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[G.R. No. 85215. July 7, 1989.]

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT AGAINST SELF-INCRIMINATION; RIGHT CONSTRUED. — The right against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to "be compelled to be a witness against himself." It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a

1

witness, whether he be a party or not, the right to refuse to answer anyparticular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime.

2.ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. — The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty.

3.ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. — The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time.

4.ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. — The accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others — 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

5.ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST HIMSELF, CONSTRUED. — The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify bysubpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him — the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him."

6.ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS FILED IN THE COURT. — A person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT — a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify to his own behalf, subject to cross-examination by the persecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other than that for which he is prosecuted.

7.ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY; CASE AT BAR. — Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to

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have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

D E C I S I O N

NARVASA, J p:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2

On the day before the investigation, February 8, 1986, Ramos gave to his superiors a handwritten note 3 reading as follows:

"2-8-86

TO WHOM IT MAY CONCERN:THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.

(s)Felipe Ramos

(Printed)F. Ramos"

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise . . . to pay on staggered basis, (and) the amount would be known in the next

3

investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) —

". . . with unfaithfulness and/or abuse of confidence, did then and there willfully . . . defraud the Philippine Airlines, Inc., Baguio Branch, . . . in the following manner, to wit: said accused . . . having been entrusted with and received in trust fare tickets of passengers for one-way-trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, . . . once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there . . . misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, . . . failed and refused to make good his obligation, to the damage and prejudice of the offended party . . ."

 

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal.

At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission . . . given on February 8, 1986," also above referred to, which had been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiffs Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' "

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager . . . since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 . . . for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo. v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution

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that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People . . . vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question.

The Court deems that there has been full ventilation of the issue — of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows:

SEC. 20.No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights, dealth with in the section, namely:

1)the right against self-incrimination — i.e., the right of a person not to be compelled to be a witness against himself — set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and

2)the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self-incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The rights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13

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Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself."

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an offense" —

1)he shall have the right to remain silent and to counsel, and to be informed of each right, 21

2)nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and

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3)any confession obtained in violation of . . . (these rights shall be inadmissible in evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court. 28

. . . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance."

Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

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It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self-incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others —

1)to be exempt from being a witness against himself, 31 and

2)to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him — the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross-examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith. 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged.

It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that

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crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit:

1)BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and

2)AFTER THE CASE IS FILED IN COURT — 37

a)to refuse to be a witness;b)not to have any prejudice whatsoever result to him by such refusal;c)to testify to his own behalf, subject to cross-examination by the prosecution;d)WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate

him for some time other than that for which he is prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

 

His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their overeagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy, and undue

9

influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation — or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus oficio, is now declared of no further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

[G.R. No. 112983. March 22, 1995.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SALVAMANTE (at large), accused, HECTOR MAQUEDA @ PUTOL, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1.REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL ADMISSION; DISTINGUISHED FROM EXTRAJUDICIAL CONFESSION. — A perusal of the Sinumpaang Salaysayfails to convince us that it is an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between the

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former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti.

2.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF ACCUSED TO REMAIN SILENT, TO COUNSEL AND TO BE INFORMED OF SUCH RIGHT; AVAILABLE EVEN AFTER THE FILING OF CRIMINAL ACTION; SINUMPAANG SALAYSAY ACQUIRED IN VIOLATION THEREOF, INADMISSIBLE IN EVIDENCE. — The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." Ordinarily, once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, and since the court has already acquired jurisdiction over his person, it would be improper for any public officer or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. In the case at bar, the Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the former's arrest was taken in palpable violation of the said Constitutional provision. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution.

3.ID.; ID.; ID.; SOURCES OF SAID LAW. — The direct and primary source of Section 12(1) of the present Constitution is the second paragraph of Section 20, Article II of the 1973 Constitution. It was an acceptance of the landmark doctrine laid down by the United States Supreme Court in Miranda vs. Arizona (384 U.S. 436 [1966]). In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custodial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, (138 SCRA 294, 319-320 [1985]) this Court aptly observed: The fact that the framers of our Constitution did not choose to use the term ''custodial" by having it inserted between the words ''under" and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person not in custody. Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose (37 SCRA 450 [1971]) that the rights of the accused only begin upon arraignment. Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs. Enrile(121 SCRA 538, 554 [1983]): "7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him, . . ." Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph

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was incorporated into Section 12 (1). Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel. Then, too, the right to be heard would be a farce if it did not include the right to counsel. Thus, Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused shall "enjoy the right to be heard by himself and counsel.''

4.REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL ADMISSION IN CASE AT BAR; ADMISSIBLE IN EVIDENCE. — The extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect. or restrictions on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited.'' They are the fundamental safeguards against aggressions of arbitrary power, or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People, (183 SCRA 196 [1990]) this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions. To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991, (5) He was arrested in Guinyangan, Quezon, on 4 March 1992, and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty."

5.ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT. — Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other

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hypothesis except that of guilty. We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case.

 

6.ID.; ID.; ALIBI; WEAK DEFENSE ABSENT PHYSICAL IMPOSSIBILITY TO BE AT THE SCENE OF CRIME AT THE TIME OF COMMISSION. — The defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Through the unrebutted testimony, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed.

D E C I S I O N

DAVIDE, JR., J p:

As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and trouble. That illusion was shattered when in the early morning of 27 August 1991, in the sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima facieevidence pointed to Rene Salvamante, the victims, former houseboy, as one of the perpetrators of the ghastly crime.

As to Rene's co-conspirator, the prosecution initially included one Richard Malig y Severino in the information for robbery with homicide and serious physical injuries  1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet. cdrep

Only Richard Malig was arrested. On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a motion to amend the information  2to implead as co-accused Hector Maqueda alias Putol because the evaluation of the evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation of the evidence disclosed no sufficient evidence against him. 3

The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail.4 He categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case."

On 22 April 1992, the prosecution filed an Amended Information5 with only Salvamante and Maqueda as the accused. Its accusatory portion reads as follows:

That on or about the 27th of August, 1991, at Tagadi. Upper Tadiangan, Municipality of Tuba, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another,

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armed with lead pipes, and with intent of gain and against the will and consent of the owners thereof, did then and there willfully, unlawfully and feloniously enter the house of spouses TERESITA and WILLIAM HORACE BARKER and with violence against and intimidation of the persons therein ransack the place and take and carry away the following articles, to wit:

[An enumeration and description of the articles follow]

all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS (P204,250.00). Philippine Currency, belonging to the said Teresita and William Horace Barker; that on the occasion and by reason of the said robbery, both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker with lead pipes on the different parts of their body, leading to the death of William Horace Barker and inflicting various physical injuries on the former which required medical attendance for a period of more than thirty (30) days and have likewise incapacitated her from the performance of her customary labor for the same period of time.

Contrary to Law.Since Rene Salvamante continues to elude arrest and has remained at large, trial

proceeded against Maqueda only, after he entered a plea of not guilty on 22 April 1992. 6In its decision 7 promulgated on 31 August 1993, the trial court found accused Hector

Maqueda guilty beyond reasonable doubt of the crime of robbery with homicide and serious physical injuries and sentenced him to suffer the penalty of reclusion perpetua and to "indemnify the victim, Teresita M. Barker in the amount of P50,000.00 for the death of William Horace Barker, P41,681.00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." LLjur

The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, Prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SPO3 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sur-rebuttal witness.

The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows:

Between 10:30 and 11:00 p.m. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked as was her wont, the main doors of their house to see if they had been locked and bolted.

At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched on the light, she saw Rene Salvamante. She knew Salvamante very well because he and his sister Melanie were the former househelps of the Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her chores.  LLphil

Salvamante suddenly strangled her. While she was fighting back, Norie happened to turn her face and she saw a fair-complexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled her back inside the house.

Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room, saw a man clad in maong jacket and short pants with his right hand brandishing a lead pipe standing two meters in front of her. At the trial, she pointed to accused Maqueda as the man she saw then. She got scared and immediately closed the door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help.

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The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her husband who was still asleep. She went down the stairs and proceeded to the dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly, the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda as Salvamante's companion.

Salvamante also hit Norie with the lead pipe on her back and at the back of her right hand. She fell to the concrete floor, and after she had recovered, she ran to the garage and hid under the car. After a few seconds, she went near the door of the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room and closed the door. When they saw that the door knob was being turned, they braced themselves against the door to prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of water flowing from the toilet and the barking of dogs.

At 7:00 a.m. of that same day, 27, August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his right shoulder.

Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed. The two men boarded it. Mike again noticed that the taller man had the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as he boarded it. In the investigation conducted by the Tuba police, he identified through a picture the shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man.

 At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered enough courage to leave the

room where they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier. They just stayed near the road.  LLphil

Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station, headed by police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also arrived. The team conducted an initial investigation only because it found out that the scene of the crime was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location. They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation (Exhibit "KK").  LibLex

Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the house, particularly at the riprap wall, and observed that the grass below it was parted as if someone had passed through and created a trail amidst the grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then left after Dalit's arrival.

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At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at the Barker house to conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house.

The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court.

The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, Municipal Health Officer of Tuba, Benguet. He found in it twenty-seven injuries, which could have been caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits "P," "O," and "R").  LexLib

The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated and confined for eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily on the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock.

On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double vision.  LexLib

On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing. The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these missing items (Exhibit "X").

Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a damaged artery on her left eye which could cause blindness. She then sought treatment at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the New York Medical Center (Exhibit "M").

On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol" in September 1991; however, they already left the place.

On 21 December 1991, Enriquez, Melanio Mendoza, and three others went back to Guinyangan to find out whether Salvamante and"Putol' had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan.  cdll

On 4 March 1992, Requeron's daughter called up Enriquez to inform him that "Putol," who is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another policeman, proceeded to Guinyangan. The Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail.

Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its

16

commanding officer, Maj. Virgilio F. Renton, directed SPO3 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house on 27 August 1991.

On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteering to be a State witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II").

In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at the vicinity thereof that Salvamante revealed to him that his real purpose in going to Baguio City was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with the lead pipe provided him by Salvamante. After he felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. When the Barkers were already unconscious on the floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio cassette and some pieces of jewelry.

Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road where they saw two persons from whom they asked directions and when a passenger jeepney stopped and they were informed by the two persons that it was bound for Baguio City, he and Salvamante boarded it. They alighted somewhere along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for Manila. 8

Accused Hector Maqueda put up the defense of denial and alibi. His testimony is summarized by the trial court in this wise:

Accused Hector Maqueda denied having anything to do with the crime. He stated that on August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot 1, Block 21, Posadas Bayview Subdivision, Sukat, Muntinlupa. Metro Manila. He was employed as a caretaker since July 5, 1991 and he worked continuously there up to August 27, 1991. It was his sister, Myrna Katindig, who found him the job as caretaker. As caretaker, it was his duty to supervise the employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-employees all sleep inside the factory.

 

On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron.

On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their (Salvamante) house. Salvamante invited him to go

17

to Calauag, Quezon Province and roam around. He agreed to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda to accompany him (Salvamante) in selling a cassette recorder which he said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went to visit accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation, he went back to work at the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he accompanied Roselyn home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he was not able to as he was arrested by members of the CAFGU at the house of Roselyn Merca when he brought her home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness. He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette recorder.  prLL

On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under detention up to the present. 9

The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castrence and SPO3 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SPO3 Molleno declared that he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10

Although the trial court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus disregarded their testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus:

Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit, can we still secure a conviction based on the confession and the proof of corpus delicti as well as on circumstantial evidence?

In order to establish the guilt of the accused through circumstantial evidence, the following requisites must be present: 1) there must be more than one circumstance; 2) the facts from which the inferences are derived are proved; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circumstances which leads to one fair and reasonable conclusion pointing to the defendant to the exclusion of all others, as the author of the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569).

The circumstances shown by the prosecution which tend to show the guilt of the accused are:

1.A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr. Barker to death.

2.His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was testified to by Mike Tayaban, the only prosecution witness who noticed the defective hands of the accused. As they had to

18

ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place.

3.Accused Maqueda knows or is familiar with accused Rene Salvamante as they come from the same town. By his own testimony, accused Maqueda has established that he and Salvamante are close friends to the point that they went out together during the Christmas vacation in 1991 and he even accompanied Salvamante in selling the black radio cassette recorder.  LLjur

4.His Motion to Grant Bail (Exhibit "HH") contains this statement "That he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." This in effect, supports his extrajudicial confession made to the police at Calauag, Quezon Province. Although he claims that he did not bother to read the motion as he was just told that his signature would mean his release from detention, this is a flimsy excuse which cannot be given credence. Had he not understood what the motion meant, he could have easily asked his sister and brother-in-law what it meant seeing that their signatures were already fixed on the motion.

5.This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more damaging admissions to Ray Dean Salvosa as to what he actually did can be considered as another circumstance to already bolster the increasing circumstances against the accused.

6.The accused's defense is alibi. As stated in a long line of cases, alibi is at best a weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place but also that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily crumbles down as prosecution witness Mike Tayaban placed accused Maqueda at the vicinity of the crime scene.

The combination of all these circumstances plus his extrajudicial confession produce the needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the crime. 11

The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit "LL") of Maqueda taken by SPO2 Molleno immediately after Maqueda was arrested.

Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial court committed this lone error:

. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. 12

Only three pages of the brief, typed double space, are devoted to his arguments, which are anchored on his alibi that at the time the crime was committed he was not in Benguet but in Sukat, Muntinlupa, Metro Manila, and the failure of the star witnesses for the prosecution to identify him. He alleges that Mrs. Barker, when investigated at the hospital, pointed to Richard Malig as the companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a description of Salvamante's companion that fitted Richard Malig.

We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing.

The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva, were not able to positively identify Maqueda. The trial court based his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have focused his attention and arguments on these.  LibLex

19

From its ratiocinations, the trial court made a distinction between an extrajudicial confession — the Sinumpaang Salaysay — and an extrajudicial admission — the verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between the former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as follows:

SEC. 26.Admission of a party. — The act, declaration or omission of party as to a relevant fact may be given in evidence against him.

xxx xxx xxx

SEC. 33.Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.

In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. 13 Wharton distinguishes a confession from an admission as follows:

 

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt. 14

And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti.

The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of counsel because it was of the opinion that since an information had already been filed in court against him and he was arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows:

SEC. 12.(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

is not applicable, 15 i.e., the police investigation was "no longer within the ambit of a custodial investigation." It heavily relied on People vs. Ayson 16 where this Court elucidated on the rights of a person under custodial investigation and the rights of an accused after a case is filed in court. The trial court went on to state:

At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent and to counsel but he had the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he did not have to do so. 17

The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted Section 12(1), Article III of the Constitution, but on the

20

voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was admissible against him. LexLib

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such testimony was objected to as hearsay. It said:

In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18

While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree with its sweeping view that after such filing an accused "no longer, [has] the right to remain silent and to counsel but he [has] the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of the Constitution.

The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads:

Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right . . .

The first sentence to which it immediately follows refers to the rights against self-incrimination reading:

No person shall be compelled to be a witness against himself.

which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in the Bill of Rights of the 1973 Constitution was an acceptance of the landmark doctrine laid down by the United States Supreme Court in Miranda vs. Arizona. 19In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on to state its ruling:

Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive

21

effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some question or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. 20

It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custodial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, 21 this Court aptly observed:

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under'' and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. LexLib

Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person not in custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin upon arraignment. Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs. Enrile: 24

7.At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel.

 Then, too, the right to be heard would be a farce if it did not include the right to

counsel. 25 Thus, Section 12(2), Article III of the present Constitution provides that in all

22

criminal prosecutions the accused shall "enjoy the right to be heard by himself and counsel." InPeople vs. Holgado, 26 this Court emphatically declared:

One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own.

It was therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel.  cdll

Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any public officer or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with.

The Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the former's arrest was taken in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution which reads:

(3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

However, the extrajudicial admissions of Maqueda to prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; 28 or restrictions on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited." 29 They are the fundamental safeguards against aggressions of arbitrary power, 30 or state tyranny and abuse of authority.

23

In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. 31

Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeatverbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions.

To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case."

In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstancial evidence. The following circumstances were duly proved in this case:

(1)He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there;

(2)Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime;

(3)He and co-accused Rene Salvamante are friends;

(4)He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991;

(5)He was arrested in Guinyangan, Quezon, on 4 March 1992; and

(6)He freely and voluntarily offered to be a state witness stating that "he is the least guilty."

Section 4, rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if:

(a)There is more than one circumstance;

(b)The facts from which the inferences are derived are proven; and

(c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent

24

with any other hypothesis except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case.  cdphil

This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 34 Through the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started working in her polvoron factory in Sukat only on 7 October 1991, thereby belying his testimony that he started working on 5 July 1991 and continuously until 27 August 1991.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision of Branch 10 of the Regional Trial Court of Benguet in Criminal Case No. 91-CR-1206 is AFFIRMED in toto. LLphil

Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.SO ORDERED.Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

[G.R. No. 110290. January 25, 1995.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY" QUIAÑO, MANUEL "JUN" ABENOJA, JR., and FREDDIE "BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1.REMEDIAL LAW; CRIMINAL PROCEDURE; CONFESSION DISTINGUISHED FROM ADMISSION. — Contrary to the pronouncement of the trial court and the characterization given by the appellant himself, the assailed extrajudicial statement is not an extrajudicial confession. It is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26 and 33, Rule 30 of the Rules of Court clearly show such a distinction. In a confession, there is an acknowledgment of guilt. Admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged. Wharton defines a confession as follows: "A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt."

2.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT TO REMAIN SILENT AND TO COUNSEL; CONSTRUED. — The right to be informed of the right to remain

25

silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. It is not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing the investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer. The waiver of the right to counsel must be voluntary, knowing, and intelligent. Consequently, even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.

3. ID.; ID.; ID.; ID.; RIGHTS DENIED WHERE ACCUSED SIGNED AN EXTRAJUDICIAL ADMISSION CONTAINING UNDECIPHERED STENOGRAPHIC NOTES; CASE AT BAR. — The extrajudicial admission of the appellant, contained in twenty-two pages of yellow pad, does, indeed, appear to be signed by him and Atty. Reynaldo Cajucom. What we find in these yellow pads are stenographic notes. These were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the notes (Exhibit "C"), which consists of twelve pages, was not signed by the appellant and Atty. Cajucom. Assuming that the transcript of the notes is a faithful and accurate account, it is obvious that this was not subscribed and sworn to by the appellant since it does not indicate any jurat. On the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription was subscribed and sworn to by the accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation. Since, we cannot even read or decipher the stenographic notes in the yellow pads, we cannot expect the appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution.

4.ID.; ID.; ID.; ID.; RIGHTS DENIED WHERE ACCUSED WAS NOT EXPLICITLY TOLD OF HIS RIGHT TO HAVE A COMPETENT AND INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE AND ABSENCE OF WRITTEN WAIVER OF THE RIGHT TO COUNSEL. — It is at once observed that the appellant was not explicitly told of his right to have a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted by one to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was offered to prove its existence.

5.ID.; ID.; ID.; ID.; RIGHTS DENIED WHERE THERE WAS REALLY NO VOLUNTARY AND INTELLIGENT "ACCEPTANCE" BY APPELLANT OF COUNSEL; CASE AT BAR. — Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City

26

Fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the above-quoted portion of Exhibit "C", the City Fiscal immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not, whether he would agree to have one provided for him; or whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City Fiscal, through suggestive language, immediately informed him that Atty. Cajucom was ready to assist him. While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may reject the counsel chosen for him by the investigator and ask for another one, the circumstances obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the City Fiscal clearly suggested the availability of Atty. Cajucom. Then too, present at that time were Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon Road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing "Jun" and "Sonny" and his participation in the crime. This testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free will.

6.ID.; ID.; ID.; ID.; RIGHTS DENIED WHERE COUNSEL WHO REPRESENTED APPELLANT WAS NOT AN "INDEPENDENT" COUNSEL.— Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the appellant and that no injustice be committed to him, and, moreover, he generally has in his favor the presumption of regularity in the performance of his duties, there are special circumstances in these cases which convince us that he was unable to assist the appellant in a satisfactory manner. He admitted on cross-examination that at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty. Arthur Galace.

7.REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EXTRAJUDICIAL ADMISSION OF APPELLANT INADMISSIBLE WHERE HE DID NOT UNDERSTAND HIS CONSTITUTIONAL RIGHTS AS EXPLAINED BY COUNSEL WHO DID NOT ACTUALLY IMPRESS UPON THE FORMER THAT HE WAS ONE OF THE ACCUSED. — Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth grader and a farmer, could only understand Ilocano. It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused; rather, Atty. Cajucom made the appellant believe that he was only a witness. Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog. Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was obtained in violation of Section 12(1), Article III of the Constitution. Since it is the only evidence which links him to the crimes of which he was convicted, he must then be acquitted.

 8.LEGAL ETHICS; ATTORNEYS; MANIFEST NON-FULFILLMENT OF DUTY TO PROTECT

INTEREST OF CLIENT; CASE AT BAR. — Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10 February 1987 by military men in Pangasinan without a warrant for his arrest. Since the crimes with which the appellant was

27

charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest without a warrant could have been legally and validly effected. A warrantless arrest should comply with the conditions prescribed in Section 5, Rule 113 of the Rules of Court. None of the exceptional circumstances were present at the time the appellant was arrested on 10 February 1987. The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards stacked against him.

D E C I S I O N

DAVIDE, JR., J p:

In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta. cdasia

The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation and price. 1

Only the appellant and Wilfredo Quiaño were arrested. However, before Quiaño could be arraigned, he escaped on 12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa, La Trinidad, Benguet.  2 The cases, which were consolidated and jointly tried, proceeded only against the appellant.

After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on various dates from 11 May 1988 until 10 January 1990.

On 30 May 1990, the trial court promulgated its decision 3 in the consolidated cases acquitting the appellant in Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with treachery as the qualifying circumstance. 4 It also ruled that the aggravating circumstances of evident premeditation and price had been duly established. It then sentenced the appellant as follows:

"Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases aforesaid, he should be sentenced to the maximum penalty of Death, there being two aggravating circumstances. However, since the death penalty is not imposable at this time, the accused is sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs of the victims; Anna Theresa Francisco the sum of Sixty-Three Thousand Pesos (P63,000.00) as actual damages (Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos (P30,000.00). With costs against the accused, Jaime Agustin.

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SO ORDERED." 5

The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeñas, a stenographic reporter in the Office of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's investigations of accused Wilfredo Quiaño (Exhibit "D") on 30 January 1987 and of the appellant on 10 February 1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R, who testified on the shooting incident; (4) Danny Ancheta, the victim in Criminal Case No. 4651-R, who testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her death certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising ballistics expert, who declared that the fourteen shells recovered from the scene of the crime were not fired from any of the three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who assisted the appellant and accused Wilfredo Quiaño while they were being investigated by City Fiscal Balajadia; and (8) Lilian San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what she did after Dominic informed her by telephone about the shooting incident. cdasia

The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his clinic at Hamada Building along Mabini Street. Anthony was driving the car. While they were cruising along Malvar Street and nearing the Baptist Church, a man came out from the right side of a car parked about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car which then sped away.

All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown off. Dominic was able to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and told her what happened. Later, she and her mother brought her father and Anthony to the hospital.  6 Danny Ancheta went home and was then brought to the Notre Dame Hospital for treatment.  7 Anna Theresa Francisco was brought to the funeral parlor. 8 The police later arrived at the crime scene and conducted an investigation. they recovered some empty shells of an armalite rifle. 9

On 30 January 1987, accused Wilfredo "Sonny" Quiaño, an alleged former military agent or "asset" who had been picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy." During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom, a representative of the Integrated Bar of the Philippines (IBP). Ms. Christie Napeñas, a stenographic reporter in the Office of Fiscal Balajadia, took down stenographic notes of the proceedings during the investigation. 10 Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo Quiaño which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. 11

In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto. Tomas, Pangasinan, by military personnel and brought to Baguio City. At 4:00 p.m. of that date, he was taken to the Office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo Cajucom assisted the appellant during the investigation. Ms. Christie Napeñas took down stenographic notes of the proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was signed afterwards by the appellant and Atty. Cajucom.

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Ms. Napeñas subsequently transcribed these notes which the prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen and revealed the identities of his cohorts in the crime. In a confrontation two days later, he identified Quiaño as "Sonny," the triggerman.

The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose highest educational attainment was grade four, impugned the validity of his extrajudicial statement. He alleged that in the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he was met by two armed men who took him to their car where two other companions, armed with armalites, were waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.

Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.

 While he was giving his statement at the fical's office, the armed men stayed with him

and their presence deterred him from telling the investigating fiscal that he was being threatened. He further declared that although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver Tabin, and that Atty. Cajucom interviewed him for only two minutes in English and Tagalog but not in Ilocano, the dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state witness if he cooperates, but the plan did not push through because his co-accused, Quiaño, escaped. 12

Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally learned that he was detained at Camp Dangwa. 13

The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force, intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was improbable that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were passing along that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty. Tabin, considering that when he met his wife in Camp Dangwa, he told her to talk to Atty. Tabin if he could not go home for a period of one month; (d) no less than the City Fiscal of Baguio City interrogated him and yet he did not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him with a lawyer who conferred with him and apprised him of his rights; (f) he signed each and every page of the stenographic notes of his statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer who assisted him; and (g) he disclosed in his statement that he voluntarily gave it because of his ill feeling against his co-accused who did not give him any money.

The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime," and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan," and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court was established by the prosecution's evidence, it found his conviction for murder inevitable. cdasia

The appellant filed a notice of appeal. In his brief, he imputes upon the trial court the commission of this lone error:

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"THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-APPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM." 14

The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III of the Constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice but was foisted upon him by the City Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty. Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when the City Fiscal interrogated him, his military escorts were present.  llcd

He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice, not one foisted on him by the police investigator or other parties," 15 and that where there are serious doubts on the voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused. 16 He then concludes that his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other evidence linking him to the crimes charged.

In its brief, 17 the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays for the affirmance of the appealed decision.

After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission — not extrajudicial confession — of the appellant, which is the only evidence of the prosecution linking him to the commission of the crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution. We also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was unlawfully arrested.

Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the characterization given by the appellant himself, the assailed extrajudicial statement is not an extrajudicial confession. It is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26 and 33, Rule 130 of the Rules of Court 18 clearly show such a distinction.

In a confession, there is an acknowledgment of guilt. Admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgement of guilt of the accused or of the criminal intent to commit the offense with which he is charged. 19 Wharton 20 defines a confession as follows:

"A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgement of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt."

We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt. Nevertheless, when what is involved is the issue of admissibility in evidence under Section 12, Article III of the Constitution, the distinction is irrelevant because paragraph 3 thereof expressly refers to both confession and admission. Thus:

"(3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him."

The first two paragraphs of Section 12 read:

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"SEC. 12.(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2)No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution which read: cdasia

"SEC. 20.No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."

The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section 20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.

In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless made with the assistance of counsel:

"At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence."

 

We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24 People vs. Marquez, 25 People vs. Penillos, 26 andPeople vs. Basay, 27 among other cases.

The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." 28 It is not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the investigator to explain,

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and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing the investigation. cdasia

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer. 29

The waiver of the right to counsel must be voluntary, knowing, and intelligent. 30 Consequently, even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. 31

The extrajudicial admission of the appellant, 32 contained in twenty-two pages of yellow pad, does, indeed, appear to be signed by him and Atty. Reynaldo Cajucom. What we find in these yellow pads are stenographic notes. These were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the notes (Exhibit "C"), which consists of twelve pages, 33 was not signed by the appellant and Atty. Cajucom. Assuming that the transcript of the notes is a faithful and accurate account, it is obvious that this was not subscribed and sworn to by the appellant since it does not indicate anyjurat. On the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.  LexLib

Since we cannot even read or decipher the stenographic notes in the yellow pads, we cannot expect the appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully and properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City Fiscal and the answers of the appellant:

"01. QUESTION

Mr. Jaime Agustin, I am informing you that you are under investigation in connection with the death of Dr. Nap Bayquen of which you are one of the principal suspects. I am informing you of your constitutional rights before you give any statement. First, you have the right to remain silent meaning, you may give a statement or you may not give any statement. If you will not give a statement, you will not be forced to do so, do you understand this right?

ANSWER

I understand, sir.

02. QIf you will give a statement, you have the right to be assisted by a lawyer of your own choice, if you cannot afford to secure the services of a lawyer the government will provide a lawyer for you, do you understand this right?

AI understand, sir.

03. QNow, do you want to be assisted by a lawyer?

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AYes, sir.

04. QI am now informing you that a lawyer in the person of Atty. Reynaldo Cajucom is now present in this investigation room, do you wish to avail of his assistance in connection with this investigation?

AI want, sir.

05. QI am also informing you that whatever you say in this investigation can be used as evidence in your favor and it can also be used as evidence against you in any criminal or civil case, do you understand that?

AYes, sir, I understand.

06. QAfter informing you of your constitutional rights, are you now willing to give a statement?

AYes, sir, I agree.

Investigator

Atty. Reynaldo Cajucom, the witness or respondent Jaime Agustin has chosen you to give him assistance in this investigation, are you willing to assist him?

Answer

I am willing, Fiscal, to assist the witness.

Investigator

Have you conferred with him before he will give his statement?

Answer

Yes, fiscal.

Investigator

Have you appraised [sic] him of his constitutional rights?

Answer

Yes, fiscal.

Investigator

Do you know after examining him whether or not he is giving a free and voluntary statement of his own volition without any intimidation or force exerted on him?

AAs stated by him, fiscal, he is willing to give a free and voluntary statement in relation to what really happened."

It is at once observed that the appellant was not explicitly told of his right to have a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire his services, and, if he could not,

34

whether he would agree to be assisted by one to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was offered to prove its existence.

Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City Fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the above-quoted portion of Exhibit "C", the City Fiscal immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not, whether he would agree to have one provided for him; or whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City Fiscal, through suggestive language, immediately informed him that Atty. Cajucom was ready to assist him.

While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may reject the counsel chosen for him by the investigator and ask for another one, 35 the circumstances obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the City Fiscal clearly suggested the availability of Atty. Cajucom. Then too, present at that time were Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon Road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing "Jun" and "Sonny" and his participation in the crime. This testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free will. cdasia

Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows that at that time the criminal cases against the culprits had already been filed with the City Fiscal’s Office for preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from the informations in Criminal Cases Nos. 4647-R and 4648-R that it was Assistant City Fiscal Octavio M. Banta who conducted the preliminary investigation and who prepared, signed, and certified the informations. City Fiscal Balajadia merely approved them and administered the jurat in the certification. The conclusion then is inevitable that he did not conduct the preliminary investigation.

 Even assuming for the sake of argument that the appellant voluntarily agreed to be

assisted by Atty. Cajucom, we doubt it very much if he was anindependent counsel. While we wish to give him the benefit of the doubt because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the appellant and that no injustice be committed to him, 36 and, moreover, he generally has in his favor the presumption of regularity in the performance of his duties, 37 there are special circumstances in these cases which convince us that he was unable to assist the appellant in a satisfactory manner. For one, he admitted on cross-examination that at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty. Arthur Galace, in these and the companion cases. Thus:

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"qMr. Witness, at the time you assisted the accused you belonged to the office of Atty. Galace, you were an associate at the time when you assisted the accused? cdasia

aI was represented [sic] then as IBP Legal Aid.

qThe question is not answered, we are only requesting him if he was an associate of Atty. Galace up to the present?

aYes." 38

Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth grader and a farmer, could only understand Ilocano. Thus:

"ATTY. TABIN:

So in other words when you appraised [sic] him of his constitutional rights using English Language and Tagalog Dialect you did not have any Ilocano dialect Interpreter . . .

xxx xxx xxx

WITNESS:

As far as I can remember, I explained it in Tagalog and English." 39

And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:

"aAt least I put out everything as far as I could give to him to appraise [sic] him of his constitutional rights." 40

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were adequate. On direct examination, he gave the following answers:

"qDid you explain the constitutional rights of the accused to caution him of the consequences of his statement?  Cdpr

aI explained to him that he has the right to remain silent, to confront in person the witnesses against him and that he has the right to choose a counsel to assist him in the hearing of the case which was being investigated then.

qAnd what was his reply regarding the consequences of this statement?

aHe told me that he is willing to give a truthful statement and in order to shed light." 41

It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused; rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus:

"q[by the prosecutor]

But, nevertheless, you gave the precautionary measure entitled to any witness?

aYes, sir.

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qWhy do you say that it was given voluntarily?

aBefore presenting him to the investigation we were given time to talk personally without any other people and that was the time that I explained to him all his rights and consequences pertaining to him as witness to this case." 42

On cross-examination, Atty. Cajucom also declared:

"ATTY. TABIN:

That is why I am requesting him how he explained in that language, Your Honor.

WITNESS:

I told him that this is a grave case which he would be giving some narrations as a witness and his involvement would mean the most grievous offense and if found guilty will bring him for some years in jail and I told him that I could help him if he will be presenting the truth and if he is innocent, and the only thing he would narrate is the truth. This is in combination, English and Tagalog, and most of the time, I made it in Tagalog." 43

Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog. cdasia

Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10 February 1987 by military men in Pangasinan without a warrant for his arrest. 44 Since the crimes with which the appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest without a warrant could have been legally and validly effected. A warrantless arrest should comply with the conditions prescribed inSection 5, Rule 113 of the Rules of Court. Said section provides:

"Sec. 5.Arrest without warrant when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another."

None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987. The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards stacked against him.

37

Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was obtained in violation of Section 12(1), Article III of the Constitution. Since it is the only evidence which links him to the crimes of which he was convicted, he must then be acquitted. cdasia

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to effect their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. Why he was able to do so has not been adequately explained. The City Prosecutor's Office of Baguio City should then use all the resources at its command, in coordination with the law-enforcement agencies of the Government, such as the National Bureau of Investigation and the Philippine National Police, to immediately arrest the other accused.

WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court, Branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other lawful cause his continued detention is warranted. cdphil

Costs de oficio.SO ORDERED.Padilla, Bellosillo, Quiason and Kapunan, JJ ., concur.

[G.R. No. 117321. February 11, 1998.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Accused-appellant Herson Tan, together with Lito Armido, were charged with the crime of highway robbery with murder. In the course of the trial, Lt. Carlos Santos, a prosecution witness, testified that when he invited appellant to their headquarters, he had no warrant for the latter's arrest. He informed appellant that he was a suspect in the instant case and in the belief that they were merely conversing inside the police station, he did not inform appellant of his constitutional rights nor did he reduce the supposed confession to writing. The trial court found appellant guilty of the crime charged but acquitted Lito Armido due to insufficiency of evidence. On appeal, the Supreme Court set aside the appealed decision and acquitted appellant on the ground that his constitutional rights were violated.

The Constitution abhors an uncounselled confession and whatever information is derived therefrom is inadmissible in evidence against the confessant. A confession to be admissible must be voluntary; made with the assistance of competent and independent counsel; it must be express; and it must be in writing. While the Constitution sanctions the waiver of the right to counsel, it must, however, be "voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel." Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of

38

the absence of coercion or even if it had been voluntarily given. The prosecution evidence shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him of said crime.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; EXTRAJUDICIAL CONFESSION; INADMISSIBLE IN THE ABSENCE OF COUNSEL. — The Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Republic Act No. 7438 reinforced the constitutional mandate protecting the rights of persons under custodial investigation. Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate. Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice. Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. While the Constitution sanctions the waiver of the right to counsel, it must, however, be "voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel." To reiterate, in People v. Javar, it was ruled therein that any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given.

2.ID.; ID.; ID.; ID.; CASE AT BAR. — The records of this case do not indicate that appellant was assisted by counsel when he made such waiver (of the right to counsel). The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. "This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government. What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the circumstances attendant in the conduct of appellant's investigation which fell short of compliance with constitutional safeguards, we are constrained to acquit the appellant. TCcDaE

D E C I S I O N

ROMERO, J p:

May the confession of an accused, given before a police investigator upon invitation and without the benefit of counsel, be admissible in evidence against him? prLL

39

Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway robbery with murder before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province, under an information 1 dated February 8, 1989, which reads as follows:

"That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping each other, armed with bladed and pointed weapons, with intent to gain, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency, belonging to the said Freddie Saavedra, to the damage and prejudice of the latter in the aforesaid amount; and that on the occasion of said robbery and by reason thereof, the said accused, with intent to kill, with evident premeditation and treachery, and taking advantage of their superior strength and in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously attack, assault and stab with, the said weapon said Freddie Saavedra, thereby inflicting upon the latter multiple stab wounds on the different parts of his body, which directly caused his death.

Contrary to law."

On arraignment, the accused pleaded not guilty to the charge.

The relevant facts established by the prosecution are as follows:

On December 5, 1988, at about 7:00 o'clock p.m., tricycle driver Freddie Saavedra went to see his wife, Delfa, at Our Lady of Angels Academy in Atimonan, Quezon, where the latter is a third year high school student, to inform her that he will drive both accused to Barangay Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to return that evening, Delfa, as early as 4:30 o'clock a.m. of December 6, 1988 inquired on his whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel Villarama revealed that the lifeless body of her husband was discovered on the diversion road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and found him sprawled on the ground with fourteen stab wounds in different parts of his body.

Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and recovered a blue sidecar which they brought back with them to their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what actually transpired in the case at bar. He narrated that he and co-accused Amido were responsible for the loss of the motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the Lucena PNP immediately dispatched a team to retrieve the same.

After admitting that it was purchased from both the accused and upon failure to present any document evidencing the purported sale, Teves voluntarily surrendered it to the police who turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping.

Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in two other robbery cases allegedly committed in Lucena

40

City. In the belief that they were merely conversing inside the police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the assistance of counsel; nor did he reduce the supposed confession to writing. 2

Appellant, on the other hand, alleged that he had no participation in the offense charged and contended that his only involvement in the matter was the referral of accused Amido to Teves. He recounted that sometime in December 1988, Amido sought him at his house and told him that the motorcycle he was riding on was being offered for sale. Upon proof shown that it was indeed registered under Amido's name, he accompanied the latter to Manila on board the said motorcycle and they approached Antonio Carandang. The latter, thereafter, brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally consummated. He allegedly received P150.00 as his commission. cdrep

 

Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation, he was at Barangay Malusak, Atimonan on the day in question, some seven kilometers from the town, busy assisting in the renovation of his mother's house. He narrated that the victim was his friend and, therefore, he could not have participated in the gruesome death of the latter.

In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion of which reads:

"WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY beyond reasonable doubt of the crime of Highway Robbery with Murder and hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA. He is further ordered to indemnify the family of the deceased in the amount of Thirty Thousand Pesos (P30,000.00).

Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him and the Provincial Warden of Quezon, Provincial Jail, Lucena city, is hereby ordered to release from custody the person of said Lito Amido, unless he is being detained thereat for some other lawful cause.

SO ORDERED." 3

Appellant assails the finding of conviction despite failure of the prosecution to positively identify him as the culprit of the crime and to present clear and convincing circumstantial evidence that would overcome his innocence.

In light of the above facts and circumstances, the appealed decision is set aside and appellant acquitted on the ground that his constitutional rights were violated.

It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution provides:

"xxx xxx xxx

Sec. 12. (1)Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

xxx xxx xxx

41

(3)Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him."

Republic Act No. 7438 (R.A. No. 7438), 4 approved on May 15, 1992, reenforced the constitutional mandate protecting the rights of persons under custodial investigation, a pertinent provision 5 of which reads:

"As used in this Act, 'custodial investigation' shall include the practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the 'inviting' officer for any violation of law."

Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate. 6

Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice. 7

Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. 8

While the Constitution sanctions the waiver of the right to counsel, it must, however, be "voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel." 9 To reiterate, in People v. Javar, 10 it was ruled therein that any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given.

The records of this case do not indicate that appellant was assisted by counsel when he made such waiver, a finding evident from the testimony of Lt. Santos on cross-examination, thus:

"QNow, when you brought Herson Tan to the Headquarters, did you tell him that he is one of the suspects in the robbery slain (sic) that took place in Atimonan on December 5, 1988?

AYes, sir, and he was also suspect to the robbery case which was investigated at Lucena Police Station. There were two (2) cases which were investigated on Herson Tan.

QNow, so in addition to the Atimonan case, you also took Herson Tan to your custody in connection with another case that happened in Lucena?

AYes, sir.

QAnd you happened to have Herson Tan in your list as suspect in both cases because Herson was previously incarcerated at Lucena City Jail in connection with a certain case, is it not?

42

AYes, sir. LexLib

QJust for curiosity sake, you invited him in your headquarters, is that what happened in this case?

AYes, sir.

QAnd it just happened that without applying third degree to him he gave you that information?

AYes, sir.

QDid you notify him of his constitutional right to counsel before you propounded questions to him?

ANo, sir, because we are asking question only to him.

QBefore propounding question or information you sought to elicit from him, did you inform him of his constitutional right not to testify against himself because he is a suspect in these two (2) cases?

ANo, sir, because we were just conversing. 11 (Emphasis supplied)

The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. "This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government." 12

What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the circumstances attendant in the conduct of appellant's investigation which fell short of compliance with constitutional safeguards, we are constrained to acquit the appellant.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his immediate release from confinement is hereby ordered, unless there is any other lawful cause for continued detention. Costs de oficio.

SO ORDERED.

Narvasa, C .J ., Kapunan, Francisco and Purisima, JJ ., concur.

[G.R. No. L-56291. June 27, 1988.]

CRISTOPHER GAMBOA, petitioner, vs. HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent.

Rene V. Sarmiento for petitioner.

43

D E C I S I O N

PADILLA, J p:

Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales, Accused," and to restrain the respondent court from proceeding with the trial of the aforementioned case.

Petitioner alleges that:

On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for vagrancy and then detained therein together with several others.

The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the identification, the other detainees were brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the police investigator, petitioner was told to sit down in front of her.

On 23 July 1979, an information for robbery was filed against the petitioner.

On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the prosecution formally offered its evidence and then rested its case.

On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional rights to counsel and to due process.

On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar) denying the Motion to Acquit:

"For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of the said accused, to counsel and to due process, have been violated. After considering the allegations and arguments in support of the said motion in relation to the evidence presented, the Court finds the said motion to be without merit and, therefore, denies the same.

"The hearing of this case for the purpose of presenting the evidence for the accused is hereby set on November 28, 1980, at 8:30 o'clock in the morning."

Hence, the instant petition.

On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and continuing until otherwise ordered by the court". 1

44

Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being violative of his rights to counsel and to due process. 2

We find no merit in the contentions of petitioner.

To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October 1980.

It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions. 3 To warrant the issuance of the extraordinary writ of certiorari, the alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, or to act at all, in contemplation of law. 4 This is not the situation in the case at bar. The respondent court considered petitioner's arguments as well as the prosecution's evidence against him, and required him to present his evidence.

The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every person is entitled to the full enjoyment of the rights guaranteed by the Constitution.

On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads:

"No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."

The same guarantee, although worded in a different manner, is included in the 1987 Constitution. Section 12 (1, 2 & 3), Article III thereof provides:

"Sec. 12 (1)Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2)No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommumicado, or other similar forms of detention are prohibited.

(3)Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him."

The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense.

45

Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel. 5

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states:  LLphil

"When petitioner was identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal Supreme Court, 378 US 478, 1964). Since petitioner in the course of his identification in the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to be assisted by counsel because the accusatory process had not yet set in. The police could not have violated petitioner's right to counsel and due process as the confrontation between the State and him had not begun. In fact, when he was identified in the police line-up by complainant he did not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be used against him. For it was not he but the complainant who was being investigated at that time. He "was ordered to sit down in front of the complainant while the latter was being investigated" (par. 3.03, Petition). Petitioner's right to counsel had not accrued." 6

Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the votes of the Justices therein are summarized as follows:

"After arresting the petitioner and a companion and bringing them to a police station, police officers learned that certain items found in their possession had been stolen in a recent robbery. The robbery victim was brought to the police station and immediately identified the petitioner and his companion as the robbers. No attorney was present when the identification was made, and neither the petitioner nor his companion had asked for legal assistance or had been advised of any right to the presence of counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion at the police station, and he pointed them out in the courtroom and identified them as the robbers. The petitioner and his companion were convicted, and the Illinois Appellate Court, First District, affirmed the petitioner's conviction, holding that the constitutional rule requiring the exclusion of evidence derived from out of-court identification procedures conducted in the absence of counsel did not apply to preindictment identifications (121 III App 2d 323, 257 NEE 2d 589).

 

"On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an opinion by STEWART, J., announcing the judgment of the court and expressing the view of four members of the court, it was held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court identifications in the absence of counsel did not apply to identification testimony based upon a police station show-up which took place

46

before the accused had been indicted or otherwise formally charged with any criminal offense.

"BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right to counsel did not attach until criminal charges were formally made against an accused.

"POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended.

"BRENNAN, J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although Supreme Court decisions establishing the exclusionary rule happened to involve postindictment identifications, the rationale behind the rule was equally applicable to the present case.

"WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule governed the present case." 8

Mr. Justice Steward, expressing his view and that of three other members 9 of the Court, said:

"In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 92 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Massiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999.

This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." (Emphasis supplied). 10

As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while, under the latter, the right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine Constitutions, the right to counsel attaches at the start of investigation against a respondent and, therefore, even before adversary judicial proceedings against the accused have begun. LibLex

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel.

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On the right to due process, the Court finds that petitioner was not, in any way, deprived of this substantive and constitutional right, as he was duly represented by a member of the Bar. He was accorded all the opportunities to be heard and to present evidence to substantiate his defense; only that he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its case. What due process abhors is the absolute lack of opportunity to be heard. 11 The case at bar is far from this situation.

In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant shall immediately either move to quash the complaint or information or plead thereto, or do both and that, if the defendant moves to quash, without pleading, and the motion is withdrawn or overruled, he should immediately plead, which means that trial must proceed. If, after trial on the merits, judgment is rendered adversely to the movant (in the motion to quash), he can appeal the judgment and raise the same defenses or objections (earlier raised in his motion to quash) which would then be subject to review by the appellate court.

An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be reviewed, in the ordinary course of law, by an appeal from the judgment, after trial. As stated in Collins vs. Wolfe, 12 and reiterated in Mill vs. Yatco, 13 the accused, after the denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal, present the questions which he sought to be decided by the appellate court in a petition for certiorari.

In Acharon vs. Purisima, 14 the procedure was well defined, thus:

"Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law." 15

Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and to due process is a question which he could raise, as a defense or objection, upon the trial on the merits, and, if that defense or objection should fail, he could still raise the same on appeal.

On the other hand, if a defendant does not move to quash the complaint or information before he pleads, he shall be taken to have waived all objections which are grounds for a motion to quash, except where the complaint or information does not charge an offense, or the court is without jurisdiction of the same. 16

Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have waived objections which are grounds for a motion to quash.

Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information. Consequently, the lower court did not err in denying petitioner's Motion to Acquit.

WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is LIFTED. The instant case is remanded to the respondent court for further proceedings to afford

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the petitioner-accused the opportunity to present evidence on his behalf. This decision is immediately executory. With costs against the petitioner.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-Aquino and Medialdea, JJ., concur.

Gutierrez, Jr., J., I concur pro hac vice.

[G.R. No. 7081. September 7, 1912.]

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendant-appellant.

Chas. A. McDonough for appellant.

Solicitor-General Harvey for appellee.

SYLLABUS

1.RAPE; "ABUSOS DESHONESTOS." — Held: Under the facts stated in the opinion, that the defendant is guilty of the crime of "abusos deshonestos" and that the crime was committed in the house of the offended party, and that therefore the maximum penalty of the law of six years of prision correccional and the costs should be imposed.

2.ID.; ADMISSIBILITY OF EVIDENCE; RIGHT OF ACCUSED. — At the time of the arrest of the defendant he was apparently suffering from some private disorder. A portion of the substance was taken and scientifically examined, with the result that such substance showed that he was actually suffering from the venereal disease known as gonorrhea. The result of the scientific examination was offered in evidence, during the trial of the cause. The defendant objected to the admissibility of such evidence upon the ground that it was requiring him to give testimony against himself. The objection was overruled upon the ground that "the accused was not compelled to make any admission or answer any questions, and the mere fact that an object found upon his person was examined seems no more to infringe the rule invoked, than would the introduction of stolen property taken from the person of a thief." The substance was taken from the body of the defendant without his objection. The examination of the substance was made by competent medical authority and the result showed that the defendant was suffering from said disease. Such evidence was clearly admissible. The prohibition against compelling a man in a criminal cause to be a witness against himself is a prohibition against physical or moral compulsion to extort communications from him, and not an exclusion of his body as evidence, when it may be material. The prohibition contained in the Philippine Bill (sec. 5) chat a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt.

D E C I S I O N

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JOHNSON, J p:

This defendant was charged with the crime of rape. The complaint alleged:"That on or about September 15, 1910, and before the filing of this complaint, in the

city of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age."After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the

defendant guilty of the offense of abusos deshonestos, as defined and punished under article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prison correccional, and to pay the costs.

From that sentence the defendant appealed and made the following assignments of error in this court:

"I.The lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease.

"II.The lower court erred in holding that the complainant was suffering from a venereal disease produced by contact with a sick man.

"III.The court erred in holding that the accused was suffering from a venereal disease.

"IV.The court erred in finding the accused guilty from the evidence."From an examination of the record it appears that the offended party, Oliva Pacomio, a

girl seven years of age, was, on the 15th day of September, 1910, staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling in or near the said house; that some of said Chinamen had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in question, after having taken a bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which she gave him; that after using some of the face powder upon his private parts, he threw the said Oliva upon the floor, placing his private parts upon hers, and remained in the position for some little time. Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what had happened upon the morning of the 15th of September. The sister at once put on foot an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to identify the one who had abused her. The defendant was not present at first. Later he arrived and Oliva identified him at once as the one who had attempted to violate her.

Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore that his body bore every sign of the fact that he was suffering from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because of her tender years her testimony should not be given credit. The lower court, after carefully examining her with reference to her ability to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify the court in accepting her testimony with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully concur.

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The defense in the lower court attempted to show that the venereal disease of gonorrhea might be communicated in ways other than by contact such as is described in the present case, and called medical witnesses for the purpose of supporting that contention. Judge Lobingier, in discussing that question said:

"We shall not pursue the refinement of speculation as to whether or not this disease might, in exceptional cases, arise from other than carnal contact. The medical experts, as well as the books, agree that in ordinary cases it arises from that cause, and if this was an exceptional one, we think it was incumbent upon the defense to bring it within the exception."The offended party testified that the defendant had rested his private parts upon hers

for some moments. The defendant was found to be suffering from gonorrhea. The medical experts who testified agreed that this disease could have been communicated from him to her by the contact described. Believing as we do the story told by Oliva, we are forced to the conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva contracted said obnoxious disease from the defendant is not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.

The defendant attempted to prove in the lower court that the prosecution was brought for the purpose of compelling him to pay to the sister of Oliva a certain sum of money.

The defendant testified and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible to believe that the sister, after having become convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of their near relatives, for the filthy consideration of mere money.

In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in discussing that question in his sentence, said:

"The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined; seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief."The substance was taken from the body of the defendant without his objection, the

examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself.

The question presented by the defendant below and repeated in his first assignment of error is not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said:

 "But the prohibition of compelling a man in a criminal court to be a witness against

himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be

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material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent."The question which we are discussing was also discussed by the supreme court of the

State of New Jersey, in the case of State vs. Miller (71 N. J) Law Reports, 527). In that case the court said, speaking through its chancellor:

"It was not erroneous to permit the physician of the jail in which the accused was confined, to testify to wounds observed by him on the back of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands and testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable."In that case also (State vs. Miller) the defendant was required to place his hand upon

the wall of the house where the crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print. The court said, in discussing that question:

"It was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody prints of a hand upon the wall of the house where the crime was committed, the hand of the accused having been placed thereon at the request of persons who were with him in the house."It may be added that a section of the wall containing the blood prints was produced

before the jury and the testimony of such comparison was like that held to be proper in another case decided by the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N. J., Law Reports, 271). The defendant caused the prints of the shoes to be made in the sand before the jury, and witnesses who had observed shoe prints in the sand at the place of the commission of the crime were permitted to compare them with what they had observed at that place.

In that case also the clothing of the defendant was used as evidence against him.To admit the doctrine contended for by the appellant might exclude the testimony of a

physician or a medical expert who had been appointed to make observations of a person who plead insanity as a defense, where such medical testimony was against the contention of the defendant. The medical expert must necessarily use the person of the defendant for the purpose of making such examination. (People vs. Austin, 199 N. Y., 446.) The doctrine contended for by the appellant would also prevent the courts from making an examination of the body of the defendant where serious personal injuries were alleged to have been received by him. The right of the courts in such cases to require an exhibit of the injured parts of the body has been established by a long line of decisions.

The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt.

Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

"If, in other words, it (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a clear reductio ad absurdum. In other words, it is not

52

merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion." (4 Wigmore, sec. 2263.)The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral

examination of prisoners before trial, or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by the appellant would prohibit courts from looking at the face of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness — it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony by his body but his body itself.

As was said by Judge Lobingier:"The accused was not compelled to make any admission or answer any questions,

and the mere fact that an object found upon his body was examined seems no more to infringe the rule invoked than would the introduction of stolen property taken from the person of a thief."The doctrine contended for by the appellant would also prohibit the sanitary department

of the Government from examining the body of persons who are supposed to have some contagious disease.

We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as above stated, and that through his brutal conduct said disease was communicated to Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof. Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the courts of law require corroborative proof, for the reason that such crimes are generally committed in secret. In the present case, taking into account the number and credibility of the witnesses, their interest and attitude on the witness stand, their manner of testifying and the general circumstances surrounding the witnesses, including the fact that both parties were found to be suffering from a common disease, we are of the opinion that the defendant did, on or about the 15th of September, 1910, have such relations as above described with the said Oliva Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos deshonestos," and taking into consideration the fact that the crime which the defendant committed was done in the house where Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law should be imposed. The maximum penalty provided for by law is six years of prison correccional. Therefore let a judgment be entered modifying the sentence of the lower court and sentencing the defendant to be imprisoned for a period of six years of prision correccional, and to pay the costs. So ordered.

Arellano, C.J., Torres, Mapa, Carson, and Trent, JJ., concur.

[G.R. No. L-2154. April 26, 1950.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO OTADORA ET AL., defendants. HILARIA CARREON, appellant.

Victorino C. Teleron for appellant.

Solicitor General Felix Bautista Angelo and Assistant Solicitor General Guillermo E. Torres for appellee.

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SYLLABUS

1.CONSTITUTIONAL LAW; PROTECTION AGAINST SELF-INCRIMINATION. — Measuring or photographing the party is not within the privilege" against self-incrimination. "Nor is the removal or replacement of his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing things to be done."

D E C I S I O N

BENGZON, J p:

In August, 1947, in the Court of First Instance of Leyte, Antonio Otadora and Hilaria Carreon were charged with the murder of the spouses Leon Castro and Apolonia Carreon Otadora pleaded guilty, and was sentenced to life imprisonment. Denying her guilt, Hilaria Carreon was tried, found guilty and sentenced to death and other accessory penalties. The court declared that with promises of monetary reward, she had induced Antonio Otadora to do the killing. Motive for the instigation was the grudge she bore against the deceased spouses on account of disputes with them over inherited property. This woman convict appealed in due time.

Her attorney filed here a voluminous brief wherein he attempted painstakingly to break down the position of the prosecution and to expound the theory that Antonio Otadora is the only person responsible for the slaying, and that Hilaria Carreon is just "the unfortunate victim of a vicious frame-up concocted against her." She necessarily had to offer a satisfactory explanation for the conduct of Otadora, who has pleaded guilty and has declared for the prosecution against her, explaining the circumstances under which she had promised to him compensation for liquidating the unfortunate couple.

There is no question about these facts:.Early in the morning of June 16, 1947, Leon Castro and his wife Apolonia Carreon were

shot dead in their house in the City of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio Otadora was arrested in Ormoc City while preparing to escape to Camotes Islands, Cebu. The next day he confessed in an extra-judicial statement (Exhibit 1) wherein he implicated the herein accused and appellant Hilaria Carreon asserting that, with offers of pecuniary gain, the latter had induced him to commit the crime. On June 25, 1947, a complaint for double murder was filed against both defendants in the justice of the peace court of Ormoc, Leyte. Preliminary investigation was waived and the record was forwarded to the court of first instance, where on September 3, 1947, Otadora pleaded guilty with the assistance of counsel. Hilaria Carreon pleaded not guilty, and asked for a separate trial, which was immediately held, with Otadora as the first witness for the prosecution.

The evidence presented on behalf of the People proved that:.(1) Apolonia Carreon was the sister of Hilaria. Due to a family quarrel, Apolonia filed in

August, 1946, a criminal complaint for serious threats against Hilaria and her husband Francisco Galos (Exhibit P-1). These were arrested and had to file a bond. The case was later withdrawn by Apolonia upon the advice of friendly mediators.

In December of 1946, Leon Castro as guardian ad litem of some minors surnamed Carreon filed a civil complaint for partition of real property and damages against Hilaria Carreon. This suit was set for hearing on June 24, 1947.

(2) Antonio Otadora met Hilaria Carreon sometime in April, 1947, through Amando Garbo. Thereafter they conversed on several occasions. In the early part of May, 1947, she

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saw him going to barrio Matica-a and then she told him that if he would liquidate the spouses Leon Castro and Apolonia Carreon she would give him P3,000. He did not agree. In the last week of May he was invited to Hilaria's house. The proposal was renewed, better conditions being offered. (1/3 of P10,000 plus carabaos, plus P300.) He must have demurred alleging that he had no adequate weapon, because Hilaria is reported to have engaged to supply it.(3) Around the first week of June, 1947, Hilaria Carreon sent for Otadora. She gave him the revolver Exhibit A; but the revolver turned out to be defective so he handed it back to Hilaria. The latter ordered it repaired by Benigno Baltonado who had previously sold it to her. Three days later Baltonado returned the gun in good condition with more than ten bullets, and appellant in turn delivered the weapons to Otadora who was then in her house, advising him at the same time to carry out soon their plan so that Leon Castro may not attend the hearing of the civil case. Appellant also gave Otadora the bolo Exhibit B, a pair of trousers of her husband Francisco Galos (Exhibit C), a hat Exhibit D and a flashlight Exhibit E.(4) Otadora set out to do his part in the morning of June 16; but Apolonia was not in her residence. He reported to appellant the next day and the latter urged him to execute it that day, giving him P6.50 for transportation. That night, at about one o'clock, Antonio climbed up the house of the Castros, passing through the window. He saw them sleeping side by side. He opened the door of the kitchen to prepare his exit. Returning to the place where the couple lay, he stumbled on Leon Castro, who exclaimed, "who are you ?". Otadora replied, "I am" "I don't have any purpose except you, get up and fight." As Castro was about to stand up, Otadora fired. Apolonia was awakened, and embraced her husband who meantime had fallen. Otadora shot her too. The couple died immediately of shock and hemorrhage.(5) After committing the murders, Otadora returned to barrio Matica-a intending to go to Hilaria's home; but as he was nearing the kitchen, Francisco Galos signalled him to go away. (He was seen, crossing the cornfield near Hilaria Carreon's house by Juanita Garbo, who so testified in court.) Otadora went to his home in Sitio Hubas. On June 20, at a dance, he received word from Hilaria through her husband Galos, that he was wanted by the police, and that he should decamp. The next morning he passed by the residence of Hilaria, and the latter gave him P5, plus two packages of cigarettes, adding that he should not attempt to visit her further, because she was being watched. The next day, she again sent him P45 through Amando Garbo, who delivered the money at the back of the house of Menes Tahur in Canangca-an. After receiving the money, Otadora prepared to escape to Camotes Islands. But he was caught before he could run away.

The above statement of principal facts is a condensation of the testimonies of Antonio Otadora, Benigno Baltonado, Amando Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and others. It is substantially in accord with the findings of His Honor, the trial judge. Of course it is founded mainly upon the declarations of Antonio Otadora that necessarily are persuasive inasmuch as he himself admits his direct participation and his assertions are fully corroborated by a series of circumstances competently established.

Hilaria denied any connection with the assassination. And naturally the defense exerted effort to discredit Otadora's version, by submitting the following theory:.

Antonio Otadora planned a revenge upon Castro because the latter as a spy caused the death of his father Sergio Otadora at the hands of the Japanese. He, however, found himself in the necessity of eliminating Apolonia Carreon because the latter was a witness to his deed. On the other hand, Antonio Otadora (and the other witnesses who are his relatives) also desire to take revenge upon Hilaria Carreon because the latter, during the Japanese occupation, saved Leon Castro from death at the hands of the guerrillas. The defense says that to those who had been prejudiced by the espionage activities of Leon Castro, Hilaria Carreon appears to be just as responsible as Leon Castro.

The theory can not be lawfully accepted. Firstly, Otadora denies that his father died at the hands of the Japanese. Secondly, the alleged "saving" of Leon Castro was not sufficiently established. Loreto Micabel, the superior officer of the guerrillas, who ordered the release of Leon Castro, did not mention Hilaria as one of those who interceded for the prisoner (p. 286, stenographic notes). Thirdly, nobody in his right senses holds Pedro criminally responsible for

55

the crime of Juan simply because a few days before the crime Pedro saved Juan from drowning.

On the other hand, the grudge which Otadora supposedly held against Castro, readily explains why for a consideration he undertook to kill. It is likewise probable that knowing such desire for vengeance, Hilaria selected him to carry out the dangerous and delicate job. And if it is true that Hilaria saved Leon Castro during the Japanese occupation, it is very likely that she hated her "ungrateful" brother-in-law and sister, (who on two subsequent occasions brought her to court), so much that she hired Otadora to eliminate them.

The assertions of Otadora are decisively ratified by Benigno Baltonado who swore that it was Hilaria who had purchased the murderous gun from him for P55, and who ordered him to fix it; that on the third day he returned the gun to her in her home with rounds of ammunition; and that Otadora was there on that occasion. The remarks and arguments of counsel on pages 87-92 of his brief do not, in our opinion, destroy Baltonado's credibility.

Then there is the witness Amando Garbo, whose brother Esteban is married to the sister of Hilaria, and whose sister married a younger brother of Hilaria. Amando Garbo declared that he was on friendly terms with Hilaria, taking care of her fighting cock; that in December, 1946 in the fiesta of Palompon, she tried to persuade him to kill the spouses Castro; that he declined; that she asked him to look for another whom she could hire; that he introduced Hilaria to Antonio Otadora; that it was he who, at the request of Hilaria, secretly delivered P45 in paper bills of different denominations to Antonio Otadora after the crime was committed.

 And Juanita Garbo, niece of Hilaria Carreon, confirmed the various meetings of Otadora

and Hilaria in the latter's house. And there is the witness Macario Bensig who swore that in May, 1947, at Tabogocon, Ormoc City, during the wedding of his brother Benito with Luisa Pilapil in May, 1947, Hilaria Carreon told him that if he would kill Leon Castro and Apolonia Carreon he would be given money as a reward.

Again there is the witness Sgt. Tomada who said that when the accused Hilaria Carreon was arrested on June 25, 1947, she was committed to his custody because there was no adequate place in the municipal jail for her; that she requested him confidentially to get a lock of hair of Antonio Otadora explaining to him that if that hair is burned Otadora would become insane, and therefore would not be able to declare against her.

Further corroboration of appellant's criminal connection with the bloody affair is the undisputed possession by Otadora of the pants of Francisco Galos (Exhibit C) and his hat Exhibit D. It appears that when Francisco Galos denied ownership of the pants he was ordered to put it on; and the judge found that it fitted him perfectly. This incident gave the defense opportunity for extended argument that the constitutional protection against self-incrimination had been erroneously disregarded. But we discover in the record no timely objection upon that specific ground. And it is to be doubted whether the accused could benefit from the error, if any. Furthermore, and this is conclusive, "measuring or photographing the party is not within the privilege" (against self-incrimination). "Nor is the removal or replacement of his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing things to be done." (Wigmore on Evidence, Vol. 4, p. 878, quoted in Beltran vs. Samson and Jose, 53 Phil., 570, 576).

In conclusion, we are fully satisfied from a reading of the whole expediente that the appellant induced Antonio Otadora to commit the double murder, and furnished him with the deadly firearm. She is just as guilty as if she herself had perpetrated the murderous assaults. The slaying is qualified by the circumstance of treachery. It is aggravated by evident premeditation; but for lack of sufficient votes the appellant is sentenced to suffer life imprisonment for each murder, (not exceeding 40 years, art. 70, Rev. Penal Code), and to indemnify the heirs of the Castros in the sum of P4,000. The appealed judgment will be thus modified.

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Moran, C. J., Ozaeta, Pablo, Tuason, Montemayor, and Reyes, JJ., concur.

Judgment modified.

[Per. Rec. No. 714-A. July 26, 1937.]

MARIA BERMUDEZ, complainant, vs. LEODEGARIO D. CASTILLO, respondent.

G. Viola Fernando for complainant.

Solicitor-General Hilado for the Government.

The respondent in his own behalf.

SYLLABUS

1.CONSTITUTIONAL LAW; PRIVILEGE OF A PERSON NOT TO BE COMPELLED TO BE A WITNESS AGAINST HIMSELF. —Invoking her right not to incriminate herself, the complainant refused to copy in her own handwriting, in the presence of the investigator in this administrative case, the letters which the respondent desired to prove to have been written by her and which she asserted, under oath, not to have written. Held: That the complainant is perfectly entitled to the privilege invoked by her, contained in Article III, section 1, No. 18, of the Constitution of the Philippines, and stated in the following terms: "No person shall be compelled to be a witness against himself," which is understood to be applicable to all cases, be they criminal, civil or administrative, because were she compelled to write and were it proven by means of what she might write later that said documents had really been written by her, it would be impossible for her to evade prosecution for perjury (art. 183, Revised Penal Code).

2.ID.; ID.; REASON FOR THE PRIVILEGE. — The reason for the privilege is to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised or assured, at least, absolute immunity by one authorized to do so legally, or he should be asked, once for all, to furnish such evidence voluntarily without any condition. In order that the constitutional provision in question may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.

D E C I S I O N

DIAZ, J p:

In the course of the investigation which was being conducted by the office of the Solicitor-General against the respondent, in connection with this administrative case, said respondent filed, in addition to other evidence in support of his defense, the six letters which, for purposes of identification, were marked as Exhibits 32, 33, 34, 35, 36 and 37. He then

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contended, as he now continues to contend, that said six letters are the complainant's, but the latter denied it while she was testifying as a witness in rebuttal. She admitted, however, that the letters marked as Exhibits 38, 39 and 40 were in her own handwriting.

As the respondent believed that the three letters admitted by the complainant to be hers were insufficient for purposes of comparison with those questioned in this case and as he was determined to show that said Exhibits 32, 33, 34, 35, 36 and 37, as well as Exhibits 38, 39 and 40 were the complainant's, he required her to copy them in her own handwriting in the presence of the investigator. The complainant, upon advice of her attorney, refused to submit to the trial to which it was desired to subject her, invoking her right not to incriminate herself and alleging that Exhibits 38, 39 and 40 and the other letters already in the respondent's possession, were more than sufficient for what he proposed to do. The investigator, upholding the complainant, did not compel her to submit to the trial required, thereby denying the respondent's petition. As the respondent did not agree to this decision of the investigator, he instituted these proceedings praying that the investigator and the Solicitor-General in whose representation he acted, be ordered to require and compel the complainant to furnish new specimens of her handwriting by copying said Exhibits 32 to 37 for that purpose.

The question raised before this court is not new. In the case of Beltran vs. Samson and Jose ([1929], 53 Phil., 570), a similar question was raised before this court. The respondents therein desired to compel the petitioner to write by hand what was then dictated to him. The petitioner, invoking the constitutional provision contained in section 3, paragraph 3, of the Jones Law which reads: ". . . nor shall be compelled in any criminal case to be a witness against himself", refused to write and instituted prohibition proceedings against the therein respondents. This court granted the petition and ordered the respondents to desist and abstain absolutely from compelling the petitioner to take down dictation by hand for the purpose of comparing his handwriting. The reasons then adduced therein can and must be adduced in this case to decide the same question; and all the more so because Article III, section 1, No. 18, of the Constitution of the Philippines is worded in such a way that the protection referred to therein extends to all cases, be they criminal, civil or administrative. The Constitution provides: "No person shall be compelled to be a witness against himself." It should be noted that before it was attempted to require the complainant to copy the six documents above-stated, she had sworn to tell the truth before the investigator authorized to receive statements under oath, and under said oath she asserted that the documents in question had not been written by her. Were she compelled to write and were it proven by means of what she might write later that said documents had really been written by her, it would be impossible for her to evade prosecution for perjury, inasmuch as it would be warranted by article 183 of the Revised Penal Code, which reads:

"The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires.

"Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein."The respondent invokes in his support the doctrine laid down in Ex Parte Crow (14 Pac.

[2d series], 918), to the effect that ". . . a witness may not arbitrarily refuse to answer a question on the ground that his answer might incriminate him when the court can determine as a matter of law that 'no direct answer which the witness may make can tend to criminate him.'" It must be taken into account that the question asked the petitioner in said case, as stated by the prosecuting attorney, was only a preliminary question, as it was simply attempted to learn from her who was with her on a certain occasion, and on what date, to the best of her recollection, had she visited Dr. Grosse. She refused to answer said questions alleging that her answers might incriminate her. The court upheld her saying:

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"We are therefore of the opinion that the trial court erred when it determined as a matter of law that petitioner's answers to the questions propounded could have no tendency to incriminate her. They clearly might have such tendency, and it was petitioner's right and privilege to decline to answer any of the above-mentioned questions upon the ground stated. We fully realize the difficulty encountered in the prosecution of cases under section 274 of the Penal Code when those present and capable of establishing the facts are unwilling to testify because of fear of subjecting themselves to prosecution. But the constitutional and statutory guaranties accorded to petitioner cannot be swept aside merely because they may result in making difficult, or even impossible, the conviction of the accused."The respondent likewise invokes in his support the doctrine laid down in in re Mackenzie

(100 Vt. Rep., 325). This court is of the opinion that what had been said in the above-cited case is not applicable to the case under consideration. The petitioner Mackenzie, upon being required after he had pleaded guilty of intoxication to disclose the person or persons who had furnished him the liquor, said that they were strangers to him, whom he met late in the evening in Barre. The court, considering his alleged disclosure unsatisfactory, ordered him committed to jail until he should tell the truth or until further orders. He instituted habeas corpus proceedings in his favor alleging in his pleading that as he had already made a truthful disclosure, the result of his commitment would be to compel him to deny his former statements and make others which would make him guilty of perjury. The court, deciding the question, said:

"The privilege against self-crimination is a personal one. . . . But the privilege is an option of refusal, not a prohibition of inquiry. Hence, when an ordinary witness is on the stand, and a self- criminating act relevant to the issue is desired to be shown by him, the question may be asked, and then it is for the witness to say whether he will answer it or claim its privilege, for it cannot be known beforehand what he will do."It further states that "the proper place in which to claim the privilege is in the trial court,

when the question is propounded, not here." This is exactly the case of the herein complainant. She opportunely invoked the privilege when it was desired to subject her to trial by copying the six letters in question, which Mackenzie failed to do.

It is true that in said case of Mackenzie, it was likewise stated that "No reasons appears why the examination on disclosure should not be subject to the ordinary rules of cross-examination. The person making the disclosure is in the position of a witness called by the State, and is subject to the rule permitting the impeachment of such a witness. It is no invasion of the constitutional guaranty against self-crimination to compel the witness to answer questions relating to the truthfulness of his previous testimony." This court, however, is of the opinion that the foregoing is not applicable to the case of the herein complainant, firstly, because she has made no disclosure; she confined herself to denying that the letters in question were hers when the respondent, appearing in court with them, said, rather than insinuated, that they were hers, presenting, in support of his statement, other letters which, by reason of the handwriting , were to all appearances similar thereto; and, secondly, because her testimony, denying that she was the author evidence in the possession of the respondent, which is not precisely that coming from the complainant herself.

 The reason for the privilege evident. The purpose thereof is positively to avoid and

prohibit thereby the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised and assured at least absolute immunity by one authorized to do so legally, or he should be asked, once for all, to furnish such evidence voluntarily without any condition. This court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.

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In view of the foregoing considerations and holding, as it is hereby held, that the complainant is perfectly entitled to the privilege invoked by her, the respondent's petition is denied. So ordered.

Avanceña, C. J., Villa-Real, Imperial and Concepcion, JJ., concur.

[G.R. No. 16444. September 8, 1920.]

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of the city of Manila, respondent.

Alfredo Calupitan and Gibbs, McDonough & Johnson for petitioner.

Assistant City Fiscal Felix for respondent.

SYLLABUS

1.CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS; RIGHT OF ACCUSED PERSON; GENERAL PRINCIPLES. — The object of having criminal laws is to purge the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions are then provided, not to protect the guilty but to protect the innocent. No rule is intended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth.

2.ID.; ID.; ID.; ID.; — With a losse extension of constitutional guaranties because of a misconceived motion of the rights of accused persons, this court is not in accord.

3.ID.; ID.; ID.; SELF-INCRIMINATION; HISTORY OF THE GUARANTY. — The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days is a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitional methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as States was brought to the Philippine Islands, in exactly as wide — but no wider — a scope as it existed in old English days.

4.ID.; ID.; ID.; ID.; POLICY OF THE LAW. — Even superior to the complete immunity of a person to be let alone as the interest which the public has in the orderly administration of justice. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate.

5.ID.; ID.; ID.; ID.; RULES. — The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination.

6.ID.; ID.; ID.; ID.; ID.; — Torture force shall be avoided.7.ID.; ID.; ID.; ID.; BODILY EXHIBITION. — On a proper showing and under an order of the

trial court, an ocular inspection of the body of the accused is permissible.8.ID.; ID.; ID.; ID.; ID. — Upon petition of the assistant fiscal for the city of Manila, the

trial court ordered the defendant, a woman charged with the crime of adultery, to submit her body to the examination of one or two competent doctors to determine whether she was pregnant or not. Held: That while this order of the trial court is phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and thus

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as not in violation of that portion of the Philippine Bill of rights and that portion of the Philippine Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all State Constitutions, and in the common law rules of evidence, relating to self-incrimination.

9.ID.; ID.; ID.; ID.; ID. — The rules announced are believed to be stare decisis in this jurisdiction. (Holt vs. U. S. [1910], 218 U. S., 585; U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735.) Even if not so, the Supreme Court of the Philippine Islands would rather desire its decision to rest on the reason of the case than on blind adherence to tradition.

D E C I S I O N

MALCOLM, J p:

The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.The facts are not in dispute. In a criminal case pending before the Court of First Instance

of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the petition of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria Villaflor, now become the petitioner herein, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court.

The sole legal issue arising from the admitted facts is whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of our Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all state constitutions and in the common law rules of evidence, providing that no person shall be compelled in any criminal case to be a witness against himself . (President's Instructions to the Philippine Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the representative of the city fiscal contends that it is not an infringement of the constitutional provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a judge of the same court has held on an identical question as contended for by the attorney for the accused and petitioner.

The authorities are abundant but conflicting. What may be termed the conservative courts emphasize greatly the humanitarianism of the constitutional provision and are pleased to extend the privilege in order that its mantle may cover any fact by which the accused is compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Nordstrom [1893], 7 Wash., 506; State vs. Height [1902], 117 Iowa, 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view and almost directly in point is People vs. McCoy relating to self-incrimination. Thereupon she was found ([1873], 45 How. Pr., 216). A woman was charged with the crime of infanticide. The coroner directed two physicians to go to the jail and examine her private parts to determine whether she had recently been delivered of a child. She objected to the examination, but being threatened with force, yielded, and the examination was had. The evidence of these physicians was offered at the trial and ruled out. The court said that the proceeding was in violation of the spirit and meaning of the Constitution, which

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declares that "no person shall be compelled in any criminal case to be a witness against himself." Continuing, the court said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an examination of her private parts and breasts, by physicians, and then have them testify that from such examination they are of the opinion she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner."

It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in State vs. Height, supra, the instant case was reported by the writer with the tentative recommendation that the court should lay down the general rule that a defendant can be compelled to disclose only those parts of the body which are not usually covered. But having disabused our minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we think, to penetrate through the maze of law reports to the policy which lies behind the constitutional guaranty and the common law principle, we have come finally to take our stand with what we believe to be the reason of the case.

In contradistinction to the cases above-mentioned are others which seem to us more progressive in nature. Among these can be prominently mentioned decisions of the United States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory testimonial self-incrimination. The constitutional limitation was said to be "simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the Philippine Islands as authority.)

 Although we have stated a proposition previously announced by this court and by the

highest tribunal in the United States, we cannot unconcernedly leave the subject without further consideration. Even in the opinion of Mr. Justice Holmes, to which we have alluded, there was inserted the careful proviso that "we need not consider how far a court would go in compelling a man to exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of the dividing line between what is proper and what is improper in this very broad constitutional field. But here before us is presented what would seem to be the most extreme case which could be imagined. While the United States Supreme Court could nonchalantly decree that testimony that an accused person put on a blouse and it fitted him is not a violation of the constitutional provision, while the Supreme Court of Nevada could go so far as to require the defendant to roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit substances taken from the person of an accused to be offered in evidence, none of these even approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a principle which would permit of such a result by adhering steadfastly to the proposition that the purpose of the constitutional provision was and is merely to prohibit testimonial compulsion.

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So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the Philippines, being in the agreeable state of breaking new ground, would rather desire our decision to rest on a strong foundation of reason and justice than on a weak one of blind adherence to tradition and precedent. Moreover, we believe that an unbiased consideration of the history of the constitutional provision will disclose that our conclusion is in exact accord with the causes which led to its adoption.

The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As forcing a man to be a witness against himself was deemed contrary to the fundamentals of republican government, the principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide — but no wider — a scope as it existed in old English days. The provision should here be approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610, found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], 3 Phil., 143.)

Perhaps the best way to test the correctness of our position is to go back once more to elementals and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having criminal laws is to purge the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then provided, not to protect the guilty but to protect the innocent. No rule is intended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person should be afraid of the use of any method which will tend to establish the truth. For instance, under the facts before us, to use torture to make the defendant admit her guilt might only result in inducing her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be detrimental to the accused except in so far as the truth is to be avoided in order to account a guilty person.

Obviously a stirring plea can be made showing that under the due process of law clause of the Constitution every person has a natural and inherent right to the possession and control of his own body. It is extremely abhorrent to one's sense of decency and propriety to have to decide that such inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete immunity of a person to be let alone is the interest which the public has in the orderly administration of justice. Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to answer, without any mental evasion, questions which are put to them; and such a tendency to degrade the witness in public estimation does not exempt him from the duty of disclosure. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an unwarranted extent that criminal trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against such a loose extension of constitutional guaranties we are here prepared to voice our protest.

Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this jurisdiction in accord with the policy and reason thereof, undeterred by merely

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sentimental influences. Once' again we lay down the rule that the constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, on a proper showing and under an order of the trial court, an ocular inspection of the body of the accused is permissible. The proviso is that torture or force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise.

It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarrass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen.

Although the order of the trial judge, acceding to the request of the assistant fiscal for an examination of the person of the defendant by physicians was phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner. So ordered.

Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.

[G.R. No. L-25018. May 26, 1969.]

ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.

Conrado B. Enriquez for petitioner-appellee.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Pedro A. Ramirez for respondent-appellant.

Bausa, Ampil & Suarez for intervenors-appellants.

SYLLABUS

1.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT AGAINST SELF- INCRIMINATION; APPLICABILITY THEREOF IN ADMINISTRATIVE PROCEEDINGS. — Where petitioner was the respondent in the malpractice charge filed against him with the Board of Medical Examiners, the said Board cannot compel him to take the witness stand as a witness for the complainants. The principle against self-incrimination is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession.

2.ID.; ID.; ID.; RIGHT INCLUDES RIGHT TO SILENCE. — The constitutional guarantee against self-incrimination is not limited to that of allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. The constitutional guarantee protects as well the right to silence.

3.ID.; ID.; ID.; ID.; REASON. — Why the constitutional guarantee against self-incrimination protects as well the right to silence should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be

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accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight.

4.ID.; ID.; ID.; SAID RIGHT IS IDENTIFIED WITH RIGHT TO PRIVACY. — It is of interest to note that while earlier decisions stressed the principle of humanity on which the right against self-incrimination is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy.

D E C I S I O N

FERNANDO, J p:

The broad, all-embracing sweep of the self-incrimination clause, 1 whenever appropriately invoked, has been accorded due recognition by this Court ever since the adoption of the Constitution. 2 Bermudez v. Castillo, 3 decided in 1937, was quite categorical. As we there stated: "This Court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the right of the individual intended to be served." 4

Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan, 5 where it was held that a respondent in an administrative proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case 7 for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of prohibition.

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On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a bond in the amount of P500.00.

The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer is asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of discretion.

There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board, which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the right against self- incrimination cannot be availed of in an administrative hearing.

A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee.

1.We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act, 9 the complainant requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matter referred to an administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of whatever property a public officer or employee may acquire, manifestly out of proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his license as medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus be distinguished, it suffices to refer to an American Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We conclude .. that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is

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equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession.

2.The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the language of another American decision, 11 is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted.

 

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

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

It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." 16

In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs.

Reyes, J.B.L. (Acting C.J.), Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.

Teehankee and Barredo, JJ., took no part.

Concepcion, C.J. and Castro, J., are on official leave.

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[G.R. Nos. 71208-09. August 30, 1985.]

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs. THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

[G.R. Nos. 71212-13. August 30, 1985.]

PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner, vs. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

Lupino A. Lazaro and Ambrosio Padilla for petitioners.

Antonio P. Coronel for respondent Fabian Ver.

D E C I S I O N

CUEVAS, J p:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life. LLjur

To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board. Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4

Upon termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. The reports were thereafter referred

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and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER — one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, Criminal Case No, 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice.  Cdpr

Upon arraignment, all the accused, including the herein private respondents pleaded NOT GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the prosecution represented by the Office of the petitioner TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-cases" 7 contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P. Dentitled. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution. 10

On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial. 12

All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion.

On June 13,1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13

Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of Certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for Certiorari 15 on the same ground. Having arisen from the same factual beginnings and raising practically identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision.  cdrep

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The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self-incrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against self-incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to case the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws.  LexLib

The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation. 19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides —

 

"SECTION 12.The findings of the Board shall be made public. Should the findings warrant the prosecution of any person the Board may initiate the filing of proper complaint with the appropriate government agency. . . ..(Emphasis supplied).

The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to

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testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein.  cdrep

Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so, 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-A Both these constitutional rights to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them.  LLpr

Of course, it may be argued — is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads:

". . . Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ". . . 22(Emphasis supplied).

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other — that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights.  cdrep

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person. 25

It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided — is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest

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military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from ugly-wagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent.  llcd

"Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion tending to force testimony from the unwilling lips of the defendant.'" 26

Similarly, in the case of Louis J. Lefkowitz v. Russel Turley 27 citing Garrity vs. New Jersey 28 where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that:

"the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500,17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self-incrimination."

To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a

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witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self-incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against self-incrimination. The privilege against self-incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as follows:

 

"That no person shall be . . . compelled in a criminal case to be a witness against himself." 30

As now worded, Section 20 of Article IV reads:

"No person shall be compelled to be a witness against himself."

The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case.  LLpr

No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process —

". . . is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result m sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play (Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever branch in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought.' (Frankfurter, Hannah v. Larche, 1960, 363 US 20, at 487). It is not a narrow or ' technical conception with fixed content unrelated to time, place and circumstances.' (Cafeteria Workers v. McEhroy, 1961, 367 US 1230) Decisions based on such a clause requiring a 'close and

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perceptive inquiry into fundamental principles of our society. (Bartkus vs. Ilhmois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in any criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties. LLphil

Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:

"SEC. 5.No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office." (Emphasis supplied).

it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self-incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise . . . . he still runs the risk of being prosecuted even if he sets up his right against self-incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners — that the right against self-incrimination — must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads:

"No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any

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other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." (Emphasis supplied).

The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense.

Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law. 35 Apparent conflict between two clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against self-incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus:

"SEC. 4.The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor.

A person guilty of . . . including . . . refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in direct contempt by the Board. . . ."

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent — Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4, infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results — the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have Strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang, 38 and we quote:

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"I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-of-interests rule in all situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being." (Emphasis supplied).

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private respondents — an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs.

SO ORDERED.

Aquino, J., concur.

Abad Santos, J., is on leave.

Makasiar, J., I hereby certify that Mr. Justice Ramon C. Aquino, before he left for abroad, voted to dismiss the petition for lack of merit.

[G.R. No. L-29169. August 19, 1968.]

ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; PRIVILEGE AGAINST SELF- INCRIMINATION; BASIS THEREOF. — The privilege against self-incrimination is based on the constitutional injunction that: "No person shall be compelled to be a witness against himself," fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled to be exempt from being a witness against himself. While the admissions of confessions of the prisoner, when freely and voluntarily made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the question put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions which is so painfully evident in many of the earlier state trials, made the system so odious as to give rise to a demand for its total abolition. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonist that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.

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2.ID.; ID.; ID.; ORIGIN, NATURE AND PURPOSE THEREOF. — An old Philippine case speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant of valuable and substantive right; it is fundamental to our scheme of justice. The Supreme Court of the United States thru Mr. Justice Harlan warned that "the constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and the foresighted." It is in this context that the constitutional guarantee may not be treated with unconcern. Tañada and Fernando take note of U.S. vs. Navarro, which reaffirms the rule that the constitutional prescription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

3.ID.; ID.; ID.; CONCEPT OF COMPULSION. — Compulsion as it is understood does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant."

4.ID.; ID.; ID.; ACCUSED DISTINGUISHED FROM ORDINARY WITNESS. — An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." This rule may apply even to a co-defendant in a joint trial.

5.ID.; ID.; ID.; PRECEPT. — The guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but the capability of abuse."

6.ID.; ID.; ID.; WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; MEANING; REQUIREMENTS OF WAIVER. — "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

7.ID.; ID.; ID.; VIOLATION OF CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL IS JURISDICTIONAL BAR. — A court's jurisdiction at the beginning of trial may be lost in the course of the proceedings due to failure to complete the court as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guarantee, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The

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judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.

8.ID.; ID.; ID.; HABEAS CORPUS AS REMEDY WHERE THERE IS BREACH. — Habeas Corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. The writ of habeas corpus as an extraordinary remedy must be liberally given effect so as to protect well a person whose liberty is at stake.

CASTRO, J., Separate opinion:

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST SELF-INCRIMINATION. — In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States vs. Junio and even in the case of Cabal vs. Kapunan it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged. If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 1379 were civil and not criminal in nature.

2.ID.; ID.; ID.; TAKING THE WITNESS STAND IS WITHIN THE PRIVILEGE. — It is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand.

3.ID.; ID.; ID.; AIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. — The constitutional provision that "No person shall be compelled to be a witness against himself" may, on occasion, save a guilty man from his just desserts, but it is aimed against a more far-reaching evil - the recurrence of the inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. The Government must thus establish guilt by evidence independently and freely secured; it cannot by coercion prove a charge against an accused out of his own mouth.

4.ID.; ID.; ID.; MOTIVES IRRELEVANT IN THE PRESERVATION OF LIBERTIES. — The motives of men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our constitution. The battle over the Bill of Rights is a never ending one.

5.ID.; HABEAS CORPUS; ITS OFFICE. — The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process is precisely the historic office of the Great Writ.

D E C I S I O N78

SANCHEZ, J p:

 

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction 1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe. 2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:

"COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused]:

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the fiscal in presenting him as his witness. I object.

COURT:

On what ground, counsel?

ATTY. CARBON:

On the ground that I have to confer with my client.

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It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?.

FISCAL GRECIA:

I am not making him as state witness, Your Honor.

I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

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

xxx xxx xxx

COURT: [after the recess]

Are the parties ready?

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

As per understanding, the proceedings was suspended in order to enable me to confer with my client.

I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

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Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

ATTY. CARBON:

I submit.

xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]:

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel.

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about.

I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this witness.

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for the prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness.

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness-stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows:

ATTY. IBASCO [Counsel for defendant Luis Asistio]:81

WITH THE LEAVE OF THE COURT:

This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.'

COURT:

That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution wants to establish by calling this witness to the witness-stand.

ATTY. IBASCO:

I submit.

COURT:

The Fiscal may proceed." 3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop, informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez, known to be a car agent, was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird.

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon, Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21,000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer-notary public in Quezon City, known to Chavez, for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

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As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer. 4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and came back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

 

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000.00-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the next day, as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note.

On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor.

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The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agent's commission the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance, Sumilang accommodated. There, Sumilang also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded.

The trial court gave credence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted.

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt." 5 The trial court branded him "a self-confessed culprit". 6 The court further continued:

"It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez's accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself." 7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame.

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The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car.

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals.

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous. 8

On May 14, 1968, the Court of Appeals, despite the forgoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to the turn him over to Muntinglupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented.

We concentrate attention on that phase of the issues which relates to petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here.

1.Petitioner's plea on this score rests upon his averment, with proof, of violation of his right — constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that: "No person shall be compelled to be a witness against himself," 9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself."

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that "[i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " 'The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and

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the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however, adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.' (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821.)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."

 

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) takes note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our

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opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18

2.With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear-cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial. 23

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:

"What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witness-stand."

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 while a defendant's knowledge of the facts "remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

The judge's words heretofore quoted — "But surely, counsel could not object to have the accused called on the witness-stand" — wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice: the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.

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3.Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution." Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez' "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt"; and that Chavez is "a self-confessed culprit."

4.With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions in spite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and there on the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involved is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one.

There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampant that gives protection — even to the guilty. 30

5.The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a

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recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise:

 

"Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty. A court's jurisdiction at the beginning of trial may be lost 'in the course of the proceedings' due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus." 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto."

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

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

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

No costs. So ordered.

Concepcion, C. J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur.

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