does not bind the #ud%e. It +erel"assists hi+ to +a2e the deter+ination of probable cause. The #ud%e does not have to follo!!hat the Prosecutor presents to hi+. B# itself, the Prosecutor=s certification of probablecause is ineffectual. *t is the report, the affi"avits, the transcripts of stenographic notes @ifan#A, an" all other supporting "ocuments behin" the Prosecutor=s certification which arematerial in assisting the u"ge to ma$e his "etermination.

nd third, #ud%es and Prosecutors ali2e should distin%uish the preli+inar" in@uir" !hichdeter+ines probable cause for the issuance of a !arrant of arrest fro+ the preli+inar"investi%ation proper !hich ascertains !hether the offender should be held for trial orreleased. 8ven if the t!o in@uiries are conducted in the course of one and the sa+eproceedin%, there should be no confusion about the ob&ectives. The deter+ination ofprobable cause for the !arrant of arrest is +ade b" the #ud%e. The preli+inar" investi%ationproper !hether or not there is reasonable %round to believe that the accused is %uilt" ofthe offense char%ed and, therefore, !hether or not he should be sub&ected to the e5pense,ri%ors and e+barrass+ent of trial is the function of the Prosecutor.

The *ourt +ade this clear in the case of *astillo v. VillaluA 6(( S*R -1 G(1>1(70

#ud%es of Re%ional Trial *ourts 6for+erl" *ourts of Eirst Instance7 no lon%er haveauthorit" to conduct preli+inar" investi%ations. That authorit", at one ti+e reposed inthe+ under Sections (-, () and (/, Rule (( of the Rules of *ourt of (1/),6%ee Sec. ), Rule (;>, Rules of *ourt of (1); People v. Solon, ) Phil. ))-, cited inMoran, *o++ents on the Rules, (1>; ed., Vol. ), pp. ((=3((/7 !as re+oved fro+the+ b" the (1>= Rules on *ri+inal Procedure, effective on #anuar" (, (1>=,6Pro+ul%ated on Nove+ber ((, (1>)7 !hich deleted all provisions %rantin% thatpo!er to said #ud%es. Ce had occasion to point tills out in Salta v. *ourt of ppeals,()- S*R >, and to stress as !ell certain other basic propositions, na+el"0 6(7that the conduct of a preli+inar" investi%ation is ?not a &udicial function . . . 6but7 partof the prosecutionBs &ob, a function of the e5ecutive,? 67 that !henever ?there areenou%h his or prosecutors to conduct preli+inar" investi%ations, courts are

counseled to leave this &ob !hich is essentiall" e5ecutive to the+,? and the fact ?thata certain po!er is %ranted does not necessar" +ean that it should be indiscri+inatel"e5ercised.

The (1>> +end+ents to the (1>= Rules on *ri+inal Procedure, declared effectiveon October (, (1>>, 6The (1>> +end+ents !ere published in the issue of 'ulletinToda" of October 1, (1>>7 did not restore that authorit" to #ud%es of Re%ional Trial*ourts said a+end+ents did not in fact deal at all !ith the officers or courts havin%authorit" to conduct preli+inar" investi%ations.

This is not to sa", ho!ever, that so+e!here alon% the line RT* #ud%es also lost thepo!er to +a2e a preli+inar" e5a+ination for the purpose of deter+inin% !hether

probable cause e5ists to &ustif" the issuance of a !arrant of arrest 6or search!arrant7. Such a po!er indeed, it is as +uch a dut" as it is a po!er has beenand re+ains vested in ever" &ud%e b" the provisions in the 'ill of Ri%hts in the (1-=,the (1- and the present G(1> *onstitutions securin% the people a%ainstunreasonable searches and seiAures, thereb" placin% it be"ond the co+petence of+ere *ourt Rule or Statute to revo2e. The distinction +ust, therefore, be +ade clear!hile an RT* #ud%e +a" no lon%er conduct preli+inar" investi%ations to ascertain!hether there is sufficient %round for the filin% of a cri+inal co+plaint or infor+ation,he retains the authorit", !hen such a pleadin% is filed !ith his court, to deter+ine



!hether there is probable cause &ustif"in% the issuance of a !arrant of arrest. It +i%htbe added that this distinction accords, rather than conflicts, !ith the rationale of Saltabecause both la! and rule, in restrictin% to &ud%es the authorit" to order arrest,reco%niAe the function to be &udicial in nature.

Ce reiterate that preli+inar" investi%ation should be distin%uished as to !hether it is an

investi%ation for the deter+ination of a sufficient %round for the filin% of the infor+ation or it isan investi%ation for the deter+ination of a probable cause for the issuance of a !arrant ofarrest. The first 2ind of preli+inar" investi%ation is e5ecutive in nature. It is part of theprosecutionBs &ob. The second 2ind of preli+inar" investi%ation !hich is +ore properl" calledpreli+inar" e5a+ination is &udicial in nature and is lod%ed !ith the #ud%e. . . .

Einall" in the recent case of People v. elga"o, et al . 6$.R. Nos. 1-)(13-, Septe+ber (>, (11;7there is a state+ent that the &ud%e +a" rel" on the resolution of *OM898* to file the infor+ation b"the sa+e to2en that it +a" rel" on the certification +ade b" the prosecutor !ho conducted thepreli+inar" investi%ation in the issuance of the !arrant of arrest. Ce, ho!ever, also reiterated that?. . . the court +a" re@uire that the record of the preli+inar" investi%ation be sub+itted to it to satisf"itself that there is probable cause !hich !ill !arrant the issuance of a !arrant of arrest.? 6Section ,

rticle III, *onstitution7. Reliance on the *OM898* resolution or the ProsecutorBs certificationpresupposes that the records of either the *OM898* or the Prosecutor have been sub+itted to the#ud%e and he relies on the certification or resolution because the records of the investi%ation sustainthe reco++endation. The !arrant issues not on the stren%th of the certification standin% alone butbecause of the records !hich sustain it.

It is obvious fro+ the present petition that not!ithstandin% the above decisions, so+e #ud%es arestill bound b" the inertia of decisions and practice under the (1-= and (1- *onstitutions and aresadl" confused or hesitant. Prosecutors are also interested in a clear cut rulin%. Ce !ill, therefore,restate the rule in %reater detail and hopefull" clearer ter+s.

There is no proble+ !ith search !arrants !hich are relativel" fe!er and far bet!een and !herethere is no duplication of !or2 bet!een the #ud%e and the Prosecutor. The proble+ lies !ith

!arrants of arrest especiall" in +etropolitan or hi%hl" urban areas. If a #ud%e has to personall"@uestion each co+plainant and !itness or %o over the records of the ProsecutorBs investi%ation pa%eb" pa%e and !ord for !ord before he acts on each of a bi% pile of applications for arrest !arrants onhis des2, he or she +a" have no +ore ti+e for his or her +ore i+portant &udicial functions.

t the sa+e ti+e, the #ud%e cannot i%nore the clear !ords of the (1> *onstitution !hich re@uires ?.. . probable cause to be personall# deter+ined b" the &ud%e . . .?, not b" an" other officer or person.

If a #ud%e relies solel" on the certification of the Prosecutor as in this case !here all the records ofthe investi%ation are in Masbate, he or she has not personall# deter+ined probable cause. Thedeter+ination is +ade b" the Provincial Prosecutor. The constitutional re@uire+ent has not beensatisfied. The #ud%e co++its a %rave abuse of discretion.

The records of the preli+inar" investi%ation conducted b" the Municipal *ourt of Masbate andrevie!ed b" the respondent Eiscal !ere still in Masbate !hen the respondent Eiscal issued the!arrants of arrest a%ainst the petitioners. There !as no basis for the respondent #ud%e to +a2e hiso!n personal deter+ination re%ardin% the e5istence of a probable cause for the issuance of a!arrant of arrest as +andated b" the *onstitution. He could not possibl" have 2no!n !hattranspired in Masbate as he had nothin% but a certification. Si%nificantl", the respondent #ud%edenied the petitionersB +otion for the trans+ittal of the records on the %round that the +ere



certification and reco++endation of the respondent Eiscal that a probable cause e5ists is sufficientfor hi+ to issue a !arrant of arrest.

Ce reiterate the rulin% in %oliven v. &a$asiar that the #ud%e does not have to personall" e5a+inethe co+plainant and his !itnesses. The Prosecutor can perfor+ the sa+e functions as aco++issioner for the ta2in% of the evidence. Ho!ever, there should be a report and necessar"

docu+ents supportin% the EiscalBs bare certification. ll of these should be before the #ud%e.

The e5tent of the #ud%eBs personal e5a+ination of the report and its anne5es depends on thecircu+stances of each case.1âwphi1 Ce cannot deter+ine beforehand ho! cursor" or e5haustive the#ud%eBs e5a+ination should be. The #ud%e has to e5ercise sound discretion for, after all, thepersonal deter+ination is vested in the #ud%e b" the *onstitution. It can be as brief or as detailed asthe circu+stances of each case re@uire. To be sure, the #ud%e +ust %o be"ond the ProsecutorBscertification and investi%ation report !henever necessar". He should call for the co+plainant and!itnesses the+selves to ans!er the courtBs probin% @uestions !hen the circu+stances of the caseso re@uire.

It is !orth" to note that petitioners Vicente 9i+, Sr. and Susana 9i+ presented to the respondent

#ud%e docu+ents of recantation of !itnesses !hose testi+onies !ere used to establish a primafacie case a%ainst the+. lthou%h, the %eneral rule is that recantations are not %iven +uch !ei%ht inthe deter+ination of a case and in the %rantin% of a ne! trial 6Tan n% 'un v. *ourt of ppeals, et al.$.R. No. 93)), Eebruar" (=, (11;, People v. 9ao Can Sin%, )/ S*R 1> G(17 therespondent #ud%e before issuin% his o!n !arrants of arrest should, at the ver" least, have %one over the records of the preli+inar" e5a+ination conducted earlier in the li%ht of the evidence no!presented b" the concerned !itnesses in vie! of the ?political undertones? prevailin% in the cases.8ven the Solicitor $eneral reco%niAed the si%nificance of the recantations of so+e !itnesses !henhe reco++ends a reinvesti%ation of the cases, to !it0

It +ust be pointed out, ho!ever, that a+on% the docu+ents attached to this Petition areaffidavits of recantation subse@uentl" e5ecuted b" #i++" *abarles and Danilo 9oAano andan affidavit e5ecuted b" one, *a+ilo Sanano, father of the co+plainantBs !itnesses, Renato

and Ro+eo Sanano. It !as precisel" on the stren%th of these earlier !ritten state+ents ofthese !itnesses that the Municipal Trial *ourt of Masbate found the e5istence of a primafacie case a%ainst petitioners and accordin%l" reco++ended the filin% of a *ri+inalInfor+ation. 8videntl", the sa+e !ritten state+ents !ere also the ver" basis of the ?EiscalBs*ertification?, since the attached affidavits of recantation !ere not "et then available. Sincethe credibilit" of the prosecution !itnesses is no! assailed and put in issue and, since thepetitioners have not "et been arrai%ned, it !ould be to the broader interest of &ustice and fairpla" if a reinvesti%ation of this case be had to secure the petitioners a%ainst hast"prosecution and to protect the+ fro+ an open and public accusation of cri+e, fro+ thetrouble, e5pense and an5iet" of a public trial, and also to protect the State fro+ useless ande5pensive trials 6Salon%a v. Pao $.R. No. =1=), Eebruar" (>,(1>=7. 6/ollo of $.R. Nos.1);=)3=/, pp. ;;3;(7

Ce reiterate that in +a2in% the re@uired personal deter+ination, a #ud%e is not precluded fro+rel"in% on the evidence earlier %athered b" responsible officers. The e5tent of the reliance dependson the circu+stances of each case and is sub&ect to the #ud%eBs sound discretion. Ho!ever, the#ud%e abuses that discretion !hen havin% no evidence before hi+, he issues a !arrant of arrest.

Indubitabl", the respondent #ud%e co++itted a %rave error !hen he relied solel" on the ProsecutorBscertification and issued the @uestioned Order dated #ul" =, (11; !ithout havin% before hi+ an" other basis for his personal deter+ination of the e5istence of a probable cause.



CH8R8EOR8, the instant petitions are hereb" $RNT8D. The @uestioned Order of respondent#ud%e Ne+esio S. Eeli5 of 'ranch =/, Re%ional Trial *ourt of Ma2ati dated #ul" =, (11; is declaredN<99 and VOID and S8T SID8. The Te+porar" Restrainin% Orders and Preli+inar" Mandator"In&unction issued in the instant Petitions are +ade P8RMN8NT.

SO ORD8R8D.

)ernan, C.., arvasa, &elencio-(errera, Cru8, Paras, )eliciano, 0anca#co, Pa"illa, Bi"in, 0rio- !?uino, &e"ial"ea an" /egala"o, ., concur.%armiento, ., too$ no part.



Republic of the Philippines

SUPREME COURT

Manila

S8*OND DIVISION

G.R. No. 823-- $u!e 28, 188

IN T#E MATTER OF T#E PETITION FOR #ABEAS CORPUS OF9 ANDRE: #AR5EY, $O#N

S#ERMAN a!" ADRIAAN 5AN DE ES#OUT, petitioners,

vs.

#ONORABE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON

IMMIGRATION AND DEPORTATION, respondent.

MEENCIO#ERRERA, J.:

petition for Habeas *orpus.

Petitioners ndre! Harve" and #ohn Sher+an, = and "ears, respectivel", are both +erican

nationals residin% at Pa%san&an, 9a%una, !hile driaan Van 8lshout, => "ears old, is a Dutch citiAen

also residin% at Pa%san&an, 9a%una.

The case ste+s fro+ the apprehension of petitioners on Eebruar" (1>> fro+ their respective

residences b" a%ents of the *o++ission on I++i%ration and Deportation 6*ID7 b" virtue of Mission

Orders issued b" respondent *o++issioner Miria+ Defensor Santia%o of the *ID. Petitioners are

presentl" detained at the *ID Detention *enter.

Petitioners !ere a+on% the t!ent"3t!o 67 suspected alien pedophiles !ho !ere apprehended

after three +onths of close surveillance b" *ID a%ents in Pa%san&an, 9a%una. T!o 67 da"s after

apprehension, or on 1 Eebruar" (1>>, seventeen 6(7 of the t!ent"3t!o 67 arrested aliens opted

for self3deportation and have left the countr". One !as released for lac2 of evidence another !as

char%ed not for bein% a pedophile but for !or2in% !ithout a valid !or2in% visa. Thus, of the ori%inal

t!ent" t!o 67, onl" the three petitioners have chosen to face deportation.

SeiAed durin% petitioners apprehension !ere rolls of photo ne%atives and photos of the suspected

child prostitutes sho!n in salacious poses as !ell as bo"s and %irls en%a%ed in the se5 act. There

!ere also posters and other literature advertisin% the child prostitutes.



The ?Operation Report,? on ndre! Harve" and Richard Sher+an dated 1 Eebruar" (1>> stated0

555 555 555

NDR8C MR: HRV8L !as found to%ether !ith t!o "oun% bo"s.

RI*HRD SH8RMN !as found !ith t!o na2ed bo"s inside his roo+.

In respect of Van Den 8lshout the ?fter Mission Report,? dated Eebruar" (1>> read in part0

Noted0

There !ere t!o 67 children a%es () Q (/ !hich sub&ect readil"

accepted havin% been in his care and live3in for @uite so+eti+e.

On ) March (1>>, deportation proceedin%s !ere instituted a%ainst petitioners for bein% undesirable

aliens under Section /1 of the Revised d+inistrative *ode 6Deportation *ase No. >>3(-7. The?*har%e Sheet? read inter alia0

Cherefore, this Office char%es the respondents for deportation, as undesirable

aliens, in that0 the", bein% pedophiles, are ini+ical to public +orals, public health and

public safet" as provided in Section /1 of the Revised d+inistrative *ode.

On March (1>>, Carrants of rrest !ere issued b" respondent a%ainst petitioners for violation of

Sections -, )= and )/ of the I++i%ration ct and Section /1 of the Revised d+inistrative *ode

On the sa+e date, the 'oard of Special In@uir" III co++enced trial a%ainst petitioners.

On () March (1>>, petitioners filed an <r%ent Petition for Release <nder 'ond alle%in% that theirhealth !as bein% seriousl" affected b" their continuous detention. <pon reco++endation of the

'oard of *o++issioners for their provisional release, respondent ordered the *ID doctor to e5a+ine

petitioners, !ho certified that petitioners !ere health".

On March (1>>, petitioners filed a Petition for 'ail !hich, ho!ever, respondent denied

considerin% the certification b" the *ID ph"sician that petitioners !ere health". To avoid con%estion,

respondent ordered petitionersB transfer to the *ID detention cell at Eort 'onifacio, but the transfer

!as deferred pendin% trial due to the difficult" of transportin% the+ to and fro+ the *ID !here trial

!as on3%oin%.

On ) pril (1>> petitioner ndre! Harve" filed a ManifestationMotion statin% that he had ?finall"a%reed to a self3deportation? and pra"in% that he be ?provisionall" released for at least (= da"s and

placed under the custod" of tt". sinas before he voluntaril" departs the countr".? On pril (1>>,

the 'oard of Special In@uir" III allo!ed provisional release of five 6=7 da"s onl" under certain

conditions. Ho!ever, it appears that on the sa+e date that the aforesaid Manifestation Motion !as

filed, Harve" and his co3petitioners had alread" filed the present petition.



On ) pril (1>>, as heretofore stated, petitioners availed of this Petition for a Crit of Habeas *orpus.

Return of the Crit !as filed b" the Solicitor $eneral and the *ourt heard the case on oral

ar%u+ent on ; pril (1>>. Traverse to the Crit !as presented b" petitioners to !hich a Repl" !as

filed b" the Solicitor $eneral.

Petitioners @uestion the validit" of their detention on the follo!in% %rounds0

(7 There is no provision in the Philippine I++i%ration ct of (1); nor under Section /1 of the

Revised d+inistrative *ode, !hich le%all" clothes the *o++issioner !ith an" authorit" to arrest

and detain petitioners pendin% deter+ination of the e5istence of a probable cause leadin% to an

ad+inistrative investi%ation.

7 Respondent violated Section , rticle III of the (1> *onstitution prohibitin% unreasonable

searches and seiAures since the *ID a%ents !ere not clothed !ith valid Carrants of arrest, search

and seiAure as re@uired b" the said provision.

-7 Mere confidential infor+ation +ade to the *ID a%ents and their suspicion of the activities ofpetitioners that the" are pedophiles, coupled !ith their association !ith other suspected pedophiles,

are not valid le%al %rounds for their arrest and detention unless the" are cau%ht in the act. The"

further alle%e that bein% a pedophile is not punishable b" an" Philippine 9a! nor is it a cri+e to be a

pedophile.

Ce re&ect petitionersB contentions and uphold respondentBs official acts abl" defended b" the Solicitor

$eneral.

There can be no @uestion that the ri%ht a%ainst unreasonable searches and seiAures %uaranteed b"

rticle III, Section of the (1> *onstitution, is available to all persons, includin% aliens, !hether

accused of cri+e or not 6Moncado vs. PeopleBs *ourt, >; Phil. ( G(1)>. One of the constitutionalre@uire+ents of a valid search !arrant or !arrant of arrest is that it +ust be based upon probable

cause. Probable cause has been defined as referrin% to ?such facts and circu+stances antecedent

to the issuance of the !arrant that in the+selves are sufficient to induce a cautious +an to rel" on

the+ and act in pursuance thereof.? 6People vs. S"&uco /) Phil. // G(1- lvereA vs. *EI, /) Phil.

-- G(1-7.

The (1>= Rules on *ri+inal Procedure also provide that an arrest !it a !arrant +a" be effected b"

a peace officer or even a private person 6(7 !hen such person has co++itted, actuall" co++ittin%,

or is atte+ptin% to co++it an offense in his presence and 67 !hen an offense has, in fact, been

co++itted and he has personal 2no!led%e of facts indicatin% that the person to be arrested has

co++itted it 6Rule ((-, Section =7.

In this case, the arrest of petitioners !as based on probable cause deter+ined after close

surveillance for three 6-7 +onths durin% !hich period their activities !ere +onitored. The e5istence

of probable cause &ustified the arrest and the seiAure of the photo ne%atives, photo%raphs and

posters !ithout !arrant 6See Papa vs. Ma%o, 93-/;, Eebruar" >, (1/>, S*R >= People vs.

*ourt of Eirst Instance of RiAal, 93)(/>/, Nove+ber (, (1>;, (;( S*R >/, cited in *R<K,



*onstitutional 9a!, (1> ed., p. ()-7. Those articles !ere seiAed as an incident to a la!ful arrest

and, are therefore, ad+issible in evidence 6Section (, Rule (/,(1>= Rules on cri+inal Procedure7.

'ut even assu+in% arguen"o that the arrest of petitioners !as not valid at its inception, the records

sho! that for+al deportation char%es have been filed a%ainst the+, as undesirable aliens, on )

March (1>>. Carrants of arrest !ere issued a%ainst the+ on March (1>> ?for violation of Section-, )= and )/ of the I++i%ration ct and Section /1 of the d+inistrative *ode.? hearin% is

presentl" bein% conducted b" a 'oard of Special In@uir". The restraint a%ainst their persons,

therefore, has beco+e le%al. The Crit has served its purpose. The process of the la! is bein%

follo!ed 6*ruA vs. Monto"a, 93-1>-, Eebruar" =, (1=, / S*R =)-7. ?!ere a personBs detention

!as later +ade b" virtue of a &udicial order in relation to cri+inal cases subse@uentl" filed a%ainst the

detainee, his petition for hebeas corpus beco+es +oot and acade+ic? 6'eltran vs. $arcia, 93)1;(),

pril -;, (11, >1 S*R (7. ?It is a fu+da+ental rule that a !rit of habeas corpus !ill not be

%ranted !hen the confine+ent is or has beco+e le%al, althou%h such confine+ent !as ille%al at the

be%innin%? 6Matsura vs. Director of Prisons, Phil. (;=; G(1)7.

That petitioners !ere not ?cau%ht in the act? does not +a2e their arrest ille%al. Petitioners !erefound !ith "oun% bo"s in their respective roo+s, the ones !ith #ohn Sher+an bein% na2ed. <nder

those circu+stances the *ID a%ents had reasonable %rounds to believe that petitioners had

co++itted ?pedophilia? defined as ?ps"chose5ual perversion involvin% children? 6:raft38bbin%

Ps"chopatia Se5ualis p. === Paraphilia 6or unusual se5ual activit"7 in !hich children are the

preferred se5ual ob&ect? 6CebsterBs Third Ne! International Dictionar", (1( ed., p. (//=7 GSolicitor

$eneralBs Return of the Crit, on p. (;(. Chile not a cri+e under the Revised Penal *ode, it is

behavior offensive to public +orals and violative of the declared polic" of the State to pro+ote and

protect the ph"sical, +oral, spiritual, and social !ell3bein% of our "outh 6rticle II, Section (-, (1>

*onstitution7.

t an" rate, the filin% b" petitioners of a petition to be released on bail should be considered as a!aiver of an" irre%ularit" attendin% their arrest and estops the+ fro+ @uestionin% its validit" 6*allanta

v. Villanueva, 93)/)/ Q 93)/), #une ;, (1, S*R - 'a%cal vs. VillaraAa, 93/(;,

#anuar" -(, (1>-, (; S*R ==7.

The deportation char%es instituted b" respondent *o++issioner are in accordance !ith Section

-6a7 of the Philippine I++i%ration ct of (1);, in relation to Section /1 of the Revised

d+inistrative *ode. Section -6a7 provides in part0

6a7 The follo!in% aliens shall be arrested upon the !arrant of the *o++issioner of

I++i%ration and Deportation or an" other officer desi%nated b" hi+ for the purpose

and deported upon the !arrant of the *o++issioner of I++i%ration and Deportationafter a deter+ination b" the 'oard of *o++issioners of the e5istence of the %round

for deportation as char%ed a%ainst the alien

555 555 555



The fore%oin% provision should be construed in its entiret" in vie! of the su++ar" and indivisible

nature of a deportation proceedin%, other!ise, the ver" purpose of deportation proceedin% !ould be

defeated.

Section -6a7 is not constitutionall" proscribed 6Morano vs. Vivo, 93(1/, #une -;, (1/, ; S*R

=/7. The specific constraints in both the (1-=

1

and (1>

2

*onstitutions, !hich are substantiall"Identical, conte+plate prosecutions essentiall" cri+inal in nature. Deportation proceedin%s, on the other

hand, are ad+inistrative in character. n order of deportation is never construed as a punish+ent. It is

preventive, not a penal process. It need not be conducted strictl" in accordance !ith ordinar" *ourt

proceedin%s.

It is of course !ell3settled that deportation proceedin%s do not constitute a cri+inal

action. The order of deportation is not a punish+ent, 6Maliler vs. 8b", /) <.S., -7, it

bein% +erel" the return to his countr" of an alien !ho has bro2en the conditions upon

!hich he could continue to reside !ithin our borders 6<.S. vs. De los Santos, --

Phil., -17. The deportation proceedin%s are ad+inistrative in character, 6:essler vs.

Strac2er -; <.S., 7 su++ar" in nature, and need not be conducted strictl" in

accordance !ith the ordinar" court proceedin%s 6Murdoc2 vs. *lar2, =- E. Gd, (==7.

It is essential, ho!ever, that the !arrant of arrest shall %ive the alien sufficient

infor+ation about the char%es a%ainst hi+, relatin% the facts relied upon. 6<.S. vs.

<hl (( E., />.7 It is also essential that he be %iven a fair hearin% !ith the assistance

of counsel, if he so desires, before unpre&udiced investi%ators 6Strench vs. Pedaris,

== E. Gd, =1 85 parte #e! Lou On, (/ E. Gd, (=-7. Ho!ever, all the strict rules of

evidence %overnin% &udicial controversies do not need to be observed onl" such as

are fu+da+ental and essential li2e the ri%ht of cross3e5a+ination. 6<.S. vs. Hu%hes,

(;) E. Gd, () Murdoc2 vs. *lar2, =- E. Gd, (==.7 Hearsa" evidence +a" even be

ad+itted, provided the alien is %iven the opportunit" to e5plain or rebut it 6Morrell vs.

'a2er, ; E., = Sercerchi vs. Card, E. Supp., )-7. 69ao Tan% 'un vs. Eabre

>( Phil. /> G(1)>7.

The rulin% in ivo vs. &ontesa 6$. R. No. )=/, #ul" 1, (1/>, ) S*R (==7 that ?the issuance of

!arrants of arrest b" the *o++issioner of I++i%ration, solel" for purposes of investi%ation and

before a final order of deportation is issued, conflicts !ith para%raph -, Section I of rticle III of the

*onstitution? 6referrin% to the (1-= *onstitution7 ; is not invocable herein. Respondent *o++issionerBs

Carrant of rrest issued on March (1>> did not order petitioners to appear and sho! cause !h" the"

should not be deported. The" !ere issued specificall" ?for violation of Sections -, )= and )/ of the

I++i%ration ct and Section /1 of the Revised d+inistrative *ode.? 'efore that, deportation proceedin%s

had been co++enced a%ainst the+ as undesirable aliens on ) March (1>> and the arrest !as a step

preli+inar" to their possible deportation.

Section - of the I++i%ration 9a!, !hich e+po!ers the *o++issioner of

I++i%ration to issue !arrants for the arrest of oversta"in% aliens is constitutional.

The arrest is a stop preli+inar" to the deportation of the aliens !ho had violated the

condition of their sta" in this countr". 6Morano vs. Vivo, 93(1/, #une -;, (1/, ;

S*R =/7.



To rule other!ise !ould be to render the authorit" %iven the *o++issioner nu%ator" to the detri+ent

of the State.

The pertinent provision of *o++on!ealth ct No. /(-, as a+ended, !hich %ives

authorit" to the *o++issioner of I++i%ration to order the arrest of an alien

te+porar" visitor preparator" to his deportation for failure to put up ne! bondsre@uired for the sta", is not unconstitutional.

555 555 555

... Such a step is necessar" to enable the *o++issioner to prepare the %round for

his deportation under Section -Gal of *o++on!ealth ct /(-. contrar"

interpretation !ould render such po!er nu%ator" to the detri+ent of the State. 6N%

Hua To vs. $alan%, $. R. No. (;()=, Eebruar" 1, (1/), (; S*R )((7.

?The re@uire+ent of probable cause, to be deter+ined b" a #ud%e, does not e5tend to deportation

proceedin%s.? 6Morano vs. Vivo, supra, citin% Tiu *hun Hai vs. *o++issioner, infra7. There need beno ?truncated? recourse to both &udicial and ad+inistrative !arrants in a sin%le deportation

proceedin%s.

The fore%oin% does not deviate fro+ the rulin% in ua Chee 0an vs. eportation Boar" 6$. R. No.

(;>;, Septe+ber -;, (1/-, 1 S*R G(1/-7 reiterated in ivo vs. &ontesa, supra, that ?under

the e5press ter+s of our *onstitution 6the (1-= *onstitution7, it is therefore even doubtful !hether

the arrest of an individual +a" be ordered b" an" authorit" other than a &ud%e if the purpose is

+erel" to deter+ine the e5istence of a probable cause, leadin% to an ad+inistrative investi%ation.?

Eor, as heretofore stated, probable cause had alread" been sho!n to e5ist before the !arrants of

arrest !ere issued.

Chat is essential is that there should be a specific char%e a%ainst the alien intended to be arrested

and deported, that a fair hearin% be conducted 6Section -Gc7 !ith the assistance of counsel, if

desired, and that the char%e be substantiated b" co+petent evidence. Thus, Section /1 of the

Revised d+inistrative *ode e5plicitl" provides0

Sec. /1. Deportation of sub&ect of forei%n po!er. sub&ect of a forei%n po!er residin%

in the Philippines shall not be deported, e5pelled, or e5cluded fro+ said Islands or

repatriated to his o!n countr" b" the President of the Philippines e5cept upon prior

investi%ation, conducted b" said 85ecutive or his authoriAed a%ent, of the %round

upon !hich such action is conte+plated. In such a case the person concerned shall

be infor+ed of the char%e or char%es a%ainst hi+ and he shall be allo!ed not lessthan - da"s for the preparation of his defense. He shall also have the ri%ht to be

heard b" hi+self or counsel, to produce !itnesses in his o!n behalf, and to cross3

e5a+ine the opposin% !itnesses.

The denial b" respondent *o++issioner of petitionersB release on bail, also challen%ed b" the+,

!as in order because in deportation proceedin%s, the ri%ht to bail is not a +atter of ri%ht but a +atter

of discretion on the part of the *o++issioner of I++i%ration and Deportation. Thus, Section -6e7 of



the Philippine I++i%ration ct of (1); provides that ?an" alien under arrest in a deportation

proceedin% +a" be released under bond or under such other conditions as +a" be i+posed b" the

*o++issioner of I++i%ration.? The use of the !ord ?+a"? in said provision indicates that the %rant

of bail is +erel" per+issive and not +andator" on the part of the *o++issioner. The e5ercise of the

po!er is !holl" discretionar" 6On% Hee San% vs. *o++issioner of I++i%ration, 931;;, Eebruar"

>,(1/, ) S*R ))7. ?Neither the *onstitution nor Section /1 of the Revised d+inistrative *ode%uarantees the ri%ht of aliens facin% deportation to provisional libert" on bail.? 6Tiu *hun Hai et al vs.

Deportation 'oard, (;) Phil. 1)1 G(1=>7. s deportation proceedin%s do not parta2e of the nature of

a cri+inal action, the constitutional %uarantee to bail +a" not be invo2ed b" aliens in said

proceedin%s 6On% Hee San% vs. *o++issioner of I++i%ration, supra7.

8ver" soverei%n po!er has the inherent po!er to e5clude aliens fro+ its territor" upon such %rounds

as it +a" dee+ proper for its self3preservation or public interest 69ao Tan 'un vs. Eabre >( Phil. />

G(1)>7. The po!er to deport aliens is an act of State, an act done b" or under the authorit" of the

soverei%n po!er 6In re Mc*ulloch Dic2, -> Phil. )( G(1(>7. It is a police +easure a%ainst

undesirable aliens !hose continued presence in the countr" is found to be in&urious to the public

%ood and the do+estic tran@uilit" of the people 6Eorbes vs. *huoco Tiaco et al., (/ Phil. =-) G(1(;7.Particularl" so in this case !here the State has e5pressl" co++itted itself to defend the ti%ht of

children to assistance and special protection fro+ all for+s of ne%lect, abuse, cruelt", e5ploitation,

and other conditions pre&udicial to their develop+ent 6rticle 4V, Section -G7. Respondent

*o++issioner of I++i%ration and Deportation, in institutin% deportation proceedin%s a%ainst

petitioners, acted in the interests of the State.

CH8R8EOR8, the Petition is dis+issed and the Crit of Habeas *orpus is hereb" denied.

SO ORD8R8D.

Dap, C.., Paras, Pa"illa an" %armiento, ., concur.

Foo*!o*e'

( The ri%ht of the people to be secure in their persons, houses, papers and effects

a%ainst unreasonable searches and seiAures shall not be violated and no !arrant

shall issue but upon probable cause, to be deter+ined b" the &ud%e after e5a+ination

under oath or affir+ation of the co+plainant and the !itnesses he +a" produce, and

particularl" describin% the place to be searched, and the persons or thin%s to be

seiAed.? 6Sec. (G-, rt. III7.

The ri%ht of the people to be secure in their persons, houses, papers, and effects

a%ainst unreasonable searches and seiAures of !hatever nature and for an" purpose

shall be inviolable, and no search !arrant or !arrant of arrest shall issue e5cept

upon probable cause to be deter+ined personall" b" the &ud%e after e5a+ination

under oath or affir+ation of the co+plainant and the !itnesses he +a" produce, and



particularl" describin% the place to be search and the persons or thin%s to be seiAed.?

6Section , rt. III7.

- Reiterated in Neria vs. Vivo 693//((3(, Septe+ber -;, (1/1, 1 S*R ;(7 Tiu

vs. Vivo, 93 ()=, Septe+ber (=, (1, ) S*R - and n% N%o *hion% vs.

$alan%, 93()/, October , (1=, / S*R -->7.




SUPREME COURT

Manila

8N 'N*

G.R. No. 4-1-3 $u!e 14, 184

PEOPE OF T#E P#IIPPINES, plaintiff3appellee,

vs.

/OSIMO CRISOOGO, a%a' <AMANG<, defendant3appellant.

7he %olicitor 0eneral for plaintiff-appellee.

&arcelino 0. !gana *** for "efen"ant-appellant.

PADIA, J.:

ppeal fro+ a decision of the *ourt of Eirst Instance of Davao del Sur in *ri+inal *ase No. 1 6/7

convictin% the defendant of robber" !ith ho+icide, sentencin% hi+ to the death penalt", and orderin%

hi+ to inde+nit" the heirs of Martin Erancisco the su+s of P-=,;;;.;; for loss of life, P=,;;;.;; for

funeral e5penses, P-;,;;;.;; for loss of earnin%s and P;,;;;.;; for +oral da+a%es.

On = Ma" (1/, a cri+inal co+plaint !as filed b" the Station *o++ander !ith the Municipal *ourt

of Ma%sa"sa", Davao del Sur a%ainst the accused Kosi+o *risolo%o alias ?+an%,? a deaf3+ute, for

robber" and ho+icide alle%ed to have been co++itted on ( Ma" (1/ bet!een ten to eleven oBcloc2

in the evenin% in *ala+a%o", Poblacion Ma%sa"sa", Davao del Sur.

The follo!in% infor+ation !as subse@uentl" filed b" the Provincial Eiscal a%ainst the accused on (/

Septe+ber (10

That on or about the (st da" of Ma", (1/, in the Municipalit" of Ma%sa"sa",

Province of Davao del Sur, Philippines, and !ithin the &urisdiction of this Honorable

*ourt, the above3na+ed accused, ar+ed !ith a bladed !eapon, !ith violence

a%ainst and inti+idation upon persons, and !ith intent of %ain, did then and there

!ilfull", unla!full" and feloniousl" rob Martin Erancisco of one 6(7 ?Sei2o = ctus?

!rist !atch valued at Eour Hundred 6P);;.;;7 Pesos and a t!o batter" flashli%ht

valued at Thirt" 6P-;.;;7 Pesos in the total a+ount of Eour Hundred Thirt" 6P)-;.;;7

Pesos, to the da+a%e and pre&udice of the said o!ner in the a+ount aforesaid and

on the sa+e occasion, the above3na+ed accused, !ith intent to 2ill !ilfull",

unla!full" and feloniousl" attac2Ged and stabGbed the said Martin Erancisco !ith the

sa+e bladed !eapon, thereb" inflictin% upon hi+ !ounds !hich caused his death.



*ONTRRL TO 9C !ith the a%%ravatin% circu+stance of0

6a7 disre%ard of the respect due the offended part" on account of his a%e and

6b7 ni%ht ti+e.

Di%os, Davao del Sur, Philippines, Septe+ber (=, (1.

On ( Dece+ber (1, arrai%n+ent !as set. The accused !as alle%edl" infor+ed of the char%e

a%ainst hi+ throu%h si%n lan%ua%e b" Special Police+an le&andro MunoA a childhood

ac@uaintance. Mr. MunoA subse@uentl" entered a plea of %uilt" on behalf of the accused. <pon

ob&ection of counsel, ho!ever, this plea !as disre%arded and arrai%n+ent !as rescheduled until

such ti+e as the *ourt could avail of the services of an e5pert in the si%n lan%ua%e fro+ the school

of the deaf and du+b.

On / #une (11 the *ourt throu%h another presidin% &ud%e, upon insistent plea of defense counsel

for a si%n lan%ua%e e5pert to assist the accused, a%ain reset arrai%n+ent as no e5pert in si%nlan%ua%e !as available. The School for the Deaf and Du+b in Pasa" *it" !as sent a cop" of the

court order to enable it to furnish the court !ith an e5pert in si%n lan%ua%e. No such e5pert !as

+ade available.

On 1 Nove+ber (1>, or after five "ears fro+ the date of filin% of the infor+ation, and order throu%h

still another presidin% &ud%e !as entered directin% that a representative of the School of the Deaf

and Du+b in 'a%o $allera, Talo+o District, Davao *it" be availed of to enable the accused to

intelli%entl" e5press his understandin% of a plea of %uilt" or not %uilt".

pparentl" no si%n lan%ua%e e5pert or representative ever arrived.

On / pril (1>-, the accused throu%h a counsel de oficio !aived the readin% of the infor+ation and

pleaded not %uilt". Trial proceeded !ithout an" evidence bein% presented on his part. Einall", on (;

Eebruar" (1>/, !ithout the services of an e5pert in si%n lan%ua%e ever bein% utiliAed at an" sta%e of

the proceedin%s, the accused !as found %uilt" be"ond reasonable doubt of robber" !ith ho+icide

and sentenced to die b" electrocution. 85ecutive cle+enc" !as reco++ended, ho!ever, in vie! of

the accusedBs infir+it" and his nearl" ten3"ear detention as a suspect.

*ounsel for the accused and the Solicitor3$eneral no! as2 for the reversal of the &ud%+ent of

conviction due to the failure of the trial court to safe%uard the accusedBs ri%ht to due process of la!

and the insufficienc" of the purel" circu+stantial evidence presented to overco+e the constitutional

presu+ption of innocence in favor of the accused.

Ce find their position to be !ell3ta2en.

The absence of an interpreter in si%n lan%ua%e !ho could have conve"ed to the accused, a deaf3

+ute, the full facts of the offense !ith !hich he !as char%ed and !ho could also have

co++unicated the accusedBs o!n version of the circu+stances !hich led to his i+plication in the



cri+e, deprived the accused of a full and fair trial and a reasonable opportunit" to defend hi+self.

Not even the accusedBs final plea of not %uilt" can e5cuse these inherentl" un&ust circu+stances.

The absence of a @ualified interpreter in si%n lan%ua%e and of an" other +eans, !hether in !ritin% or

other!ise, to infor+ the accused of the char%es a%ainst hi+ denied the accused his funda+ental

ri%ht to due process of la!.1 The accurac" and fairness of the factual process b" !hich the %uilt or innocence of the accused !asdeter+ined !as not safe%uarded. The accused could not be said to have en&o"ed the ri%ht to be heard b" hi+self and counsel, and to be

infor+ed of the nature and cause of the accusation a%ainst hi+2 in the proceedin%s !here his life and libert" !ere at

sta2e.

In 7err# v. %tate, ; !here a deaf3+ute accused of +anslau%hter !as not provided !ith an interpreter

despite repeated re@uests fro+ counsel, it !as held0

... The *onstitution of this state e5pressl" provides that an accused has a ri%ht to be

heard b" hi+self and counsel, also, to de+and the nature and cause of the

accusation a%ainst hi+, and, further to be confronted b" the !itnesses, !ho are to

testif" a%ainst hi+. In constructin% this constitutional provision it needs no discussion

in decidin% that all this +ust be done in a +anner b# which the accuse" can

$now, the nature and the cause of the accusation he is called upon to ans!er, and all

necessar" +eans +ust be provided, and the la! so conte+plates, that the accused

+ust not onl" beconfronte" b" the !itnesses a%ainst hi+, but he +ust be accorded

all necessar" +eans to 2no! and understand the testi+on" %iven b" said !itnesses,

and +ust be placed in a condition !here he can +a2e his plea rebut such testi+on",

and %ive his o!n version of the transaction upon !hich the accusation is based. This

the funda+ental la! accords, and for this the la! +ust provide. These hu+ane

provisions +ust not, and cannot, be dependent upon the abilit", financial or

other!ise, of the accused ... GThis constitutional ri%ht ... !ould be +eanin%less and a

vain and useless provision unless the testi+on" of the !itnesses a%ainst hi+ could

be understood b" the accused. Mere confrontation of the !itnesses !ould be

useless, borderin% upon the farcical, if the accused could not hear or understand

their testi+on". So, also, as to the nature and cause of the accusation. In the

absence of an interpreter it !ould be a ph"sical i+possibilit" for the accused, a deaf3

+ute, to 2no! or to understand the nature and cause of the accusation a%ainst hi+,

and, as here, he could onl" stand b" helplessl", ta2e his +edicine, or !hatever +a"

be co+in% to hi+, !ithout 2no!in% or understandin%, and all this in the teeth of the

+andator" constitutional ri%hts !hich appl" to an unfortunate afflicted deaf+ute, &ust

as it does to ever" person accused of a violation of the cri+inal la!. In other !ords

the ph"sical infir+it" of this appellant can in no sense lessen his ri%hts under the

*onstitution, and, in the proper ad+inistration of its la!s, this %reat and soverei%n

state +ust and !ill accord the +eans b" !hich its citiAens, hu+ble and afflicted

thou%h the" +a" be, shall receive all the ri%hts, benefits and privile%es !hich the

*onstitution, la!s, re%ulations, and rules of practice provide.-

The basic constitutional infir+it" alone in the conduct of the case a%ainst the accused is, in our

candid assess+ent, fatal to the &ud%+ent of conviction +eted out a%ainst hi+.



side fro+ the unfair settin% and circu+stance in !hich the accused !as convicted, insufficienc" of

evidence to !arrant a findin% of %uilt" be"ond reasonable doubt also leads this *ourt to set aside the

conviction. The follo!in% events and circu+stances are relevant in this re%ard0

On ( Ma" (1/, at past ei%ht oBcloc2 in the evenin%, the accused and the deceased !ere last seen

!al2in% a!a" to%ether fro+ a sari-sari store !here the" had been drin2in% tuba steadil" in apparenthar+on". t around eleven thirt" of the sa+e evenin%, the accused suddenl" appeared in the house

of Cilson 8van%elists, !ho !as then !ith relatives butcherin% a pi% for the baptis+ of his child the

follo!in% da". The accused !as pantin% and tre+blin%, and told Cilson 8van%elista in si%n lan%ua%e

that he had co+e fro+ *ala+a%o", at the side of the canal, !here there !ere persons fi%htin% on

the road. 8van%elista later testified that he noticed the accused !earin% a fati%ue shirt !ith a blood3

stain on it, and carr"in% a flashli%ht.

On Ma" (1/, Patrol+an Re"naldo Pinto, #r., !as told to investi%ate a case of robber" !ith

ho+icide !ith the deceased Martin Erancisco as victi+, and to arrest the accused on the basis of

Cilson 8van%elistaBs state+ent that he sa! the accused !ith a bloodstained shirt the previous

evenin% !hen the cri+e could conceivabl" have occurred. Patrol+an Pinto did so that ver" da".Several da"s later, he !as also able to recover the deceasedBs !rist!atch and flashli%ht fro+ the

house of the accusedBs father alle%edl" throu%h the assistance of the accused hi+self.

<pon bein% as2ed !ho 2illed the deceased, the accused alle%edl" ad+itted to Pat. Pinto in si%n

lan%ua%e that it !as he b" +a2in% %estures !hich Pat. Pinto interpreted to +ean that the accused

had been stoned b" the deceased, thus i+pellin% the accused to stab the latter. This confession,

ho!ever, !as not included in Pat. PintoBs affidavit as he alle%edl" for%ot to tell the investi%ator. He

also ac2no!led%e his failure to notif" the accused of his ri%ht to counsel before interro%ation and

investi%ation due to difficult" in conve"in% the +atter b" si%n lan%ua%e.

'ased on the above circu+stances and evidence, the trial court found the accused %uilt" be"ondreasonable doubt of the cri+e char%ed, reasonin% as follo!s0

The prosecution proved and !hich this *ourt finds that the accuse" was the last

person to be seen with the "ecease", and that he !as drun2 !hen he left the store of

prosecution !itness Salo+e del Socorro to%ether !ith the deceased. The *ourt also

finds that the accuse"=s clothes ha" bloo"stain on it !hen he !ent to the house of

prosecution !itness Cilson 8van%elista at ((0-; in the evenin% of Ma" (, (1/, the

ni%ht !hen the deceased !as robbed and 2illed. The sei2o = actus !rist !atch and

the flashli%ht colored red and !hite both belon%in% to the deceased Martin Erancisco

!ere recovered fro+ the possession of the accused and !hich recover" !as done

!ith his help, The une5plained possession b" the accused of the propertiesbelon%in% to the deceased prove" that he too2 these thin%s unla!full". The fifteen

6(=7 stab !ounds !hich !ere inflicted on the deceased, +an" of !hich !ere fatal

!ounds prove" that a much #ounger manF than the "ecease" coul" have inflicte"

the same. In the case at bar, the accused is ver" +uch "oun%er than the deceased

!ho !as /- "ears old at the ti+e of his death, ... frail and !ithout ph"sical attributes,

unli2e the accused !ho loo2s health", robust and "oun% ...



Chile it is true that Pat. Pinto and his co+panion !ere able to %et a state+ent fro+

the accused !ithout tellin% hi+ in advance of his constitutional ri%hts, due to difficult"

in e5plainin% the+ in si%n lan%ua%e, the accusedBs state+ent b" si%n lan%ua%e !as

coupled !ith his voluntar" help in recoverin% the thin%s belon%in% to the deceased.

Eurther+ore, the court considered and too2 note of the plea of %uilt" which was

entere" into b# the accuse" on his first arraignment b# sign language through &r. !le'an"ro &uno8 who is an associate of the accuse" in their #ounger

"a#s. 68+phasis supplied.7

Ce find the trial courtBs decision essentiall" lac2in% in that de%ree of certaint" in reason and

conscience !hich is necessar" to establish %uilt be"ond reasonable doubt. s held in U.%. v.

+asa"a, 3 ?'" reasonable doubt is not +eant that !hich of possibilit" +a" arise, but it is that doubt

en%endered b" an investi%ation of the !hole proof and an inabilit", after such investi%ation, to let the +ind

rest eas" upon the certaint" of %uilt. bsolute certaint" of %uilt is not de+anded b" the la! to convict of

an" cri+inal char%e but +oral certaint" is re@uired, and this. certaint" is re@uired as to ever" proposition

of proof re@uisite to constitute the offense.? 7 Eacts +ust be presented +ethodicall" and +eticulousl",

contradictions +ust be clarified, and %aps and loopholes in the evidence +ust be ade@uatel" e5plained

?to the end that the courtBs +ind +a" not be tortured b" doubts, the innocent Gnot suffer and the %uilt" G%o

unpunished.? 4

Such standards, !e believe, have not been +et in this case.

Patrol+an Pinto, the interro%ator to !ho+ the accused alle%edl" confessed the details !hich led to a

presu+ption that lie 2illed the deceased, e5pressl" ad+itted that he could have +isinterpreted the

%estures +ade b" the accused as he had onl" a sli%ht 2no!led%e of si%n lan%ua%e. Eurther+ore, the

sa+e !itness did not %ive full" credible replies !hen @uestioned about the possibilit" that he !as

ordered to proceed to the house of accusedBs father to %et the incri+inatin% !atch and flashli%ht

!hich !ere delivered there earlier b" a certain Nicolas.

The bloodstain on the accusedBs shirt could conceivabl" have co+e also fro+ the fi%htin% that the

accused told Cilson 8van%elista he had !itnessed. *onsiderin% that the deceased sustained fifteen

6(=7 stab !ounds, t!elve 6(7 of !hich could have separatel" caused death, accordin% to the

+edical officer !ho e5a+ined the bod" of the deceased, the presence of a sin%le bloodstain on the

front of accusedBs shirt hardl" supports the conclusion reached b" the trial court, especiall" !hen

related to the hi%h de%ree of into5ication appreciated a%ainst the accused. s testified to b" the

+edical officer !ho, as stated, e5a+ined the bod" of the deceased, the stab !ounds could also

have been inflicted b" several assailants usin% different !eapons. That the accused loo2ed +uch

+ore robust than the deceased and thus could have co++itted the cri+e does not b" itself deserve

the !ei%ht and consideration that the trial court %ave to it. Eurther+ore, the rubber slippers and

e"e%lasses found near the scene of the cri+e !ere never Identified or e5plained.

The trial courtBs appreciation of the plea of %uilt" earlier entered for the accused b" Special

Police+an le&andro MunoA, !hich the first presidin% &ud%e earlier discarded, is re%rettable, to sa"

the least, especiall" !hen considered !ith the ad+ittedl" li+ited 2no!led%e in si%n lan%ua%e on the

part of Pat. MunoA and in relation to the investi%atorBs o!n ad+ission that the accused !as never

infor+ed of his ri%ht to counsel. 8



CH8R8EOR8, the appealed decision is hereb" reverse". The accused is ac?uitte", on the %round

that his %uilt has not been proved be"ond reasonable doubt. The *ourt hereb" orders his i++ediate

release fro+ confine+ent, unless he is le%all" detained for so+e other cause or offense.

SO ORD8R8D.

7eehan$ee, C.., Dap, )ernan"o, arvasa, &elencio-(errera, 0utierre8, r., Cru8, Paras, )eliciano,

0anca#co, Bi"in, %armiento an" Cortes, ., concur.

Foo*!o*e'

( *onst. 6(1-7, rt. IV, Sec. (0 ?No person shall be held to ans!er for a cri+inal

offense !ithout due process of la!.? Reiterated in rt. I I (, Sec. (), par. 6(7 of the

(1> *onstitution.

*onst. 6(1-7, rt. IV, Sec. (10 ?In all cri+inal prosecutions, the accused shall be

presu+ed innocent until the contrar" is proved, and shall en&o" the ri%ht to be heard

b" hi+self and counsel to be in for+ed of the nature and cause of the accusation

a%ainst hi+, to have a speed" i+partial, and public trial to +eet the !itnesses face

to face and to have co+pulsor" process to secure the attendance of !itnesses and

the production of evidence in his behalf. ... Reiterated in rt III, Sec. (), par 67 of the

(1> *onstitution.

- ( la. pp. (;;, (;= So. ->/ 6(1=7

) *" at ->.

= (> Phil. 1; 6(1(;7

/ *" at 1/31.

People v. 8s@uivel, > Phil. )=-, )=1 6(1)>7

> *onst. 6(1-7, rt. IV, Sec. ;, ?No person sha% be co+pelled to be a !itness

a%ainst hi+self. n" person under investi%ation for the co++ission of an offense

shall have the ri%ht to re+ain silent and to counsel, and to be infor+ed of such ri%ht.

No force, violence, threat, inti+idation or an" other +eans !hich vitiates the free !inshall be used a%ainst hi+. n" confession obtained in violation of this section shall

be inad+issible in evidence.? *f. rt. III, Sec. ( of the (1> *onstitution.




Manila

8N 'N*

G.R. No. 217 Au+u'* 1, 178

ROGER C#A5E/, petitioner,vs.T#E #ONORABE COURT OF APPEAS, T#E PEOPE OF T#E P#IIPPINES a!" T#E:ARDEN OF T#E CITY $AI OF MANIA, respondents.



Estanislao E. )ernan"e8 an" )austo !rce for petitioner.9ffice of the %olicitor 0eneral for respon"ents.

SANC#E/, J.:

The thrust of petitionerBs case presented in his ori%inal and supple+entar" petitions invo2in%

&urisdiction of this *ourt is that he is entitled, on habeas corpus, to be freed fro+ i+prison+ent uponthe %round that in the trial !hich resulted in his conviction( he !as denied his constitutional ri%ht notto be co+pelled to testif" a%ainst hi+self. There is his pra"er, too, that, should he fail in this, he be%ranted the alternative re+edies of certiorari to stri2e do!n the t!o resolutions of the *ourt of

ppeals dis+issin% his appeal for failure to file brief, and of +anda+us to direct the said court tofor!ard his appeal to this *ourt for the reason that he !as raisin% purel" @uestions of la!.

The indict+ent in the court belo! the third a+ended infor+ation upon !hich the &ud%+ent ofconviction herein challen%ed !as rendered, !as for @ualified theft of a +otor vehicle, one 6(7Thunderbird car, Motor No. H1LH3()-;;-, !ith Plate No. H3(//)> Pasa" *it" B/ to%ether !ith itsaccessories !orth P,;;.;;. ccused !ere the follo!in%0 Petitioner herein, Ro%er *haveA,Ricardo Su+ilan% alias ?Ro+eo Vas@ueA?, 8d%ardo P. Pascual alias ?$in%? Pascual, Pedro Rebullo

alias ?Pita?, 9uis sistio alias ?'ab"? sistio, 9orenAo Meneses alias?9or"? Meneses, Peter Doe,*harlie Doe and Paul Doe.

verred in the aforesaid infor+ation !as that on or about the ()th da" of Nove+ber, (1/, inueAon *it", the accused conspired, !ith intent of %ain, abuse of confidence and !ithout theconsent of the o!ner thereof, D" Sun Hio2 " 9i+, in asportin% the +otor vehicle above3described.

<pon arrai%n+ent, all the accused, e5cept the three Does !ho have not been identified norapprehended, pleaded not %uilt".1GwphH1.It

On #ul" -, (1/-, trial co++enced before the &ud%e presidin% 'ranch I4 of the *ourt of EirstInstance of RiAal in ueAon *it".

The trial opened !ith the follo!in% dialo%ue, !hich for the %reat bearin% it has on this case, is herereproduced0.

*O<RT0

The parties +a" proceed.

EIS*9 $R8*I0

9ur first witness is /oger Chave8 Gone of the accused.

TTL. *R'ON G*ounsel for petitioner *haveA0

I a+ @uite ta2en b" surprise, as counsel for the accused Ro%er *haveA, !ith this +ove of theEiscal in presentin% hi+ as his !itness. * ob'ect.

*O<RT0

On !hat %round, counselJ .



TTL. *R'ON0

On the %round that I have to confer !ith +" client. It is reall" surprisin% that at this sta%e,!ithout +" bein% notified b" the Eiscal, +" client is bein% presented as !itness for theprosecution. I !ant to sa" in passin% that it is onl" at this ver" +o+ent that I co+e to 2no!about this strate%" of the prosecution.

*O<RT 6To the Eiscal70

Lou are not !ithdra!in% the infor+ation a%ainst the accused Ro%er *haveA b" +a2in% Ghi+a state !itnessJ.

EIS*9 $R8*I0

I a+ not +a2in% hi+ as state !itness, Lour Honor.* am onl# presenting him as an or"inar# witness.

TTL. *R'ON0

!s a matter of right, because it will incriminate m# client, * ob'ect.

*O<RT0

The *ourt !ill %ive counsel for Ro%er *haveA fifteen +inutes !ithin !hich to confer ande5plain to his client about the %ivin% of his testi+on".

5 5 5 5 5 5 5 5 5

*O<RT0 Gafter the recess

re the parties read"J .

EIS*90

Ce are read" to call on our first !itness, Ro%er *haveA.

TTL. *R'ON0

s per understandin%, the proceedin% !as suspended in order to enable +e to confer !ith+" client.

I conferred !ith +" client and he assured +e that he !ill not testif" for the prosecution this+ornin% after I have e5plained to hi+ the conse@uences of !hat !ill transpire.

*O<RT0

Chat he !ill testif" to "oes not necessaril# incriminate him, counsel.

!n" there is the right of the prosecution to as$ an#bo"# to act as witness on the witness-stan" inclu"ing the accuse".



If there should be an" @uestion that is incri+inatin% then that is the ti+e for counsel tointerpose his ob&ection and the court !ill sustain hi+ if and !hen the court feels that theans!er of this !itness to the @uestion !ould incri+inate hi+.

*ounsel has all the assurance that the court !ill not re@uire the !itness to ans!er @uestions!hich !ould incri+inate hi+.

But surel#, counsel coul" not ob'ect to have the accuse" calle" on the witnessstan".

TTL. *R'ON0

I sub+it.

5 5 5 5 5 5 5 5 5

TTL. *R<K G*ounsel for defendants Pascual and Meneses0 .

ML IT P98S8 TH8 *O<RT0

This incident of the accused Ro%er *haveA bein% called to testif" for the prosecution isso+ethin% so sudden that has co+e to the 2no!led%e of this counsel.

This representation has been apprised of the !itnesses e+braced in the infor+ation.

Eor !hich reason I pra" this court that I be %iven at least so+e da"s to +eet !hatevertesti+on" this !itness !ill brin% about. I therefore +ove for postpone+ent of toda"Bs hearin%.

*O<RT0

The court !ill %ive counsel ti+e !ithin !hich to prepare his cross3e5a+ination of this!itness.

TTL. *R<K0

I labored under the i+pression that the !itnesses for the prosecution in this cri+inal case arethose onl" listed in the infor+ation.

I did not 2no! until this +ornin% that one of the accused !ill testif" as !itness for theprosecution.

*O<RT0

ThatBs the reason !h" the court !ill %o alon% !ith counsels for the accused and !ill %ivethe+ ti+e !ithin !hich to prepare for their cross3e5a+ination of this !itness.

The court will not "efer the ta2in% of the direct e5a+ination of the !itness.

Call the witness to the !itness stand.

E*ECE )9/ 7(E P/9%ECU7*9



RO$8R *HV8K, -( "ears old, sin%le, bu" and sell +erchant, presentl" detained at theManila Police Depart+ent head@uarters, after bein% dul" s!orn accordin% to la!, declaredas follo!s0

TTL. I'S*O G*ounsel for defendant 9uis sistio0

CITH TH8 98V8 OE TH8 *O<RT0

This !itness, Ro%er *haveA is one of the accused in this case No. 3=-((.

The infor+ation alle%es conspirac". <nder Rule (-, Section (, it states0

BThe act or declaration of a conspirator relatin% to the conspirac" and durin% its e5istence,+a" be %iven in evidence a%ainst the co3conspirator after the conspirac" is sho!n b"evidence other than such act or declaration.B

*O<RT0

That is pre+ature, counsel. Neither the court nor counsels for the accused 2no! !hatthe prosecution events to establish b" callin% this !itness to the !itness stand.

TTL. I'S*O0

I sub+it.

*O<RT0 The Eiscal +a" proceed.-

nd so did the trial proceed. It be%an !ith the ?direct e5a+ination? of Ro%er *haveA b" ?Eiscal$recia?.

*a+e the &ud%+ent of Eebruar" (, (1/=. The version of the prosecution as found b" the court belo!+a" be briefl" narrated as follo!s0

fe! da"s before Nove+ber (, (1/, Ro%er *haveA sa! #ohnson 9ee, a *hinese, drivin% aThunderbird car. Cith Ricardo Su+ilan% 6+ovie actor Ro+eo Vas@ueA7 in +ind, !ho+ he 2ne! !asin the +ar2et for such a car, *haveA as2ed 9ee !hether his car !as for sale. 9ee ans!eredaffir+ativel" and left his address !ith *haveA. Then, on Nove+ber (, *haveA +et Su+ilan% at abarbershop infor+ed hi+ about the Thunderbird. 'ut Su+ilan% said that he had chan%ed his +indabout bu"in% a ne! car. Instead, he told *haveA that he !anted to +ort%a%e his 'uic2 car forP(;,;;;.;; to cover an indebtedness in Pasa" *it". <pon the su%%estion of *haveA, the" !ent tosee 9uis sistio, !ho he 2ne! !as lendin% +one" on car +ort%a%es and !ho, on one occasion,alread" lent Ro+eo Vas@ueA P-,;;;.;; on the sa+e 'uic2 car. sistio ho!ever told the t!o that he

had a better idea on ho! to raise the +one". His plan !as to capitaliAe on Ro+eo Vas@ueABreputation as a !ealth" +ovie star, introduce hi+ as a bu"er to so+eone !ho !as sellin% a car and,after the deed of sale is si%ned, b" tric2er" to run a!a" !ith the car. sistio !ould then re%ister it, sellit to a third person for a profit. *haveA 2no!n to be a car a%ent !as included in the plan. Hefurnished the na+e of #ohnson 9ee !ho !as sellin% his Thunderbird. 1GwphH1.It

In the +ornin% of Nove+ber (), *haveA telephoned #ohnson 9ee and arran%ed for an appoint+ent.So+eti+e in the afternoon. *haveA and Su+ilan% +et 9ee in his Thunderbird on Hi%h!a" =).Su+ilan% !as introduced as the interested bu"er. Su+ilan%Bs driver inspected the car, too2 the



!heel for a !hile. fter Su+ilan% and 9ee a%reed on the purchase price 6P(.;;;.;;7, the" !ent to'inondo to #ohnson 9eeBs cousin, D" Sun Hio2, in !hose na+e the car !as re%istered. Thereafter,the" !ent to see a la!"er notar" public in ueAon *it", 2no!n to *haveA for the draftin% of the deedof sale. fter the deed of sale !as dra!n up, it !as si%ned b" Su+ilan% as the vendee, D" Sun Hio2the vendor, and Su+ilan%Bs driver and #ohnson 9ee the !itnesses thereto.

s pa"+ent !as to be +ade at 8u%eneBs restaurant in ueAon *it", all of the+ then drove in theThunderbird car to that place. The deed of sale and other papers re+ained in the poc2ets of#ohnson 9ee.

t 8u%eneBs, a +an approached Su+ilan% !ith a note !hich stated that the +one" !as read" at theDalisa" Theater. Su+ilan% then !rote on the sa+e note that the +one" should be brou%ht to therestaurant. t the sa+e ti+e he re@uested 9ee to e5hibit the deed of sale of the car to the notebearer.)

Then, the t!o *hinese !ere left alone in the restaurant. Eor Su+ilan%, !ho had left the table to posefor pictures !ith so+e fans and co+e bac2, a%ain left never to return. So did *haveA, !hodisappeared after he left on the prete5t of bu"in% ci%arettes. The t!o *hinese could not locate

Su+ilan% and *haveA. The" !ent out to the place !here the Thunderbird !as par2ed, found that it!as %one. The" then i++ediatel" reported its loss to the police. Much later, the N'I recovered thealread" repainted car and i+pounded it.

Ri%ht after the +eetin% at 8u%eneBs, *haveA, Su+ilan% and sistio conver%ed that sa+e da" at'arrio Eiesta, a restaurant at Hi%h!a" =) near the 'alinta!a2 +onu+ent in *aloocan. There, sistiohanded to Su+ilan% P(,;;;.;; cash and a %olf set !orth P>;;.;; as the latterBs share in thetransaction. On the ()th of Nove+ber, the re%istration of the car !as transferred in the na+e ofSu+ilan% in *avite *it", and three da"s later, in the na+e of sistio in *aloocan.

Ero+ the courtBs decision, Ricardo Su+ilan%Bs version, corroborated in part b" sistio, +a" becondensed as follo!s0

In the last !ee2 of Septe+ber, (1/, Su+ilan% sa! Ro%er *haveA at a %as station. The latterinfor+ed hi+ that there !as a Thunderbird fro+ *lar2 Eield for sale for a price bet!een P;,;;;.;;and P,;;;.;;. *haveA said that it could be held for hi+ !ith a do!n pa"+ent of P(;,;;;.;;.

To raise this su+, Su+ilan% and *haveA, on October (, !ent to the house of a certain NenaHernaeA de los Re"es !ho !rote out a chec2 for P=,;;;.;; as a loan to Su+ilan%. That chec2 !ase5hibited in court. Su+ilan% and *haveA then !ent to Pasa" *it" to see a certain Mario 'altaAar, ana%ent of the Pasa" *it" Ma"or, and Narsin% *ailles, *hief of the Eire Depart+ent. Su+ilan% as2edthe t!o for a P(;,;;;3loan bac2ed up b" the P=,;;;.;;3chec2 aforesaid on condition that it shouldnot be cashed i++ediatel" as there !ere not enou%h funds therefor. 'altaAar and *ailles a%reed to%ive the +one" the ne5tda" as lon% as the chec2 !ould be left !ith the+ and Su+ilan% !ould si%n apro+issor" note for P(;,;;;.;;. 'altaAar later infor+ed Su+ilan% that *haveA pic2ed up the +one"

the ne5t da". Eour or five da"s after!ards, *haveA returned P),;;;.;; to Su+ilan% becauseP/,;;;.;; !as enou%h for the deposit. nd so, Su+ilan% %ave bac2 the P),;;;.;; to 'altaAar.

bout the end of October or at the be%innin% of Nove+ber, *haveA as2ed Su+ilan% for anotherP-,;;;.;;. Su+ilan% sent *haveA to 'altaAar and *ailles, !ith a note re@uestin% that the"acco++odate hi+ once +ore. He also sent a chec2, a%ain !ithout funds. 'altaAar %ave the +one"after verif"in% the authenticit" of the note.



On Nove+ber (), *haveA appeared at Su+ilan%Bs house !ith the ne!s that the car !as read" ifSu+ilan% !as read" !ith the rest of the +one". So Su+ilan% %ot P1,;;;.;; fro+ his +other andanother P),;;;.;; fro+ his aparador. He i++ediatel" %ave P/,;;;.;; to *haveA, intendin% to pa"out the balance upon the carBs deliver". It !as then that *haveA told Su+ilan% that the car !asalread" bou%ht b" a *hinese !ho !ould be the vendor.

The purchase price finall" a%reed upon bet!een Su+ilan% and #ohnson 9ee !as P(,;;;.;;, plusP=;;.;; a%ents co++ission at the e5pense of the bu"er. Su+ilan% told 9ee that he alread" paid partof the price to *haveA.

t 8u%eneBs, *haveA as2ed Su+ilan% for the balance. Su+ilan% acco++odated. There, Su+ilan%,also sa! a friend, ?$in%? Pascual. In the course of their conversation at the bar, Su+ilan% +entionedthe proposed transaction thru *haveA. Pascual !arned that *haveA !as a ?s+art? a%ent andadvised that Su+ilan% should have a receipt for his +one". certain 'i+bo, a friend of Pascual,offered to +a2e out a receipt for *haveA to si%n.

fter Su+ilan% returned fro+ posin% for so+e photo%raphs !ith so+e of his fans, 'i+bo sho!edhi+ the receipt alread" si%ned b" *haveA. Su+ilan% re@uested Pascual and 'i+bo to si%n the

receipt as !itnesses. nd the" did. This receipt !as offered as an e5hibit b" the prosecution and b"Su+ilan%.

Chen Su+ilan% !as read" to leave 8u%eneBs, #ohnson 9ee turned over to hi+ the deed of sale, there%istration papers and the 2e"s to the car. fter sha2in% hands !ith 9ee, Su+ilan% drove a!a" inthe car !ith his driver at the !heel.

T!o or three da"s after!ards, Su+ilan% dropped b" the 'arrio Eiesta on his !a" to a fil+ shootin% at'ulacan. He sa! sistio !ith +an" co+panions. sistio li2ed his Thunderbird par2ed outside. sistiooffered to bu" it fro+ hi+ for P,=;;.;;. s the offer !as %ood, and 2no!in% sistioBs and hisfriendsB reputation for al!a"s %ettin% !hat the" !anted, Su+ilan% consented to the sale. sistiotendered a do!n pa"+ent of P(,;;;.;; the balance he pro+ised to pa" the ne5t da" afterne%otiatin% !ith so+e financin% co+pan". 'efore said balance could be paid, the car !asi+pounded.

The trial court %ave evidence to Su+ilan%Bs aver+ent, stren%thened b" 'altaAarBs and *aillesBcorroborations, that he paid %ood +one" for the car. Su+ilan% !as thus cleared. So !as sistio!ho+ the trial court believed to be a +ere bu"er of the car. nd so, the prosecutionBs theor" ofconspirac" !as discounted.

s to the other accused, the court found no case a%ainst Pedro Rebullo alias ?Pita? and 9orenAoMeneses alias ?9or"?. The accused ?$in%? Pascual !as also ac@uitted for in the first place he !asnot identified b" #ohnson 9ee in court.

s to Ro%er *haveA, ho!ever, the court had this to sa"0 ?Ro%er *haveA "oes not offer an#

"efense. s a +atter of fact, his testimon# as witness for the prosecution establishes his guiltbe#on" reasonable "oubt.J = The trial court branded hi+ ?a self3confessed culprit?./ The court furthercontinued0

It is not i+probable that true to the sa"in% that +iser" loves co+pan" Ro%er *haveA tried todra% his co3accused do!n !ith hi+ b" colorin% his stor# with fabrications !hich he e5pected!ould easil" stic2 to%ether !hat !ith the ne!spaper notoriet" of one and the sensationalis+caused b" the other. 'ut Ro%er *haveABaccusations of sistioBs participation is utterl"uncorroborated. nd co+in%, as it does, fro+ a +an !ho has had at least t!o convictions for



acts not ver" different fro+ those char%ed in this infor+ation, the *ourt !ould be too%ullible if it were to give full cre"ence to his wor"s even if the" concerned a +an no lessnotorious than hi+self.

The trial court then ca+e to the conclusion that if #ohnson 9ee !as not paid for his car, he had noone but Ro%er *haveA to bla+e.

The su+ of all these is that the trial court freed all the accused e5cept Ro%er *haveA !ho !as found%uilt" be"ond reasonable doubt of the cri+e of ?ualifie" theft. He !as accordin%l" sentenced tosuffer an indeter+inate penalt" of not less than ten 6(;7 "ears, one 6(7 da", as +ini+u+ and not+ore than fourteen 6()7 "ears, ei%ht 6>7 +onths and one 6(7 da" as +a5i+u+, to inde+nif" D" SunHio2 andor #ohnson 9ee in the su+ of P(,;;;.;; !ithout subsidiar" i+prison+ent in case ofinsolvenc", to under%o the accessor" penalties prescribed b" la!, and to pa" the costs. TheThunderbird car then in the custod" of the N'I !as ordered to be turned over to Ricardo Su+ilan%,!ho !as directed to return to sistio the su+ of P(,;;;.;; unless the latter chose to pa"P(,=;;.;;, representin% the balance of the contract price for the car.

The fore%oin% sentence !as pro+ul%ated on March >, (1/=. Ro%er *haveA appealed to the *ourt of

ppeals.

On pril (>, (1/>, the *ourt of ppeals re@uired tt". Natividad Mar@ueA, counsel for Ro%er *haveA,to sho! cause !ithin ten da"s fro+ notice !h" *haveAB appeal should not be considered abandonedand dis+issed. Reason for this is that said la!"er received notice to file brief on Dece+ber >, (1/and the period for the filin% thereof lapsed on #anuar" , (1/> !ithout an" brief havin% been filed.

On Ma" (-, (1/>, tt". Mar@ueA re%istered a detailed !ritten e5planation. She also stated that if she!ere allo!ed to file appellantBs brief she woul" go along with the factual fin"ings of the court belo!but !ill sho! ho!ever that its conclusion is erroneous.>

On Ma" (), (1/>, the *ourt of ppeals, despite the fore%oin% e5planation, resolved to dis+iss the

appeal. +ove to reconsider !as unavailin%. Eor, on #une (, (1/>, the *ourt of ppeals, throu%h aper curia+ resolution, disposed to +aintain its Ma" () resolution dis+issin% the appeal, directed the*it" Carden of Manila !here *haveA is confined b" virtue of the !arrant of arrest issued b" the*ourt of ppeals, to turn hi+ over to Muntinlupa 'ilibid Prisons pendin% e5ecution of the &ud%+entbelo!, and ordered re+and of the case to the ueAon *it" court for e5ecution of &ud%+ent.

It !as at this sta%e that the present proceedin%s !ere co++enced in this *ourt.

<pon the petitions, the return, and the repl", and after hearin% on oral ar%u+ents, !e no! co+e to%rips !ith the +ain proble+ presented.

Ce concentrate attention on that phase of the issues !hich relates petitionerBs assertion that he !asco+pelled to testif" a%ainst hi+self. Eor indeed if this one @uestion is resolved in the affir+ative, !eneed not reach the others in !hich case, these should not be pursued here.

(. PetitionerBs plea on this score rests upon his aver+ent, !ith proof, of violation of his ri%ht constitutionall" entrenched a%ainst self3incri+ination. He as2s that the hand of this *ourt be +adeto bear do!n upon his conviction that he be relieved of the effects thereof. He as2s us to considerthe constitutional in&unction that ?No person shall be co+pelled to be a !itness a%ainsthi+self,?1 full" echoed in Section (, Rule ((=, Rules of *ourt !here, in all cri+inal prosecutions, thedefendant shall be entitled0 ?6e7 To be e5e+pt fro+ bein% a !itness a%ainst hi+self.? .



It has been said that forcin% a +an to be a !itness a%ainst hi+self is at !ar !ith ?the funda+entalsof a republican %overn+ent? (; that Git +a" suit the purposes of despotic po!er but it can not abidethe pure at+osphere of political libert" and personal freedo+.?(( Mr. #ustice bad Santos recountsthe historical bac2%round of this constitutional inhibition, thus0 ? ?The +a5i+ emo tenetur seipsumaccusare had its ori%in in a protest a%ainst the in@uisitorial and +anifestl" un&ust +ethods ofinterro%atin% accused persons, !hich has lon% obtained in the continental s"ste+, and, until the

e5pulsion of the Stuarts fro+ the 'ritish throne in (/>>, and the erection of additional barriers for theprotection of the people a%ainst the e5ercise of arbitrar" po!er, !as not unco++on even in8n%land. Chile the ad+issions of confessions of the prisoner, !hen voluntaril" and freel" +ade,have al!a"s ran2ed hi%h in the scale of incri+inatin% evidence, if an accused person be as2ed toe5plain his apparent connection !ith a cri+e under investi%ation, the ease !ith !hich the @uestionsput to hi+ +a" assu+e an in@uisitorial character, the te+ptation to press, the !itness undul", tobro!beat hi+ if he be ti+id or reluctant, to push hi+ into a corner, and to entrap hi+ into fatalcontradictions, !hich is so painfull" evident in +an" of the earlier state trials, notabl" in those of SirNicholas Throc2+orton, and <dal, the Puritan +inister, +ade the s"ste+ so odious as to %ive rise toa de+and for its total abolition. The chan%e in the 8n%lish cri+inal procedure in that particularsee+s to be founded upon no statute and no &udicial opinion, but upon a %eneral and silentac@uiescence of the courts in a popular de+and. 'ut, ho!ever adopted, it has beco+e fir+l"e+bedded in 8n%lish, as !ell as in +erican &urisprudence. So deepl" did the ini@uities of the

ancient s"ste+ i+press the+selves upon the +inds of the +erican colonists that the states, !ithone accord, +ade a denial of the ri%ht to @uestion an accused person a part of their funda+entalla!, so that a +a5i+ !hich in 8n%land !as a +ere rule of evidence, beca+e clothed in this countr"!ith the i+pre%nabilit" of a constitutional enact+ent.? 6'ro!n vs. Cal2er, (/( <.S., =1(, =1 );9a!. ed., >(1, >(7.? ( Mr. #ustice Malcol+, in e5pressive lan%ua%e, tells us that this +a5i+ !asreco%niAed in 8n%land in the earl" da"s ?in a revolt a%ainst the thu+bscre! and the rac2.? (- n oldPhilippine case G(1;) () spea2s of this constitutional in&unction as ?older than the $overn+ent of the<nited States? as havin% ?its ori%in in a protest a%ainst the in@uisitorial +ethods of interro%atin% theaccused person? and as havin% been adopted in the Philippines ?to !ipe out such practices asfor+erl" prevailed in these Islands of re@uirin% accused persons to sub+it to &udicial e5a+inations,and to %ive testi+on" re%ardin% the offenses !ith !hich the" !ere char%ed.?

So it is then that this ri%ht is ?not +erel" a for+al technical rule the enforce+ent of !hich is left to thediscretion of the court? it is +andator" it secures to a defendant a valuable and substantiveri%ht (= it is funda+ental to our sche+e of &ustice. #ust a fe! +onths a%o, the Supre+e *ourt of the<nited States 6#anuar" 1, (1/>7, spea2in% thru Mr. #ustice Harlan !arned that ?Gthe constitutionalprivile%e !as intended to shield the %uilt" and i+prudent as !ell as the innocent and foresi%hted.? (/

It is in this conte5t that !e sa" that the constitutional %uarantee +a" not be treated !ith unconcern.To repeat, it is +andator" it secures to ever" defendant a valuable and substantive ri%ht. Taadaand Eernando 6*onstitution of the Philippines, )th ed., vol. I, pp. =>-3=>)7 ta2e note of U.%. vs.avarro, supra, !hich reaffir+s the rule that the constitutional proscription !as established on broad%rounds of public polic" and hu+anit" of polic" because it !ould place the !itness a%ainst thestron%est te+ptation to co++it per&ur", and of hu+anit" because it !ould be to e5tort a confessionof truth b" a 2ind of duress ever" species and de%ree of !hich the la! abhors. (

Therefore, the court +a" not e5tract fro+ a defendantBs o!n lips and a%ainst his !ill an ad+ission ofhis %uilt. Nor +a" a court as +uch as resort to co+pulsor" disclosure, directl" or indirectl", of factsusable a%ainst hi+ as a confession of the cri+e or the tendenc" of !hich is to prove the co++issionof a cri+e. 'ecause, it is his ri%ht to fore%o testi+on", to re+ain silent, unless he chooses to ta2e the!itness stand !ith undiluted, unfettered e5ercise of his o!n free, %enuine !ill.



*o+pulsion as it is understood here does not necessaril" connote the use of violence it +a" be theproduct of unintentional state+ents. Pressure !hich operates to overbear his !ill, disable hi+ fro++a2in% a free and rational choice, or i+pair his capacit" for rational &ud%+ent !ould in our opinionbe sufficient. So is +oral coercion ?tendin% to force testi+on" fro+ the un!illin% lips of thedefendant.? (>

. Cith the fore%oin% as %uideposts, !e no! turn to the facts. Petitioner is a defendant in a cri+inalcase. He !as called b" the prosecution as the first !itness in that case to testif" for the Peopledurin% the first da" of trial thereof. Petitioner ob&ected and invo2ed the privile%e of self3incri+ination.This he broadened b" the clear cut state+ent that he will not testif#. 'ut petitionerBs protestations!ere +et !ith the &ud%eBs e+phatic state+ent that it ?is the ri%ht of the prosecution to as2 an"bod"to act as !itness on the !itness stand inclu"ing the accuse",? and that defense counsel ?coul" notob'ect to have the accused called on the !itness stand.? The cu+ulative i+pact of all these is thataccused3petitioner had to ta2e the stand. He !as thus pere+ptoril" as2ed to create evidence a%ainsthi+self. The fore%oin% situation +olds a solid case for petitioner, bac2ed b" the *onstitution, the la!,and &urisprudence.

Petitioner, as accused, occupies a different tier of protection fro+ an ordinar" !itness. Chereas an

ordinar" !itness +a" be co+pelled to ta2e the !itness stand and clai+ the privile%e as each@uestion re@uirin% an incri+inatin% ans!er is shot at hi+, (1 and accused +a" alto%ether refuse tota2e the !itness stand and refuse to ans!er an" and all @uestions. ; Eor, in realit", the purpose ofcallin% an accused as a !itness for the People !ould be to incri+inate hi+. ( The rule positivel"intends to avoid and prohibit the certainl" inhu+an procedure of co+pellin% a person ?to furnish the+issin% evidence necessar" for his conviction.? This rule +a" appl" even to a co3defendant in a

&oint trial.-

nd the %uide in the interpretation of the constitutional precept that the accused shall not beco+pelled to furnish evidence a%ainst hi+self ?is not the probabilit" of the evidence but it isthe capabilit# of abuse.? ) Thus it is, that it !as undoubtedl" erroneous for the trial &ud%e to placatepetitioner !ith these !ords0.

Chat he !ill testif" to does not necessaril" incri+inate hi+, counsel.

nd there is the ri%ht of the prosecution to as2 an"bod" to act as !itness on the !itness3stand includin% the accused.

If there should be an" @uestion that is incri+inatin% then that is the ti+e for counsel tointerpose his ob&ection and the court !ill sustain hi+ if and !hen the court feels that theans!er of this !itness to the @uestion !ould incri+inate hi+.

*ounsel has all the assurance that the court !ill not re@uire the !itness to ans!er @uestions!hich !ould incri+inate hi+.

'ut surel", counsel could not ob&ect to have the accused called on the !itness stand.

Paraphrasin% *hief #ustice Marshall in aron 'urrBs Trial, Robertsons Rep. I, ;>, )), @uoted in VIIICi%+ore, p. -==, = Chile a defendantBs 2no!led%e of the facts re+ains concealed !ithin his boso+,he is safe but dra! it fro+ thence, and he is e5posed? to conviction.

The &ud%eBs !ords heretofore @uoted ?'ut surel" counsel could not ob&ect to have the accusedcalled on the !itness stand? !ielded authorit". '" those !ords, petitioner !as enveloped b" a



coercive force the" deprived hi+ of his !ill to resist the" foreclosed choice the realities of hu+annature tell us that as he too2 his oath to tell the truth, the !hole truth and nothin% but the truth, no%enuine consent underla" sub+ission to ta2e the !itness stand. *onstitutionall" sound consent !asabsent.

-. Pre&udice to the accused for havin% been co+pelled over his ob&ections to be a !itness for the

People is at once apparent. The record discloses that b" leadin% @uestions *haveA, the accused,!as +ade to affir+ his state+ent %iven to the N'I a%ents on #ul" (, (1/- at =0;; oBcloc2 in theafternoon. / nd this state+ent detailed the plan and e5ecution thereof b" Su+ilan% 6Vas@ueA7,

sistio and hi+self to deprive the *hinese of his Thunderbird car. nd he hi+self proceeded tonarrate the sa+e ane! in open court. He identified the Thunderbird car involved in the case.

The decision convictin% Ro%er *haveA !as clearl" of the vie! that the case for the People !as builtpri+aril" around the ad+issions of *haveA hi+self. The trial court described *haveA as the ?star!itness for the prosecution?. Indeed, the da+a%in% facts for%ed in the decision !ere dra!n directl"fro+ the lips of *haveA as a prosecution !itness and of course Ricardo Su+ilan% for the defense.There are the une@uivocal state+ents in the decision that ?even accused *haveA? identified ?thever" sa+e Thunderbird that #ohnson 9ee had offered for sale? that *haveA ?testi+on" as !itness

for the prosecution establishes his %uilt be"ond reasonable doubt and that *haveA is ?a self3confessed culprit?. 1GwphH1.It

). Cith all these, !e have no hesitanc" in sa"in% that petitioner !as forced to testif" to incri+inatehi+self, in full breach of his constitutional ri%ht to re+ain silent. It cannot be said no! that he has!aived his ri%ht. He did not volunteer to ta2e the stand and in his o!n defense he did not offerhi+self as a !itness on the contrar", he clai+ed the ri%ht upon bein% called to testif". If petitionernevertheless ans!ered the @uestions inspite of his fear of bein% accused of per&ur" or bein% putunder conte+pt, this circu+stance cannot be counted a%ainst hi+. His testi+on" is not of his o!nchoice. To hi+ it !as a case of co+pelled sub+ission. He !as a co!ed participant in proceedin%sbefore a &ud%e !ho possessed the po!er to put hi+ under conte+pt had he chosen to re+ain silent.Nor could he escape testif"in%. The court +ade it abundantl" clear that his testi+on" at least ondirect e5a+ination !ould be ta2en ri%ht then and thereon the first da" of the trial.

It +atters not that, after all efforts to stave off petitionerBs ta2in% the stand beca+e fruitless, noob&ections to @uestions propounded to hi+ !ere +ade. Here involve is not a +ere @uestion of self3incri+ination. It is a defendantBs constitutional i++unit" fro+ bein% called to testif" a%ainst hi+self.

nd the ob&ection +ade at the be%innin% is a continuin% one. 1GwphH1.It

There is therefore no !aiver of the privile%e. ?To be effective, a !aiver +ust be certainand une?uivocal , andintelligentl#, un"erstan"abl#, and willingl# +ade such !aiver follo!in% onl"!here libert# of choice has been full" accorded. fter a clai+ a !itness cannot properl" be held tohave !aived his privile%e on va%ue and uncertain evidence.? > The teachin% in ohnson vs.Kerbst 1 is this0 ?It has been pointed out that ?courts indul%e ever" reasonable presu+ption a%ainst!aiver? of funda+ental constitutional ri%hts and that !e ?do not presu+e ac@uiescence in the loss of

funda+ental ri%hts.? !aiver is ordinaril" an intentional relin@uish+ent or abandon+ent of a 2no!nri%ht or privile%e.? /enuntiatio non praesumitur.

The fore%oin% %uidelines, &u5taposed !ith the circu+stances of the case heretofore adverted to,+a2e !aiver a sha2" defense. It cannot stand. If, b" his o!n ad+ission, defendant proved his %uilt,still, his ori%inal clai+ re+ains valid. Eor the privile%e, !e sa" a%ain, is a ra+part that %ivesprotection 3 even to the guilt#. -;



=. The course !hich petitioner ta2es is correct. (abeas corpus is a hi%h prero%ative !rit. -( It istraditionall" considered as an e5ceptional re+ed" to release a person !hose libert" is ille%all"restrained such as !hen the accusedBs constitutional ri%hts are disre%arded. - Such defect results inthe absence or loss of &urisdiction -- and therefore invalidates the trial and the conse@uent convictionof the accused !hose funda+ental ri%ht !as violated.-) That void &ud%+ent of conviction +a" bechallen%ed b" collateral attac2, !hich precisel" is the function of habeas corpus. -= This !rit +a"

issue even if another re+ed" !hich is less effective +a" be availed of b" the defendant.-/

Thus,failure b" the accused to perfect his appeal before the *ourt of ppeals does not preclude arecourse to the !rit. - The !rit +a" be %ranted upon a &ud%+ent alread" final. -> Eor, as e5plainedin ohnson vs. Kerbst, -1 the !rit of habeas corpus as an e5traordinar" re+ed" +ust be liberall#given effect ); so as to protect !ell a person !hose libert" is at sta2e. The propriet" of the !rit !as%iven the nod in that case, involvin% a violation of another constitutional ri%ht, in this !ise0

Since the Si5th +end+ent constitutionall" entitles one char%ed !ith cri+e to the assistanceof *ounsel, co+pliance !ith this constitutional +andate is an essential &urisdictionalprere@uisite to a Eederal *ourtBs authorit". Chen this ri%ht is properl" !aived, the assistanceof *ounsel is no lon%er a necessar" ele+ent of the *ourtBs &urisdiction to proceed toconviction and sentence. If the accused, ho!ever, is not represented b" *ounsel and hasnot co+petentl" and intelli%entl" !aived his constitutional ri%ht, the Si5th +end+ent standsas a &urisdictional bar to a valid conviction and sentence deprivin% hi+ of his libert". ! court=s

'uris"iction at the beginning of trial ma# be lost Jin the course of the procee"ingsJ "ue tofailure to complete the court as the Si5th +end+ent re@uires b# provi"ing Counsel for an accuse" who is unable to obtain Counsel , !ho has not intelli%entl" !aived thisconstitutional %uarant", and !hose life or libert" is at sta2e. If this re@uire+ent of the Si5th

+end+ent is not co+plied !ith, the court no longer has 'uris"iction to procee". The &ud%+ent of conviction pronounced b" a court !ithout &urisdiction is void, and oneimprisone" thereun"er +a" obtain release of habeas corpus. )(

<nder our o!n Rules of *ourt, to %rant the re+ed" to the accused Ro%er *haveA !hose casepresents a clear picture of disre%ard of a constitutional ri%ht is absolutel" proper. Section ( of Rule(; e5tends the !rit, unless other!ise e5pressl" provided b" la!, ?to all cases of ille%al confine+ent

or detention b" !hich an" person is deprived of his libert", or b" !hich the ri%htful custod" of an"person is !ithheld fro+ the person entitled thereto.

#ust as !e are about to !rite finis to our tas2, !e are pro+pted to restate that0 ? void &ud%+ent is inle%al effect no &ud%+ent. '" it no ri%hts are divested. Ero+ it no ri%hts can be obtained. 'ein%!orthless in itself, all proceedin%s founded upon it are e@uall" !orthless. It neither binds nor barsan" one. ll acts perfor+ed under it and all clai+s flo!in% out of it are void. The parties atte+ptin% toenforce it +a" be responsible as trespassers. ... ? )

/. RespondentsB return )- sho!s that petitioner is still servin% under a final and valid &ud%+ent ofconviction for another offense. Ce should %uard a%ainst the i+provident issuance of an orderdischar%in% a petitioner fro+ confine+ent. The position !e ta2e here is that petitioner herein is

entitled to libert" thru habeas corpus onl" !ith respect to *ri+inal *ase 3=-(( of the *ourt of EirstInstance of RiAal, ueAon *it" 'ranch, under !hich he !as prosecuted and convicted.

<pon the vie! !e ta2e of this case, &ud%+ent is hereb" rendered directin% the respondent Carden of the *it" #ail of Manila or the Director of Prisons or an" other officer or person in custod" of petitionerRo%er *haveA b" reason of the &ud%+ent of the *ourt of Eirst Instance of RiAal, ueAon *it" 'ranch,in *ri+inal *ase 3=-((, entitledJPeople of the Philippines, plaintiff, vs. /icar"o %umilang, etal., accused,? to dischar%e said Ro%er *haveA fro+ custod", unless he is held, 2ept in custod" ordetained for an" cause or reason other than the said &ud%+ent in said *ri+inal *ase 3=-(( of the



*ourt of Eirst Instance of RiAal, ueAon *it" 'ranch, in !hich event the dischar%e herein directedshall be effected !hen such other cause or reason ceases to e5ist.

No costs. So ordered.

Concepcion, C.., /e#es, .B.+., i8on, &a$alintal, Kal"ivar, !ngeles an" )ernan"o, ., concur.

Castro, ., concurs in a separate opinion.


SUPREME COURT

Manila

8N 'N*

G.R. No. -83-4 O(*ober ;1, 1-1

T#E PEOPE OF T#E P#IIPPINES, petitioner,

vs.

ANG GIOC =alias ANG GIOC O, alias TOMAS> T#E COURT OF APPEAS, respondents.

9ffice of the %olicitor-0eneral e la Costa an" )irst !ssistant %olicitor-0eneral B. +. /e#es for

petitioner.

Pascual %antos an" Ben'amin C. !lon8o for respon"ent.



ABAD SANTOS, J.:

The purpose of this petitioner for a !rit of certiorari is to secure a revie! b" this court of certain

proceedin%s had in the *ourt of ppeals in *ri+inal *ase No. --= of the *ourt of Eirst Instance of Manila, entitled ?People of the Philippine Islands vs. Sio $o, n% $ioc, $an% :an, :ee La and *hua

*hui.?

'riefl" stated, the pertinent facts !hich %ave rise to this case are as follo!s0 bout fifteen "ears a%o,

that is, on October -;, (1/, the respondent n% $ioc, to%ether !ith Sio $o, $an% :an, and *hua

*hui, !as char%ed !ith the cri+e of frustrated +urder in the *ourt of Eirst Instance of Manila. On

Nove+ber =, (1/, he !as released on bail. fter a protracted trial, !hich lasted several +onths,

n% $ioc and one of his co3accused, Sio $o, !ere found %uilt" and sentenced to t!elve "ears and

one da" of ca"ena temporal , !ith the case accessories of the la!, and to inde+nif" the offended

part" in the su+ of P(,(;;. n% $ioc and his sureties !ere dul" notified to appear before the court

on March >, (1>, for the readin% of the sentence, but the for+er failed to appear and thereuponthe trial &ud%e ordered his arrest and the confiscation of the bond furnished for his te+porar"

release.

The order of arrest could not be served on n% $ioc because, accordin% to the police authorities, he

had escaped to *hina The record sho!s that his bonds+en !ere %iven +ore than the usual period

of ti+e 6four +onths7 to locate n% $ioc, but the" failed to find hi+. The record also sho!s that

bet!een the "ears (1> and (1)( several !arrants issued for the arrest of n% $ioc, but all

atte+pts to arrest hi+ proved futile because he could not be found. He !as, ho!ever, finall"

arrested on Eebruar" (>, (1)(, nearl" thirteen "ears fro+ the date fi5ed for the readin% of the

sentence. He !as subse@uentl" brou%ht before the court and the sentence !as read to hi+, a%ainst

the ob&ection of the Solicitor $eneral, he !as allo!ed to file a bond for his te+porar" release.

In perfectin% the record on appeal it !as found that the steno%raphic notes ta2en durin% the trial

!ere not transcribed and that the t!o steno%raphers !ho too2 the notes !ere alread" dead. The

+atter !as referred to several steno%raphers !ho stated that the" could not transcribe the notes

because the deceased had used s"ste+s 2no!n onl" to the+selves. In this situation, n% $ioc

petitioned the *ourt of ppeals to re+and the cause to the court belo! for a ne! trial, !hile the

Solicitor $eneral +oved for the dis+issal of the appeal on the %round that ?the present impasse is

solel" due to accused3appellant havin% &u+ped the bail, before the sentence of the court could be

read to hi+ and evaded arrest for thirteen "ears.? The *ourt of ppeals decided to re+and the

cause to the court belo! for a ne! trial, statin% that fro+ the affidavits and other docu+ents

sub+itted b" n% $ioc in support of the petition for bail pendin% the appeal, it appeared that n%$ioc !as not a fu%itive fro+ &ustice.

The @uestion presented is !hether, upon the facts stated, the *ourt of ppeals had &urisdiction to

re+and the cause to the court of ori%in for a ne! trial. lawphil.net

In all cri+inal prosecutions the accused has the ri%ht to be heard b" hi+self and counsel, to be

infor+ed of the nature and cause and public trial, to +eet the !itnesses face to face, and to have



co+pulsor" process to secure the attendance of !itnesses in his behalf. There a+on% the ri%hts

secured to hi+ b" the *onstitution. 6*onstitution, rticle III, sec. ( par. (7 He has also the ri%ht of

appeal but this is a purel" statutor", not a constitutional, ri%ht. 6Old *ode of *ri+. Proc., sec. (=, par.

> Rules of *ourt Rule III, sec. (, par. h.7 ll these ri%hts have been reco%niAed and established in

order to +a2e sure that &ustice is done to the caused, and no +ore. The" !ere not intended to

enable the accused to defeat the ver" ends of &ustice Chen, therefore, throu%h cunnin% or +alice hesucceeds in th!artin% the course of the la!, he should not be heard to co+plain if, as a result of his

o!n +isconduct, he is dee+ed to have !aived ri%hts !hich he !ould other!ise have en&o"ed. n

accused person +ust suffer the le%iti+ate conse@uences of his o!n !ron%ful acts.

There are certain funda+ental ri%hts !hich cannot be !aived even b" the accused hi+self, but the

ri%ht of appeal is not one of the+. This ri%ht is %ranted solel" for the benefit of the accused. He +a"

avail of it or not, as he pleases. He +a" !aive it either e5pressl" or b" i+plication. Chen the

accused flees after the case has been sub+itted to the court for decision, he !ill be dee+ed to have

rendered a%ainst hi+. Such !as the situation !ith reference to the respondent n% $ioc. He !as

dul" notified to appear before the trial court for the readin% of the sentence, but failed to do so and

!hen an order !as issued for his arrest, the !arrant could not be served on hi+ because he couldnot be found. Chether or not the escaped to *hina is i++aterial for our present purpose. The fact

re+ains that the succeeded in evadin% arrest for nearl" thirteen "ears. The record sho!s that upon

his failure to appear for the readin% of the sentence, the trial court declared the confiscation of the

bond filed b" n% $ioc, and later issued the correspondin% order of e5ecution. This action of the

court a+ounted to a &udicial declaration that n% $ioc !as a fu%itive fro+ &ustice, and such

declaration cannot after the lapse of nearl" thirteen "ears be converted b" proof aliun"e. contrar"

vie! !ould encoura%e accused persons to trifle !ith the ad+inistration of &ustice, and provide +eans

of %uilt" parties to escape punish+ent. Ce re&ect it !ithout the least hesitation b" declarin% the n%

$ioc had !aived his ri%ht to appeal fro+ the &ud%+ent rendered a%ainst hi+. The la! !ill not allo! a

person to ta2e advanta%e of his o!n !ron%.

Havin% arrived at the conclusion that n% $ioc had !aived his ri%ht of appeal the *ourt of ppeals

ac@uired no &urisdiction of the appeal filed b" hi+, e5cept to dis+iss it and that court acted in e5cess

of its &urisdiction !hen it ordered the cause to be re+anded to the court of ori%in for a ne! trial. It

follo!s that the re+andin% order +ust be set aside, and the &ud%+ent of the *ourt of Eirst Instance

of Manila declared final e5ecutor". So ordered.

ia8, +aurel, &oran, an" (orrilleno, ., concur.


SUPREME COURT

Manila



8N 'N*

G.R. No. 3;41 Mar(& 27, 13;

T#E PEOPE OF T#E P#IIPPINES, plaintiff3appellee,

vs.

A?UINO MINGOA, defendant3appellant.

&arcelino +onto$ for appellant.

9ffice of the )irst !ssistant %olicitor 0eneral /uperto Lapunan, r. an" %olicitor

)e"erico . %ian for appellee.

REYES, J.9

Eound short in his accounts as officer3in3char%e of the office of the +unicipaltreasurer of Despu&ols, Ro+blon, and unable to produce the +issin% fund

a+ountin% to P-,1-> upon de+and b" the provincial auditor, the defendant

@uino Min%oa !as prosecuted for the cri+e of +alversation of public funds in

the *ourt of Eirst Instance of Ro+blon, and havin% been found %uilt" as char%ed

and sentenced to the correspondin% penalt", he appealed to the *ourt of

ppeals. 'ut that court certified the case here on the %round that it involved a

constitutional @uestion.

The evidence sho!s that it is not disputed that upon e5a+ination of his boo2sand accounts on Septe+ber (, (1)1, defendants, as accountable officer, !as

found short in the su+ above3na+ed and that, re@uired to produce the +issin%

fund, he !as not able to do so. He e5plained to the e5a+inin% officer that so+e

da"s before he had, b" +ista2e, put the +one" in a lar%e envelope !hich he too2

!ith hi+ to sho! and that he for%ot it on his seat and it !as not there an"+ore

!hen he returned. 'ut he did not testif" in court and presented no evidence in his

favor.

Ce a%ree !ith the trial &ud%e that defendantBs e5planation is inherentl"unbelievable and cannot overco+e the presu+ption of %uilt arisin% fro+ his

inabilit" to produce the fund !hich !as found +issin%. s His Honor observes, if

the +one" !as reall" lost !ithout defendantBs fault, the +ost natural thin% for hi+

to do !ould be to so infor+ his superiors and appl" for release fro+ liabilit". 'ut

this he did not do. Instead, he tried to borro! to cover the shorta%e. nd on the

fli+s" e5cuse that he preferred to do his o!n sleuthin%, he even did not report



the loss to the police. *onsiderin% further as the prosecution points out in its

brief, that defendant had at first tried to avoid +eetin% the auditor !ho !anted to

e5a+ine his accounts, and that for so+eti+e before the alle%ed loss +an"

teachers and other e+plo"ees of the to!n had not been paid their salaries, there

is %ood %round to believe that defendant had reall" +alversed the fund in@uestion and that his stor" about its loss !as pure invention.

It is no! contended, ho!ever, that lac2in% direct evidence of actual

+isappropriation the trial court convicted defendant on +ere presu+ptions, that

is, presu+ptions of cri+inal intent in losin% the +one" under the circu+stances

alle%ed and presu+ptions of %uilt fro+ the +ere fact that he failed, upon de+and

to produce the su+ lac2in%. The criticis+ as to the first presu+ption is irrelevant,

for the fact is that trial court did not believe defendantBs e5planation that the

+one" !as lost, considerin% it +ere cloa2 to cover actual +isappropriation. Thatis !h" the court said that ?!hether or not he 6defendant7 is %uilt" of +alversation

for ne%li%ence is of no +o+ent . . . ? nd as to the other presu+ption, the sa+e

is authoriAed b" article ( of the Revised Penal *ode, !hich provides0

The failure of a public officer to have dul" forthco+in% an" public funds or

propert" !ith !hich he is char%eable, upon de+and b" an" dul" authoriAed

officer, shall be prima facie evidence that he has put such +issin% funds or

propert" to personal use.

The contention that this le%al provision violates the constitutional ri%ht of the

accused to be presu+ed innocent until the contrar" is proved cannot be

sustained. The @uestion of the constitutionalit" of the statute not havin% been

raised in the court belo!, it +a" not be considered for the first ti+e on appeal.

6Robb vs. People, /> Phil., -;.7

In +an" event, the validit" of statutes establishin% presu+ptions in cri+inal cases

is no! settled +atter, *oole", in his !or2 on constitutional li+itations, >th ed., Vo.

I, pp. /-13/)(sa"s that ?there is no constitutional ob&ection to the passa%e of la!

providin% that the presu+ption of innocence +a" be overco+e b" contrar"

presu+ption founded upon the e5perience of hu+an conduct, and enactin% !hat

evidence shall be sufficient to overco+e such presu+ption of innocence.? In line

!ith this vie!, it is %enerall" held in the <nited States that the le%islature +a"

enact that !hen certain facts have been proven the" shall be prima

facie evidence of the e5istence of the %uilt of the accused and shift the burden of



proof provided there be rational connection bet!een that facts proved and the

ulti+ate fact presu+ed so that the inference of the one fro+ proof of the others is

not unreasonable and arbitrar" because of lac2 of connection bet!een the t!o in

co++on e5perience. 6See annotation on constitutionalit" of statutes or

ordinances +a2in% one fact presu+ptive or prima facie evidence of another, (/ .9.R. )1=3=-= also, State vs. 'ro!n, (> S.8., >->, !ith reference to

e+beAAle+ent.7 The sa+e vie! has been adopted here as +a" be seen fro+ the

decisions of this court in the <.S. vs. Tria, ( Phil., -;- <.S. vs. 9ulin%, -) Phil.,

= and People vs. &erilo, $.R. No. 93-)>1, pro+ul%ated #une >, (1=(.

The statute in the present case creates a presu+ption of %uilt once certain facts

are proved. It +a2es the failure of public officer to have dul" forthco+in%, upon

proper de+aand, an" public funds or propert" !ith !hich he is char%eable prima

facie evidence that he has put such +issin% funds or propert" to personal use.The ulti+ate fact presu+ed is that officer has +alversed the funds or propert"

entrusted to his custod", and the presu+ption is +ade to arise fro+ proof that he

has received the+ and "et he has failed to have the+ forthco+in% upon proper

de+and. *learl", the fact presu+ed is but a natural inference fro+ the fact

proved, so that it cannot be said that there is no rational connection bet!een the

t!o. Eurther+ore, the statute establishes onl" a prima faciepresu+ption, thus

%ivin% the accused an opportunit" to present evidence to rebut it. The

presu+ption is reasonable and !ill stand the test of validit" laid do!n in the

above citations.

There bein% no reversible error in the decision appealed fro+, the sa+e is

hereb" affir+ed, !ith costs.

Paras, C.., )eria, Pablo, Beng8on, Pa"illa, 7uason, &ontema#or, ugo, Bautista

!ngelo an" +abra"or, .,concur.

must read moreno rules 113-115

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