THE UNITED STATES, plaintiff-appellee,

vs.
TAN TENG, defendant-appellant.

Chas A. McDonough, for appellant.

Office of the Solicitor General Harvey, for appellee.

JOHNSON, J.:

This defendant was charged with the crime of rape. The complaint alleged:

That on or about September 15, 1910, and before the filing of this complaint, in the city of
Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and
employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years
of age.

After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of
the offense of abusos deshonestos, as defined and punished under article 439 of the Penal Code,
and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision
correccional, and to pay the costs.

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

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

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

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

IV. The court erred in finding the accused guilty from the evidence.

From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven
years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located
on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling
had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on
the day in question, after having taken a bath, returned to her room; that the defendant followed her
into her room and asked her for some face powder, which she gave him; that after using some of the
face powder upon his private parts he threw the said Oliva upon the floor, placing his private parts
upon hers, and remained in that position for some little time. Several days later, perhaps a week or
two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease
known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what
happened upon the morning of the 15th of September. The sister at once put on foot an investigation
to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to
identify the one who had abused her. The defendant was not present at first. later he arrived and
Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and stripped of his
clothing and examined. The policeman who examined the defendant swore from the venereal
disease known as gonorrhea. The policeman took a portion of the substance emitting from the body
of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific
analysis made of the same. The result of the examination showed that the defendant was suffering
from gonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the
ground that because of her tender years her testimony should not be given credit. The lower court,
after carefully examining her with reference to her ability to understand the nature of an oath, held
that she had sufficient intelligence and discernment to justify the court in accepting her testimony
with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully
concur. The defense in the lower court attempted to show that the venereal disease of gonorrhea
might be communicated in ways other than by contact such as is described in the present case, and
called medical witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing
that question said:

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

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

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

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

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

The accused was not compelled to make any admissions or answer any questions, and the
mere fact that an object found on his person was examined: seems no more to infringe the
rule invoked, than would the introduction in evidence of stolen property taken from the
person of a thief.
The substance was taken from the body of the defendant without his objection, the examination was
made by competent medical authority and the result showed that the defendant was suffering from
said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen
property upon his person, there certainly could have been no question had the stolen property been
taken for the purpose of using the same as evidence against him. So also if the clothing which he
wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime,
there certainly could have been no objection to taking such for the purpose of using the same as
proof. No one would think of even suggesting that stolen property and the clothing in the case
indicated, taken from the defendant, could not be used against him as evidence, without violating the
rule that a person shall not be required to give testimony against himself.

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

But the prohibition of compelling a man in a criminal court to be a witness against himself, is
a prohibition of the use of physical or moral compulsion, to extort communications from
him, not an exclusion of his body as evidence, when it may be material. The objection, in
principle, would forbid a jury (court) to look at a person and compare his features with a
photograph in proof. Moreover we are not considering how far a court would go in compelling
a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the
order goes too far, the evidence if material, is competent.

The question which we are discussing was also discussed by the supreme court of the State of New
Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said,
speaking through its chancellor:

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

In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the
house where the crime was committed, for the purpose of ascertaining whether or not his hand
would have produced the bloody print. The court said, in discussing that question:

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

It may be added that a section of the wall containing the blood prints was produced before the jury
and the testimony of such comparison was like that held to be proper in another case decided by the
supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271).
The defendant caused the prints of the shoes to be made in the sand before the jury, and the
witnesses who had observed shoe prints in the sand at the place of the commission of the crime
were permitted to compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.

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

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

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

If, in other words, it (the rule) created inviolability not only for his [physical control] in
whatever form exercised, then it would be possible for a guilty person to shut himself up in
his house, with all the tools and indicia of his crime, and defy the authority of the law to
employ in evidence anything that might be obtained by forcibly overthrowing his possession
and compelling the surrender of the evidential articles a clear reductio ad absurdum. In
other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial
compulsion. (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of
prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or declarations
implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

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

As was said by Judge Lobingier:

The accused was not compelled to make any admission or answer any questions, and the
mere fact that an object found upon his body was examined seems no more to infringe the
rule invoked than would the introduction of stolen property taken from the person of a thief.

The doctrine contended for by the appellant would also prohibit the sanitary department of the
Government from examining the body of persons who are supposed to have some contagious
disease.

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO OTADORA, ET AL., defendants.
HILARIA CARREON, appellant.

Victorino C. Teleron for appellant.

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

BENGZON, J.:

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

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

There is no question about these facts:

Early in the morning of June 16, 1947, Leon Castro and his wife Apolonia Carreon were shot dead in
their house in the City of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio Otadora was
arrested in Ormoc City while preparing to escape to Camotes Island, Cebu. The next day he
confessed in an extra-judicial statement (Exhibit 1) wherein he implicated the herein accused and
appellant Hilaria Carreon asserting that, with offers of pecuniary gain, the latter had induced him to
commit the crime. On June 25, 1947, a complaint for double murder was filed against both
defendants in the justice of the peace court of Ormoc, Leyte. Preliminary investigation was waived
and the record was forwarded to the court of first instance, where on September 3, 1947, Otadora
pleaded guilty with the assistance of counsel. Hilaria Carreon pleaded not guilty, and asked for a
separate trial, which was immediately held, with Otadora as the first witness for the prosecution.

The evidence presented on behalf of the People proved that:

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

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

(2) Antonio Otadora met Hilaria Carreon sometime in April, 1947, through Amando Garbo. Thereafter
they converse on several occasions. In the early part of May, 1947, she saw him going to barrio
Matica-a and then she told him that if he would liquidate the spouses Leon Castro and Apolonia
Carreon she would give him P3,000. He did not agree. In the last week of May he was invited to
Hilaria's house. The proposal was renewed, better conditions being offered. (1/3 of P10,000 plus
carabaos, plus P300.) He must have demurred alleging that he had no adequate weapon, Hilaria is
reported to have engaged to supply it.

(3) Around the first week of June, 1947, Hilaria Carreon sent for Otadora. She gave him the revolver
Exhibit A; but the revolver turned out to be defective so he handed it back to Hilaria. The latter
ordered it repaired by Benigno Baltonado who had previously sold it to her. Three days later,
Baltonado returned the gun in good condition with more than ten bullets, and appellant in turn
delivered the weapon to Otadora who was then in her house, advising him at the same time to carry
out soon their plan so that Leon Castro may not attend the hearing of the civil case. Appellant also
gave Otadora the bolo Exhibit B, a pair of trousers of her husband Francisco Galos (Exhibit C), a hat
Exhibit D and a flashlight Exhibit E.

(4) Otadora set out to do his part in the morning of June 16; but Apolonia was not in her residence.
He reported to appellant the next day and the latter urged him to execute it that day, giving him
P6.50 for transportation. That night, at about one o'clock, Antonio climbed up the house of the
Castros, passing through the window. He saw them sleeping side by side. He opened the door to the
kitchen to prepare his exit. Returning to the place where the couple lay, he stumbled on Leon Castro,
who exclaimed, "who are you?". Otadora replied, "I am" "I don't have any purpose except you, get up
and fight." As Castro was about to stand up, Otadora fired. Apolonia was awakened, and embraced
her husband who meantime had fallen. Otadora shot her too. The couple died immediately of shock
and hemorrhage.

(5) After committing the murders, Otadora returned to barrio Matica-a intending to go to Hilaria's
home; but as he was nearing the kitchen, Francisco Galos signalled him to go away. (He was seen,
crossing the cornfield near Hilaria Carreon's house by Juanita Garbo, who so testified in court.)
Otadora went to his home in Sitio Hubas. On June 20, at a dance, he received word from Hilaria
through her husband Galos, that he was wanted by the police, and that he should decamp. the next
morning he passed by the residence of Hilaria, and the latter gave him P5, plus two packages of
cigarettes, adding that he should not attempt to visit her further, because she was being watched.
The next day, she again sent him P45 through Amando Garbo, who delivered the money at the back
of the house of Menes Tahur in Canangca-an. After receiving the money, Otadora prepared to
escape to Camotes Islands. But he was caught before he could run away.
The above statement of principal facts is a condensation of the testimonies of Antonio Otadora,
Benigno Baltonado, Amando Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and others. It
is substantially in accord with the findings of His Honor, the trial judge. Of course it is founded mainly
upon the declarations of Antonio Otadora that necessarily are persuasive inasmuch as he himself
admits his direct participation and his assertions are fully corroborated by a series of circumstances
competently established.

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

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

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

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

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

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

And Juanita Garbo, niece of Hilaria Carreon, confirmed the various meetings of Otadora and Hilaria
in the latter's house. And there is the witness Macario Bensig who swore that in May, 1947, at
Tabogocon, Ormoc City, during the wedding of his brother Benito with Luisa Pilapil in May, 1947,
Hilaria Carreon told him that if he would kill Leon Castro and Apolonia Carreon he would be given
money as a reward.
Again there is the witness Sgt. Tomada who said that when the accused Hilaria Carreon was
arrested on June 25, 1947, she was committed to his custody because there was no adequate place
in the municipal jail for her; that she requested him confidentially to get a lock of hair of Antonio
Otadora explaining to him that if that hair is burned Otadora would become insane, and therefore
would not be able to declare against her.

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

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

MARIA BERMUDEZ, complainant,

vs.
LEODEGARIO D. CASTILLO, respondent.

G. Viola Fernando for complainant.

Office of the Solicitor-General hilado for the Government.
The respondent in his own behalf.

DIAZ, J.:

In the course of the investigation which was being conducted by the office of the Solicitor-General
against the respondent, in connection with this administrative case, said respondent filed, in addition
to other evidence in support of this defense, the six letters which, for purposes of identification, were
marked as Exhibits 32, 34, 35, 36 and 37. He then contended, as he now continues to contend, that
said six letters are the complainant's, but the latter denied it while she was testifying as a witness in
rebuttal. she admitted, however, that the letters marked as Exhibits 38, 39 and 40 were in her own
handwriting.

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

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

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

Any person who, in case of a solemn affirmation made a lieu of an oath shall commit any of
the falsehoods mentioned in this and the preceding articles of this section, shall suffer the
respective penalties provided therein.

The respondent invokes in his support the doctrine laid sown in Ex Parte Crow (14 Pac. [2d series],
918), to the effect that ". . . a witness may not arbitrarily refuse to answer a question on the ground
that his answer might incriminate him when the court can determine as a matter of law that 'no direct
answer which the witness may make can tend to criminate him.'" It must be taken into account that
the question asked the petitioner in said case, as stated by the prosecuting attorney, was only a
preliminary question, as it was simply attempted to learn from her who was with her on a certain
occasion, and on what date, to the best of her recollection, had she visited Dr. Groose. She refused
to answer said questions alleging that her answer might incriminate her. The court upheld her
saying:

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

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

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

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

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

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

In view of the foregoing consideration and holding, as it is hereby held, that the complainant is
perfectly entitled to the privilege invoked by her, the respondent's petition is denied. So ordered.
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela, respondents.

Gregorio P. Formoso and Vicente Formoso for petitioner.

The respondents in their own behalf.

ROMUALDEZ, J.:

This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge
ordered him to appear before the provincial fiscal to take dictation in his own handwriting from the
latter.

The order was given upon petition of said fiscal for the purpose of comparing the petitioner's
handwriting and determining whether or not it is he who wrote certain documents supposed to be
falsified.

There is no question as to the facts alleged in the complaint filed in these proceedings; but the
respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the
order prayed for by the provincial fiscal and later granted by the court below, and again which the
instant action was brought, is based on the provisions of section 1687 of the Administrative Code
and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs. Tan
Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in
question.

Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon
motion of the fiscal, may compel witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice to the constitutional rights of
persons cited to appear.

And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional
provision contained in the Jones Law and incorporated in General Orders, No. 58.

Therefore, the question raised is to be decided by examining whether the constitutional provision
invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order
against which these proceedings were taken.

Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se
le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in our
Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56.

As to the extent of the privilege, it should be noted first of all, that the English text of the Jones Law,
which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be a
witness against himself."

This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with
a principle contained both in the Federal constitution and in the constitutions of several states of the
United States, but expressed differently, we should take it that these various phrasings have a
common conception.
 In the interpretation of the principle, nothing turns upon the variations of wording in the
constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that
the witness is protected by one constitution from 'testifying', or by another from 'furnishing
evidence', or by another from 'giving evidence,' or by still another from 'being a witness.'
These various phrasings have a common conception, in respect to the form of the protected
disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.)

As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
furnishing of evidence.

The rights intended to be protected by the constitutional provision that no man accused of
crime shall be compelled to be a witness against himself is so sacred, and the pressure
toward their relaxation so great when the suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to construe the prohibition in favor of personal
rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the
well-established doctrine that the constitutional inhibition is directed not merely to giving of
oral testimony, but embraces as well the furnishing of evidence by other means than by word
of mouth, the divulging, in short, of any fact which the accused has a right to hold secret. (28
R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)

The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by
the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote
certain documents supposed to be falsified, constitutes evidence against himself within the scope
and meaning of the constitutional provision under examination.

Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain
writing or signature is in his own hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting with the one in question.

It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the
defendant, in offering himself as witness in his own behalf, waived his personal privileges.

Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
defendant to write his name during the hearing, and the latter did so voluntarily.

But the cases so resolved cannot be compared to the one now before us. We are not concerned
here with the defendant, for it does not appear that any information was filed against the petitioner
for the supposed falsification, and still less as it a question of the defendant on trial testifying and
under cross-examination. This is only an investigation prior to the information and with a view to filing
it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act
voluntarily.

We have also come upon a case wherein the handwriting or the form of writing of the defendant was
obtained before the criminal action was instituted against him. We refer to the case of People vs.
Molineux (61 Northeastern Reporter, 286).

Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs.
Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the defendant's right to
decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said
decision referred to (page 307 of the volume cited):

The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the
latter's request, and we can discover no ground upon which the writings thus produced can
be excluded from the case. (Emphasis ours.)

For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W.,
199), that the defendant could not be compelled to write his name, the doctrine being stated as
follows:

The defendant being sworn in his own behalf denied the endorsement.

He was then cross-examined the question in regard to his having signed papers not in the
case, and was asked in particular whether he would not produce signatures made prior to
the note in suit, and whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings that complaint is made.
The object of the questions was to bring into the case extrinsic signatures, for the purpose of
comparison by the jury, and we think that the judge was correct in ruling against it.

It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:

Measuring or photographing the party is not within the privilege. Nor it is

the removal or replacement of his garments or shoes. Nor is the requirement that the party
move his body to enable the foregoing things to be done. Requiring him to make specimens
of handwriting is no more than requiring him to move his body . . ." but he cites no case in
support of his last assertion on specimens of handwriting. We note that in the same
paragraph 2265, where said authors treats of "Bodily Exhibition." and under preposition "1. A
great variety of concrete illustrations have been ruled upon," he cites many cases, among
them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no application
to the case at bar because there the defendant voluntary gave specimens of his handwriting,
while here the petitioner refuses to do so and has even instituted these prohibition
proceedings that he may not be compelled to do so.

Furthermore, in the case before us, writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish
a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly
states. Except that it is more serious, we believe the present case is similar to that of producing
documents or chattels in one's possession. And as to such production of documents or chattels.
which to our mind is not so serious as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864):

. . . 2264. Production or Inspection of Documents and Chattels. 1. It follows that the

production of documents or chattels by a person (whether ordinary witness or party-witness)
in response to a subpoena, or to a motion to order production, or to other form of process
treating him as a witness ( i.e. as a person appearing before a tribunal to furnish testimony
on his moral responsibility for truthtelling), may be refused under the protection of the
privilege; and this is universally conceded. (And he cites the case of People vs. Gardner, 144
N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a similarity between one who is
compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.

And we say that the present case is more serious than that of compelling the production of
documents or chattels, because here the witness is compelled to write and create, by means of the
act of writing, evidence which does not exist, and which may identify him as the falsifier. And for this
reason the same eminent author, Professor Wigmore, explaining the matter of the production of
documents and chattels, in the passage cited, adds:

For though the disclosure thus sought be not oral in form, and though the documents or
chattels be already in existence and not desired to be first written and created by testimonial
act or utterance of the person in response to the process, still no line can be drawn short of
any process which treats him as a witness; because in virtue it would be at any time liable to
make oath to the identity or authenticity or origin of the articles produced. (Ibid., pp. 864-
865.) (Emphasis ours.)

It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's
handwriting is not granted, the crime would go unpunished. Considering the circumstance that the
petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to
obtain specimen or specimens without resorting to the means complained herein, that is no reason
for trampling upon a personal right guaranteed by the constitution. It might be true that in some
cases criminals may succeed in evading the hand of justice, but such cases are accidental and do
not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection
of innocent persons.

With respect to the judgments rendered by this court and cited on behalf of the respondents, it
should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that
the defendants and other witnesses were questioned by the fiscal against their will, and if they did
not refuse to answer, they must be understood to have waived their constitutional privilege, as they
could certainly do.

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe
waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases
noted.)

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

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest
its decision on the reason of the case rather than on blind adherence to tradition. The said reason of
the case there consisted in that it was the case of the examination of the body by physicians, which
could be and doubtless was interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute
any positive act, much less a testimonial act; she was only enjoined from something preventing the
examination; all of which is very different from what is required of the petitioner of the present case,
where it is sought to compel him to perform a positive, testimonial act, to write and give a specimen
of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it
was sought to exhibit something already in existence, while in the case at bar, the question deals
with something not yet in existence, and it is precisely sought to compel the petitioner to make,
prepare, or produce by this means, evidence not yet in existence; in short, to create this evidence
which may seriously incriminate him.

Similar considerations suggest themselves to us with regard to the case of United States vs. Ong
Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act,
but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be a
witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for his
own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the respondents and those
under their orders desist and abstain absolutely and forever from compelling the petitioner to take
down dictation in his handwriting for the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DELFIN RONDERO, accused-appellant.

PER CURIAM:

When an accused appeals from the judgment of the trial court, he waives the constitutional
safeguard against double jeopardy and throws the whole case open for review of the appellate court,
which is then called to render such judgment as law and justice dictate, whether favorable or
unfavorable. 1 With this precept in mind, this Court as the ultimate dispenser of justice, will not hesitate to
render the proper imposable penalty, whenever it sees fit, even the supreme penalty of death.

Before us is an appeal from a decision rendered by the Regional Trial Court of Dagupan City, Branch
41, sentencing herein accused-appellant Delfin Rondero y Sigua to suffer the penalty of reclusion
perpetua for the crime of homicide.

The facts of the case are as follows:

On the evening of March 25, 1994, Mardy Doria came home late from a barrio fiesta. When he
noticed that his nine year old sister, Mylene, was not around, he woke up his parents to inquire about
his sister's whereabouts. Realizing that Mylene was missing, their father, Maximo Doria, sought the
help of a neighbor, Barangay Kagawad Andong Rondero to search for Mylene. Maximo and Andong
went to the house of a Barangay Captain to ask for assistance and also requested their other
neighbors in Pugaro, Dagupan to look for Mylene.

The group began searching for Mylene at around 1:00 o'clock in the morning of March 26, 1994.
They scoured the campus of Pugaro Elementary School and the seashore in vain. They even
returned to the school and inspected every classroom but to no avail. Tired and distraught, Maximo
started on his way home. When he was about five (5) meters away from his house, Maximo, who
was then carrying a flashlight, saw herein accused-appellant Delfin Rondero pumping the artesian
well about one (1) meter away. Accused-appellant had an ice pick clenched in his mouth and was
washing his bloodied hands. 2
Maximo hastily returned to the school and told Kagawad Andong what he saw without, however,
revealing that the person he saw was the latter's own
son. 3 Maximo and Andong continued their search for Mylene but after failing to find her, the two men
decided to go home. After some time, a restless Maximo began to search anew for her daughter. He
again sought the help of Andong and the barangay secretary. The group returned to Pugaro Elementary
School where they found Mylene's lifeless body lying on a cemented pavement near the canteen. 4 Her
right hand was raised above her head, which was severely bashed, and her fractured left hand was
behind her back. She was naked from the waist down and had several contusions and abrasions on
different parts of her body. Tightly gripped in her right hand were some hair strands. A blue rubber slipper
with a tiny leaf painted in red was found beside her body while the other slipper was found behind her
back.

Half an hour later, five (5) policemen arrived at the scene and conducted a spot investigation. They
found a pair of shorts 5 under Mylene's buttocks, which Maximo identified as hers. Thereafter, Maximo
led the policemen to the artesian well where he had seen accused-appellant earlier washing his hands.
The policemen found that the artesian well was spattered with blood. 6 After the investigation, the
policemen, together with Maximo, went back to their headquarters in Dagupan City. There, Maximo
disclosed that before they found Mylene's body, he saw accused-appellant washing his bloodstained
hands at the artesian well. 7 Acting on this lead, the policemen returned to Pugaro and arrested accused-
appellant.

An autopsy of the body of the victim conducted by the Assistant City Health Officer of Dagupan City,
Dr. Tomas G. Cornel, revealed the following injuries:

EXTERNAL FINDINGS

1. Contusion hematoma, anterior chest wall, along the midclavicular

line, level of the 2nd intercostal space, right.

2. Contusion hematoma, along the parasternal line, level of the 1st

intercostal space, left.

3. Contusion hematoma, posterior aspect, shoulder, left.

4. Contusion hematoma, anterior axillary line, level of the 3rd

intercostal space, left.

5. Contusion hematoma, anterior aspect, neck.

6. Contusion hematoma, lower jaw, mid portion.

7. Contusion hematoma, periorbital, right.

8. Lacerated wound, 1" x 1/2" x 1/2", maxillary area, right.

9. Contusion hematoma, temporal area, left.

10. Contusion hematoma, mid frontal area.

11. Lacerated wound 1/2" x 1/4" x 1/4", frontal area, left.

 12. Contusion hematoma, occipital area, right.

13. Abrasion, medial anterior aspect, elbow, left.

14. Abrasion, lateral aspect, buttock, right.

15. Abrasion, antero lateral aspect, iliac crest, right.

16. Contusion hematoma, upper lip.

17. Avulsion, upper central and lateral incisors.

18. Fresh laceration of the hymen at 1:00 o'clock, 6:00 o'clock and
9:00 o'clock position. Fresh laceration of the labia minora at 6:00
o'clock and 9:00 o'clock position.

INTERNAL FINDINGS

Massive intracranial hemorrhage with brain tissue injury. Fracture of the right
occipital bone.

Note:

Vaginal smear was done at the Gov. Teofilo Sison Memorial Prov'l Hosp. laboratory
and the result showed no sperm cell seen. (March 26, 1994)

Cause of death: Cardio Respiratory Arrest

Due to: Massive Intracranial Hemorrhage Traumatic 8

For Mylene's burial, her parents spent P5,043.00 during her wake, 9 P9,000.00 for funeral
expenses 10 and P850.00 for church services and entombment. 11

On March 28, 1994, the hair strands which were found on the victim's right hand and at the scene of
the crime, together with hair specimens taken from the victim and accused-appellant, were sent to
the National Bureau of Investigation (NBI) for laboratory examination. 12

Meanwhile, on March 30, 1994, accused-appellant was formally charged with the special complex
crime of rape with homicide in an information which reads:

The undersigned 4th Assistant City Prosecutor accuses DELFIN RONDERO y Sigua,
of Pugaro District, Dagupan City, of the crime of RAPE WITH HOMICIDE, committed
as follows:

That on or about the 26th day of March, 1994, in the city of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused DELFIN RONDERO y Sigua, did then and
there, wilfully, unlawfully, criminally and forcibly have carnal
knowledge with one MYLENE J. DORIA, a 9-year old girl, against her
will and consent, and thereafter, with intent to kill, criminally and
 unlawfully employed violence against her person, thereby causing the
death of said MYLENE J. DORIA, as evidenced by the Autopsy
Report issued by Dr. Tomas G. Cornel, Asst. City Health Officer, this
city, to the damage and prejudice of the legal heirs of said deceased,
MYLENE J. DORIA in the amount of not less than FIFTY
THOUSAND PESOS (P50,000.00), Philippine currency, and other
consequential damages.

Contrary to Article 335 in relation to Article 249 of the Revised Penal Code.

Accused-appellant pleaded not guilty at his arraignment. In the meantime, the NBI sent a fax
message to the Dagupan City Police Station saying that it could not conduct an examination on the
hair strands because the proper comparative specimens were not given. The NBI suggested that
hair strands be pulled, not cut, from the suspect and from the victim on the four regions of their
heads so that all parts of the hair strands, from root to tip, may be presented. 13 Thereupon, accused-
appellant, who executed a "waiver of detention" including a waiver of the provisions of Section 12, Article
III of the Constitution on the rights of the accused during custodial investigation, 14 was allegedly
convinced by a certain Major Wendy Ocampo to give sample hair strands. Another police officer went to
the Doria's residence to get hair samples from Mylene, who had not yet been interred. The hair strands
taken from accused-appellant and the victim were later indorsed to the NBI for laboratory
testing. 15 Comparative micro-physical examination on the specimens showed that the hair strands found
on the right hand of the victim had similar characteristics to those of accused-appellant's, while the hair
specimen taken from the crime scene showed similar characteristics to those of the victim's. 16 Alicia P.
Liberato, the NBI Senior Forensic Chemist who conducted the microscopic examination on the hair
samples, later reiterated the aforesaid findings in court. 17

At the trial, Dr. Cornel, the physician who conducted the autopsy on Mylene at around 9:30 o'clock in
the morning of March 26, 1994, testified that the victim's death probably occurred before 11:00
o'clock in the evening of March 25, 1994 judging from the rigidity of her lower and upper extremities.
He explained that the contusions and hematoma found on Mylene's body were possibly caused by a
blunt instrument, a clenched fist or a piece of wood. 18 The lacerated wounds on her face may have
been caused by a bladed instrument, not necessarily sharp, or by hitting her head on a concrete wall with
jagged edges. The abrasions on her elbow, right buttock and upper hip may have been caused by a
rough object that came in contact with her skin. 19 Dr. Cornel also explained that the victim's upper and
lateral incisors may have been avulsed by a sudden blow in the mouth using a blunt instrument, stone or
wood. He added that the fresh hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions
and the fresh laceration of the labia minora at 6:00 o'clock and 9:00 o'clock positions could have been
caused either by sexual intercourse or by an object forcibly inserted in Mylene's vagina. 20

Accused-appellant resolved not to testify at the trial, opting instead to present his wife and his father
as witnesses to account for his whereabouts on the night of the gruesome incident.

Christine Gonzales, wife of accused-appellant, testified that on March 25, 1994, at around 7:00
o'clock in the evening, she had a quarrel with her husband. Accused-appellant was then slightly
drunk and apparently irked when supper was not yet ready. He slapped his wife and shouted
invectives at her, causing a disturbance in the neighborhood and prompting his father, who lived just
a house away, to intervene. When accused-appellant refused to be pacified, his father hit him in the
nose, mouth and different parts of the body. 21 His father left accused-appellant profusely bleeding.
Accused-appellant then changed his blood-stained clothes and went to bed with his wife. It was a little
after 8:00 o'clock in the evening.

Christine woke up the next day at around 7:00 o'clock in the morning. She washed some clothes
including the blood-stained ones her husband wore the night before. After doing the laundry, she
went out to pay her father a visit. On her way back home, Christine was informed by a child that her
husband was arrested by the police. Christine rushed home and found some policemen taking the
newly washed undershirt and short pants of accused-appellant from the clothesline. The policemen
brought Christine with them to the police headquarters for questioning. When asked about the blood
on her husband's clothes, Christine told them about their quarrel the night before. 22

Accused-appellant's father, Leonardo Rondero, corroborated Christine's story. He testified that on

the night in question, at around 7:00 o'clock in the evening, he was resting at home, located only a
house away from his son's, when he heard the latter having a heated discussion with Christine.
Embarrassed at the scene that his son was creating at such an hour, Leonardo went to the couple's
house to pacify the slightly inebriated accused-appellant. Accused-appellant ignored his father and
continued shouting at his wife. Leonardo then hit him several times causing his nose and mouth to
bleed profusely that it stained his sando and short pants. Startled at the injuries that his son
sustained, Leonardo went home. Early the next morning, March 26, 1994, at around 1:30 o'clock,
Leonardo was awakened by his neighbor, Maximo Doria, who sought his assistance to search for his
missing nine-year old daughter Mylene. Leonardo willingly obliged. Thus, Maximo, Leonardo and the
barangay secretary searched the nearby houses for hours but failed to find Mylene. 23

On October 13, 1995, the trial court rendered judgment 24 convicting accused-appellant of the crime of
murder and sentencing him to death. The dispositive portion of the decision reads:

WHEREFORE:

For the crime you had wilfully and deliberately committed, this court finds you guilty
beyond reasonable doubt of the crime of murder defined and punished by Section 6
of Republic Act No. 7659, in relation to Article 248 of the Revised Penal Code,
together with all its attendant aggravating circumstances without any mitigating
circumstance of whatever nature.

You, Delfin Rondero, are hereby therefore sentenced to die by electrocution pursuant
to Article 81 of Republic Act No. 7659, for your heinous crime as charged in the
information as a punishment and as an example to future offenders.

You are hereby further ordered to indemnify the heirs of the victim by paying to them
an amount of P60,000.00 for the loss of life of Mylene J. Doria; P15,000.00 for
consequential damages and P100,000.00 as moral damages.

May God have mercy on your soul.

SO ORDERED. 25

Accused-appellant moved for reconsideration. On November 10, 1995, the trial court issued an order
modifying its earlier decision, convicting accused-appellant of the crime of homicide and sentencing
him to suffer the penalty of reclusion perpetua instead, on the ground that under Section 10 of
Republic Act. No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act," the penalty for homicide is reclusion perpetua when the victim is
under twelve (12) years of age. 26

In this appeal, accused-appellant raises the following assignment of errors:

 I. THE LOWER COURT ERRED IN FINDING ACCUSED-
APPELLANT GUILTY OF THE CRIME OF MURDER AMENDED TO
HOMICIDE AND SENTENCING HIM TO SUFFER LIFE
IMPRISONMENT (sic) AND TO INDEMNIFY THE AGGRIEVED
PARTY IN THE AMOUNT OF P175,000.00 BASED ONLY ON
CIRCUMSTANTIAL EVIDENCE.

II. THE LOWER COURT COMMITTED GRAVE ERROR IN

CONVICTING THE ACCUSED OF HOMICIDE.

III. THE LOWER COURT COMMITTED GRAVE ERROR IN FINDING

ACCUSED GUILTY TO (sic) THE CRIME OF HOMICIDE DESPITE
ILLEGAL ARREST AND ILLEGAL DETENTION OF ACCUSED-
APPELLANT. 27

The appeal has no merit.

Accused-appellant argues that the circumstantial evidence presented by the prosecution is not
strong enough to sustain his conviction, asserting that Maximo Doria's testimony that he saw him
about a meter away washing his bloodied hands at an artesian well was highly improbable inasmuch
as it was dark at that time. Accused-appellant also considered it strange that when Maximo saw him,
he did not bother to ask if he had seen Mylene. Finally, accused-appellant alleges that the slippers
presented in court as evidence are not the same ones which were recovered at the scene of the
crime since the pictures presented in court did not show the leaf painted in red on the left slipper.

Sec. 4, Rule 133 of the Revised Rules of Court provides:

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is

sufficient for conviction if:

(a) There is more than one circumstances;

(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.

Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in
issue may be established by inference. 28 Such evidence is founded on experience and observed facts
and coincidences establishing a connection between the known and proven facts and the facts sought to
be proved. 29 Circumstantial evidence is sufficient for conviction in criminal cases when there is more than
one circumstance, derived from facts duly given and the combination of all is such as to produce
conviction beyond reasonable doubt. The test for accepting circumstantial evidence as proof of guilt
beyond reasonable doubt is: the series of circumstances duly proved must be consistent with each other
and that each and every circumstance must be consistent with the accused's guilt and inconsistent with
his innocence.

In the case at bar, the prosecution avers that there are several circumstances availing which, when
pieced together, point to accused-appellant as the author of the gruesome crime committed on the
night of March 25, 1994, to wit:
 1. A few hours after the victim's probable time of death, Maximo saw
accused-appellant, with an ice pick clenched in his mouth, washing
his bloodied hands at an artesian well. 30

2 A pair of slippers which Maximo identified as belonging to accused-

appellant was found at the scene of the crime. One was found beside the
victim's body while the other was under her buttocks. 31 Maximo positively
pointed to accused-appellant as the owner of the pair of slippers because
of a distinguishing mark of the painting of a red leaf on the left slipper.
Maximo said accused-appellant used to frequent their house wearing the
same pair of slippers for over a year. 32

3. The hair strands which were found on Mylene's right hand and the hair
strands taken from accused-appellant were shown to have similar
characteristics when subjected to microscopic
examination. 33

4. Accused-appellant's undershirt and short pants which he wore on the

night of March 25, 1994 had bloodstains. His wife admitted having
washed the undershirt and short pants in the early morning of March 26,
1994. 34

Contrary to the allegations of accused-appellant, the evidence presented by the prosecution is

sufficient to sustain his conviction. Maximo stated on the witness stand that he was able to identify
accused-appellant because he focused his flashlight on him while he was washing his bloodstained
hands at an artesian well located only a meter away from where Maximo was standing. 35 Maximo
considered it wise not to talk to accused-appellant because at that time he had an ice pick clenched in his
mouth and looked slightly drunk. As to the allegation that the slippers presented in court were not the
same ones recovered at the scene of the crime, suffice it to say that the photographs taken of the crime
scene were not focused only on the pair of slippers; hence, the red leaf may be too minuscule to be
noticed. In any case, the pair of slippers shown in the photographs corroborate the testimony of the
prosecution's witnesses that a pair of rubber slippers were indeed recovered at the scene.

It might not be amiss to note that Maximo was not shown to have had any motive to impute so grave
a wrong on accused-appellant. Prior to the incident, accused-appellant used to frequent Maximo's
house for a visit. 36 On the night of the incident, Maximo even sought the help of accused-appellant's
father to search for Mylene.

On the other hand, the testimonies of the witnesses for the defense are incredulous, to say the least.
Leonardo Rondero, accused-appellant's father, testified that he mauled his son in an effort to pacify
him during a heated altercation with his wife, Christine. Leonardo said that he felt embarrassed
because his son was shouting invectives at Christine and was causing a scene in the neighborhood
so he hit the accused-appellant several times. Leonardo's curious way of pacifying his son resulted
in bodily injuries on the latter. Strangely, despite his sustained injuries and profuse bleeding,
accused-appellant and his wife just went to sleep after Leonardo left. 37We find it unnatural that a
father, a barangay kagawad, would repeatedly hit his son in an effort to pacify him in the middle of a
marital spat. We find it even more unnatural that one who was bleeding profusely would act so insouciant
as to just go to sleep without attending to his injuries.

Accused-appellant alleges that while in the custody of police officers, some hair strands were taken
from him without his consent and submitted to the NBI for investigation, in violation of his right
against self incrimination. Aside from executing a waiver of the provisions of Article 125 of the
Revised Penal Code, accused-appellant executed a waiver of the provisions of Article III, Section 12
of the Constitution regarding the rights of an accused during custodial investigation. 38 It appears,
however, that the waivers were executed by the accused without the assistance of a counsel of his own
choice.

The use of evidence against the accused obtained by virtue of his testimony or admission without
the assistance of counsel while under custodial investigation is proscribed under Sections 12 and
17, Article III of the Constitution, to wit:

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.

(3) Any confession or admission in violation of this or Section 17 hereof shall be

inadmissible in evidence against him.

xxx xxx xxx

Sec. 17. No person shall he compelled to be a witness against himself.

The aforesaid rules are set forth in the Constitution as a recognition of the fact that the psychological
if not physical atmosphere of custodial investigations in the absence of procedural safeguards is
inherently coercive in nature. However, to paraphrase Justice Sanchez in the case of Chavez
vs. Court of Appeals, 39 "Compulsion 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 making rational judgment would be sufficient.
So is moral coercion tending to force testimony from the unwilling lips of the defendant." Needless to say,
the above-mentioned provisions are an affirmation that "coercion can be mental as well as physical and
that the blood of the accused is not the only hallmark of an unconstitutional inquisition." 40

It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is
the use of physical or moral compulsion to extort communication from the accused-appellant and not
the inclusion of his body in evidence when it may be material. For instance, substance emitted from
the body of the accused may be received as evidence in prosecution for acts of lasciviousness 41 and
morphine forced out of the mouth of the accused may also be used as evidence against
him. 42 Consequently, although accused-appellant insists that hair samples were forcibly taken from him
and submitted to the NBI for forensic examination, the hair samples may be admitted in evidence against
him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature
acquired from the accused under duress.

On the other hand, the blood-stained undershirt and short pants taken from the accused are
inadmissible in evidence. They were taken without the proper search warrant from the police officers.
Accused-appellant's wife testified that the police officers, after arresting her husband in their house,
took the garments from the clothesline without proper authority. 43 This was never rebutted by the
prosecution. Under the libertarian exclusionary rule known as the "fruit of the poisonous tree," evidence
illegally obtained by the state should not be used to gain other evidence because the illegally obtained
evidence taints all evidence subsequently obtained. Simply put, accused-appellant's garments, having
been seized in violation of his constitutional right against illegal searches and seizure, are inadmissible in
court as evidence.

Nevertheless, even without the admission of the bloodied garments of the accused as corroborative
evidence, the circumstances obtaining against accused-appellant are sufficient to establish his guilt.

Having disposed of the foregoing, we now come to the issue of whether accused-appellant should
be convicted of the special complex crime of rape with homicide.

It is a jurisprudential rule that an appeal throws a whole case to review and it becomes the duty of
the appellate court to correct such error as may be found in the judgment appealed from whether
they are made the subject of assigned errors or not. 44

The trial court dismissed the charge of rape holding that it has not been adequately proven due to
the absence of spermatozoa in the victim's private part. It is well settled that the absence of
spermatozoa in the victim's private part does not negate the commission of rape for the simple
reason that the mere touching of the pudenda by the male organ is already considered as
consummated rape. Mylene Doria was naked from waist down when she was found. Her private
organ had hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions. There were
fresh lacerations in the labia minora at 6:00 o'clock and 9:00 o'clock positions as well. The trial judge
even noted that "it can be conclusively deduced that her sex organ was subjected to a humiliating
punishment." While the examining physician speculated that the lacerations could have been caused
by a piece of wood or rounded object, he did not rule out the possibility of forcible sexual intercourse.

The presence of physical injuries on the victim strongly indicates the employment of force on her
person. Contusion was found on Mylene's face, arms and thighs. In rape cases, when a woman is
forcibly made to lie down, she will utilize her elbow as the fulcrum so that abrasions will be observed.
In an attempt to stand, the victim will flex her neck forward. The offender will then push her head
backwards, causing hematoma at the region of the occiput. To prevent penetration of the male
organ, she will try to flex her thighs and the offender will give a strong blow to the inner aspects of
both thighs so that the victim will be compelled to straighten them. 45

As aptly observed by the Solicitor General, aside from the hymenal lacerations, the examining
physician testified that Mylene sustained abrasions on her left elbow, right buttock and right upper
hip and contusion hematoma at the occipital area, i.e., back part of the head, right side. 46 Indeed, the
physical evidence indubitably tells a harrowing crime committed against nine-year old Mylene Doria in a
manner that no words can sufficiently describe.

Anent accused-appellant's third assignment of error, it might be true that accused-appellant's

warrantless arrest was not lawful. The police officers who arrested him had no personal knowledge
of facts indicating that he was the perpetrator of the crime just committed. His warrantless arrest was
not based on a personal knowledge of the police officers indicating facts that he has committed the
gruesome crime but solely on Maximo's suspicion that he was involved in the slaying of Mylene
since he was seen washing his bloodied hands in the early morning of March 26,
1994. 47 Nevertheless, it is hornbook knowledge that any irregularity attending the arrest of an accused is
deemed waived when, instead of quashing the information for lack of jurisdiction over his person, the
accused voluntarily submits himself to the court by entering a plea of guilty or not guilty during the
arraignment and participating in the proceedings.

Finally, we reiterate that when an accused appeals from the sentence of the trial court, he waives the
constitutional safeguard against double jeopardy and throws the whole case open to the review of
the appellate court, which is then called to render judgment as the law and justice dictate, whether
favorable or unfavorable, and whether they are made the subject of assigned errors or not. This
precept should be borne in mind by every lawyer of an accused who unwittingly takes the risk
involved when he decides to appeal his sentence.

Accused-appellant's guilt having been established beyond reasonable doubt for the rape and brutal
slaying of Mylene Doria, this Court has no other recourse but to impose the penalty of death upon
accused-appellant Delfin Rondero y Sigua. Under Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659, "when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death." At this juncture, it should be stated that four justices of the
court have continued to maintain the unconstitutionality of R.A. No. 7659 insofar as it prescribes the
death penalty; nevertheless, they submit to the ruling of the majority to the effect that this law is
constitutional and that the death penalty can be lawfully imposed in the case at bar.

The award of P50,000.00 as indemnity to the heirs of the victim is increased to P75,000.00 in line
with our ruling in People vs. Mahinay. 48 The award of moral damages in the sum of P100,000.00 is
reduced to P50,000.00. Further, accused-appellant is ordered to pay the sum of P15,000.00 as
consequential damages.

WHEREFORE, the decision of the Regional Trial Court, Branch 41, Dagupan City finding accused-
appellant Delfin Rondero y Sigua guilty beyond reasonable doubt of the crime of homicide is
MODIFIED. Accused-appellant Delfin Rondero y Sigua is found guilty beyond reasonable doubt of
the charge of special complex crime of rape with homicide committed against Mylene J. Doria and is
accordingly sentenced to suffer the supreme penalty of DEATH. He is also ordered to pay the heirs
of the victim the sum of P75,000.00 by way of civil indemnity, P50,000.00 as moral damages and
P15,000.00 as consequential damages.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the records of this case be forwarded to the Office of the
President for possible exercise of pardoning power.

SO ORDERED.

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.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and
Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.

FERNANDO, J.:

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,3decided 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,5where 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 case7 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.

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,9the 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 a
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 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 a medical practitioner, for some an even greater
deprivation.

To the argument that Cabal v. Kapunan could thus 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 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.
lawphi1.et

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 it is the right of a defendant "to
forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted,
unfettered exercise of his own free genuine will."

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

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

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

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 AlC 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.

CUEVAS, JR., J.:

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.

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
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.

Upon arraignment, all the accused, including the herein private ate 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 petition 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-entitled 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.D. 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.

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. 16 The
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 ease 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.

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 got 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 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.

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.

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.

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 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 uglywagging 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.

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 27 Turley" citing Garrity vs. New Jersey" 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
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 28 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

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 in 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 '"echnical conception with
fixed content unrelated to time, place and circumstances."(Cafeteria Workers v.
McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close
and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois,
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 ally 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.

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 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:

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 an 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., concurs (as certified by Makasiar, C.J.).

Abad Santos, J., is on leave.

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

1. The Decision in this case having become final and executory, its execution enters the
exclusive ambit of authority of the executive authority. The issuance of the TRO may
be construed as trenching on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates dangerous precedent as
there will never be an end to litigation because there is always a possibility that
Congress may repeal a law.
 3. Congress had earlier deliberated extensively on the death penalty bill. To be certain,
whatever question may now be raised on the Death Penalty Law before the present
Congress within the 6-month period given by this Honorable Court had in all
probability been fully debated upon . . .

4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.

5. At this moment, certain circumstances/supervening events transpired to the effect

that the repeal or modification of the law imposing death penalty has become nil, to
wit:

a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.

b. The resolution of Congressman Golez, et al., that they are against the repeal
of the law;

c. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a
copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act No.
7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and
the Executive Department of the position of the House of Representative on this matter, and urging
the President to exhaust all means under the law to immediately implement the death penalty law."
The Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional prerogatives;
(2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not
lose jurisdiction to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that
the law on capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601,
where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999
merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is properly represented by
the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

I
First. We do not agree with the sweeping submission of the public respondents that this Court lost its
jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner.
Obviously, public respondents are invoking the rule that final judgments can no longer be altered in
accord with the principle that "it is just as important that there should be a place to end as there
should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final
Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court
that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this
case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the above-entitled
case was filed in this Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to

declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of the
Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a) Section
17 contravenes Article 83 of the Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No.
8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Clerk
of
Court

By:
(SGD)
TERES
ITA G.
DIMAI
SIP

Acting
Chief
 Judicial
Record
s Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On
October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as required by the Administrative
Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1)
that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations
to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented
until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is
also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission
of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to
execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well
established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the
case. By the finality of the judgment, what the court loses is its jurisdiction to amend,
modify or alter the same. Even after the judgment has become final the court retains
its jurisdiction to execute and enforce it. 3There is a difference between the jurisdiction
of the court to execute its judgment and its jurisdiction to amend, modify or alter the
same. The former continues even after the judgment has become final for the purpose of
enforcement of judgment; the latter terminates when the judgment becomes final. 4 . . .
For after the judgment has become final facts and circumstances may transpire which
can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed
out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of
Prisons v. Judge of First Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same cannot change or alter its
judgment, as its jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event that the judgment
has been affirmed, it performs a ministerial duty in issuing the proper order. But it
does not follow from this cessation of functions on the part of the court with reference
to the ending of the cause that the judicial authority terminates by having then
passed completely to the Executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out of the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
 is a well-known principle that notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible that assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the execution . . . and its part is ended,
if however a circumstance arises that ought to delay the execution, and there is an
imperative duty to investigate the emergency and to order a postponement. Then the
question arises as to whom the application for postponing the execution ought to be
addressed while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a
litigation, whether civil or criminal, is the process of execution of decisions where supervening events may
change the circumstance of the parties and compel courts to intervene and adjust the rights of the
litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts
have been conceded the inherent and necessary power of control of its processes and orders to make
them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means
necessary to carry it into effect may be employed by such court or officer and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said
law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own
Decision to give it reasonable time to check its fairness in light of supervening events in Congress as
alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law
enacted by Congress. 1wphi1.nt

The more disquieting dimension of the submission of the public respondents that this Court has no
jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the
judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of execution
of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases.
Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate
rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance
its independence, for in the words of Justice Isagani Cruz "without independence and integrity,
courts will lose that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it
was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII
provides:
 Sec.13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice and procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and modify the same. The
Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing
grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the
1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice
Diokno held that " . . . the disputed law is not a legislation; it is a judgment a judgment promulgated by
this Court during the aforecited years affecting the bar candidates concerned; and although this Court
certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this
Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these
department would be a clear usurpation of its function, as is the case with the law in question." 12 The
venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the
practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of
permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By
its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the
Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice,

and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which,
however, may be repealed, altered, or supplemented
by the Batasang Pambansa. Such rules shall provide
a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or
modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen
the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has
no jurisdiction to control the process of execution of its decisions, a power conceded to it and which
it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of
this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable
Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the
Warrant of Execution dated November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested." The relevant portions of the
Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide
the appropriate relief" state:

xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation

however, herein respondent is submitting the instant Manifestation
and Motion (a) to stress, inter alia, that the non-disclosure of the date
of execution deprives herein respondent of vital information
necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's
right to information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein

respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
pursuant to Section 39, Chapter 8, Book IV of the Administrative
Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the
Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to
it that laws and rules relative to the execution of sentence are
faithfully observed.

7. On the other hand, the willful omission to reveal the information

about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine Constitution
and Article 81 of the Revised Penal Code, as amended, which
provides that the death sentence shall be carried out "without
prejudice to the exercise by the President of his executive powers at
all times." (Emphasis supplied) For instance, the President cannot
grant reprieve, i.e., postpone the execution of a sentence to a day
certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a
precise date to reckon with. The exercise of such clemency power, at
this time, might even work to the prejudice of the convict and defeat
the purpose of the Constitution and the applicable statute as when
the date at execution set by the President would be earlier than that
designated by the court.

8. Moreover, the deliberate non-disclosure of information about the

date of execution to herein respondent and the public violates
Section 7, Article III (Bill of Rights) and Section 28, Article II
(Declaration of Principles and State Policies) of the 1987 Philippine
Constitution which read:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall, be afforded the citizen, subject to such
limitations as may be provided by law.

Sec. 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all
transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies

"the rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by
guaranteeing the right and mandating the duty to afford access to
 sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature (Id.,
at p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter." (Decision
of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's
right to due process and the public's right to information. The Solicitor General, as counsel for public
respondents, did not oppose petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998.
There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case having
become final and executory, its execution enters the exclusive ambit of authority of the executive
department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII
of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the

President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures after conviction by final judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the concurrence of a majority of all the
members of the Congress. The provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can be claimed in
the appropriate courts. For instance, a death convict who become insane after his final conviction
cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from executing the death sentence upon a
person who is insane at the time of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects is the same the temporary suspension of the execution of the death convict. In the
same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the
penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of
sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to
amend laws be considered as a violation of the power of the President to commute final sentences of
conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death
convict do not exclude each other for the simple reason that there is no higher right than the right to life.
Indeed, in various States in the United States, laws have even been enacted expressly granting courts
the power to suspend execution of convicts and their constitutionality has been upheld over arguments
that they infringe upon the power of the President to grant reprieves. For the public respondents therefore
to contend that only the Executive can protect the right to life of an accused after his final conviction is to
violate the principle of co-equal and coordinate powers of the three branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4,
the first working day of 1999; (b) that members of Congress had either sought for his executive
clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital
punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment,
and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at
3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the
moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the
Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's
allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a
pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial
notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new
members whose views on capital punishment are still unexpressed. The present Congress is therefore
different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection
Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual
bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And
verification from Congress was impossible as Congress was not in session. Given these constraints, the
Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining
the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the
constitutional duration of the present regular session of Congress, unless it sooner becomes certain that
no repeal or modification of the law is going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court
refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed
the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and
equitable considerations demand no less before allowing the State to take the life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization
of the issue whether Congress is disposed to review capital punishment. The public respondents,
thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names these supervening events as
follows:
 xxx xxx xxx

a. The public pronouncement of President Estrada that he will veto any law imposing
the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal of the
law;

c. The fact that Senator Roco's resolution to repeal the law only bears his signature and
that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of
the House of Representatives to reject any move to review R.A. No. 7659 which provided for the
reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of
the position of the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor, the House of Representative
with minor amendments formally adopted the Golez resolution by an overwhelming vote. House
Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal and humanitarian
purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so long as
men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked,
the debate on the legal and moral predicates of capital punishment has been regrettably blurred by
emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of
words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this
Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan
reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of Rights to declare
certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a
better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can
prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be
ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts
in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who
is momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration
and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining
Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court,
Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance
with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENJAMIN VERGARA, JONA
SARVIDA, MILAGROS MAJOREMOS, MAJORIE JALALON, MAY JOY MENDOZA (@ May Joy
Sandi), and JOY SABALLA (@ Josephine Saballa), MABELYN B. VERGARA, RIO SARVIDA,
FRANCISCO MAJOREMOS, in their respective behalves and in behalf of ROY JALALON,
ROMMEL MENDOZA and DELFIN SABALLA,petitioners,
vs.
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge, Regional Trial Court of Ormoc, Branch
12; SPO3 ANGELO S. LLENOS and the CITY JAIL WARDEN OF ORMOC; and ELEUTERIA P.
BOLAO, respondents.

AUSTRIA-MARTINEZ, J.:

Petitioners are the tenants of Berlito P. Taripe on a property located in Dr. A. Santos Ave., Paraaque
City. On December 24, 2001, they were arrested by Ormoc City policemen by authority of a Warrant
of Arrest dated November 19, 2001 issued by Judge Fortunito L. Madrona in Sp. Proc. No. 3695-0
for Issuance of Letters of Administration, Distribution and Partition pending before the Regional Trial
Court of Ormoc City (Branch 12).1

The warrant of arrest stemmed from a motion filed by respondent Eleuteria P. Bolao, as Special
Administratrix of the estate of the late Anselma P. Allers, praying that petitioners be held guilty of
indirect contempt for not complying with the probate court's order dated October 9, 1999 directing
them to pay their monthly rentals to respondent Bolao. 2

It appears that pending the settlement of the estate of the deceased Allers, respondent Bolao
included the property leased by Taripe to petitioners in the inventory of the estate. The probate court
issued the assailed Order dated October 5, 1999, portions of which read as follows:

1. SUBMITTED FOR RESOLUTION is an omnibus motion filed by the Petitioner-

Administratrix, informing among others, the submission of the Inventory of the Estate of the
decedent, referred as Motion-Annex 'A' thereof. The Inventory shows that the properties left
by the deceased consists of Real and Personal Properties, as well as Credits and
Collectibles, itemized under letter heading A, B, and C of the Inventory, respectively.

2. The Real Properties are occupied by some lessees, namely: Cargo Bridge Philippines
Corporation, represented by its President Mr. Bernhard Ashauer, Jr.; Mrs. Lea
Amorcillo, Mrs. Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie Jalalon, Mrs. Jona
Sarvida, Mrs. Analyn Malunes, Mrs. Edna Rubi, Mrs. Josephine Saballa, Mr. Benjamin
Vergara, Mr. Jerry Peligro, Mrs. Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers'
Property Compound at 8110 Dr. A. Santos Ave., San Dionisio, Paraaque City.

xxx xxx xxx

5. It is further shown that all known intervenors, lessees and heirs were served of the motion
and notified of the hearing, with no opposition except intervenor Berlito P. Taripe, based on
his claim against the estate, which may be treated in due time for claims against the estate.
However, the motion under consideration refers to the return to the court of the true
Inventory of the Estate of the deceased within three (3) months as directed under Section 1,
Rule 83 which sets a specific period of time to submit, otherwise it is violated. The opposition
is not tenable.
 6. Finding the motion meritorious, the same is hereby GRANTED. As prayed for, the
Inventory of the Estate attached therewith as Motion-Annex 'A' (sic) and considered as a
compliance of the required return of the true Inventory of the estate of the decedent.

7. Further, the lessees above-cited and listed in the Inventory are directed to pay their
respective monthly rental regularly starting the month of August, 1999, including arrears if
any, to the duly appointed Special Administratrix Mrs. Eleuteria P. Bolao, until further notice.

xxx xxx xxx

Let copies of this Order together with the Inventory served to all above-cited.

SO ORDERED.3 (Emphasis Ours)

Copies of the order were sent on October 12, 1999 to petitioners via registered mail. 4

Five months later, on motion of respondent Bolao, as Special Administratrix, the probate court
issued a writ of execution on March 3, 2000 to enforce the aforesaid order dated October 5, 1999.
The Sheriff submitted a return dated August 10, 2000 stating that on June 5, 2000, he met with
petitioners but failed to collect the rentals due on the property as Taripe had already collected from
them three months advance rentals.5

On August 4, 2000, respondent Bolao filed a motion to require petitioners to explain why they
should not be cited in indirect contempt for disobeying the October 5, 1999 order of the probate
court.6 Petitioners were served copies of the motion by registered mail. 7 The probate court granted
the motion in its Resolution dated September 7, 2000, portions of which read as follows:

The Motion to Exclude Certain Parcels of Land as part of the Estate of the decedent is also
denied for lack of merit. The properties sought to be excluded by intervenor Bertito P. Taripe
are titled/registered in the name of the decedent and therefore they should be included in the
inventory of the intestate estate of Anselma Allers. If intervenor has claims against the
estate, he should file a separate action against the Administratrix in accordance with Rule 87
of the Revised Rules of Court. As it is, intervenor cannot claim ownership over properties
registered in the name of the decedent by mere motion.

The Return of the Deputy Sheriff of the Writ of Execution is noted.

Petitioner's motion to let the lessees explain why they should not be cited for contempt for
disobeying the Court's order is granted. All lessees listed on the Writ of Execution are hereby
ordered to explain within twenty (20) days from receipt of this order why they should not be
cited for indirect contempt of the Court for disobeying the Court's Order dated October 5,
1999, and the Writ of Execution dated May 29, 2000.

SO ORDERED. (Emphasis Ours)

Petitioners were furnished copies of the said Order on September 27, 2000 by registered mail. 8

Six months later, in a letter dated March 18, 2001, some of the petitioners, together with the other
tenants of the property, informed the probate court that they are "freezing" their monthly rentals as
they are in a quandary as to whom to pay the rentals. 9
Respondent Bolao then filed on March 20, 2001, a motion to cite petitioners in contempt, which
was set for hearing on May 11, 2001. 10 In its Order dated May 11, 2001, the probate court found
petitioners guilty of indirect contempt and ordered them to pay a fine of P30,000.00 each and to
undergo imprisonment until they comply with the probate court's order for them to pay rentals. 11

Petitioners again wrote the probate court on June 11, 2001 asking that the indirect contempt
"slapped" against them be withdrawn. They stated that their failure to attend the May 11, 2001
hearing was due to financial constraints, most of them working on construction sites, receiving
minimum wages, and repeated that the reason why they are freezing the monthly rentals is that they
are uncertain as to whom to remit it.12

Upon motion of respondent Bolao, the probate court, per its Order dated November 16, 2001,
issued a warrant of arrest on November 19, 2001. On December 24, 2001, petitioners were arrested.

On December 26, 2001, petitioners filed with the Court of Appeals a petition for the issuance of a writ
of habeas corpus.13 On January 3, 2002, the appellate court ordered the temporary release of
petitioners.14 After due proceedings, the appellate court rendered its decision on March 26, 2002
denying the petition for lack of merit. The dispositive portion of the decision reads:

WHEREFORE, the instant petition for issuance of a writ of habeas corpus is hereby DENIED
for lack of merit. This Court's resolution ordering the temporary release of the lessees is
hereby RECALLED. The lessees are ordered REMANDED to the custody of the Jail Warden
of Ormoc City until they have complied with the orders of the probate court.

No pronouncement as to costs.

SO ORDERED.15

Their motion for reconsideration having been denied, petitioners filed herein petition for review on
certiorari under Rule 45 of the Rules of Court, based on the following grounds:

I. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER DATED
OCTOBER 5, 1999 (ANNEX "E") PARTICULARLY THE PORTION THEREOF WHICH
SUMMARILY DIRECTED THE LESSEES TO TURNOVER THEIR MONTHLY RENTALS OF
THE APARTMENTS OF BERLITO P. TARIPE TO ELEUTERIA P. BOLAO AS SPECIAL
ADMINISTRATRIX, IS UNLAWFUL;

II. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE MOTION FOR
INDIRECT CONTEMPT OF COURT FILED BY RESPONDENT ELEUTERIA P. BOLAO
AGAINST THE LESSEES IS NOT THE PROPER REMEDY AND THAT THE ORDER OF
THE COURT A QUO GRANTING SAID MOTION AND DECLARING THAT THE LESSEES
ARE GUILTY OF INDIRECT CONTEMPT IS A REVERSIBLE ERROR.

III. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER OF THE
COURT A QUO TO ISSUE WARRANT OF ARREST AND THE SAID WARRANT SO
ISSUED AS WELL AS THE ACTUAL ARREST OF SAID LESSEES IN COMPLIANCE
THEREWITH, ARE UNLAWFUL;

IV. THE APPELLATE COURT ERRED IN NOT HOLDING THE TEMPORARY RELEASE OF
THE LESSEES PERMANENT.16
The crux of petitioners' arguments is that they were not notified of the motion filed by respondent
Special Administratrix Bolao, submitting an inventory of the estate of the late Anselma P. Allers,
which includes the property occupied by them. Such being the case, petitioners contend that the
order dated October 5, 1999 granting the motion and directing them to pay the rentals to Bolao is
unlawful hence, their refusal to comply with it is not contumacious. 17 They also assail the
appointment of respondent Bolao as Special Administratrix for having been made without the
required bond,18 and that she has no authority to file the motion for indirect contempt, as her powers
are limited.19

When service of notice is an issue, the rule is that the person alleging that the notice was served
must prove the fact of service.20 The burden of proving notice rests upon the party asserting its
existence.21 In civil cases, service made through registered mail is proved by the registry receipt
issued by the mailing office and an affidavit of the person mailing of facts showing compliance with
Section 7 of Rule 13. In the present case, as proof that petitioners were served with copies of the
omnibus motion submitting an inventory of the estate of deceased Allers, respondent Bolao
presented photocopies of the motion with a certification by counsel that service was made by
registered mail, together with the registry receipts. 22 While the affidavit and the registry receipts
proved that petitioners were served with copies of the motion, it does not follow, however, that
petitioners in fact received the motion. Respondent Bolao failed to present the registry return cards
showing that petitioners actually received the motion. 23 Receipts for registered letters and return
receipts do not prove themselves, they must be properly authenticated in order to serve as proof of
receipt of the letters.24 Respondent also failed to present a certification of the postmaster that notice
was duly issued and delivered to petitioners such that service by registered mail may be deemed
completed.25

Nonetheless, even in the absence of proof of actual receipt by the petitioners, the subject orders
issued by the probate court are valid and enforceable. Petitioners cannot deny the fact that they had
actual knowledge of the said orders. They have admitted in their letter dated March 18, 2001
addressed to the probate court that they received the court's order dated October 5, 1999 "barely 2
months before," 26 or sometime in January 2001. Instead of complying with the said order, they
"froze" payment of their rentals for the reason that they are caught in the middle of the dispute and
are not sure to whom to give the rentals. When respondent Bolao filed the motion to cite them in
indirect contempt, setting the hearing on May 11, 2001, again, records show that they had actual
knowledge of the same. In their second letter, dated June 11, 2001, addressed to the probate court,
they acknowledged that they knew of the hearing set on May 11, 2001, and the reason for their
failure to attend was due to financial constraints. 27 They likewise admitted in said letter that they
knew of the court's order dated May 11, 2001 finding them guilty of indirect contempt. 28 Petitioners
therefore cannot cry denial of due process as they were actually notified of the proceedings before
the probate court. Thus, under the circumstances, it is not imperative to require proof of a formal
notice. It would be an idle ceremony where an adverse party, as in this case, had actual knowledge
of the proceedings.29

When petitioners refused to remit the rentals to respondent Bolao per Order dated October 5, 1999,
a written charge of indirect contempt was duly filed before the trial court and hearing on the motion
set on May 11, 2001. As previously stated, petitioners did not attend said hearing despite knowledge
thereof; instead, they wrote the court on June 11, 2001 asking that the contempt findings against
them be withdrawn. Clearly, they were given the opportunity to be heard, and as aptly stated by the
court, they were given more than sufficient time to comply with the Order dated October 5, 1999. 30

Despite the foregoing, we find that the trial court's finding of contempt and the order directing the
imprisonment of petitioner to be unwarranted. The salutary rule is that the power to punish to
contempt must be exercised on the preservative, not vindictive principle, and on the corrective and
not retaliatory idea of punishment. Court must exercise their contempt powers judiciously and
sparingly, with utmost self-restraint. 31

In Halili vs. Court of Industrial Relations,32 the Court quoted the pronouncements of some American
courts, to wit:

Except where the fundamental power of the court to imprison for contempt has been
restricted by statute, and subject to constitutional prohibitions where a contemnor fails or
refuses to obey an order of the court for the payment of money he may be imprisoned to
compel obedience to such order. [Fla.Revell v. Dishong, 175 So. 905, 129 Fla. 9; Va.
Branch v. Branch, 132 S.E. 303; 144 Va. 244]. (17 C.J.S. 287).

xxx xxx xxx

. . . It has been said that imprisonment for contempt as a means of coercion for civil purpose
cannot be resorted to until all other means fail [Mich.Atchison, etc. R. co. v. Jennison, 27
N.W. 6, 60 Mich. 232], but the court's power to order the contemnor's detension continues so
long as the contumacy persists [Ark.Lane v. Alexander, 271 S.W. 710, 168 Ark. 700] (17
C.J.S. 289).33

which we hereby adopt as proper guidelines in the determination of whether the Court of Appeals
erred in affirming the order of the trial court finding petitioners guilty of indirect contempt of court and
directing their imprisonment for their contumacious refusal to pay the rentals to the administratrix.

In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine Constitution expressly provides
that no person shall be imprisoned for debt. Debt, as used in the Constitution, refers to civil debt or
one not arising from a criminal offense.34 It means any liability to pay arising out of a contract,
express or implied.35 In the present case, petitioners, as recognized lessees of the estate of the
deceased, were ordered by the probate court to pay the rentals to the administratrix. Petitioners did
not comply with the order for the principal reason that they were not certain as to the rightful person
to whom to pay the rentals because it was a certain Berlito P. Taripe who had originally leased the
subject property to them. Clearly, the payment of rentals is covered by the constitutional guarantee
against imprisonment.

Moreover, petitioners cannot be validly punished for contempt under Section 8, Rule 71 of the Rules
of Court to wit:

SEC. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or
omission to do an act which is yet in the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it. (7a)

because herein subject order is not a special judgment enforceable, under Section 11, Rule 39,
which provides:

SEC. 11. Execution of special judgment. When a judgment requires the performance of
any act other than those mention in the two preceding sections, a certified copy of judgment
shall be attached to the writ of execution and shall be served by the officer upon the party
against whom the same is rendered, or upon any other person required thereby, or by law to
obey the same, and such party or person may be punished for contempt if he disobeys such
judgment.
Section 9 of Rule 39 refers to the execution of judgments for money, thus:

SEC. 9. Execution of judgments for money, how enforced. (a) Immediate payment on
demand. The officer shall enforce an execution of a judgment for money by demanding
from the judgment obligor the immediate payment of the full amount stated in the writ of
execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of payment acceptable to the latter, the
amount of the judgment debt under proper receipt directly to the judgment obligee or his
authorized representative if present at the time of payment. The lawful fees shall be handed
under proper receipt to the executing sheriff who shall turn over the said amount within the
same day to the clerk of court of the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive payment,
the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter
shall turn over all the amounts coming into his possession within the same day to the clerk of
court of the court that issued the writ, or if the same is not practicable, deposit said amounts
to a fiduciary account in the nearest government depository bank of the Regional Trial court
of the locality.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court shall then deliver said payment
to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered
to the judgment obligor while the lawful fees shall be retained by the clerk of court for
disposition as provided by law. In no case shall the executing sheriff demand that any
payment by check be made payable to him.

(b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode or payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed of for value and not otherwise exempt from execution
giving the latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the
option, the officer shall first levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment
obligor which has been levied upon.

When there is more property of the judgment obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, or any interest in
either real or personal property, may be levied upon in like manner and with like effect as
under a writ of attachment.

(c) Garnishment of debts and credits. The officer may levy on debts due the judgment
obligor and other credits, including bank deposits, financial interests, royalties, commissions
and other personal property not capable of manual delivery in the possession or control of
third parties. Levy shall be made by serving notice upon the person owing such debts or
having in his possession or control such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.
 The garnishee shall make a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the report shall state how much funds or
credits the garnishee holds for the judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment obligee, shall be delivered directly to
the judgment obligee within ten (10) working days from service of notice on said garnishee
requiring such delivery, except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee
or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be
made by the judgment obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee. (8a, 15a)

while Section 10 of the same Rule refers to execution of judgments for specific acts such as
conveyance, delivery of deeds or other specific acts vesting title; sale of real or personal property,
delivery or restitution of real property, removal of improvements on property subject of execution and
delivery of personal property.

The order directing the payment of rentals falls within the purview of Section 9 as quoted above.
Until and unless all the means provided for under Section 9, Rule 39 have been resorted to and
failed, imprisonment for contempt as a means of coercion for civil purposes cannot be resorted to by
the courts.36 In Sura vs. Martin, Sr.,37 we held that:

Where an order for the arrest and imprisonment of defendant for contempt of court (for
failure to satisfy a judgment for support on ground of insolvency) would, in effect, violate the
Constitution.

Thus, petitioners could not be held guilty of contempt of court for their continued refusal to comply
with the probate court's order to pay rentals to the administratrix nor could they be held guilty of
contempt for disobeying the writ of execution issued by the probate court, which directs therein the
Sheriff, thus:

Should lessees fail to pay the aforementioned amounts on rentals, then of the goods and
chattels of said lessees you may cause to be made the sum sufficient to cover the
aforestated amounts, but if no sufficient personal properties are found thereof to satisfy this
execution, then of the real properties you make the sums of money in the manner required
by law and make return of your proceeding under this writ within the reglementary period. 38

It was the sheriff's duty to enforce the writ.39

Under Section 9(b), Rule 39, of the Rules of Court, in cases when the execution calls for payment of
money and the obligor cannot pay all or part of the obligation in cash, certified bank check or other
mode or payment acceptable to the judgment obligee, the officer shall levy upon the properties of
the judgment obligor of every kind and nature whatsoever which may be disposed of for value and
not otherwise exempt from execution giving the latter the option to immediately choose which
property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor
does not exercise the option, the officer shall first levy on the personal properties, if any, and then on
the real properties if the personal properties are insufficient to answer for the judgment. The sheriff
shall sell only a sufficient portion of the personal or real property of the judgment obligor which has
been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy
the judgment and lawful fees, he must sell only so much of the personal or real property as is
sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either real or personal property, may be levied upon in like
manner and with like effect as under a writ of attachment.

The writ of execution issued by the trial court in this case commanded its sheriff to collect from
petitioners the rentals due from the property, and should they fail to pay, from petitioners'
personal/real properties sufficient to cover the amounts sought to be collected. 40 It was not
addressed to petitioners. It pertained to the sheriff to whom the law entrusts the execution of
judgments,41 and it was due to the latter's failure that the writ was not duly enforced.

In fine, the Court of Appeals committed a reversible error in affirming the Decision dated November
16, 2001 of the trial court.

WHEREFORE, finding the petition for review on certiorari to be with merit, the decision dated March
26, 2002 rendered by the Court of Appeals is REVERSED and SET ASIDE. Its Resolution dated
January 3, 2002 ordering the temporary release of petitioners is made permanent. The Warrant of
Arrest dated November 19, 2001 issued by the Regional Trial Court of Ormoc City (Branch 12) in Sp.
Proc. No. 3695-0 is DEEMED RECALLED.

No costs.

SO ORDERED.