Consti2_Section17_Right Against Self-Incrimination (38 pages)

(1)(US v. Tan Teng, G.R. No. 7081, September 07, 1912)

(4) (Villaflor v. Summers, G.R. No. 16444, September 08, 1920)
(7) (Beltran v. Samson, G.R. No. 32025, September 23, 1929)
(10) (Chavez v. Court of Appeals, G.R. No. L-29169, August 19, 1968)
(19) (People v. Gallarde, G.R. No. 133025, February 17, 2000)
(28) (Pascual, Jr. v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969)
(30) (Mapa, Jr. v. Sandiganbayan, G.R. No. 100295, April 26, 1994)

(US v. Tan Teng, G.R. No. 7081, September 07, 1912) defendant's own lips, against his will, an admission
of his guilt.
FIRST DIVISION DECISION

[G.R. No. 7081. September 7, 1912.] JOHNSON, J p:

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG,
defendant-appellant.
Chas. A. McDonough for appellant.
Solicitor-General Harvey for appellee.
SYLLABUS
1. RAPE; "ABUSOS DESHONESTOS." Held: Under the
facts stated in the opinion, that the defendant is
guilty of the crime of "abusos deshonestos" and that
the crime was committed in the house of the
offended party, and that therefore the maximum
penalty of the law of six years of prision
correccional and the costs should be imposed.
2. ID.; ADMISSIBILITY OF EVIDENCE; RIGHT OF
ACCUSED. At the time of the arrest of the
defendant he was apparently suffering from some
private disorder. A portion of the substance was
taken and scientifically examined, with the result
that such substance showed that he was actually
suffering from the venereal disease known as
gonorrhea. The result of the scientific examination
was offered in evidence, during the trial of the
cause. The defendant objected to the admissibility
of such evidence upon the ground that it was
requiring him to give testimony against himself. The
objection was overruled upon the ground that "the
accused was not compelled to make any
admission or answer any questions, and the mere
fact that an object found upon his person was
examined seems no more to infringe the rule
invoked, than would the introduction of stolen
property taken from the person of a thief." The
substance was taken from the body of the
defendant without his objection. The examination
of the substance was made by competent medical
authority and the result showed that the defendant
was suffering from said disease. Such evidence was
clearly admissible. The prohibition against
compelling a man in a criminal cause to be a
witness against himself is a prohibition against
physical or moral compulsion to extort
communications from him, and not an exclusion of
his body as evidence, when it may be material. The
prohibition contained in the Philippine Bill (sec. 5)
chat a person shall not be compelled to be a
witness against himself, is simply a prohibition
against legal process to extract from the
1|Consti2_Section17_Right Against Self-Incrimination
This defendant was charged with the crime of rape.
The complaint alleged:
"That on or about September 15, 1910, and before
the filing of this complaint, in the city of Manila,
Philippine Islands, the said Tan Teng did willfully,
unlawfully and criminally, and employing force, lie
and have carnal intercourse with a certain Oliva
Pacomio, a girl 7 years of age."
After hearing the evidence, the Honorable Charles
S. Lobingier, judge, found the defendant guilty of
the offense of abusos deshonestos, as defined and
punished under article 439 of the Penal Code, and
sentenced him to be imprisoned for a period of 4
years 6 months and 11 days of prison correccional,
and to pay the costs.
From that sentence the defendant appealed and
made the following assignments of error in this
court:
"I. The lower court erred in admitting the testimony
of the physicians about having taken a certain
substance from the body of the accused while he
was confined in jail and regarding the chemical
analysis made of the substance to demonstrate the
physical condition of the accused with reference to
a venereal disease.
"II. The lower court erred in holding that the
complainant was suffering from a venereal disease
produced by contact with a sick man.
"III. The court erred in holding that the accused was
suffering from a venereal disease.
"IV. The court erred in finding the accused guilty
from the evidence."
From an examination of the record it appears that
the offended party, Oliva Pacomio, a girl seven
years of age, was, on the 15th day of September,
1910, staying in the house of her sister, located on
Ilang-Ilang Street, in the city of Manila; that on said
day a number of Chinamen were gambling in or
near the said house; that some of said Chinamen
had been in the habit of visiting the house of the
sister of the offended party; that Oliva Pacomio, on
the day in question, after having taken a bath,
returned to her room; that the defendant followed
her into her room and asked her for some face
powder, which she gave him; that after using some
of the face powder upon his private parts, he threw
the said Oliva upon the floor, placing his private
parts upon hers, and remained in the position for
some little time. Several days later, perhaps a week
or two, the sister of Oliva Pacomio discovered that
the latter was suffering from a venereal disease
known as gonorrhea. It was at the time of this
discovery that Oliva related to her sister what had
happened upon the morning of the 15th of
September. The sister at once put on foot an
investigation to find the Chinaman. A number of
Chinamen were collected together. Oliva was
called upon to identify the one who had abused
her. The defendant was not present at first. Later he
arrived and Oliva identified him at once as the one
who had attempted to violate her.
Upon this information the defendant was arrested
and taken to the police station and stripped of his
clothing and examined. The policeman who
examined the defendant swore that his body bore
every sign of the fact that he was suffering from the
venereal disease known as gonorrhea. The
policeman took a portion of the substance emitting
from the body of the defendant and turned it over
to the Bureau of Science for the purpose of having
a scientific analysis made of the same. The result of
the examination showed that the defendant was
suffering from gonorrhea.
During the trial the defendant objected strongly to
the admissibility of the testimony of Oliva, on the
ground that because of her tender years her
testimony should not be given credit. The lower
court, after carefully examining her with reference
to her ability to understand the nature of an oath,
held that she had sufficient intelligence and
discernment to justify the court in accepting her
testimony with full faith and credit. With the
conclusion of the lower court, after reading her
declaration, we fully concur.
The defense in the lower court attempted to show
that the venereal disease of gonorrhea might be
communicated in ways other than by contact such
as is described in the present case, and called
medical witnesses for the purpose of supporting
that contention. Judge Lobingier, in discussing that
question said:
"We shall not pursue the refinement of speculation
as to whether or not this disease might, in
exceptional cases, arise from other than carnal
contact. The medical experts, as well as the books,
agree that in ordinary cases it arises from that
cause, and if this was an exceptional one, we think
it was incumbent upon the defense to bring it within
the exception."
The offended party testified that the defendant
had rested his private parts upon hers for some
moments. The defendant was found to be suffering
from gonorrhea. The medical experts who testified
agreed that this disease could have been
communicated from him to her by the contact
described. Believing as we do the story told by
Oliva, we are forced to the conclusion that the
disease with which Oliva was suffering was the result
of the illegal and brutal conduct of the defendant.
Proof, however, that Oliva contracted said
obnoxious disease from the defendant is not
necessary to show that he is guilty of the crime. It is
only corroborative of the truth of Oliva's
declaration.
The defendant attempted to prove in the lower
court that the prosecution was brought for the
2|Consti2_Section17_Right Against Self-Incrimination
purpose of compelling him to pay to the sister of
Oliva a certain sum of money.
The defendant testified and brought other
Chinamen to support his declaration, that the sister
of Oliva threatened to have him prosecuted if he
did not pay her the sum of P60. It seems impossible
to believe that the sister, after having become
convinced that Oliva had been outraged in the
manner described above, would consider for a
moment a settlement for the paltry sum of P60.
Honest women do not consent to the violation of
their bodies nor those of their near relatives, for the
filthy consideration of mere money.
In the court below the defendant contended that
the result of the scientific examination made by the
Bureau of Science of the substance taken from his
body, at or about the time he was arrested, was
not admissible in evidence as proof of the fact that
he was suffering from gonorrhea. That to admit
such evidence was to compel the defendant to
testify against himself. Judge Lobingier, in discussing
that question in his sentence, said:
"The accused was not compelled to make any
admissions or answer any questions, and the mere
fact that an object found on his person was
examined; seems no more to infringe the rule
invoked, than would the introduction in evidence of
stolen property taken from the person of a thief."
The substance was taken from the body of the
defendant without his objection, the examination
was made by competent medical authority and
the result showed that the defendant was suffering
from said disease. As was suggested by Judge
Lobingier, had the defendant been found with
stolen property upon his person, there certainly
could have been no question had the stolen
property been taken for the purpose of using the
same as evidence against him. So also if the
clothing which he wore, by reason of blood stains
or otherwise, had furnished evidence of the
commission of a crime, there certainly could have
been no objection to taking such for the purpose of
using the same as proof. No one would think of
even suggesting that stolen property and the
clothing in the case indicated, taken from the
defendant, could not be used against him as
evidence, without violating the rule that a person
shall not be required to give testimony against
himself.
The question presented by the defendant below
and repeated in his first assignment of error is not a
new question, either to the courts or authors. In the
case of Holt vs. U.S. (218 U.S., 245), Mr. Justice
Holmes, speaking for the court upon this question,
said:
"But the prohibition of compelling a man in a
criminal court to be a witness against himself, is a
prohibition of the use of physical or moral
compulsion, to extort communications from him,
not an exclusion of his body as evidence, when it
may be material. The objection, in principle, would
forbid a jury (court) to look at a person and
compare his features with a photograph in proof.
Moreover we are not considering how far a court
would go in compelling a man to exhibit himself, for
when he is exhibited, whether voluntarily or by
order, even if the order goes too far, the evidence if
material, is competent."
The question which we are discussing was also
discussed by the supreme court of the State of New
Jersey, in the case of State vs. Miller (71 N. J) Law
Reports, 527). In that case the court said, speaking
through its chancellor:
"It was not erroneous to permit the physician of the
jail in which the accused was confined, to testify to
wounds observed by him on the back of the hands
of the accused, although he also testified that he
had the accused removed to a room in another
part of the jail and divested of his clothing. The
observation made by the witness of the wounds on
the hands and testified to by him, was in no sense a
compelling of the accused to be a witness against
himself. If the removal of the clothes had been
forcible and the wounds had been thus exposed, it
seems that the evidence of their character and
appearance would not have been objectionable."
In that case also (State vs. Miller) the defendant
was required to place his hand upon the wall of the
house where the crime was committed, for the
purpose of ascertaining whether or not his hand
would have produced the bloody print. The court
said, in discussing that question:
"It was not erroneous to permit evidence of the
coincidence between the hand of the accused
and the bloody prints of a hand upon the wall of
the house where the crime was committed, the
hand of the accused having been placed thereon
at the request of persons who were with him in the
house."
It may be added that a section of the wall
containing the blood prints was produced before
the jury and the testimony of such comparison was
like that held to be proper in another case decided
by the supreme court of New Jersey in the case of
Johnson vs. State (30 Vroom, N. J., Law Reports,
271). The defendant caused the prints of the shoes
to be made in the sand before the jury, and
witnesses who had observed shoe prints in the sand
at the place of the commission of the crime were
permitted to compare them with what they had
observed at that place.
In that case also the clothing of the defendant was
used as evidence against him.
To admit the doctrine contended for by the
appellant might exclude the testimony of a
physician or a medical expert who had been
appointed to make observations of a person who
plead insanity as a defense, where such medical
testimony was against the contention of the
defendant. The medical expert must necessarily use
the person of the defendant for the purpose of
making such examination. (People vs. Austin, 199 N.
Y., 446.) The doctrine contended for by the
appellant would also prevent the courts from
making an examination of the body of the
defendant where serious personal injuries were
alleged to have been received by him. The right of
the courts in such cases to require an exhibit of the
injured parts of the body has been established by a
long line of decisions.
3|Consti2_Section17_Right Against Self-Incrimination
The prohibition contained in section 5 of the
Philippine Bill that a person shall not be compelled
to be a witness against himself, is simply a
prohibition against legal process to extract from the
defendant's own lips, against his will, an admission
of his guilt.
Mr. Wigmore, in his valuable work on evidence, in
discussing the question before us, said:
"If, in other words, it (the rule) created inviolability
not only for his [physical control of his] own vocal
utterances, but also for his physical control in
whatever form exercised, then it would be possible
for a guilty person to shut himself up in his house,
with all the tools and indicia of his crime, and defy
the authority of the law to employ in evidence
anything that might be obtained by forcibly
overthrowing his possession and compelling the
surrender of the evidential articles a clear
reductio ad absurdum. In other words, it is not
merely compulsion that is the kernel of the privilege,
. . . but testimonial compulsion." (4 Wigmore, sec.
2263.)
The main purpose of the provision of the Philippine
Bill is to prohibit compulsory oral examination of
prisoners before trial, or upon trial, for the purpose
of extorting unwilling confessions or declarations
implicating them in the commission of a crime.
(People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by the appellant would
prohibit courts from looking at the face of a
defendant even, for the purpose of disclosing his
identity. Such an application of the prohibition
under discussion certainly could not be permitted.
Such an inspection of the bodily features by the
court or by witnesses, can not violate the privilege
granted under the Philippine Bill, because it does
not call upon the accused as a witness it does
not call upon the defendant for his testimonial
responsibility. Mr. Wigmore says that evidence
obtained in this way from the accused, is not
testimony by his body but his body itself.
As was said by Judge Lobingier:
"The accused was not compelled to make any
admission or answer any questions, and the mere
fact that an object found upon his body was
examined seems no more to infringe the rule
invoked than would the introduction of stolen
property taken from the person of a thief."
The doctrine contended for by the appellant would
also prohibit the sanitary department of the
Government from examining the body of persons
who are supposed to have some contagious
disease.
We believe that the evidence clearly shows that
the defendant was suffering from the venereal
disease, as above stated, and that through his
brutal conduct said disease was communicated to
Oliva Pacomio. In a case like the present it is always
difficult to secure positive and direct proof. Such
crimes as the present are generally proved by
circumstantial evidence. In cases of rape the courts
of law require corroborative proof, for the reason
that such crimes are generally committed in secret.
In the present case, taking into account the
number and credibility of the witnesses, their
interest and attitude on the witness stand, their
manner of testifying and the general circumstances
surrounding the witnesses, including the fact that
both parties were found to be suffering from a
common disease, we are of the opinion that the
defendant did, on or about the 15th of September,
1910, have such relations as above described with
the said Oliva Pacomio, which under the provisions
of article 439 of the Penal Code makes him guilty of
the crime of "abusos deshonestos," and taking into
consideration the fact that the crime which the
defendant committed was done in the house
where Oliva Pacomio was living, we are of the
opinion that the maximum penalty of the law
should be imposed. The maximum penalty provided
for by law is six years of prison correccional.
Therefore let a judgment be entered modifying the
sentence of the lower court and sentencing the
defendant to be imprisoned for a period of six years
of prision correccional, and to pay the costs. So
ordered.
Arellano, C.J., Torres, Mapa, Carson, and Trent, JJ.,
concur.
(Villaflor v. Summers, G.R. No. 16444, September 08,
1920)
EN BANC
[G.R. No. 16444. September 8, 1920.]
EMETERIA VILLAFLOR, petitioner, vs. RICARDO
SUMMERS, sheriff of the city of Manila, respondent.
Alfredo Calupitan and Gibbs, McDonough &
Johnson for petitioner.
Assistant City Fiscal Felix for respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS;
RIGHT OF ACCUSED PERSON; GENERAL PRINCIPLES.
The object of having criminal laws is to purge the
community of persons who violate the laws to the
great prejudice of their fellow men. Criminal
procedure, the rules of evidence, and
constitutional provisions are then provided, not to
protect the guilty but to protect the innocent. No
rule is intended to be so rigid as to embarrass the
administration of justice in its endeavor to ascertain
the truth.
2. ID.; ID.; ID.; ID.; With a losse extension of
constitutional guaranties because of a The facts are not in dispute. In a criminal case
misconceived motion of the rights of accused
persons, this court is not in accord.
3. ID.; ID.; ID.; SELF-INCRIMINATION; HISTORY OF THE
GUARANTY. The maxim of the common law,
Nemo tenetur seipsum accusare, was recognized in
England in early days is a revolt against the
thumbscrew and the rack. A legal shield was raised
against odious inquisitional methods of interrogating
an accused person by which to extort unwilling
confessions with the ever present temptation to
commit the crime of perjury. The principle was
taken into the American Constitutions, and from the
United States was brought to the Philippine Islands,
4|Consti2_Section17_Right Against Self-Incrimination
in exactly as States was brought to the Philippine
Islands, in exactly as wide but no wider a
scope as it existed in old English days.
4. ID.; ID.; ID.; ID.; POLICY OF THE LAW. Even
superior to the complete immunity of a person to
be let alone as the interest which the public has in
the orderly administration of justice. Between a
sacrifice of the ascertainment of truth to personal
considerations, between a disregard of the public
welfare for refined notions of delicacy, law and
justice cannot hesitate.
5. ID.; ID.; ID.; ID.; RULES. The constitutional
guaranty, that no person shall be compelled in any
criminal case to be a witness against himself, is
limited to a prohibition against compulsory
testimonial self-incrimination.
6. ID.; ID.; ID.; ID.; ID.; Torture force shall be
avoided.
7. ID.; ID.; ID.; ID.; BODILY EXHIBITION. On a proper
showing and under an order of the trial court, an
ocular inspection of the body of the accused is
permissible.
8. ID.; ID.; ID.; ID.; ID. Upon petition of the assistant
fiscal for the city of Manila, the trial court ordered
the defendant, a woman charged with the crime
of adultery, to submit her body to the examination
of one or two competent doctors to determine
whether she was pregnant or not. Held: That while
this order of the trial court is phrased in absolute
terms, it should, nevertheless, be understood as
subject to the limitations herein mentioned, and
thus as not in violation of that portion of the
Philippine Bill of rights and that portion of the
Philippine Code of Criminal Procedure which find
their origin in the Constitution of the United States
and practically all State Constitutions, and in the
common law rules of evidence, relating to self-
incrimination.
9. ID.; ID.; ID.; ID.; ID. The rules announced are
believed to be stare decisis in this jurisdiction. (Holt
vs. U. S. [1910], 218 U. S., 585; U. S. vs. Tan Teng
[1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36
Phil., 735.) Even if not so, the Supreme Court of the
Philippine Islands would rather desire its decision to
rest on the reason of the case than on blind
adherence to tradition.
DECISION
MALCOLM, J p:
The petitioner prays that a writ of habeas corpus
issue to restore her to her liberty.
pending before the Court of First Instance of the
city of Manila, Emeteria Villaflor and Florentino
Souingco are charged with the crime of adultery.
On this case coming on for trial before the Hon.
Pedro Concepcion, Judge of First Instance, upon
the petition of the assistant fiscal for the city of
Manila, the court ordered the defendant Emeteria
Villaflor, now become the petitioner herein, to
submit her body to the examination of one or two
competent doctors to determine if she was
pregnant or not. The accused refused to obey the
order on the ground that such examination of her
person was a violation of the constitutional provision
in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit
the medical examination required by the court.
The sole legal issue arising from the admitted facts is
whether the compelling of a woman to permit her
body to be examined by physicians to determine if
she is pregnant, violates that portion of our Code of
Criminal Procedure which find their origin in the
Constitution of the United States and practically all
state constitutions and in the common law rules of
evidence, providing that no person shall be
compelled in any criminal case to be a witness
against himself . (President's Instructions to the
Philippine Commission; Act of Congress of July 1,
1902, section 5, paragraph 3; Act of Congress of
August 29, 1916, section 3; paragraph 3; Code of
Criminal Procedure, section 15 [4]; United States
Constitution, fifth amendment.) Counsel for
petitioner argues that such bodily exhibition is an
infringement of the constitutional provision; the
representative of the city fiscal contends that it is
not an infringement of the constitutional provision.
The trial judge in the instant case has held with the
fiscal; while it is brought to our notice that a judge
of the same court has held on an identical question
as contended for by the attorney for the accused
and petitioner.
The authorities are abundant but conflicting. What
may be termed the conservative courts emphasize
greatly the humanitarianism of the constitutional
provision and are pleased to extend the privilege in
order that its mantle may cover any fact by which
the accused is compelled to make evidence
against himself. (Compare State vs. Jacobs [1858],
50 N. C., 259 with State vs. Ah Chuey [1879], 14
Nev., 79. See further State vs. Nordstrom [1893], 7
Wash., 506; State vs. Height [1902], 117 Iowa, 650;
Thornton vs. State [1903], 117 Wis., 338.) A case
concordant with this view and almost directly in
point is People vs. McCoy relating to self-
incrimination. Thereupon she was found ([1873], 45
How. Pr., 216). A woman was charged with the
crime of infanticide. The coroner directed two
physicians to go to the jail and examine her private
parts to determine whether she had recently been
delivered of a child. She objected to the
examination, but being threatened with force,
yielded, and the examination was had. The
evidence of these physicians was offered at the
trial and ruled out. The court said that the
proceeding was in violation of the spirit and
meaning of the Constitution, which declares that
"no person shall be compelled in any criminal case
to be a witness against himself." Continuing, the
court said: "They might as well have sworn the
prisoner, and compelled her, by threats, to testify
that she had been pregnant, and had been
delivered of a child, as to have compelled her, by
threats, to allow them to look into her person, with
the aid of a speculum, to ascertain whether she
had been pregnant and been delivered of a child.
. . . Has this court the right to compel the prisoner
now to submit to an examination of her private
parts and breasts, by physicians, and then have
them testify that from such examination they are of
the opinion she is not a virgin, and has had a child?
5|Consti2_Section17_Right Against Self-Incrimination
It is not possible that this court has that right; and it is
too clear to admit of argument that evidence thus
obtained would be inadmissible against the
prisoner."
It may be revealing a judicial secret, but
nevertheless we cannot refrain from saying that,
greatly impressed with the weight of these
decisions, especially the one written by Mr. Justice
McClain, in State vs. Height, supra, the instant case
was reported by the writer with the tentative
recommendation that the court should lay down
the general rule that a defendant can be
compelled to disclose only those parts of the body
which are not usually covered. But having
disabused our minds of a too sensitive appreciation
of the rights of accused persons, and having been
able, as we think, to penetrate through the maze of
law reports to the policy which lies behind the
constitutional guaranty and the common law
principle, we have come finally to take our stand
with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned
are others which seem to us more progressive in
nature. Among these can be prominently
mentioned decisions of the United States Supreme
Court, and the Supreme Court of these Islands. Thus,
the always forward looking jurist, Mr. Justice Holmes,
in the late case of Holt vs. United States ([1910], 218
U. S., 245), in resolving an objection based upon
what he termed "an extravagant extension of the
Fifth Amendment," said: "The prohibition of
compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of
physical or moral compulsion to extort
communications from him, not an exclusion of his
body as evidence when it may be material." (See
also, of same general tenor, decision of Mr. Justice
Day in Adams vs. New York [1903], 192 U. S., 585.)
The Supreme Court of the Philippine Islands, in two
decisions, has seemed to limit the protection to a
prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said
to be "simply a prohibition against legal process to
extract from the defendant's own lips, against his
will, an admission of his guilt." (U. S. vs. Tan Teng
[1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36
Phil., 735, and the derivatory principle announced
in 16 Corpus Juris, 567, 568, citing the United States
Supreme Court and the Supreme Court of the
Philippine Islands as authority.)
Although we have stated a proposition previously
announced by this court and by the highest tribunal
in the United States, we cannot unconcernedly
leave the subject without further consideration.
Even in the opinion of Mr. Justice Holmes, to which
we have alluded, there was inserted the careful
proviso that "we need not consider how far a court
would go in compelling a man to exhibit himself."
Other courts have likewise avoided any attempt to
determine the exact location of the dividing line
between what is proper and what is improper in this
very broad constitutional field. But here before us is
presented what would seem to be the most
extreme case which could be imagined. While the
United States Supreme Court could nonchalantly
decree that testimony that an accused person put
on a blouse and it fitted him is not a violation of the
constitutional provision, while the Supreme Court of
Nevada could go so far as to require the
defendant to roll up his sleeve in order to disclose
tattoo marks, and while the Supreme Court of the
Philippine Islands could permit substances taken
from the person of an accused to be offered in
evidence, none of these even approach in
apparent harshness an order to make a woman,
possibly innocent, to disclose her body in all of its
sanctity to the gaze of strangers. We can only
consistently consent to the retention of a principle
which would permit of such a result by adhering
steadfastly to the proposition that the purpose of
the constitutional provision was and is merely to
prohibit testimonial compulsion.
So much for the authorities. For the nonce we
would prefer to forget them entirely, and here in the
Philippines, being in the agreeable state of
breaking new ground, would rather desire our
decision to rest on a strong foundation of reason
and justice than on a weak one of blind adherence
to tradition and precedent. Moreover, we believe
that an unbiased consideration of the history of the
constitutional provision will disclose that our
conclusion is in exact accord with the causes which
led to its adoption.
The maxim of the common law, Nemo tenetur
seipsum accusare, was recognized in England in
early days, but not in the other legal systems of the
world, in a revolt against the thumbscrew and the
rack. A legal shield was raised against odious
inquisitorial methods of interrogating an accused
person by which to extort unwilling confessions with
the ever present temptation to commit the crime of
perjury. The kernel of the privilege as disclosed by
the textwriters was testimonial compulsion. As
forcing a man to be a witness against himself was
deemed contrary to the fundamentals of
republican government, the principle was taken
into the American Constitutions, and from the
United States was brought to the Philippine Islands,
in exactly as wide but no wider a scope as it
existed in old English days. The provision should here
be approached in no blindly worshipful spirit, but
with a judicious and a judicial appreciation of both
its benefits and its abuses. (Read the scholarly
articles of Prof. Wigmore in 5 Harvard L. R. [1891], p.
71, and 15 Harvard L. R., 1902, p. 610, found in 4
Wigmore on Evidence, pp. 3069 et seq., and U. S.
vs. Navarro [1904], 3 Phil., 143.)
Perhaps the best way to test the correctness of our
position is to go back once more to elementals and
ponder on what is the prime purpose of a criminal
trial. As we view it, the object of having criminal
laws is to purge the community of persons who
violate the laws to the great prejudice of their
fellow men. Criminal procedure, the rules of
evidence, and constitutional provisions, are then
provided, not to protect the guilty but to protect
the innocent. No rule is intended to be so rigid as to
embarrass the administration of justice in its
endeavor to ascertain the truth. No accused
person should be afraid of the use of any method
which will tend to establish the truth. For instance,
6|Consti2_Section17_Right Against Self-Incrimination
under the facts before us, to use torture to make
the defendant admit her guilt might only result in
inducing her to tell a falsehood. But no evidence of
physical facts can for any substantial reason be
held to be detrimental to the accused except in so
far as the truth is to be avoided in order to account
a guilty person.
Obviously a stirring plea can be made showing that
under the due process of law clause of the
Constitution every person has a natural and
inherent right to the possession and control of his
own body. It is extremely abhorrent to one's sense
of decency and propriety to have to decide that
such inviolability of the person, particularly of a
woman, can be invaded by exposure to another's
gaze. As Mr. Justice Gray in Union Pacific Railway
Co. vs. Botsford ([1891], 141 U. S., 250) said, "To
compel any one, and especially a woman, to lay
bare the body, or to submit to the touch of a
stranger, without lawful authority, is an indignity, an
assault, and a trespass." Conceded, and yet, as
well suggested by the same court, even superior to
the complete immunity of a person to be let alone
is the interest which the public has in the orderly
administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by
forcing them to answer, without any mental
evasion, questions which are put to them; and such
a tendency to degrade the witness in public
estimation does not exempt him from the duty of
disclosure. Between a sacrifice of the
ascertainment of truth to personal considerations,
between a disregard of the public welfare for
refined notions of delicacy, law and justice cannot
hesitate.
The protection of accused persons has been
carried to such an unwarranted extent that criminal
trials have sometimes seemed to be like a game of
shuttlecocks, with the judge as referee, the lawyers
as players, the criminal as guest of honor, and the
public as fascinated spectators. Against such a
loose extension of constitutional guaranties we are
here prepared to voice our protest.
Fully conscious that we are resolving a most
extreme case in a sense, which on first impression is
a shock to one's sensibilities, we must nevertheless
enforce the constitutional provision in this jurisdiction
in accord with the policy and reason thereof,
undeterred by merely sentimental influences. Once'
again we lay down the rule that the constitutional
guaranty, that no person shall be compelled in any
criminal case to be a witness against himself, is
limited to a prohibition against compulsory
testimonial self-incrimination. The corollary to the
proposition is that, on a proper showing and under
an order of the trial court, an ocular inspection of
the body of the accused is permissible. The proviso
is that torture or force shall be avoided. Whether
facts fall within or without the rule with its corollary
and proviso must, of course, be decided as cases
arise.
It is a reasonable presumption that in an
examination by reputable and disinterested
physicians due care will be taken not to use
violence and not to embarrass the patient any
more than is absolutely necessary. Indeed, no
objection to the physical examination being made
by the family doctor of the accused or by doctor of
the same sex can be seen.
Although the order of the trial judge, acceding to
the request of the assistant fiscal for an examination
of the person of the defendant by physicians was
phrased in absolute terms, it should, nevertheless,
be understood as subject to the limitations herein
mentioned, and therefore legal. The writ of habeas
corpus prayed for is hereby denied. The costs shall
be taxed against the petitioner. So ordered.
Mapa, C.J., Araullo, Avancea, Moir and Villamor,
JJ., concur.
(Beltran v. Samson, G.R. No. 32025, September 23,
1929)
FIRST DIVISION
[G.R. No. 32025. September 23, 1929.]
FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON,
Judge of the Second Judicial District, and
FRANCISCO JOSE, Provincial Fiscal of Isabela,
respondents.
Gregorio P. Formoso and Vicente Formoso for
petitioner.
The respondents in their own behalf.
SYLLABUS
1. CRIMINAL PROCEDURE; COMPULSORY
APPEARANCE OF WITNESSES AT FISCAL'S
INVESTIGATIONS; REFUSAL OF WITNESS TO WRITE
FROM DICTATION. The fiscal under section 1687
of the Administrative Code, and the competent
judge, at the request 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. The petitioner, in
refusing to write down what the fiscal had to
dictate to him for the purpose of verifying his
handwriting and determining whether he had
written certain documents alleged to have been
falsified, seeks protection his constitutional
privilege.
2. ID.; RIGHTS OF DEFENDANT; TEXT OF
CONSTITUTIONAL PROVISION. The right was
promulgated, both in the Organic Law of the
Philippines of July 1, 1902 and in paragraph 3,
section 3 of the Jones Law, which provides (in
Spanish); "Ni se le obligara (defendant) a declarar
en contra suya en ningun proceso criminal," and
recognized in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4) and section 56.
The English text of the Jones Law reads as follows;
"Nor shall he be compelled in any criminal case to
be a witness against himself," thus, the prohibition is
not restricted to not compelling him to testify, but
extends to not compelling him to be a witness.
3. ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE.
"The rights intended to be protected by the
constitutional provision that no man accused of
crime shall be compelled to be a witness against
7|Consti2_Section17_Right Against Self-Incrimination
himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is
strong and the evidence obscure, that it 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 embraced 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., par.
20, page 434, and notes.)
4. ID.; ID.; CASES INAPPLICABLE. There have been
cases where it was lawful to compel the accuse to
write in open court while he was under cross-
examination (Bradford vs. People, 43 Pacific
Reporter, 1013), and to make him write his name
with his consent during the trial of his case (Sprouse
vs. Com., 81 Va., 374, 378); but in the first case, the
defendant, in testifying as witness in his own behalf
waived his constitutional privilege not to be
compelled to act as witness; and in the second, he
also waived said privilege because he acted
voluntarily.
5. ID.; ID.; PREPARATION AND CREATION OF
EVIDENCE BY TESTIMONIAL ACT. This constitutional
prohibition embraces the compulsory preparation
and creation by a witness of self-incriminatory
evidence by means of a testimonial act. "For
though the disclosure thus sought" (the production
of documents and chattels) "be not oral in form,
and thought the documents or chattels be already
in existence and not desired to be first written and
created by a 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 of it he would be at any
time liable to make oath to the identity or
authenticity or origin of the articles produced." (4
Wigmore on Evidence, 864, 865, latest edition.) IN
the case before us, writing is something more than
moving the body, or hand, or fingers; writing is not
purely mechanical act; it requires the application of
intelligence and attention; writing means for the
petitioner here to furnish, through a testimonial act,
evidence against himself.
6. ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE,
REASON FOR EXISTENCE OF. 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. The
petitioner is a municipal treasurer, and it should not
be difficult for the fiscal to obtain a genuine
specimen of his handwriting by some other means.
But even supposing that it is impossible to secure
such specimen without resorting to the means
herein complained of by the petitioner, 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.
7. ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-
SUMMERS CASE AND CASE AT BAR. The
difference between this case and that of Villaflor vs.
Summers (41. Phil., 620, is that in the latter the object
was to have the petitioner's body examined by
physicians, without being compelled to perform a
positive act, but only an omission, that is, not to
prevent the examination, which could be, and was,
interpreted by this court as being no compulsion of
the petitioner to furnish evidence by means of a
testimonial act; all of which is entirely different from
the case at bar, where it is sought to make the
petitioner perform a positive testimonial act, silent,
indeed, but effective, namely, to write and give a
sample of his handwriting for comparison.
DECISION
ROMUALDEZ, J p:
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 won 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
complaints 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 against which the
instance 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 of
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.
8|Consti2_Section17_Right Against Self-Incrimination
As to the extent of this 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
he 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 wordings 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 it 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.) (Italics 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 a 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 but compelled to write in open
court in order that the jury may be 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 a defendant, for it does not appear that any
information was filed against the petitioner for the
supposed falsification, and still less is it a question of
a 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 given 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." (Italics ours.)
For this reason it was held in the case of First
National Bank vs. Robert 941 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 indorsement.
"He was then cross-examined and questioned 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
court. The judge excluded all these inquiries, on
objection, and it is our 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 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 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 noted that in the same paragraph
2265, where said author treats of "Bodily Exhibition,"
and under proposition "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 voluntarily gave specimens of his
9|Consti2_Section17_Right Against Self-Incrimination
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
hand, or the fingers; writing is not a purely
mechanical and attention; and in the case at bar
writing means that the petitioner herein is to furnish
a means to determine 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 of 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 the tribunal to furnish
testimony on his moral responsibility for truth- telling),
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 a 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 of it he
would be at any time liable to make oath to the
identity of authenticity or origin of the articles
produced." (Ibid., pp. 864-865.) (Italics 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 obtain genuine specimens of his
handwriting. But even supposing it is impossible to
obtain a specimen or specimens without resorting
to the means complained of herein, that is not
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, may be
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), where 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 a 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 a
testimonial act. In reality she was not compelled to
execute any position 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 in
the present case, where it is sought to compel his to
perform a positive, testimonial act, to write and
give a specimen of his handwriting for the purpose
of comparison. Beside, in the case of Villaflor 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 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 to
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.
10 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Without express pronouncement as to costs. So
ordered.
Avancea, C. J., Johnson, Street, Villamor, Johns
and Villa-Real, JJ., concur.
(Chavez v. Court of Appeals, G.R. No. L-29169,
August 19, 1968)
EN BANC
[G.R. No. L-29169. August 19, 1968.]
ROGER CHAVEZ, petitioner, vs. THE HONORABLE
COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES
and THE WARDEN OF THE CITY JAIL OF MANILA,
respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PRIVILEGE
AGAINST SELF- INCRIMINATION; BASIS THEREOF.
The privilege against self-incrimination is based on
the constitutional injunction that: "No person shall
be compelled to be a witness against himself," fully
echoed in Section 1, Rule 115, Rules of Court where,
in all criminal prosecutions, the defendant shall be
entitled to be exempt from being a witness against
himself. While the admissions of confessions of the
prisoner, when freely and voluntarily made, have
always ranked high in the scale of incriminating
evidence, if an accused person be asked to
explain his apparent connection with a crime under
investigation, the ease with which the question put
to him may assume an inquisitorial character, the
temptation to press the witness unduly, to browbeat
him if he be timid or reluctant, to push him into a
corner, and to entrap him into fatal contradictions
which is so painfully evident in many of the earlier
state trials, made the system so odious as to give
rise to a demand for its total abolition. So deeply
did the iniquities of the ancient system impress
themselves upon the minds of the American
colonist that the states, with one accord, made a
denial of the right to question an accused person a
part of their fundamental law, so that a maxim
which in England was a mere rule of evidence
became clothed in this country with the
impregnability of a constitutional enactment.
2. ID.; ID.; ID.; ORIGIN, NATURE AND PURPOSE
THEREOF. An old Philippine case speaks of this
constitutional injunction as "older than the
Government of the United States"; as having "its
origin in a protest against the inquisitorial methods
of interrogating the accused person"; and as
having been adopted in the Philippines "to wipe
out such practices as formerly prevailed in these
Islands of requiring accused persons to submit to
judicial examinations, and to give testimony
regarding the offenses which they were charged."
So it is then that this right is "not merely a formal
technical rule the enforcement of which is left to
the discretion of the court"; it is mandatory; it
secures to a defendant of valuable and substantive
right; it is fundamental to our scheme of justice. The
Supreme Court of the United States thru Mr. Justice
Harlan warned that "the constitutional privilege was
intended to shield the guilty and imprudent as well
as the innocent and the foresighted." It is in this
context that the constitutional guarantee may not
be treated with unconcern. Taada and Fernando
take note of U.S. vs. Navarro, which reaffirms the
rule that the constitutional prescription was
established on broad grounds of public policy and
humanity; of policy because it would place the
witness against the strongest temptation to commit
perjury, and of humanity because it would be to
extort a confession of truth by a kind of duress every
species and degree of which the law abhors.
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much as
resort to compulsory disclosure, directly or indirectly,
of facts usable against him as a confession of the
crime or the tendency of which is to prove the
commission of a crime. Because, it is his right to
forego testimony, to remain silent, unless he
chooses to take the witness stand with undiluted,
unfettered exercise of his own free, genuine will.
3. ID.; ID.; ID.; CONCEPT OF COMPULSION.
Compulsion as it is understood does not necessarily
connote the use of violence; it may be the product
of unintentional statements. Pressure which
operates to overbear his will, disable him from
making a free and rational choice, or impair his
capacity for rational judgment would in our opinion
be sufficient. So is moral coercion "tending to force
testimony from the unwilling lips of the defendant."
4. ID.; ID.; ID.; ACCUSED DISTINGUISHED FROM
ORDINARY WITNESS. An accused occupies a
different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to
take the witness stand and claim the privilege as
each question requiring an incriminating answer is
shot at him, an accused may altogether refuse to
take the witness stand and refuse to answer any
and all questions. For, in reality, the purpose of
calling an accused as a witness for the People
would be to incriminate him. The rule positively
intends to avoid and prohibit the certainly inhuman
procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." This
rule may apply even to a co-defendant in a joint
trial.
5. ID.; ID.; ID.; PRECEPT. The guide in the
interpretation of the constitutional precept that the
accused shall not be compelled to furnish
evidence against himself "is not the probability of
the evidence but the capability of abuse."
6. ID.; ID.; ID.; WAIVER OF THE PRIVILEGE AGAINST
SELF-INCRIMINATION; MEANING; REQUIREMENTS OF
WAIVER. "To be effective, a waiver must be
certain and unequivocal, and intelligently,
understandably, and willingly made; such waiver
follows only where liberty of choice has been fully
accorded. After a claim a witness cannot properly
be held to have waived his privilege on vague and
uncertain evidence. A waiver is ordinarily an
11 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
intentional relinquishment or abandonment of a
known right or privilege.
7. ID.; ID.; ID.; VIOLATION OF CONSTITUTIONAL RIGHT
TO BE REPRESENTED BY COUNSEL IS JURISDICTIONAL
BAR. A court's jurisdiction at the beginning of trial
may be lost in the course of the proceedings due to
failure to complete the court as the Sixth
Amendment requires by providing Counsel for an
accused who is unable to obtain Counsel, who has
not intelligently waived this constitutional
guarantee, and whose life or liberty is at stake. If this
requirement of the Sixth Amendment is not
complied with, the court no longer has jurisdiction
to proceed. The judgment of conviction
pronounced by a court without jurisdiction is void,
and one imprisoned thereunder may obtain release
by habeas corpus.
8. ID.; ID.; ID.; HABEAS CORPUS AS REMEDY WHERE
THERE IS BREACH. Habeas Corpus is a high
prerogative writ. It is traditionally considered as an
exceptional remedy to release a person whose
liberty is illegally restrained such as when the
accused's constitutional rights are disregarded.
Such defect results in the absence or loss of
jurisdiction and therefore invalidates the trial and
consequent conviction of the accused whose
fundamental right was violated. That void judgment
of conviction may be challenged by collateral
attack, which precisely is the function of habeas
corpus. This writ may issue even if another remedy
which is less effective may be availed of by the
defendant. Thus, failure by the accused to perfect
his appeal before the Court of Appeals does not
preclude a recourse to the writ. The writ may be
granted upon a judgment already final. The writ of
habeas corpus as an extraordinary remedy must be
liberally given effect so as to protect well a person
whose liberty is at stake.
CASTRO, J., Separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST SELF-INCRIMINATION. In 1901, early in
the history of constitutional government in this
country, this Court reversed the conviction of an
accused who, having pleaded "not guilty," was
required by the judge to testify and answer the
complaint. The case was that of United States vs.
Junio and even in the case of Cabal vs. Kapunan it
was assumed as a familiar learning that the
accused in a criminal case cannot be required to
give testimony and that if his testimony is needed at
all against his co-accused, he must first be
discharged. If Cabal, the respondent in an
administrative case, was required by an
investigating committee to testify, it was because it
was thought that proceedings for forfeiture of
illegally acquired property under REPUBLIC ACT
1379 were civil and not criminal in nature.
2. ID.; ID.; ID.; TAKING THE WITNESS STAND IS WITHIN
THE PRIVILEGE. It is not disputed that the accused
in a criminal case may refuse not only to answer
incriminatory questions but also to take the witness
stand.
3. ID.; ID.; ID.; AIM OF THE PRIVILEGE AGAINST SELF-
INCRIMINATION. The constitutional provision that
"No person shall be compelled to be a witness
against himself" may, on occasion, save a guilty
man from his just desserts, but it is aimed against a
more far-reaching evil - the recurrence of the
inquisition and the Star Chamber, even if not in their
stark brutality. Prevention of the greater evil was
deemed of more importance than occurrence of
the lesser evil. The Government must thus establish
guilt by evidence independently and freely
secured; it cannot by coercion prove a charge
against an accused out of his own mouth.
4. ID.; ID.; ID.; MOTIVES IRRELEVANT IN THE
PRESERVATION OF LIBERTIES. The motives of men
are often commendable. What we must
remember, however, is that preservation of liberties
does not depend on motives. A suppression of
liberty has the same effect whether the suppressor
be a reformer or an outlaw. The only protection
against misguided zeal is constant alertness to
infractions of the guarantees of liberty contained in
our constitution. The battle over the Bill of Rights is a
never ending one.
5. ID.; HABEAS CORPUS; ITS OFFICE. The fact that
the judgment of conviction became final with the
dismissal of the appeal to the Court of Appeals for
failure of the petitioner's former counsel to file a
brief is of no moment. That judgment is void, and it
is precisely the abiding concern of the writ of
habeas corpus to provide redress for
unconstitutional and wrongful convictions.
Vindication of due process is precisely the historic
office of the Great Writ.
DECISION
SANCHEZ, J p:
The thrust of petitioner's case presented in his
original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on
habeas corpus, to be freed from imprisonment
upon the ground that in the trial which resulted in
his conviction 1 he was denied his constitutional
right not to be compelled to testify against himself.
There is his prayer, too, that, should he fail in this, he
be granted the alternative remedies of certiorari to
strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief,
and of mandamus to direct the said court to
forward his appeal to this Court for the reason that
he was raising purely questions of law.
The indictment in the court below the third
amended information upon which the judgment
of conviction herein challenged was rendered, was
for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate
12 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
No. H-16648 Pasay City '62 together with its
accessories worth P22,200.00. Accused were the
following: Petitioner herein, Roger Chavez, Ricardo
Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias "Ging" Pascual, Pedro Rebullo alias
"Pita", Luis Asistio alias "Baby" Asistio, Lorenzo
Meneses alias "Lory" Meneses, Peter Doe, Charlie
Doe and Paul Doe. 2
Averred in the aforesaid information was that on or
about the 14th day of November, 1962, in Quezon
City, the accused conspired, with intent of gain,
abuse of confidence and without the consent of
the owner thereof, Dy Sun Hiok y Lim, in asporting
the motor vehicle above-described.
Upon arraignment, all the accused, except the
three Does who have not been identified nor
apprehended, pleaded not guilty.
On July 23, 1963, trial commenced before the
judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which
for the great bearing it has on this case, is here
reproduced:
"COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the
accused]:
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the
accused Roger Chavez, with this move of the fiscal
in presenting him as his witness. I object.
COURT:
On what ground, counsel?
ATTY. CARBON:
On the ground that I have to confer with my client.
It is really surprising that at this stage, without my
being notified by the Fiscal, my client is being
presented as witness for the prosecution. I want to
say in passing that it is only at this very moment that
I come to know about this strategy of the
prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against
the accused Roger Chavez by making [him a] state
witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my
client, I object.
COURT:
The Court will give counsel for Roger Chavez fifteen
minutes within which to confer and explain to his
client about the giving of his testimony.
xxx xxx xxx
COURT: [after the recess]
Are the parties ready?
FISCAL:
We are ready to call on our first witness, Roger
Chavez.
ATTY. CARBON:
As per understanding, the proceedings was
suspended in order to enable me to confer with my
client.
I conferred with my client and he assured me that
he will not testify for the prosecution this morning
after I have explained to him the consequences of
what will transpire.
COURT:
What he will testify to does not necessarily
incriminate him, counsel.
And there is the right of the prosecution to ask
anybody to act as witness on the witness-stand
including the accused.
If there should be any question that is incriminating
then that is the time for counsel to interpose his
objection and the court will sustain him if and when
the court feels that the answer of this witness to the
question would incriminate him.
Counsel has all the assurance that the court will not
require the witness to answer questions which would
incriminate him.
But surely, counsel could not object to have the
accused called on the witness stand.
ATTY. CARBON:
I submit.
xxx xxx xxx
13 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
ATTY. CRUZ [Counsel for defendants Pascual and
Meneses]:
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being
called to testify for the prosecution is something so
sudden that has come to the knowledge of this
counsel.
This representation has been apprised of the
witnesses embraced in the information.
For which reason I pray this court that I be given at
least some days to meet whatever testimony this
witness will bring about.
I therefore move for postponement of today's
hearing.
COURT:
The court will give counsel time within which to
prepare his cross-examination of this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for
the prosecution in this criminal case are those only
listed in the information.
I did not know until this morning that one of the
accused will testify as witness for the prosecution.
COURT:
That's the reason why the court will go along with
counsels for the accused and will give them time
within which to prepare for their cross-examination
of this witness.
The court will not defer the taking of the direct
examination of the witness.
Call the witness to the witness-stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell
merchant, presently detained at the Manila Police
Department headquarters, after being duly sworn
according to law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in
this case No. Q-5311.
The information alleges conspiracy. Under Rule 123,
Section 12, it states:
'The act or declaration of a conspirator relating to
the conspiracy and during its existence, may be
given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than
such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor
counsels for the accused know what the
prosecution wants to establish by calling this witness
to the witness-stand.
ATTY. IBASCO:
I submit.
COURT:
The Fiscal may proceed." 3
And so did the trial proceed. It began with the
"direct examination" of Roger Chavez by "Fiscal
Grecia".
Came the judgment of February 1, 1965. The version
of the prosecution as found by the court below
may be briefly narrated as follows:
A few days before November 12, 1962, Roger
Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang (movie
actor Romeo Vasquez) in mind, whom he knew was
in the market for such a car, Chavez asked Lee
whether his car was for sale. Lee answered
affirmatively and left his address with Chavez. Then,
on November 12, Chavez met Sumilang at a
barbershop, informed him about the Thunderbird.
But Sumilang said that he had changed his mind
about buying a new car. Instead, he told Chavez
that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City.
Upon the suggestion of Chavez, they went to see
Luis Asistio, who he knew was lending money on car
mortgages and who, on one occasion, already lent
Romeo Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a better
idea on how to raise the money. His plan was to
capitalize on Romeo Vasquez' reputation as a
wealthy movie star, introduce him as a buyer to
someone who was selling a car and, after the deed
of sale is signed, by trickery to run away with the
car. Asistio would then register it, sell it to a third
person for a profit. Chavez, known to be a car
agent, was included in the plan. He furnished the
name of Johnson Lee who was selling his
Thunderbird.
In the morning of November 14, Chavez
telephoned Johnson Lee and arranged for an
appointment. Sometime in the afternoon, Chavez
and Sumilang met Lee in his Thunderbird on
Highway 54. Sumilang was introduced as the
interested buyer. Sumilang's driver inspected the
car, took the wheel for a while. After Sumilang and
Lee agreed on the purchase price (P21,000.00),
they went to Binondo to Johnson Lee's cousin, Dy
Sun Hiok, in whose name the car was registered.
Thereafter, they went to see a lawyer-notary public
14 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
in Quezon City, known to Chavez, for the drafting of
the deed of sale. After the deed of sale was drawn
up, it was signed by Sumilang as the vendee, Dy
Sun Hiok the vendor, and Sumilang's driver and
Johnson Lee the witnesses thereto.
As payment was to be made at Eugene's
restaurant in Quezon City, all of them then drove in
the Thunderbird car to that place. The deed of sale
and other papers remained in the pockets of
Johnson Lee.
At Eugene's, a man approached Sumilang with a
note which stated that the money was ready at the
Dalisay Theater. Sumilang then wrote on the same
note that the money should be brought to the
restaurant. At the same time he requested Lee to
exhibit the deed of sale of the car to the note
bearer. 4
Then, the two Chinese were left alone in the
restaurant. For Sumilang, who had left the table to
pose for pictures with some fans and came back,
again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying
cigarettes. The two Chinese could not locate
Sumilang and Chavez. They went out to the place
where the Thunderbird was parked, found that it
was gone. They then immediately reported its loss
to the police. Much later, the NBI recovered the
already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez,
Sumilang and Asistio converged that same day at
Barrio Fiesta, a restaurant at Highway 54 near the
Balintawak monument in Caloocan. There, Asistio
handed to Sumilang P1,000.00 cash and a golf set
worth P800.00 as the latter's share in the transaction.
On the 14th of November, the registration of the car
was transferred in the name of Sumilang in Cavite
City, and three days later, in the name of Asistio in
Caloocan.
From the court's decision, Ricardo Sumilang's
version, corroborated in part by Asistio, may be
condensed as follows:
In the last week of September, 1962, Sumilang saw
Roger Chavez at a gas station. The latter informed
him that there was a Thunderbird from Clark Field
for sale for a price between P20,000.00 and
P22,000.00. Chavez said that it could be held for
him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October
1, went to the house of a certain Nena Hernaez de
los Reyes who wrote out a check for P5,000.00 as a
loan to Sumilang. That check was exhibited in court.
Sumilang and Chavez then went to Pasay City to
see a certain Mario Baltazar, an agent of the Pasay
City Mayor, and Narsing Cailles, Chief of the Fire
Department. Sumilang asked the two for a
P10,000.00-loan backed up by the P5,000.00-check
aforesaid on condition that it should not be cashed
immediately as there were not enough funds
therefor. Baltazar and Cailles agreed to give the
money the next day, as long as the check would
be left with them and Sumilang would sign a
promissory note for P10,000.00. Baltazar later
informed Sumilang that Chavez picked up the
money the next day. Four or five days afterwards,
Chavez returned P4,000.00 to Sumilang because
P6,000.00 was enough for the deposit. And so,
Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of
November, Chavez asked Sumilang for another
P3,000.00. Sumilang sent Chavez to Baltazar and
Cailles, with a note requesting that they
accommodate him once more. He also sent a
check, again without funds. Baltazar gave the
money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's
house with the news that the car was ready if
Sumilang was ready with the rest of the money. So
Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He
immediately gave P6,000.00 to Chavez, intending
to pay out the balance upon the car's delivery. It
was then that Chavez told Sumilang that the car
was already bought by a Chinese who would be
the vendor.
The purchase price finally agreed upon between
Sumilang and Johnson Lee was P21,000.00, plus
P500.00 agent's commission the expense of the
buyer. Sumilang told Lee that he already paid part
of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the
balance, Sumilang accommodated. There,
Sumilang also saw a friend, "Ging" Pascual. In the
course of their conversation at the bar, Sumilang
mentioned the proposed transaction thru Chavez.
Pascual warned that Chavez was a "smart" agent
and advised that Sumilang should have a receipt
for his money. A certain Bimbo, a friend of Pascual,
offered to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some
photographs with some of his fans, Bimbo showed
him the receipt already signed by Chavez.
Sumilang requested Pascual and Bimbo to sign the
receipt as witnesses. And they did. This receipt was
offered as an exhibit by the prosecution and by
Sumilang.
When Sumilang was ready to leave Eugene's,
Johnson Lee turned over to him the deed of sale,
the registration papers and the keys to the car.
After shaking hands with Lee, Sumilang drove away
in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by
the Barrio Fiesta on his way to a film shooting at
Bulacan. He saw Asistio with many companions.
Asistio liked his Thunderbird parked outside. Asistio
offered to buy it from him for P22,500.00. As the offer
was good, and knowing Asistio's and his friends'
15 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
reputation for always getting what they wanted,
Sumilang consented to the sale. Asistio tendered a
down payment of P1,000.00; the balance he
promised to pay the next day after negotiating with
some financing company. Before said balance
could be paid, the car was impounded.
The trial court gave credence to Sumilang's
averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the
car. Sumilang was thus cleared. So was Asistio
whom the trial court believed to be a mere buyer
of the car. And so, the prosecution's theory of
conspiracy was discounted.
As to the other accused, the court found no case
against Pedro Rebullo alias "Pita" and Lorenzo
Meneses alias "Lory". The accused "Ging" Pascual
was also acquitted for in the first place he was not
identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to
say: "Roger Chavez does not offer any defense. As
a matter of fact, his testimony as witness for the
prosecution establishes his guilt beyond reasonable
doubt." 5 The trial court branded him "a self-
confessed culprit". 6 The court further continued:
"It is not improbable that true to the saying that
misery loves company Roger Chavez tried to drag
his co-accused down with him by coloring his story
with fabrications which he expected would easily
stick together what with the newspaper notoriety of
one and the sensationalism caused by the other.
But Roger Chavez's accusations of Asistio's
participation is utterly uncorroborated. And
coming, as it does, from a man who has had at
least two convictions for acts not very different from
those charged in this information, the Court would
be too gullible if it were to give full credence to his
words even if they concerned a man no less
notorious than himself." 7
The trial court then came to the conclusion that if
Johnson Lee was not paid for his car, he had no
one but Roger Chavez to blame.
The sum of all these is that the trial court freed all
the accused except Roger Chavez who was found
guilty beyond reasonable doubt of the crime of
qualified theft. He was accordingly sentenced to
suffer an indeterminate penalty of not less than ten
(10) years, one (1) day, as minimum and not more
than fourteen (14) years, eight (8) months and one
(1) day as maximum, to indemnify Dy Sun Hiok
and/or Johnson Lee in the sum of P21,000.00
without subsidiary imprisonment in case of
insolvency, to undergo the accessory penalties
prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was
ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of
P1,000.00 unless the latter chose to pay P21,500.00,
representing the balance of the contract price for
the car.
The foregoing sentence was promulgated on
March 8, 1965. Roger Chavez appealed to the
Court of Appeals.
On April 18, 1968, the Court of Appeals required
Atty. Natividad Marquez, counsel for Roger Chavez,
to show cause within ten days from notice why
Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that
said lawyer received notice to file brief on
December 28, 1967 and the period for the filing
thereof lapsed on January 27, 1968 without any
brief having been filed.
On May 13, 1968, Atty. Marquez registered a
detailed written explanation. She also stated that if
she were allowed to file appellant's brief she would
go along with the factual findings of the court
below but will show however that its conclusion is
erroneous. 8
On May 14, 1968, the Court of Appeals, despite the
forgoing explanation, resolved to dismiss the
appeal. A move to reconsider was unavailing. For,
on June 21, 1968, the Court of Appeals, through a
per curiam resolution, disposed to maintain its May
14 resolution dismissing the appeal, directed the
City Warden of Manila where Chavez is confined
by virtue of the warrant of arrest issued by the Court
of Appeals, to the turn him over to Muntinglupa
Bilibid Prisons pending execution of the judgment
below, and ordered remand of the case to the
Quezon City court for execution of judgment.
It was at this stage that the present proceedings
were commenced in this Court.
Upon the petitions, the return, and the reply, and
after hearing on oral arguments, we now come to
grips with the main problem presented.
We concentrate attention on that phase of the
issues which relates to petitioner's assertion that he
was compelled to testify against himself. For indeed
if this one question is resolved in the affirmative, we
need not reach the others; in which case, these
should not be pursued here.
1. Petitioner's plea on this score rests upon his
averment, with proof, of violation of his right
constitutionally entrenched against self-
incrimination. He asks that the hand of this Court be
made to bear down upon his conviction; that he
be relieved of the effects thereof. He asks us to
consider the constitutional injunction that: "No
person shall be compelled to be a witness against
himself," 9 fully echoed in Section 1, Rule 115, Rules
of Court where, in all criminal prosecutions, the
defendant shall be entitled: "(e) To be exempt from
being a witness against himself."
It has been said that forcing a man to be a witness
against himself is at war with "the fundamentals of a
republican government"; 10 that "[i]t may suit the
purposes of despotic power but it can not abide
the pure atmosphere of political liberty and
16 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
personal freedom." 11 Mr. Justice Abad Santos
recounts the historical background of this
constitutional inhibition, thus: " 'The maxim Nemo
tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which
has long obtained in the continental system, and,
until the expulsion of the Stuarts from the British
throne in 1688, and the erection of additional
barriers for the protection of the people against the
exercise of arbitrary power, was not uncommon
even in England. While the admissions of
confessions of the prisoner, when voluntarily and
freely made, have always ranked high in the scale
of incriminating evidence, if an accused person be
asked to explain his apparent connection with a
crime under investigation, the ease with which the
questions put to him may assume an inquisitorial
character, the temptation to press the witness
unduly, to browbeat him if he be timid or reluctant,
to push him into a corner, and to entrap him into
fatal contradictions, which is so painfully evident in
many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise
to a demand for its total abolition. The change in
the English criminal procedure in that particular
seems to be founded upon no statute and no
judicial opinion, but upon a general and silent
acquiescence of the courts in a popular demand.
But, however, adopted, it has become firmly
embedded in English, as well as in American
jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds
of the American colonists that the states, with one
accord, made a denial of the right to question an
accused person a part of their fundamental law, so
that a maxim which in England was a mere rule of
evidence became clothed in this country with the
impregnability of a constitutional enactment.'
(Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed.,
819, 821.)." 12 Mr. Justice Malcolm, in expressive
language, tells us that this maxim was recognized in
England in the early days "in a revolt against the
thumbscrew and the rack." 13 An old Philippine
case [1904] 14 speaks of this constitutional
injunction as "older than the Government of the
United States"; as having "its origin in a protest
against the inquisitorial methods of interrogating the
accused person"; and as having been adopted in
the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations,
and to give testimony regarding the offenses with
which they were charged."
So it is then that this right is "not merely a formal
technical rule the enforcement of which is left to
the discretion of the court"; it is mandatory; it
secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice.
Just a few months ago, the Supreme Court of the
United States (January 29, 1968), speaking thru Mr.
Justice Harlan warned that "[t]he constitutional
privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted."
16
It is in this context that we say that the constitutional
guarantee may not be treated with unconcern. To
repeat, it is mandatory; it secures to every
defendant a valuable and substantive right.
Taada and Fernando (Constitution of the
Philippines, 4th ed., vol. I, pp. 583-584) takes note of
U.S. vs. Navarro, supra, which reaffirms the rule that
the constitutional proscription was established on
broad grounds of public policy and humanity; of
policy because it would place the witness against
the strongest temptation to commit perjury, and of
humanity because it would be to extort a
confession of truth by a kind of duress every species
and degree of which the law abhors. 17
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much as
resort to compulsory disclosure, directly or indirectly,
of facts usable against him as a confession of the
crime or the tendency of which is to prove the
commission of a crime. Because, it is his right to
forego testimony, to remain silent, unless he
chooses to take the witness stand with undiluted,
unfettered exercise of his own free, genuine will.
Compulsion as it is understood here does not
necessarily connote the use of violence; it may be
the product of unintentional statements. Pressure
which operates to overbear his will, disable him
from making a free and rational choice, or impair
his capacity for rational judgment would in our
opinion be sufficient. So is moral coercion "tending
to force testimony from the unwilling lips of the
defendant." 18
2. With the foregoing as guideposts, we now turn to
the facts. Petitioner is a defendant in a criminal
case. He was called by the prosecution as the first
witness in that case to testify for the People during
the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he
broadened by the clear-cut statement that he will
not testify. But petitioner's protestations were met
with the judge's emphatic statement that it "is the
right of the prosecution to ask anybody to act as
witness on the witness-stand including the
accused," and that defense counsel "could not
object to have the accused called on the witness
stand." The cumulative impact of all these is that
accused petitioner had to take the stand. He was
thus peremptorily asked to create evidence against
himself. The foregoing situation molds a solid case
for petitioner, backed by the Constitution, the law,
and jurisprudence.
Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the
witness stand and claim the privilege as each
question requiring an incriminating answer is shot at
him, 19 an accused may altogether refuse to take
17 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
the witness stand and refuse to answer any and all
questions. 20 For, in reality, the purpose of calling an
accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to
avoid and prohibit the certainly inhuman
procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." 22
This rule may apply even to a co-defendant in a
joint trial. 23
And the guide in the interpretation of the
constitutional precept that the accused shall not
be compelled to furnish evidence against himself "is
not the probability of the evidence but it is the
capability of abuse." 24 Thus it is, that it was
undoubtedly erroneous for the trial judge to
placate petitioner with these words:
"What he will testify to does not necessarily
incriminate him, counsel.
And there is the right of the prosecution to ask
anybody to act as witness on the witness-stand
including the accused.
If there should be any question that is incriminating
then that is the time for counsel to interpose his
objection and the court will sustain him if and when
the court feels that the answer of this witness to the
question would incriminate him.
Counsel has all the assurance that the court will not
require the witness to answer questions which would
incriminate him.
But surely, counsel could not object to have the
accused called on the witness-stand."
Paraphrasing Chief Justice Marshall in Aaron Burr's
Trial, Robertsons Rep. I, 208, 244, quoted in VIII
Wigmore, p. 355, 25 while a defendant's knowledge
of the facts "remains concealed within his bosom,
he is safe; but draw it from thence, and he is
exposed" to conviction.
The judge's words heretofore quoted "But surely,
counsel could not object to have the accused
called on the witness-stand" wielded authority. By
those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist;
they foreclosed choice: the realities of human
nature tell us that as he took his oath to tell the
truth, the whole truth and nothing but the truth, no
genuine consent underlay submission to take the
witness stand. Constitutionally sound consent was
absent.
3. Prejudice to the accused for having been
compelled over his objections to be a witness for
the People is at once apparent. The record
discloses that by leading questions Chavez, the
accused, was made to affirm his statement given
to the NBI agents on July 17, 1963 at 5:00 o'clock in
the afternoon. 26 And this statement detailed the
plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his
Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He identified
the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly
of the view that the case for the People was built
primarily around the admissions of Chavez himself.
The trial court described Chavez as the "star witness
for the prosecution." Indeed, the damaging facts
forged in the decision were drawn directly from the
lips of Chavez as a prosecution witness and of
course Ricardo Sumilang for the defense. There are
the unequivocal statements in the decision that
"even accused Chavez" identified "the very same
Thunderbird that Johnson Lee had offered for sale";
that Chavez' "testimony as witness for the
prosecution establishes his guilt beyond reasonable
doubt"; and that Chavez is "a self-confessed culprit."
4. With all these, we have no hesitancy in saying
that petitioner was forced to testify to incriminate
himself, in full breach of his constitutional right to
remain silent. It cannot be said now that he has
waived his right. He did not volunteer to take the
stand and in his own defense; he did not offer
himself as a witness; on the contrary, he claimed
the right upon being called to testify. If petitioner
nevertheless answered the questions in spite of his
fear of being accused of perjury or being put under
contempt, this circumstance cannot be counted
against him. His testimony is not of his own choice.
To him it was a case of compelled submission. He
was a cowed participant in proceedings before a
judge who possessed the power to put him under
contempt had he chosen to remain silent. Nor
could he escape testifying. The court made it
abundantly clear that his testimony at least on
direct examination would be taken right then and
there on the first day of the trial.
It matters not that, after all efforts to stave off
petitioner's taking the stand became fruitless, no
objections to questions propounded to him were
made. Here involved is not a mere question of self-
incrimination. It is a defendant's constitutional
immunity from being called to testify against
himself. And the objection made at the beginning is
a continuing one.
There is therefore no waiver of the privilege. "To be
effective, a waiver must be certain and
unequivocal, and intelligently, understandably, and
willingly made; such waiver follows only where
liberty of choice has been fully accorded. After a
claim a witness cannot properly be held to have
waived his privilege on vague and uncertain
evidence." 28 The teaching in Johnson vs. Zerbst 29
is this: "It has been pointed out that 'courts indulge
every reasonable presumption against waiver' of
fundamental constitutional rights and that we 'do
not presume acquiescence in the loss of
fundamental rights.' A waiver is ordinarily an
intentional relinquishment or abandonment of a
known right or privilege." Renuntiatio non
praesumitur.
18 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
The foregoing guidelines, juxtaposed with the
circumstances of the case heretofore adverted to,
make waiver a shaky defense. It cannot stand. If,
by his own admission, defendant proved his guilt,
still, his original claim remains valid. For the privilege,
we say again, is a rampant that gives protection
even to the guilty. 30
5. The course which petitioner takes is correct.
Habeas corpus is a high prerogative writ. 31 It is
traditionally considered as an exceptional remedy
to release a person whose liberty is illegally
restrained such as when the accused's
constitutional rights are disregarded. 32 Such
defect results in the absence or loss of jurisdiction 33
and therefore invalidates the trial and the
consequent conviction of the accused whose
fundamental right was violated. 34 35 This writ may
issue even if another remedy which is less effective
may be availed of by the defendant. 36 Thus,
failure by the accused to perfect his appeal before
the Court of Appeals does not preclude a recourse
to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in
Johnson vs. Zerbst, 39 the writ of habeas corpus as
an extraordinary remedy must be liberally given
effect 40 so as to protect well a person whose
liberty is at stake. The propriety of the writ was given
the nod in that case, involving a violation of
another constitutional right, in this wise:
"Since the Sixth Amendment constitutionally entitles
one charged with crime to the assistance of
Counsel, compliance with this constitutional
mandate is an essential jurisdictional prerequisite to
a Federal Court's authority to deprive an accused
of his life or liberty. When this right is properly
waived, the assistance of Counsel is no longer a
necessary element of the Court's jurisdiction to
proceed to conviction and sentence. If the
accused, however, is not represented by Counsel
and has not competently and intelligently waived
his constitutional right, the Sixth Amendment stands
as a jurisdictional bar to a valid conviction and
sentence depriving him of his life or liberty. A court's
jurisdiction at the beginning of trial may be lost 'in
the course of the proceedings' due to failure to
complete the court as the Sixth Amendment
requires by providing Counsel for an accused
who is unable to obtain Counsel, who has not
intelligently waived this constitutional guaranty, and
whose life or liberty is at stake. If this requirement of
the Sixth Amendment is not complied with, the
court no longer has jurisdiction to proceed. The
judgment of conviction pronounced by a court
without jurisdiction is void, and one imprisoned
thereunder may obtain release by habeas corpus."
41
Under our own Rules of Court, to grant the remedy
to the accused Roger Chavez whose case presents
a clear picture of disregard of a constitutional right
is absolutely proper. Section 1 of Rule 102 extends
the writ, unless otherwise expressly provided by law,
"to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld
from the person entitled thereto."
Just as we are about to write finis to our task, we are
prompted to restate that: "A void judgment is in
legal effect no judgment. By it no rights are
divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it
are equally worthless. It neither binds nor bars any
one. All acts performed under it and all claims
flowing out of it are void. The parties attempting to
enforce it may be responsible as trespassers . . ." 42
6. Respondent's return 43 shows that petitioner is still
serving under a final and valid judgment of
conviction for another offense. We should guard
against the improvident issuance of an order
discharging a petitioner from confinement. The
position we take here is that petitioner herein is
entitled to liberty thru habeas corpus only with
respect to Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, under which
he was prosecuted and convicted.
Upon the view we take of this case, judgment is
hereby rendered directing the respondent Warden
of the City Jail of Manila or the Director of Prisons or
any other officer or person in custody of petitioner
Roger Chavez by reason of the judgment of the
Court of First Instance of Rizal, Quezon City Branch,
in Criminal Case Q-5311, entitled "People of the
Philippines, plaintiff, vs. Ricardo Sumilang, et al.,
accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or
detained for any cause or reason other than the
said judgment in said Criminal Case Q-5311 of the
Court of First Instance of Rizal, Quezon City Branch,
in which event the discharge herein directed shall
be effected when such other cause or reason
ceases to exist.
No costs. So ordered.
Concepcion, C. J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Angeles and Fernando, JJ., concur.
(People v. Gallarde, G.R. No. 133025, February 17,
2000)
FIRST DIVISION
[G.R. No. 133025. February 17, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
RADEL GALLARDE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sansano-Suyat Law Office for accused-appellant.
SYNOPSIS
An information for the special complex crime of
rape with homicide was filed charging accused-
19 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
appellant of having sexual intercourse with one
Editha Talan, a minor, 10 years of age, against her
will and consent, and thereafter, with intent to kill,
cover the nose and mouth of the said minor
resulting to her death and then bury her in the field.
Upon arraignment, accused-appellant pleaded not
guilty. He interposed the defense of denial and alibi
that he was at home with his mother and brothers
at the time the crime occurred. Trial ensued.
Thereafter, the trial court rendered a decision
finding accused-appellant guilty of the crime of
murder and sentenced him to reclusion perpetua
and to pay the heirs of the victim actual damages.
It convicted accused-appellant of the crime of
murder only, not of the complex crime of rape with
homicide because of the lack of proof of carnal
knowledge. Hence, this appeal.
The Supreme Court held that the trial court erred in
convicting accused-appellant of murder in an
information charging him of rape with homicide. A
reading of the accusatory portion of the
information showed that there was no allegation of
any qualifying circumstance. In rape with homicide,
in order to be convicted of murder in case the
evidence fails to support the charge of rape, the
qualifying circumstance must be sufficiently alleged
and proved. In the absence in the information of an
allegation of any qualifying circumstance,
accused-appellant cannot be convicted of
murder. Nevertheless, the Court held that the
circumstantial evidence in the case at bar, when
analyzed and taken together, led to no other
conclusion than that accused-appellant and no
other else, killed the victim and that he was guilty
therefor. The Court found accused-appellant guilty
of homicide. As to the crime of rape, the Court
found no convincing proof that the laceration of
the vagina and the rupture of the hymen of the
victim were caused in the course of coitus or by a
male organ.
Accused-appellant's alibi and bare denial
deserved no consideration. Even assuming that
accused-appellant's claim was true, his stay in his
house did not preclude his physical presence at the
locus criminis or its immediate vicinity. The place
where the body of the victim was found buried was
a few meters from his house, and can be reached
in a short while. aHTcDA
The assailed decision of the trial court was modified
by the Supreme Court.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHT OF
ACCUSED TO BE INFORMED OF NATURE AND CAUSE
OF THE ACCUSATION AGAINST HIM; CONVICTION
OF ACCUSED OF AN OFFENSE HIGHER THAN THAT
CHARGED IS AN UNAUTHORIZED DENIAL OF SAID
RIGHT. In the absence then in the information of
an allegation of any qualifying circumstance,
GALLARDE cannot be convicted of murder. An
accused cannot be convicted of an offense higher
than that with which he is charged in the complaint
or information under which he is tried. It matters not
how conclusive and convincing the evidence of
guilt may be, but an accused cannot be convicted
of any offense, unless it is charged in the complaint
or information for which he is tried, or is necessarily
included in that which is charged. He has a right to
be informed of the nature of the offense with which
he is charged before he is put on trial. To convict an
accused of a higher offense than that charged in
the complaint or information under which he is tried
would be an unauthorized denial of that right.
2. ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION; NOT
VIOLATED IF PICTURES OF ACCUSED WERE TAKEN
EVEN WITHOUT ASSISTANCE OF COUNSEL; PURELY
MECHANICAL ACTS ARE NOT INCLUDED IN THE
PROHIBITION. We cannot agree with the trial
court's rejection of the photographs (Exhibits "I", "J"
and "K") taken of GALLARDE immediately after the
incident on the ground that "the same were taken
while [GALLARDE] was already under the mercy of
the police." The taking of pictures of an accused
even without the assistance of counsel, being a
purely mechanical act, is not a violation of his
constitutional right against self-incrimination. The
constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the
accused and not the inclusion of his body in
evidence when it may be material. Purely
mechanical acts are not included in the prohibition
as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel
is not required. The essence of the right against self-
incrimination is testimonial compulsion, that is, the
giving of evidence against himself through a
testimonial act. Hence, it has been held that a
woman charged with adultery may be compelled
to submit to physical examination to determine her
pregnancy; and an accused may be compelled to
submit to physical examination and to have a
substance taken from his body for medical
determination as to whether he was suffering from
gonorrhea which was contracted by his victim; to
expel morphine from his mouth; to have the outline
of his foot traced to determine its identity with
bloody footprints; and to be photographed or
measured, or his garments or shoes removed or
replaced, or to move his body to enable the
foregoing things to be done.
3. ID.; ID.; ARREST; ANY OBJECTION, DEFECT OR
IRREGULARITY THEREIN MUST BE INTERPOSED PRIOR
TO ARRAIGNMENT AND TRIAL OTHERWISE IT IS
DEEMED WAIVED. With respect to GALLARDE's
claim that he was arrested without warrant, suffice
it to say that any objection, defect, or irregularity
attending an arrest must be made before the
accused enters his plea. The records show no
objection was ever interposed prior to arraignment
and trial. GALLARDE's assertion that he was denied
due process by virtue of his alleged illegal arrest is
negated by his voluntary submission to the
jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered
during arraignment and by his active participation
20 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
in the trial thereafter. It is settled that any objection
involving a warrant of arrest or procedure in the
acquisition by the court of jurisdiction over the
person of an accused must be made before he
enters his plea, otherwise the objection is deemed
waived. It is much too late in the day to complain
about the warrantless arrest after a valid
information had been filed and the accused
arraigned and trial commenced and completed
and a judgment of conviction rendered against
him. Verily, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after trial free
from error; such arrest does not negate the validity
of the conviction of the accused.
4. ID.; ID.; PROSECUTION OF OFFENSES; PLACE, TIME
AND DATE OF COMMISSION OF CRIME NOT
ESSENTIAL ELEMENTS OF THE CRIME OF RAPE WITH
HOMICIDE. There is also no merit in GALLARDE's
argument that the failure of the prosecution to
prove beyond reasonable doubt the place and
time of the commission of the crime is fatal and will
justify his acquittal. The place, time and date of the
commission of the offense are not essential
elements of the crime of rape with homicide. The
gravamen of the offense is the carnal knowledge of
a woman and that on the occasion of or as a
reason thereof, the crime of homicide was
committed. Conviction may be had on proof of the
commission of the crime provided it appears that
the specific crime charged was in fact committed
prior to the date of the filing of the complaint or
information, within the period of the statute of
limitation, and within the jurisdiction of the court.
5. ID.; ID.; ID.; ALLEGATION OF PLACE AND
COMMISSION OF CRIME IN THE INFORMATION,
WHEN SUFFICIENT. The allegation of the place of
commission of the crime in the complaint or
information is sufficient if it can be understood
therefrom that the offense was committed or some
of the essential ingredients thereof occurred at
some place within the jurisdiction of the court. The
rule merely requires that the information shows that
the crime was committed within the territorial
jurisdiction of the court. The Court may even take
judicial notice that said place is within its jurisdiction.
6. ID.; ID.; ID.; PRECISE DATE OR TIME OF
COMMISSION OF CRIME NEED NOT BE PROVED;
PROXIMATE TIME OF COMMISSION OF OFFENSE
ESTABLISHED IN CASE AT BAR. As to the time of
the commission of the crime, the phrase "on or
about" employed in the information does not
require the prosecution "to prove any precise date
or time," but may prove any date or time which is
not so remote as to surprise and prejudice the
defendant." Contrary to the claim of GALLARDE,
the prosecution was able to establish the proximate
time of the commission of the crime, which was
sometime between 9:00 p.m., when GALLARDE left
the house of Talan followed by EDITHA, and 10:30
p.m., when the body of EDITHA was found. This was
further corroborated by the examining physician
who testified, on the basis of the degree of rigor
mortis, that EDITHA died more or less, at 10:00 p.m.
of 6 May 1997.
7. ID.; EVIDENCE; ABSENCE OF DIRECT EVIDENCE
DOES NOT NECESSARILY ABSOLVE ACCUSED FROM
CRIMINAL LIABILITY; WHEN CIRCUMSTANTIAL
EVIDENCE CONSIDERED SUFFICIENT TO ESTABLISH
GUILT OF ACCUSED; CASE AT BAR. We agree with
the trial court that the evidence for the prosecution,
although circumstantial, was sufficient to establish
beyond reasonable doubt the guilt of GALLARDE
for the death of EDITHA. Direct evidence of the
commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion
and finding of guilt. The prosecution is not always
tasked to present direct evidence to sustain a
judgment of conviction; the absence of direct
evidence does not necessarily absolve an accused
from any criminal liability. Even in the absence of
direct evidence, conviction can be had on the
basis of circumstantial evidence, provided that the
established circumstances constitute an unbroken
chain which leads one to one fair and reasonable
conclusion which points to the accused, to the
exclusion of all others, as the guilty person, i.e., the
circumstances proved must be consistent with
each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent
with any other hypothesis except that of guilty.
8. ID.; ID.; REQUISITES TO SUSTAIN CONVICTION OF
ACCUSED BASED ON CIRCUMSTANTIAL EVIDENCE.
The rules on evidence and precedents sustain
the conviction of an accused through
circumstantial evidence, as long as the following
requisites are present: (1) there must be more than
one circumstance; (2) the inference must be based
on proven facts; and (3) the combination of all
circumstances produces a conviction beyond
doubt of the guilt of the accused. The importance
of circumstantial evidence is more apparent in the
prosecution of cases of rape with homicide. The
nature of the crime of rape, where it is usually only
the victim and the rapist who are present at the
scene of the crime, makes prosecutions for the
complex crime of rape with homicide particularly
difficult since the victim can no longer testify
against the perpetrator of the crime. In these cases
pieces of the evidence against the accused are
usually circumstantial. The circumstantial evidence
in the case at bar, when analyzed and taken
together, leads to no other conclusion than that
GALLARDE, and no other else, killed EDITHA and
that he is guilty therefor.
9. ID.; ID.; POSITIVE IDENTIFICATION PERTAINS TO
PROOF OF IDENTITY AND NOT PER SE TO BEING AN
EYEWITNESS TO COMMISSION OF CRIME; TYPES.
We cannot sustain the contention of GALLARDE
that he was not positively identified as the assailant
since there was no eyewitness to the actual
commission of the crime. It does not follow that
although nobody saw GALLARDE in the act of killing
EDITHA, nobody can be said to have positively
21 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
identified him. Positive identification pertains
essentially to proof of identity and not per se to that
of being an eyewitness to the very act of
commission of the crime. There are two types of
positive identification. A witness may identity a
suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the
very act of the commission of the crime. This
constitutes direct evidence. There may, however,
be instances where, although a witness may not
have actually seen the very act of commission of a
crime, he may still be able to positively identify a
suspect or accused as the perpetrator of a crime as
for instance when the latter is the person or one of
the persons last seen with the victim immediately
before and right after the commission of the crime.
This is the second type of positive identification,
which forms part of circumstantial evidence, which,
when taken together with other pieces of evidence
constituting an unbroken chain, leads to only fair
and reasonable conclusion, which is that the
accused is the author of the crime to the exclusion
of all others. If the actual eyewitnesses are the only
ones allowed to possibly positively identify a suspect
or accused to the exclusion of others, then nobody
can ever be convicted unless there is an
eyewitness, because it is basic and elementary that
there can be no conviction until and unless an
accused is positively identified. Such a proposition is
absolutely absurd, because it is settled that direct
evidence of the commission of a crime is not the
only matrix wherefrom a trial court may draw its
conclusion and finding of guilt. If resort to
circumstantial evidence would not be allowed to
prove identity of the accused on the absence of
direct evidence, then felons would go free and the
community would be denied proper protection.
10. ID.; ID.; DEFENSE OF ALIBI; TO PROSPER,
REQUIREMENTS OF TIME AND PLACE MUST BE
STRICTLY MET. GALLARDE's alibi and bare denial
deserve no consideration. He did not present
witnesses who could confirm his presence in his
house. No member of his family corroborated him
on this matter. The defenses of denial and alibi, if
unsubstantiated by clear and convincing
evidence, are negative and self-serving, deserve
no weight in law, and cannot be given evidentiary
value over the testimony of credible witnesses who
testify on affirmative matters. Moreover, even
assuming that GALLARDE's claim is true, his stay in
his house did not preclude his physical presence at
the locus criminis or its immediate vicinity. The place
where the body of EDITHA was found buried was a
few meters from his house, the place pointed to in
the alibi and can be reached in a short while. For
the defense of alibi to prosper, the requirements of
time and place must be strictly met. It is not enough
to prove that the accused was somewhere else
when the crime was committed, he must
demonstrate that it was physically impossible for
him to have been at the scene of the crime at the
time of its commission.
11. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONIES
OF WITNESSES WHO HAVE NO MOTIVE TO FALSIFY
THEIR TESTIMONIES SHOULD BE GIVEN CREDENCE.
No evil motive has been established against the
witnesses for the prosecution that might prompt
them to incriminate the accused or falsely testify
against him. It is settled that when there is no
showing that the principal witnesses for the
prosecution were actuated by improper motive,
the presumption is that the witnesses were not so
actuated and their testimonies are thus entitled to
full faith and credit. Testimonies of witnesses who
have no motive or reason to falsify or perjure their
testimonies should be given credence.
12. CRIMINAL LAW; RAPE WITH HOMICIDE; IN ORDER
TO BE CONVICTED OF MURDER IN CASE EVIDENCE
FAILS TO SUPPORT CHARGE OF RAPE, THE
QUALIFYING CIRCUMSTANCE MUST BE SUFFICIENTLY
ALLEGED AND PROVED. We sustain GALLARDE's
contention that the trial court erred in convicting
him of murder in an information charging him of
rape with homicide. A reading of the accusatory
portion of the information shows that there was no
allegation of any qualifying circumstance. Although
it is true that the term "homicide" as used in special
complex crime of rape with homicide is to be
understood in its generic sense, and includes
murder and slight physical injuries committed by
reason or on the occasion of rape, it is settled in this
jurisdiction that where a complex crime is charged
and the evidence fails to support the charge as to
one of the component offense, the accused can
be convicted of the other. In rape with homicide, in
order to be convicted of murder in case the
evidence fails to support the charge of rape, the
qualifying circumstance must be sufficiently alleged
and proved. Otherwise, it would be a denial of the
right of the accused to be informed of the nature of
the offense with which he is charged. It is
fundamental that every element of the offense
must be alleged in the complaint or information.
The main purpose of requiring the various elements
of a crime to be set out in an information is to
enable the accused to suitably prepare his
defense. He is presumed to have no independent
knowledge of the facts that constitute the offense.
13. ID.; ID.; COMMISSION OF RAPE NOT PROVED;
CASE AT BAR. As to the crime of rape, there is
much to be desired with respect to the
prosecution's evidence therefor, but not for the
reason adduced by the trial court, namely, the
absence of spermatozoa in EDITHA's private part
and thereabout. It is well settled that the absence
of spermatozoa in or around the vagina does not
negate the commission of rape. Our doubt on the
commission of rape is based on the fact that there
is at all no convincing proof that the laceration of
the vagina and the rupture of the hymen of EDITHA
were caused in the course of coitus or by a male
organ. Our meticulous reading of the testimony of
Dr. Tebangin disclosed that he was never asked if
the laceration and the rupture could have been
caused by the penis of a human being. Needless to
state, these could have been caused by any
object other than the penis of a person.
22 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
14. ID.; HOMICIDE; PENALTY; INDETERMINATE
SENTENCE LAW; APPLICATION THEREOF.
Homicide, which we find to be the only crime
committed by GALLARDE, is defined in Article 249 of
the Revised Penal Code and is punished with
reclusion temporal. In the absence of any
modifying circumstance, it shall be imposed in its
medium period. GALLARDE is entitled to the
benefits of the Indeterminate Sentence Law.
Accordingly, he can be sentenced to suffer an
indeterminate penalty ranging from ten (10) years
of the medium period of prision mayor as minimum
to seventeen (17) years and four (4) months of the
medium period of reclusion temporal as maximum.
15. CIVIL LAW; DAMAGES; ACTUAL DAMAGES AND
CIVIL INDEMNITY AWARDED IN CASE AT BAR. As to
the civil aspect of the case, the parties agreed on
P70,000 as liquidated damages. This should be
construed as actual damages. However, as
indemnity for death, the additional sum of P50,000,
per current case law, should be awarded.
DECISION
DAVIDE, JR., C.J p:
This is an appeal from the judgment of the Regional
Trial Court of Tayug, Pangasinan, Branch 51, finding
accused-appellant Radel Gallarde 1 (hereafter
GALLARDE) guilty beyond reasonable doubt of the
crime of murder in Criminal Case No. T-1978, and
sentencing him to suffer the penalty of reclusion
perpetua and to pay the heirs of Editha Talan
(hereafter EDITHA) the amount of P70,000 as actual
damages. 2
On 24 June 1997, GALLARDE was charged with the
special complex crime of rape with homicide in an
information whose accusatory portion reads as
follows: cdtai
That on or about the 6th day of May 1997, in the
evening, amidst the field located at Brgy.
Trenchera, [M]unicipality of Tayug, [P]rovince of
Pangasinan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named
accused, and by means of force, violence and
intimidation, did then and there wilfully, unlawfully
and feloniously have sexual intercourse with one
EDITHA TALAN, a minor, 10 years of age, against her
will and consent, and thereafter, with intent to kill,
cover the nose and mouth of the said minor
resulting to her death and then bury her in the field,
to the damage and prejudice of the heirs of said
EDITHA TALAN. 3
During the arraignment on 1 September 1997,
GALLARDE, with the assistance of counsel, entered
a plea of not guilty. 4 Trial of the case immediately
ensued as the defense waived the holding of the
pre-trial conference. cdasia
The witnesses presented by the prosecution were
Mario Fernandez, Jaime Cabinta, Rosy Clemente,
Felicisimo Mendoza, Alfredo Cortez, Renato
Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto
Tebangin. The relevant and material facts
established by their testimonies are faithfully
summarized in the Appellee's Brief as follows:
In the evening of May 26 1997, at the house of
spouses Eduardo and Elena Talan in Brgy.
Trenchera, Tayug, Pangasinan, their neighbors
converged. Among them were appellant Radel
Gallarde, Francisco, Renato, Edwin, all surnamed
Fernandez, Romel Hernandez, Jaime Cabinta, Rosy
Clemente, Jon Talen, Noel Arellaga and Ramil
Bargon. Idling by was Editha, 10 year old daughter
of spouses Talan. A fluorescent lamp illuminated
them as they partook beer (TSN dated October 13,
1997, pp. 3-4).
After a while, Roger stood up and invited Jaime
and appellant to dine in the kitchen. As they
partook of the meal, appellant suddenly left. Jaime,
too, stepped out of the kitchen to urinate. Outside
the house, he chanced upon appellant and Editha
talking to each other. Jaime whistled at appellant
but instead of minding him, the latter sprinted
towards the road leading to his house (Id., pp. 4-6).
dctai
Thereafter, Editha entered the kitchen and took
hold of a kerosene lamp. Jaime followed her and
asked where she was going. Editha answered that
she would look for appellant. Soon Editha left
enroute to where appellant fled (Id., pp. 7-8).
By 10:00 o'clock that evening, the drinking buddies
had dispersed but Jaime, Francisco, Edwin and
Rose regrouped at Renato's place where they
talked and relaxed. Moments later, Roger arrived
and informed them that Editha was missing. Roger
asked the group to help look for her (Id., p. 10).
Elena Talan informed his uncle, Barangay Ex-
kagawad Mario Fernandez, about her daughter's
disappearance. The latter, together with his son
Edwin, wife Virginia and nephew Freddie Cortez
wasted no time in joining their neighbors search the
houses, dikes and fields to look for the missing child.
The searchers used a lighted rubber tire (TSN dated
Sept. 24, 1997, pp. 8-10 and 24).
When Jaime mentioned that appellant was the last
person he saw talking to Editha, the searchers went
back to the house of appellant. About 7 meters
away from appellant's house, one of the searchers,
Alfredo Cortez, found Editha's left foot slipper (TSN
dated October 22, 1997, pp. 4-6). Suddenly, Edwin
Fernandez announced: "Tata, Radel is here!"
pointing to the toilet about 6 meters away from
appellant's house. The searchers found appellant
squatting with his short pants. His hands and knees
were covered with soil. When confronted by ex-
kagawad Hernandez why he was there, appellant
answered he was relieving himself (Id., pp. 11-16).
cda
23 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Asked where Editha was, appellant replied: "I do
not know, I did not do anything to her." When told
"according to Jimmy, you were with Editha."
appellant responded "I let her go and brought her
back to the dike and let her go home." To the next
question, "where did you come from since a while
ago you were not yet in this toilet?" appellant
answered "I was with Kiko, I was asleep in their
house. One of the searchers Mario Bado, got angry
and countered that appellant's statement was
impossible because Kiko was with him drinking (Id.,
pp. 16-20).
After the confrontation at the toilet, Ex-kagawad
Fernandez brought appellant to Brgy. Captain
Felicisimo Mendoza, informing the latter that
appellant was the last person seen talking with the
missing child. Fernandez then rejoined the searchers
(Id., pp. 21-22). Cdpr
Back in the field, Virginia Fernandez tripped on a
wet ground. As she reached for her slipper, she saw
Editha's right foot slipper (the other one was earlier
found near the house of appellant) (Id., pp. 23-24).
Around 3 meters farther from Editha's right foot
slipper; another slipper was found. It was old, 8 to 9
inches in length and appellant was seen wearing it
in the morning of that day (TSN dated Sept. 25,
1997, p. 25).
The searchers, thereafter, noticed disheveled
grasses. Along the way, they saw a wide hole
among the disheveled grass. Ex-kagawad
Fernandez accidentally dropped the lighted rubber
tire and as his nephew Freddie picked it up, the
latter exclaimed: "Uncle, look at this loose soil!" Ex-
kagawad Fernandez forthwith scratched some
earth aside and then Editha's hand pitted out. The
Fernandez screamed in terror (Id., pp. 5-6).
Meantime, Barangay Captain Mendoza heard
shouts saying: "She is here, she is now here already
dead!" Mindful of appellant's safety, Brgy. Captain
Mendoza decided to bring appellant to the
municipal building. On their way though, they met
policemen on board a vehicle. He flagged them
down and turned over the person of appellant,
saying: "Here is the suspect in the disappearance of
the little girl. Since you are already here, I am giving
him to you" (TSN dated Oct. 21, 1997, pp. 4-5).
cdrep
The policemen together with appellant proceeded
to where the people found Editha. One of the
policemen shoved more soil aside. The lifeless
Editha was completely naked when she was
recovered. (Id., pp. 9-10).
The cause of Editha's death as revealed in the post-
mortem examination showed "suffocation of the
lungs as a result from powerful covering of the nose
and mouth, associated with laceration of the
vagina and raptured hymen (Exh. "T", TSN dated
Oct. 23, 1997, pp. 22-23)." 5

On the other hand, GALLARDE was the lone witness
for the defense. He interposed a denial and the
alibi that he was at home with his mother and
brothers at the time the crime occurred. He
declared that he is 18 years old, single, a former
construction worker. He knew EDITHA, a neighbor
whom he considered as a sister because she used
to come to his house. They never had a quarrel or
misunderstanding. He neither raped nor killed
Editha. 6
On cross-examination by the prosecutor and to
questions propounded by the court, GALLARDE
admitted that he saw Editha on the night of 6 May
1997 in her parent's house, particularly in the
kitchen. He was there because he joined a group
drinking Colt 45 beer, as he was called by Rudio
Fernandez. He drank and had dinner in the kitchen.
After dinner he returned to the drinking place and
eventually went home because he was then a little
drunk. He knows Kgd. Mario Fernandez, but after he
left the Talan residence he did not see Kgd.
Fernandez anymore. Kgd. Fernandez saw him inside
his (Gallarde's) toilet on the night of May 6;
thereafter Fernandez took him to the barangay
captain and later he was turned over to the PNP at
Camp Narciso Ramos. The police informed him that
he was a suspect in the rape and killing of Editha
Talan, and he told them that he did not commit the
crime. At the Talan residence he was wearing short
pants and rubber slippers. Fernandez asked him at
the police headquarters to pull down his shorts and
he complied. He was then wearing briefs with a
hemline that was a little loose. He was informed
that a cadaver was recovered near his house.
When he was asked questions while in police
custody, he was not represented by any lawyer.
prcd
GALLARDE further declared on cross-examination
and on questions by the court that he considered
Editha Talan as a sister and her parents also treated
him in a friendly manner. When he came to know
that Editha's parents suspected him of the crime, he
was still on friendly terms with them. However, he
did not go to them to tell them he was innocent
because they brandished a bolo in anger.
Finally, he testified that in the evening of May 6 he
came to know that Editha died. She was still alive
when he was drinking at the back of the Talan
house and left for home. From the time he arrived,
he never left again that night, and his mother and
brothers knew it for a fact. 7
On 12 February 1998, the trial court rendered a
decision convicting GALLARDE of the crime of
murder only, not of the complex crime of rape with
homicide because of the lack of proof of carnal
knowledge. It observed:
Exh. "T" and Dr. Tebangin's testimony thereon show
that the late Editha Talan sustained slit wounds
inflicted as a means of suffocating her to death, a
laceration of the lower portion of her vagina, and a
24 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
ruptured hymen. What allegedly oozed from her
vagina was blood, coupled with dirt. Had there
been observed the presence of even just a drop of
seminal fluid in or around her vagina, the Court
would readily conclude that the laceration and
rupture resulted from phallic intrusion. Without such
observation, however, "carnal knowledge" as
element of rape would be an open question.
The trial court did not appreciate the alternative
circumstance of intoxication either as a mitigating
or aggravating circumstance pursuant to Article 15
of the Revised Penal Code because GALLARDE's
alleged inebriation on the night of 6 May 1997, was
not satisfactorily proven.
As to the civil aspect of the case, the trial court
considered the stipulation of the parties on 27
October 1997 fixing a liquidated amount of P70,000
as actual damages, and leaving the matter of
moral damages to the discretion of the court. The
trial court was not inclined to award moral
damages because the "evidence before it tends to
disclose that on the night of 6 May 1997, before she
died, Editha was a much-neglected child."
Accordingly, in its decision 8 of 12 February 1998,
the trial court decreed:
WHEREFORE, his guilt having been established
beyond a reasonable doubt, the Court hereby
convicts the accused RADEL GALLARDE Y
HERMOSA of the crime of MURDER, and sentences
him to suffer the penalty of reclusion perpetua and
to indemnify the heirs of the late Editha Talan in the
negotiated sum of P70,000.00. 9
His motion for reconsideration, 10 having been
denied by the trial court in its Resolution 11 of 28
February 1998, GALLARDE seasonably appealed to
us. cdphil
We accepted the appeal on 9 September 1998.
In his Appellant's Brief filed on 16 March 1999,
GALLARDE alleges that the trial court committed
the following errors:
1. In convicting [him] of the crime of murder in an
information for rape with homicide.
2. In concluding that the prosecution has proven
beyond reasonable doubt that [he] was responsible
for the death of Editha Talan.
3. In not acquitting [him] on the ground of notches
of proof beyond reasonable doubt. 12
We sustain GALLARDE's contention that the trial
court erred in convicting him of murder in an
information charging him of rape with homicide. A
reading of the accusatory portion of the
information shows that there was no allegation of
any qualifying circumstance. Although it is true that
the term "homicide" as used in special complex
crime of rape with homicide is to be understood in
its generic sense, and includes murder and slight
physical injuries committed by reason or on the
occasion of rape, 13 it is settled in this jurisdiction
that where a complex crime is charged and the
evidence fails to support the charge as to one of
the component offense, the accused can be
convicted of the other. 14 In rape with homicide, in
order to be convicted of murder in case the
evidence fails to support the charge of rape, the
qualifying circumstance must be sufficiently alleged
and proved. Otherwise, it would be a denial of the
right of the accused to be informed of the nature of
the offense with which he is charged. 15 It is
fundamental that every element of the offense
must be alleged in the complaint or information.
The main purpose of requiring the various elements
of a crime to be set out in an information is to
enable the accused to suitably prepare his
defense. He is presumed to have no independent
knowledge of the facts that constitute the offense.
16
In the absence then in the information of an
allegation of any qualifying circumstance,
GALLARDE cannot be convicted of murder. An
accused cannot be convicted of an offense higher
than that with which he is charged in the complaint
or information under which he is tried. It matters not
how conclusive and convincing the evidence of
guilt may be, but an accused cannot be convicted
of any offense, unless it is charged in the complaint
or information for which he is tried, or is necessarily
included in that which is charged. He has a right to
be informed of the nature of the offense with which
he is charged before he is put on trial. To convict an
accused of a higher offense than that charged in
the complaint or information under which he is tried
would be an unauthorized denial of that right. 17
Nevertheless, we agree with the trial court that the
evidence for the prosecution, although
circumstantial, was sufficient to establish beyond
reasonable doubt the guilt of GALLARDE for the
death of EDITHA. cdasia
Direct evidence of the commission of a crime is not
the only matrix wherefrom a trial court may draw its
conclusion and finding of guilt. 18 The prosecution is
not always tasked to present direct evidence to
sustain a judgment of conviction; the absence of
direct evidence does not necessarily absolve an
accused from any criminal liability. 19 Even in the
absence of direct evidence, conviction can be
had on the basis of circumstantial evidence,
provided that the established circumstances
constitute an unbroken chain which leads one to
one fair and reasonable conclusion which points to
the accused, to the exclusion of all others, as the
guilty person, i.e., the circumstances proved must
be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the
same time inconsistent with any other hypothesis
except that of guilty. 20
25 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
The rules on evidence and precedents sustain the
conviction of an accused through circumstantial
evidence, as long as the following requisites are
present: (1) there must be more than one
circumstance; (2) the inference must be based on
proven facts; and (3) the combination of all
circumstances produces a conviction beyond
doubt of the guilt of the accused. 21
The importance of circumstantial evidence is more
apparent in the prosecution of cases of rape with
homicide. The nature of the crime of rape, where it
is usually only the victim and the rapist who are
present at the scene of the crime, makes
prosecutions for the complex crime of rape with
homicide particularly difficult since the victim can
no longer testify against the perpetrator of the
crime. In these cases pieces of the evidence
against the accused are usually circumstantial. 22
The circumstantial evidence in the case at bar,
when analyzed and taken together, leads to no
other conclusion than that GALLARDE, and no other
else, killed EDITHA and that he is guilty therefor. We
quote with approval the lower court's enumeration
of the circumstantial evidence in this case: cdrep
1. Gallarde, 18, and Editha, 10, were neighbors and
friends, even as she used to frequent his place.
2. Both were at the Talan residence on the night of
May 6, 1997 while neighbors indulged themselves in
beer.
3. Among said neighbors Cabinta saw them hand
in hand by the toilet situated five (5) meters east of
the Talan kitchen.
4. After Cabinta whistled he saw Gallarde run home
towards north after letting go of Editha's hands.
Neighbor Clemente also noticed that Gallarde
disappeared, and that Editha returned to the
kitchen.
5. Cabinta followed Editha back to the kitchen,
and saw her holding a kerosene lamp. She told him
that she was going to look for "Dalpac," and off she
went in the same direction Gallarde took.
6. Gallarde wore short pants and rubber slippers at
the drinking place. Subsequently he was seen
wearing shorts in his own toilet.
7. At past 10:00 in the evening during an intensive
search for the then missing Editha, her lifeless body
was found in a shallow grave situated some
distance behind Gallarde's residence.
8. Before Editha's body was discovered, a searcher
found a girl's slipper (Exh. "B"), 5-6 inches long,
among thickets seven meters away from Gallarde's
house.
9. Another searcher saw a second slipper (Exh. "B-
1"), of the same color and size as the first one. Both
slippers were Editha's, the searchers recalled.

10. A third rubber slipper (Exh. "C') was thereafter
found in the field near Exh. "B-1." It was an old
slipper, 8-9 inches long and with a hole at the rear
end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went
to look for him there, after Cabinta told them that
Editha was last seen with Gallarde.
13. When Gallarde was discovered squatting in the
dark toilet behind his house and beside the thickets,
his shorts were up and on. His hands and knees
were soiled.
14. At the toilet he was asked the innocent question
of where Editha was and he answered revealingly,
thus: "I did not do anything to her" and "I let her go
and brought her back to the dike and let her go
home."
15. When asked where he had been, as the toilet
was first seen empty, Gallarde said he was with Kiko
and he slept at the latter's house, which answer
Mario Bado promptly refuted saying, "Vulva of your
mother . . . Kiko was with me drinking." Bado and
Kiko were not at the place of the Talans that night.
16. Yanked out of the dark toilet near his own
house, Gallarde joined Kgd. Mario Fernandez sans
protest.
17. Dr. Tebangin found on Editha's cheeks two slit
wounds, each being an inch away from her nostrils.
Both wounds were fresh and reddish.
From the lower portion of Editha's vagina blood
oozed, accompanied by dirt.
Her hymen was ruptured and was still bleeding.
The medico-legal concluded that there must have
been a forceful covering of Editha's nose and
mouth because of the presence of the slit wounds
on both sides of her face, and that in 30 seconds
unconsciousness and weakening resulted, with the
vaginal injuries contributing to her death. 23
As to the crime of rape, there is much to be desired
with respect to the prosecution's evidence therefor,
but not for the reason adduced by the trial court,
namely, the absence of spermatozoa in EDITHA's
private part and thereabout. It is well settled that
the absence of spermatozoa in or around the
vagina does not negate the commission of rape. 24
Our doubt on the commission of rape is based on
the fact that there is at all no convincing proof that
the laceration of the vagina and the rupture of the
hymen of EDITHA were caused in the course of
coitus or by a male organ. Our meticulous reading
of the testimony of Dr. Tebangin disclosed that he
was never asked if the laceration and the rupture
could have been caused by the penis of a human
being. Needless to state, these could have been
26 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
caused by any object other than the penis of a
person. LLphil
We cannot sustain the contention of GALLARDE
that he was not positively identified as the assailant
since there was no eyewitness to the actual
commission of the crime. It does not follow that
although nobody saw GALLARDE in the act of killing
EDITHA, nobody can be said to have positively
identified him. Positive identification pertains
essentially to proof of identity and not per se to that
of being an eyewitness to the very act of
commission of the crime. There are two types of
positive identification. A witness may identity a
suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the
very act of the commission of the crime. This
constitutes direct evidence. There may, however,
be instances where, although a witness may not
have actually seen the very act of commission of a
crime, he may still be able to positively identify a
suspect or accused as the perpetrator of a crime as
for instance when the latter is the person or one of
the persons last seen with the victim immediately
before and right after the commission of the crime.
This is the second type of positive identification,
which forms part of circumstantial evidence, which,
when taken together with other pieces of evidence
constituting an unbroken chain, leads to only fair
and reasonable conclusion, which is that the
accused is the author of the crime to the exclusion
of all others. If the actual eyewitnesses are the only
ones allowed to possibly positively identify a suspect
or accused to the exclusion of others, then nobody
can ever be convicted unless there is an
eyewitness, because it is basic and elementary that
there can be no conviction until and unless an
accused is positively identified. Such a proposition is
absolutely absurd, because it is settled that direct
evidence of the commission of a crime is not the
only matrix wherefrom a trial court may draw its
conclusion and finding of guilt. 25 If resort to
circumstantial evidence would not be allowed to
prove identity of the accused on the absence of
direct evidence, then felons would go free and the
community would be denied proper protection.
cdasia
As discussed above, the circumstantial evidence as
established by the prosecution in this case and
enumerated by the trial court positively established
the identity of GALLARDE, and no one else, as the
person who killed EDITHA.
We cannot agree with the trial court's rejection of
the photographs (Exhibits "I", "J" and "K") taken of
GALLARDE immediately after the incident on the
ground that "the same were taken while
[GALLARDE] was already under the mercy of the
police." The taking of pictures of an accused even
without the assistance of counsel, being a purely
mechanical act, is not a violation of his
constitutional right against self-incrimination.
The constitutional right of an accused against self-
incrimination 26 proscribes the use of physical or
moral compulsion to extort communications from
the accused and not the inclusion of his body in
evidence when it may be material. Purely
mechanical acts are not included in the prohibition
as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel
is not required. 27 The essence of the right against
self-incrimination is testimonial compulsion, that is,
the giving of evidence against himself through a
testimonial act. 28 Hence, it has been held that a
woman charged with adultery may be compelled
to submit to physical examination to determine her
pregnancy; 29 and an accused may be compelled
to submit to physical examination and to have a
substance taken from his body for medical
determination as to whether he was suffering from
gonorrhea which was contracted by his victim; 30
to expel morphine from his mouth; 31 to have the
outline of his foot traced to determine its identity
with bloody footprints; 32 and to be photographed
or measured, or his garments or shoes removed or
replaced, or to move his body to enable the
foregoing things to be done. 33
There is also no merit in GALLARDE's argument that
the failure of the prosecution to prove beyond
reasonable doubt the place and time of the
commission of the crime is fatal and will justify his
acquittal.
The place, time and date of the commission of the
offense are not essential elements of the crime of
rape with homicide. The gravamen of the offense is
the carnal knowledge of a woman and that on the
occasion of or as a reason thereof, the crime of
homicide was committed. Conviction may be had
on proof of the commission of the crime provided it
appears that the specific crime charged was in
fact committed prior to the date of the filing of the
complaint or information, within the period of the
statute of limitation, and within the jurisdiction of the
court. 34
The allegation of the place of commission of the
crime in the complaint or information is sufficient if it
can be understood therefrom that the offense was
committed or some of the essential ingredients
thereof occurred at some place within the
jurisdiction of the court. 35 The rule merely requires
that the information shows that the crime was
committed within the territorial jurisdiction of the
court. The Court may even take judicial notice that
said place is within its jurisdiction. 36
As to the time of the commission of the crime, the
phrase "on or about" employed in the information
does not require the prosecution "to prove any
precise date or time," but may prove any date or
time which is not so remote as to surprise and
prejudice the defendant." 37
Contrary to the claim of GALLARDE, the prosecution
was able to establish the proximate time of the
commission of the crime, which was sometime
27 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
between 9:00 p.m., when GALLARDE left the house
of Talan followed by EDITHA, and 10:30 p.m., when
the body of EDITHA was found. This was further
corroborated by the examining physician who
testified, on the basis of the degree of rigor mortis,
that EDITHA died more or less, at 10:00 p.m. of 6
May 1997. 38
Likewise, GALLARDE's alibi and bare denial deserve
no consideration. He did not present witnesses who
could confirm his presence in his house. No member
of his family corroborated him on this matter. The
defenses of denial and alibi, if unsubstantiated by
clear and convincing evidence, are negative and
self-serving, deserve no weight in law, and cannot
be given evidentiary value over the testimony of
credible witnesses who testify on affirmative
matters. 39
Moreover, even assuming that GALLARDE's claim is
true, his stay in his house did not preclude his
physical presence at the locus criminis or its
immediate vicinity. The place where the body of
EDITHA was found buried was a few meters from his
house, the place pointed to in the alibi and can be
reached in a short while. For the defense of alibi to
prosper, the requirements of time and place must
be strictly met. It is not enough to prove that the
accused was somewhere else when the crime was
committed, he must demonstrate that it was
physically impossible for him to have been at the
scene of the crime at the time of its commission. 40
Besides, no evil motive has been established
against the witnesses for the prosecution that might
prompt them to incriminate the accused or falsely
testify against him. It is settled that when there is no
showing that the principal witnesses for the
prosecution were actuated by improper motive,
the presumption is that the witnesses were not so
actuated and their testimonies are thus entitled to
full faith and credit. 41 Testimonies of witnesses who
have no motive or reason to falsify or perjure their
testimonies should be given credence. 42
With respect to GALLARDE's claim that he was
arrested without warrant, suffice it to say that any
objection, defect, or irregularity attending an arrest
must be made before the accused enters his plea.
43 The records show no objection was ever
interposed prior to arraignment and trial. 44
GALLARDE's assertion that he was denied due
process by virtue of his alleged illegal arrest is
negated by his voluntary submission to the
jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered
during arraignment and by his active participation
in the trial thereafter. 45 It is settled that any
objection involving a warrant of arrest or procedure
in the acquisition by the court of jurisdiction over
the person of an accused must be made before he
enters his plea, otherwise the objection is deemed
waived. 46 It is much too late in the day to
complain about the warrantless arrest after a valid
information had been filed and the accused
arraigned and trial commenced and completed
and a judgment of conviction rendered against
him. 47 Verily, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after trial free
from error; such arrest does not negate the validity
of the conviction of the accused. 48
Homicide, which we find to be the only crime
committed by GALLARDE, is defined in Article 249 of
the Revised Penal Code and is punished with
reclusion temporal. In the absence of any
modifying circumstance, it shall be imposed in its
medium period. GALLARDE is entitled to the
benefits of the Indeterminate Sentence Law.
Accordingly, he can be sentenced to suffer an
indeterminate penalty ranging from ten (10) years
of the medium period of prision mayor as minimum
to seventeen (17) years and four (4) months of the
medium period of reclusion temporal as maximum.
LexLib
As to the civil aspect of the case, the parties
agreed on P70,000 as liquidated damages. This
should be construed as actual damages. However,
as indemnity for death, the additional sum of
P50,000, per current case law, should be awarded.
WHEREFORE the assailed decision of the Regional
Trial Court, Branch 51, Tayug, Pangasinan, in
Criminal Case No. T-1978 finding accused-appellant
RADEL GALLARDE guilty of the crime of murder is
hereby modified. As modified, RADEL GALLARDE is
hereby found guilty beyond reasonable doubt, as
principal, of the crime of Homicide, defined under
Article 249 of the Revised Penal Code, and is
hereby sentenced to suffer an indeterminate
penalty ranging from ten (10) years of the medium
period of prision mayor as minimum to seventeen
(17) years and four (4) months of the medium
period of reclusion temporal as maximum, and to
pay the heirs of the victim, Editha Talan, the sum of
P70,000 as liquidated actual damages and P50,000
as indemnity for the death of Editha Talan. LLphil
Costs against accused-appellant RADEL GALLARDE
in both instances.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ.,
concur.
(Pascual, Jr. v. Board of Medical Examiners, G.R.
No. L-25018, May 26, 1969)
EN BANC
[G.R. No. L-25018. May 26, 1969.]
ARSENIO PASCUAL, JR., petitioner-appellee, vs.
BOARD OF MEDICAL EXAMINERS, respondent-
appellant, SALVADOR GATBONTON and ENRIQUETA
GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Antonio A. Torres and Solicitor Pedro A.
Ramirez for respondent-appellant.
28 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Bausa, Ampil & Suarez for intervenors-appellants.
SYLLABUS
1.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED;
RIGHT AGAINST SELF- INCRIMINATION; APPLICABILITY
THEREOF IN ADMINISTRATIVE PROCEEDINGS.
Where petitioner was the respondent in the
malpractice charge filed against him with the
Board of Medical Examiners, the said Board cannot
compel him to take the witness stand as a witness
for the complainants. The principle against self-
incrimination is equally applicable to a proceeding
that could possibly result in the loss of the privilege
to practice the medical profession.
2.ID.; ID.; ID.; RIGHT INCLUDES RIGHT TO SILENCE.
The constitutional guarantee against self-
incrimination is not limited to that of allowing a
witness to object to questions the answers to which
could lead to a penal liability being subsequently
incurred. The constitutional guarantee protects as
well the right to silence.
3.ID.; ID.; ID.; ID.; REASON. Why the constitutional
guarantee against self-incrimination protects as well
the right to silence should be thus is not difficult to
discern. The constitutional guarantee, along with
other rights granted an accused, stands for a belief
that while crime should not go unpunished and that
the truth must be revealed, such desirable
objectives should not be accomplished according
to means or methods offensive to the high sense of
respect accorded the human personality. More
and more in line with the democratic creed, the
deference accorded an individual even those
suspected of the most heinous crimes is given due
weight.
4.ID.; ID.; ID.; SAID RIGHT IS IDENTIFIED WITH RIGHT TO
PRIVACY. It is of interest to note that while earlier
decisions stressed the principle of humanity on
which the right against self-incrimination is
predicated, precluding as it does all resort to force
or compulsion, whether physical or mental, current
judicial opinion places equal emphasis on its
identification with the right to privacy.
DECISION
FERNANDO, J p:
The broad, all-embracing sweep of the self-
incrimination clause, 1 whenever appropriately
invoked, has been accorded due recognition by
this Court ever since the adoption of the
Constitution. 2 Bermudez v. Castillo, 3 decided in
1937, was quite categorical. As we there stated:
"This Court is of the opinion that in order that the
constitutional provision under consideration may
prove to be a real protection and not a dead
letter, it must be given a liberal and broad
interpretation favorable to the person invoking it."
As phrased by Justice Laurel in his concurring
opinion: "The provision, as doubtless it was
designed, would be construed with the utmost
liberality in favor of the right of the individual
intended to be served." 4
Even more relevant, considering the precise point
at issue, is the recent case of Cabal v. Kapunan, 5
where it was held that a respondent in an
administrative proceeding under the Anti-Graft Law
6 cannot be required to take the witness stand at
the instance of the complainant. So it must be in
this case, where petitioner was sustained by the
lower court in his plea that he could not be
compelled to be the first witness of the
complainants, he being the party proceeded
against in an administrative charge for malpractice.
That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on
February 1, 1965 with the Court of First Instance of
Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was
alleged therein that at the initial hearing of an
administrative case 7 for alleged immorality,
counsel for complainants announced that he
would present as his first witness herein petitioner-
appellee, who was the respondent in such
malpractice charge. Thereupon, petitioner-
appellee, through counsel, made of record his
objection, relying on the constitutional right to be
exempt from being a witness against himself.
Respondent-appellant, the Board of Examiners,
took note of such a plea, at the same time stating
that at the next scheduled hearing, on February 12,
1965, petitioner-appellee would be called upon to
testify as such witness, unless in the meantime he
could secure a restraining order from a competent
authority.
Petitioner-appellee then alleged that in thus ruling
to compel him to take the witness stand, the Board
of Examiners was guilty, at the very least, of grave
abuse of discretion for failure to respect the
constitutional right against self-incrimination, the
administrative proceeding against him, which
could result in forfeiture or loss of a privilege, being
quasi-criminal in character. With his assertion that
he was entitled to the relief demanded consisting
of perpetually restraining the respondent Board
from compelling him to testify as witness for his
adversary and his readiness or his willingness to put
a bond, he prayed for a writ of preliminary
injunction and after a hearing or trial, for a writ of
prohibition.
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,
29 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
the right against self-incrimination being available
only when a question calling for an incriminating
answer is asked of a witness. It further elaborated
the matter in the affirmative defenses interposed,
stating that petitioner-appellee's remedy is to
object once he is in the witness stand, for
respondent "a plain, speedy and adequate remedy
in the ordinary course of law," precluding the
issuance of the relief sought. Respondent Board,
therefore, denied that it acted with grave abuse of
discretion.
There was a motion for intervention by Salvador
Gatbonton and Enriqueta Gatbonton, the
complainants in the administrative case for
malpractice against petitioner-appellee, asking
that they be allowed to file an answer as
intervenors. Such a motion was granted and an
answer in intervention was duly filed by them on
March 23, 1965 sustaining the power of respondent
Board, which for them is limited to compelling the
witness to take the stand, to be distinguished, in
their opinion, from the power to compel a witness
to incriminate himself. They likewise alleged that the
right against self- incrimination cannot be availed
of in an administrative hearing.
A decision was rendered by the lower court on
August 2, 1965, finding the claim of petitioner-
appellee to be well-founded and prohibiting
respondent Board "from compelling the petitioner
to act and testify as a witness for the complainant
in said investigation without his consent and against
himself." Hence this appeal both by respondent
Board and intervenors, the Gatbontons. As noted at
the outset, we find for the petitioner-appellee.
1.We affirm the lower court decision on appeal as it
does manifest fealty to the principle announced by
us in Cabal v. Kapunan. 8 In that proceeding for
certiorari and prohibition to annul an order of
Judge Kapunan, it appeared that an administrative
charge for unexplained wealth having been filed
against petitioner under the Anti-Graft Act, 9 the
complainant requested the investigating
committee that petitioner be ordered to take the
witness stand, which request was granted. Upon
petitioner's refusal to be sworn as such witness, a
charge for contempt was filed against him in the
sala of respondent Judge. He filed a motion to
quash and upon its denial, he initiated this
proceeding. We found for the petitioner in
accordance with the well-settled principle that "the
accused in a criminal case may refuse, not only to
answer incriminatory questions, but, also, to take
the witness stand."
It was noted in the opinion penned by the present
Chief Justice that while the matter referred to an
administrative charge of unexplained wealth, with
the Anti-Graft Act authorizing the forfeiture of
whatever property a public officer or employee
may acquire, manifestly out of proportion to his
salary and his other lawful income, there is clearly
the imposition of a penalty. The proceeding for
forfeiture while administrative in character thus
possesses a criminal or penal aspect. The case
before us is not dissimilar; petitioner would be
similarly disadvantaged. He could suffer not the
forfeiture of property but the revocation of his
license as medical practitioner, for some an even
greater deprivation.
To the argument that Cabal v. Kapunan could thus
be distinguished, it suffices to refer to an American
Supreme Court opinion highly persuasive in
character. 10 In the language of Justice Douglas:
"We conclude .. that the Self-Incrimination Clause
of the Fifth Amendment has been absorbed in the
Fourteenth, that it extends its protection to lawyers
as well as to other individuals, and that it should not
be watered down by imposing the dishonor of
disbarment and the deprivation of a livelihood as a
price for asserting it." We reiterate that such a
principle is equally applicable to a proceeding that
could possibly result in the loss of the privilege to
practice the medical profession.
2.The appeal apparently proceeds on the mistaken
assumption by respondent Board and intervenors-
appellants that the constitutional guarantee
against self-incrimination should be limited to
allowing a witness to object to questions the
answers to which could lead to a penal liability
being subsequently incurred. It is true that one
aspect of such a right, to follow the language of
another American decision, 11 is the protection
against "any disclosures which the witness may
reasonably apprehend could be used in a criminal
prosecution or which could lead to other evidence
that might be so used." If that were all there is then
it becomes diluted.
The constitutional guarantee protects as well the
right to silence. As far back as 1905, we had
occasion to declare: "The accused has a perfect
right to remain silent and his silence cannot be used
as a presumption of his guilt." 12 Only last year, in
Chavez v. Court of Appeals, 13 speaking through
Justice Sanchez, we reaffirmed the doctrine anew
that is the right of a defendant "to forego testimony,
to remain silent, unless he chooses to take the
witness standwith 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
30 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
It is likewise of interest to note that while earlier
decisions stressed the principle of humanity on
which this right is predicated, precluding as it does
all resort to force or compulsion, whether physical or
mental, current judicial opinion places equal
emphasis on its identification with the right to
privacy. Thus according to Justice Douglas: "The
Fifth Amendment in its Self-Incrimination clause
enables the citizen to create a zone of privacy
which government may not force to surrender to his
detriment." 15 So also with the observation of the
late Judge Frank who spoke of "a right to a private
enclave where he may lead a private life. That right
is the hallmark of our democracy." 16
In the light of the above, it could thus clearly
appear that no possible objection could be
legitimately raised against the correctness of the
decision now on appeal. We hold that in an
administrative hearing against a medical
practitioner for alleged malpractice, respondent
Board of Medical Examiners cannot, consistently
with the self-incrimination clause, compel the
person proceeded against to take the witness
stand without his consent.
WHEREFORE, the decision of the lower court of
August 2, 1965 is affirmed. Without pronouncement
as to costs.
Reyes, J.B.L. (Acting C.J.), Dizon, Makalintal,
Zaldivar, Sanchez and Capistrano, JJ., concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J. and Castro, J., are on official
leave.
(Mapa, Jr. v. Sandiganbayan, G.R. No. 100295, April
26, 1994)
EN BANC
[G.R. No. 100295. April 26, 1994.]
PLACIDO L. MAPA, JR., and J. LORENZO VERGARA,
petitioners, vs. SANDIGANBAYAN, respondent.
DECISION
PUNO, J p:
The denial of the right to be free from further
prosecution of a cooperative witness who has been
granted immunity is the core issue posed in this
petition. On balance are important rights in conflict:
the right of an individual who has surrendered his
constitutional prerogative to be silent to the State to
be exempt from further prosecution; the right of the
State to prosecute all persons who appears to have
committed a crime and its prerogative to revoke
the immunity it has granted to an accused for
breach of agreement; and the extent of the
jurisdiction of the Sandiganbayan as an impartial
tribunal to review the grant of immunity extended
by the PCGG to an accused. LLpr
First, the facts.
On January 20, 1987, petitioners Placido L. Mapa
and Lorenzo Vergara, together with Gregorio Ma.
Araneta III, Fernando Balatbat, Ramon Aviado, Jr.,
Dominador Lopez, Jr., Fernando Maramag, Jr., and
Jose Crisanto, Jr., were charged with violation of
the Anti-Graft and Corrupt Practices Act (R.A. 3019)
as amended, docketed as Case No. 11960 in the
respondent court, as follows:
"That on or about and during the period from
March 1985 and March 1986, in Metro Manila,
Philippines, and within the jurisdiction of the
Honorable Sandiganbayan, accused Placido L.
Mapa, Jr., J. Lorenzo Vergara, Ramon F. Aviado, Jr.,
Dominador Lopez, Jr., Fernando Maramag, Jr., Jose
C. Crisanto, Jr., acting in various capacities as
management officials of the Philippine National
Bank (PNB), National Investment and Development
Corporation (NIDC) and/or Pantranco North Express
Inc. (PNEI), all government-owned and controlled
corporations, as well as Dolores Potenciano of BLTB,
acting in concert in the performance of their duties,
in utter neglect of their fiduciary responsibilities, and
with intent to gain, conspiring and confederating
with one another and with accused Gregorio Ma.
Araneta III, son-in-law of former President Ferdinand
E. Marcos and therefore related to the deposed
President by affinity within the third degree, and
Fernando Balatbat, did then and there, willfully and
unlawfully, with manifest partiality and evident bad
faith, without proper board resolution and in
disregard of better offers, promote and facilitate
the sale of a major portion of the public utility assets
of the Pantranco Express, Inc., for a consideration of
SEVEN HUNDRED SEVENTY-FIVE MILLION
(P775,000,000.00) PESOS, Philippine Currency, to the
North Express Transport, Inc. (NETI), which the
accused knew to be a newly organized paper
corporation with a purported paid-up capital of
only FIVE MILLION (P5,000,000.00) PESOS and owned
and controlled by accused Gregorio Ma. Araneta
III, by misleading, inducing and/or unduly
influencing the Board of Directors of PNB, NIDC and
PNEI into approving a Memorandum of Agreement
and later a Purchase Agreement with manifestly
and grossly disadvantageous terms and conditions
which made possible the premature delivery of said
PNEI assets to NETI without any down payment, and
which, inter alia, allowed NETI to operate PNEI's
franchises and utilize, even before the execution of
the said Purchase Agreement, not only the PNEI
assets subject of the proposed sale, but also other
utility buses and properties of PNEI not covered by
the sale, thereby allowing NETI to derive an income
from said operation between the period of actual
delivery and execution of the Purchase Agreement
of the sum of EIGHTY-FIVE MILLION SIX HUNDRED
EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY
(P85,689,180.00) PESOS before the actual payment
of the agreed FIFTY-FIVE MILLION (P55,000,000.00)
PESOS down payment, thereby giving accused
31 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Gregorio Ma. Araneta III unwarranted benefits,
advantages and/or preferences and causing
undue injury to the damage and prejudice of the
Government in the amount of FOUR HUNDRED
MILLION (P400,000,000.00) PESOS, and such other
amounts as may be awarded by the Court.
CONTRARY TO LAW."
Except for petitioner Araneta, all the accused in
Criminal Case No. 11960 were arraigned. Their trial
started on September 20, 1988.
In the interim, the late President Ferdinand E.
Marcos and Mrs. Imelda R. Marcos were charged in
New York with violations of the Racketeer
Influenced and Corrupt Organization Act (RICO) by
transporting to the United States and concealing
the investment of money through cronies and
offshore organizations. To insure the conviction of
the Marcoses, the prosecution solicited the
testimonies of witnesses. Among these witnesses
were petitioners Vergara and Mapa. Petitioner
Vergara was interviewed in 1987 by PCGG lawyers
Kendall and Severina Rivera and by United States
Prosecutor Charles La Bella. Petitioner Mapa was
interviewed on November 14, 1988 and August 11,
1989 also by Prosecutor La Bella at the behest of
former Secretary of Justice Sedfrey Ordonez and
former PCGG Chairman Mateo Caparas. After their
interviews, petitioners were requested to testify in
the said RICO cases against the former First Couple.
They were promised immunity from further criminal
prosecution. They agreed.
On May 16, 1990, the Philippine Government
through the PCGG, and the petitioners formalized
their separate agreements in writing. The
agreement with petitioner Mapa provided:
"WHEREAS, REPUBLIC has requested MAPA to make
himself available as a witness in the case entitled
"United States of America vs. Ferdinand E. Marcos,
et. al.," more particularly in the on-going trial of the
case;
WHEREAS, MAPA is a defendant or respondent in
several civil and criminal cases which the REPUBLIC
has filed or intends to file in relation to his
participation in various contracts that are alleged
to have resulted in the accumulation of ill-gotten
wealth by Ferdinand and Imelda Marcos in
violation of Philippine laws, rules and regulations;
WHEREAS, on the basis of MAPA's express intent to
make himself available as witness in the case
entitled "United States of America vs. Ferdinand E.
Marcos, et. al.," and in light of REPUBLIC's re-
appraisal of the civil and criminal cases which it has
filed or intends to file against MAPA under the terms
and conditions herein below set forth.
NOW, THEREFORE, for and in consideration of the
foregoing premises, the parties agree as follows:
1. MAPA shall make himself available as a witness in
the case entitled "United States of America vs.
Ferdinand E. Marcos, et. al."
2. In consideration of the same, REPUBLIC grants
MAPA immunity from investigation, prosecution and
punishment for any offense with reference to which
his testimony and information are given, including
any offense and commission of which any
information, directly or indirectly derived from such
testimony or other information is used as basis
thereof, except a prosecution for perjury and/or
giving false testimony.
3. Likewise, in consideration of such cooperation,
and in light of REPUBLIC's review of the cases both
civil and criminal which it has filed or intends to file
against MAPA within the purview of Executive
Orders Nos. 1, 2, 14 and 14-A, the REPUBLIC shall
cause the dismissal or exclusion of MAPA as party
defendant or respondent in all PCGG initiated civil
cases and criminal proceeding or investigation.
4. The immunity has been granted by the REPUBLIC
to MAPA on the basis of and relying on MAPA's
promise of cooperation as described herein. In
case of breach of his commitment to fully
cooperate and make himself available as a witness
in the case entitled "United States of America vs.
Ferdinand E. Marcos, et. al.", the immunity herein
granted shall forthwith be deemed revoked, and of
no force and effect.
5. The parties agree that the grant of immunity from
criminal prosecution to MAPA and his exclusion
from PCGG initiated civil cases and criminal
proceeding or investigations has been undertaken
in the exercise of the PCGG's authority under
Executive Order Nos. 1, 2, 14 and 14-A. Accordingly,
nothing herein shall be construed as an admission
by MAPA of any criminal or civil liability. prLL
The agreement with petitioner Vergara stated:
"WHEREAS, REPUBLIC has requested VERGARA to
make himself available as a witness in the case
entitled "United States of America vs. Ferdinand E.
Marcos, et. al.," more particularly in the on-going
trial of the case;
WHEREAS, Vergara is a defendant in Criminal Case
No. 11960 entitled People vs. Gregorio Ma. Araneta,
et. al., now pending before the Sandiganbayan,
Second Division;
WHEREAS, on the basis of VERGARA's express intent
to make himself available as witness in the case
entitled "United States of America vs. Ferdinand E.
Marcos, et. al.," and in light of REPUBLIC's re-
appraisal of VERGARA's participation in Criminal
Case No. 11960, the REPUBLIC approved to grant
immunity to VERGARA under the terms and
conditions hereinbelow set forth.
NOW, THEREFORE, for and in consideration of the
foregoing premises, the parties agree as follows:
32 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
1. VERGARA shall make himself available as a
witness in the case entitled "United States of
America vs. Ferdinand E. Marcos, et. al."
2. In consideration of the same, REPUBLIC grants
VERGARA immunity from investigation, prosecution
and punishment for any offense with reference to
which his testimony and information are given,
including any offense and commission of which any
information, directly or indirectly derived from such
testimony or other information is used as basis
thereof, except a prosecution for perjury and/or
giving false testimony.
3. Likewise, in consideration of such cooperation,
and in light of REPUBLIC's review of VERGARA's
participation in Criminal Case No. 11960, the
REPUBLIC shall cause the dismissal of VERGARA from
Criminal Case No. 11960.
4. The immunity has been granted by the REPUBLIC
to VERGARA on the basis of and relying on
VERGARA's promise of cooperation as described
herein. In case of breach of his commitment to fully
cooperate and make himself available as a witness
in the case entitled "United States of America vs.
Ferdinand E. Marcos, et. al.", the immunity herein
granted shall forthwith be deemed revoked, and of
no force and effect.
5. The parties agree that the grant of immunity from
civil and criminal prosecution to VERGARA and his
exclusion from Criminal Case No. 11960 has been
undertaken in the exercise of the PCGG's authority
under Executive Orders Nos. 1, 2, 14 and 14-A.
Accordingly, nothing herein shall be construed as
an admission by VERGARA of any criminal liability."
cdll
On the same day, May 16, 1990, former PCGG
Chairman Mateo Caparas wrote to petitioner
Mapa the following letter:
"Dear Sir:
With reference to the agreement executed
between yourself and the Republic of the
Philippines on May 16, 1990, we would like to
confirm that among the criminal cases which the
Republic agrees to cause the dismissal of the case
entitled "People of the Philippines vs. Mr. Gregorio
Ma. Araneta III, et. al., " Criminal Case No. 11980 of
the Sandiganbayan. We understand that in that
case the prosecution is in the process of closing its
evidence with the submission of its offer of
documentary evidence and that it is your intention
thereupon to submit a Motion to Dismiss for failure
of the prosecution to prove its case. We affirm that
if, because of the situation of the case, it would not
be possible for the Republic to file the necessary
motion to cause the dismissal thereof, then we shall
upon submission of your Motion to Dismiss offer no
objection to its favorable consideration by the
court in relation to you.
We also affirm our understanding that we shall
arrange with the U.S. prosecutors the grant of
immunity in your favor no less broad or extensive
than that granted to Mr. Jaime C. Laya.
Very truly yours,
(SGD.) M.A.T. Caparas"
A similar letter was sent to petitioner Vergara.
The petitioners complied with their respective
undertaking. They travelled to New York to testify
against the Marcoses. Their travel fare and hotel
accommodations were even furnished by the
PCGG. But despite their availability and willingness
to testify, the US prosecutors decided not to call
them to the witness stand. The result was a debacle
for the US prosecutors and the PCGG. Mrs. Imelda
Marcos was acquitted by the jury. Earlier, former
President Marcos was delisted as an accused as he
died in the course of the proceedings. LLjur
The legal struggle shifted back to the prosecution of
petitioners in Criminal Case No. 11960 before the
respondent court. On the basis of the immunity
granted to them, petitioners filed a Joint Motion to
Dismiss on October 22, 1990. Deputized PCGG
prosecutors Vivencio B. Dionido and Angel J.
Parazo filed a Manifestation interposing no
objection to petitioners' Motion, viz:
"That herein accused Placido L. Mapa, Jr. and J.
Lorenzo Vergara were granted immunity by the
Presidential Commission on Good Government from
criminal liability arising from cases which PCGG had
or intends to file against them;
The PCGG, therefore, interposes no objection to the
Joint Motion to Dismiss filed by accused Placido L.
Mapa, Jr. and J. Lorenzo Vergara in Criminal Case
No. 11960-PCGG by reason of the immunity
aforestated."
Despite PCGG's concurrence, the respondent court
denied the Joint Motion to Dismiss, by a vote of 4-1.
1 Petitioners were undaunted. On April 8, 1991, they
filed a Motion for Reconsideration. This was followed
on May 23, 1991, by a Supplement to the Motion for
Reconsideration. The deputized prosecutors again
filed a Manifestation reiterating PCGG's
acquiescence to petitioners' Motion for
Reconsideration. Respondent court, however,
refused to budge from its prior position. It denied
petitioners' motions.
Hence, this recourse where petitioners charge the
respondent court with grave abuse of discretion in
denying their Motion to Dismiss and Motion for
Reconsideration. They pose the following issues:
"2.00.a. Does the fact that the information provided
by petitioners to the Presidential Commission on
Good Government (PCGG) did not refer to Criminal
33 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Case No. 11960 make the immunity granted to
them inapplicable to Criminal Case No. 11960?
2.00.b. Is it necessary that information furnished the
PCGG, which would become basis of the grant of
immunity, be submitted to the Sandiganbayan in
order that it may determine whether such
information is necessary to ascertain or prove the
guilt or liability of a respondent, defendant or an
accused in an action involving the recovery of ill-
gotten wealth?
2.00.c. Does the fact that the prosecution in the
RICO cases did not actually present petitioners as
witnesses abrogate the immunity granted to them?
2.00.d. Was the immunity granted to petitioners too
late considering that when it was granted, the
prosecution in Criminal Case No. 11960 had already
rested its case?" cdphil
The proceedings before us took a new wrinkle with
the appointment of Atty. David Castro as Chairman
of PCGG. In its Comment dated January 6, 1992,
the PCGG somersaulted from its stance supporting
the petitioners. Its Comment states:
"1. The Presidential Commission on Good
Government has indeed granted Messrs. Placido L.
Mapa, Jr., and Jesus Lorenzo Vergara immunity
from investigation, prosecution and punishment for
any offense for which civil and criminal cases have
been or to be filed against them within the purview
of Executive Orders Nos. 1, 2, 14 and 14-A but such
immunity is conditional.
2. The conditions for giving such immunity is the
cooperation said petitioners shall give to said
Commission by way of information and testimony in
cases now pending or to be filed before the
Sandiganbayan against other defendants therein
to prove the latter's acquisition or accumulation of
property or properties in violation of existing laws.
3. Failure on the part of petitioners Placido Mapa,
Jr. and Jesus Vergara to testify in favor of the
government and against other defendants on
matters referred to in the immediately preceding
paragraph nullifies the immunity granted to both
defendants (emphasis supplied)."
It reiterated its breakaway from petitioners in its
Comment to the Reply of petitioners dated June 10,
1992, where it adopted the respondent
Sandiganbayan's questioned Resolution and
Concurring Opinions dated March 6, 1991. It further
stressed that "[T]he granting of 'Immunity' from
criminal liability and/or prosecution is a matter
subject to the court's judicious determination and
approval, after applying the test of compliance
and the standard of reasonableness with the rigid
requirements for such grant under Section 5 of
Executive Order No. 14-A, as amended." The
Solicitor General defended the stance of the PCGG
and the respondent court. prLL
We find merit in the petition.

The practice of granting government, its officials,
and some accused or respondents immunity from
suits, has a long history.
We begin with the Constitution which expressly
grants some of these immunities. Article XVI, section
3 provides that "the State may not be sued without
its consent." The classic justification for the non-
suability of the State is that provided by Mr. Justice
Oliver Wendell Holmes: ". . . there can be no legal
right against the authority which makes the law on
which the right depends." 2 Article VI, section 11 of
the Constitution also grants parliamentary
immunities, viz: "A Senator or Member of the House
of Representatives shall, in all offenses punishable
by not more than six years imprisonment, be
privileged from arrest while the Congress is in
session. No member shall be questioned nor be
held liable in any other place for any speech or
debate in the Congress or in any committee
thereof." Mr. Justice Isagani A. Cruz explains the
rationale for this immunity in the following manners:
". . . The first is intended to ensure representation of
the constituents of the member of the Congress by
preventing attempts to keep him from attending its
sessions. The second enables the legislator to
express views bearing upon the public interest
without fear of accountability outside the halls of
the legislature for his inability to support his
statements with the usual evidence required in the
court of justice. In other words, he is given more
leeway than the ordinary citizen in the ventilation of
matters that ought to be divulged for the public
good." 3 The President was also immunized from suit
during his tenure in the 1973 Constitution. LLjur
Aside from the Constitution, Congress has enacted
laws giving immunity to witnesses to facilitate the
solution of crimes with high political, social and
economic impact against the people. Some of
these statutory grants are related in the impugned
Resolution. Thus, PD 749 provides:
"Section 1. Any person who voluntarily gives
information about any violation of Articles 210, 211,
212 of the Revised Penal Code, Republic Act No.
3019, as amended; Section 345 of the Internal
Revenue Code and Section 3604 of the Tariff and
Customs Code and other provisions of the said
codes penalizing abuse or dishonesty on the part of
the public officials concerned; and other laws, rules
and regulations punishing acts of graft, corruption
and other forms of official abuse; and who willingly
testified, such violator shall be exempt from
prosecution or punishment for the offense with
reference to which his information and testimony
were given, and may plead or prove the giving of
such information and testimony in bar of such
prosecution: Provided, That this immunity may be
enjoyed even in cases where the information and
the testimony are given against a person who is not
a public official but who is a principal or
accomplice, or accessory in the commission of any
of the above-mentioned violations: Provided,
further, That this immunity may be enjoyed by such
34 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
informant or witness notwithstanding that he
offered or gave bribe or gift to the public official or
is an accomplice for such gift or bribe-giving; And,
Provided, finally, That the following conditions
concur: prLL
1. The information must refer to consummated
violations of any of the above-mentioned provisions
of law, rules and regulations;
2. The information and testimony are necessary for
the conviction of the accused public officer;
3. Such information and testimony are not yet in the
possession of the State;
4. Such information and testimony can be
corroborated on its material points; and
5. The informant or witness has not been previously
convicted of a crime involving moral turpitude."
Likewise, under PD No. 1886, the Agrava Fact
Finding Board, created to conduct a fact-finding
inquiry in the Aquino-Galman double murder case,
was given the power to compel testimony of a
witness. In exchange for his testimony, such a
witness was extended transactional immunity from
later prosecution. Section 5 of said PD No. 1886
states:
"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."
Indeed, as early as April 16, 1951, R.A. 602,
establishing a minimum wage law, extended
transactional immunity to persons who testify or
produce books, papers or other records and
documents before the Secretary of Labor or a
Wage Board. A similar but not identical power is
given to the prosecution under section 9, Rule 119
of the 1985 Rules on Criminal Procedure to
discharge an accused to be utilized as a state
witness.
Our immunity statutes are of American origin. In the
United States, there are two types of statutory
immunity granted to a witness. They are the
transactional immunity and the used-and-
derivative-use immunity. Transactional immunity is
broader in the scope of its protection. By its grant, a
witness can no longer be prosecuted for any
offense whatsoever arising out of the act or
transaction. 4 In contrast, by the grant of use- and-
derivative-use immunity, a witness is only assured
that his or her particular testimony and evidence
derived from it will not be used against him or her in
a subsequent prosecution. 5 In Kastigar vs. US, 6 the
rationale of these immunity grants is well explained,
viz:
"The power of government to compel persons to
testify in court or before grand juries and other
governmental agencies is firmly established in
Anglo-American jurisprudence . . . The power to
compel testimony, and the corresponding duty to
testify, are recognized in the Sixth Amendment
requirements that an accused be confronted with
the witnesses against him, and have compulsory
process for obtaining witnesses in his favor. . .
xxx xxx xxx
But the power to compel testimony is not absolute.
There are a number of exemptions from the
testimonial duty, the most important of which is the
Fifth Amendment privilege against compulsory self-
incrimination. The privilege reflects a complex of our
fundamental values and aspirations, and marks an
important advance in the development of our
liberty. It can be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or
adjudicatory; and it protects against any disclosures
that the witness reasonably believes could be used
in a criminal prosecution or could lead to other
evidence that might be so used. This Court has
been zealous to safeguard the values that underlie
the privilege.
Immunity statutes, which have historical roots deep
in Anglo-American jurisprudence, are not
incompatible with these values. Rather, they seek a
rational accommodation between the imperatives
of the privilege and the legitimate demands of
government to compel citizens to testify. The
existence of these statutes reflects the importance
of testimony, and the fact that many offenses are
of such a character that the only persons capable
of giving useful testimony are those implicated in
the crime. Indeed, their origins were in the context
of such offenses, and their primary use has been to
investigate such offenses . . . (E)very States in the
Union, as well as the District of Columbia and Puerto
Rico, has one of more such statutes. The
commentators, and this Court on several occasions,
have characterized immunity statutes as essential
to the effective enforcement of various criminal
statutes. . ." LibLex
We shall now examine the powers granted to
PCGG by Executive Order No. 14, as amended, to
grant immunity from criminal prosecution. The
pertinent sections provide:
xxx xxx xxx
"SEC. 2. Section 4 of Executive Order No. 14 dated
May 7, 1986 is hereby amended to read as follows:
35 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
'SEC. 4. A witness may refuse on the basis of his
privilege against self-incrimination, to testify or
provide other information in a proceeding before
the Sandiganbayan if the witness believes that such
testimony or provision of information would tend to
incriminate him or subject him to prosecution. Upon
such refusal, the Sandiganbayan may order the
witness to testify or provide information.
The witness may not refuse to comply with the order
on the basis of his privilege against self-
incrimination; but no testimony or other information
compelled under the order (or any information
directly or indirectly derived from such testimony, or
other information) may be used against the witness
in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise failing
to comply with the order.'
SEC. 3. Section 5 of Executive Order No. 14 dated
May 7, 1986 is hereby amended to read as follows:
'Sec. 5. The Presidential Commission on Good
Government is authorized to grant immunity from
criminal prosecution to any person who provides
information or testifies in any investigation
conducted by such Commission to establish the
unlawful manner in which any respondent,
defendant or accused has acquired or
accumulated the property or properties in question
in any case where such information or testimony is
necessary to ascertain or prove the latter's guilt or
his civil liability. The immunity thereby granted shall
be continued to protect the witness who repeats
such testimony before the Sandiganbayan when
required to do so by the latter or by the
Commission.'"
There are obvious differences between the powers
granted to the PCGG under sections 4 and 5.
Section 4 deals with the power which PCGG can
use to compel an unwilling witness to testify. On the
other hand, section 5 speaks of the power which
PCGG can wield to secure information from a
friendly witness. Under section 4, the hostile witness
compelled to testify is not immunized from
prosecution. He can still be prosecuted but "no
testimony or other information compelled under the
order (or any information directly or indirectly
derived from such testimony or other information)
may be used against the witness in any criminal
case. . . ." In contrast, under section 5, the friendly
witness is completely immunized from prosecution.
Cdpr
The case at bench involves an exercise of power by
PCGG under section 5, supra. Petitioners are not
hostile but friendly witnesses. It is not disputed that
they furnished information to the PCGG during their
interviews conducted by PCGG lawyers and US
prosecutor La Bella. Due to their cooperation, they
were extended immunity from prosecution by the
PCGG. In return, they flew to New York to testify in
the RICO trial of Imelda Marcos. As they were
witnesses for the prosecution, their expenses were
shouldered by the PCGG itself. At the last minute,
however, US prosecutor La Bella decided to
dispense with their testimony. The rest is history. The
prosecution failed to convict Mrs. Marcos.
The first issue is whether the respondent court has
jurisdiction to review the immunity granted by
PCGG in favor of the petitioners. We sustain the
jurisdiction of the respondent court. To be sure, we
have grappled with this once slippery issue in the
case of Republic vs. Sandiganbayan, 173 SCRA 76,
80-81, and we held:
"We first ascertain whether or not the
Sandiganbayan has jurisdiction to look into the
validity of the immunity granted by the PCGG to
Jose Y. Campos which was extended to his son,
petitioner-intervenor herein, Jose Campos, Jr.
xxx xxx xxx
"The powers of the PCGG are not unlimited. Its
jurisdiction over cases involving ill-gotten wealth
must be within the parameters stated in Executive
Order No. 14. Necessarily, the jurisdiction of the
Sandiganbayan which is tasked to handle the ill-
gotten wealth cases must include the jurisdiction to
determine whether or not the PCGG exceeded its
power to grant immunity pursuant to the provisions
of Executive Order No. 14."
It should also be noted that the respondent court
has already acquired jurisdiction to try and decide
Case No. 11960 where petitioners stand accused of
violating RA 3019. It has started receiving the
evidence of the prosecution against the petitioners.
Petitioners, with the conformity of PCGG, then
claimed their immunity via a motion to dismiss
addressed to the respondent court. The motion to
dismiss is thus a mere incident well within the
jurisdiction of the respondent court to resolve.
The next issue is a finer and more difficult one, i.e.,
gauging the range of the power of the respondent
court to review the exercise of discretion of the
PCGG granting immunity to petitioners pursuant to
section 5 of E.O. No. 14, as amended.
Respondent court, thru the Solicitor General, pushes
the proposition that said power of review is plenary
in reach. It is urged that its plenitude and panoply
empower the respondent court to reverse the grant
of immunity made by the PCGG by supplanting the
latter's judgment. The submission will warrant the
respondent court in examining the intrinsic quality
of the given information or testimony, i.e., whether it
truly establishes the "unlawful manner" in which the
respondent, defendant or accused has acquired or
accumulated the property or properties in question.
Likewise, it will give a warrant to the respondent
court to change the judgment made by the PCGG
that the witness' information or testimony is
"necessary" to ascertain or prove the guilt or civil
liability of the respondent, defendant or accused.
LibLex
36 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
We are not prepared to concede the correctness
of this proposition. Neither the text nor the texture of
E.O. No. 14, as amended, lends color to the
suggested interpretation. Section 5 of E.O. No. 14,
as amended, vests no such role in respondent
court. In instances, where the intent is to endow
courts of justice with the power to review and
reverse tactical moves of the prosecution, the law
confers the power in clear and certain language.
Thus, under section 9 of Rule 119, the prosecution in
the exercise of its discretion may tactically decide
to discharge an accused to be a state witness but
its decision is made subject to the approval of the
court trying the case. It has to file a proper motion
and the motion may be denied by the court if the
prosecution fails to prove that it has satisfied the
requirements of the rule on discharge of a witness.
The rule is crafted as to leave no iota of doubt on
the power of the court to interfere with the
discretion of the prosecution on the matter. In the
case at bench, E.O. 14, as amended, is eloquently
silent with regard to the range and depth of the
power of the respondent court to review the
exercise of discretion by the PCGG granting a
section 5 immunity. This silence argues against the
thesis that the respondent court has full and
unlimited power to reverse PCGG's exercise of
discretion granting a section 5 immunity. Legitimate
power can not arise from a vacuum.
We observe that in contrast to our other laws on
immunity, section 5 of E.O. No. 14, as amended,
confers on the PCGG the power to grant immunity
alone and on its own authority. The exercise of the
power is not shared with any other authority. Nor is
its exercise subject to the approval or disapproval
of another agency of government. The basic
reason for vesting the power exclusively on the
PCGG lies in the principles of separation of power.
The decision to grant immunity from prosecution
forms a constituent part of the prosecution process.
It is essentially a tactical decision to forego
prosecution of a person for government to achieve
a higher objective. It is a deliberate renunciation of
the right of the State to prosecute all who appear
to be guilty of having committed a crime. Its
justification lies in the particular need of the State to
obtain the conviction of the more guilty criminals
who, otherwise, will probably elude the long arm of
the law. Whether or not the delicate power should
be exercised, who should be extended the
privilege, the timing of its grant, are questions
addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the
right to determine who shall be prosecuted and the
corollary right to decide whom not to prosecute. In
reviewing the exercise of prosecutorial discretion in
these areas, the jurisdiction of the respondent court
is limited. For the business of a court of justice is to
be an impartial tribunal, and not to get involved
with the success or failure of the prosecution to
prosecute. Every now and then, the prosecution
may err in the selection of its strategies, but such
errors are not for neutral courts to rectify, any more
than courts should correct the blunders of the
defense. For fairness demands that courts keep the
scales of justice at equipoise between and among
all litigants. Due process demands that courts
should strive to maintain the legal playing field
perfectly even and perpetually level.
Prescinding from these baseline propositions, we
hold that in reviewing the grant of a section 5
immunity made by the PCGG to the petitioners, the
power of the respondents court can go no further
than to pass upon its procedural regularity. The
respondent court should only ascertain: (a) whether
the person claiming immunity has provided
information or testimony in any investigation
conducted by the PCGG in the discharge of its
functions; (b) whether in the bona fide judgment of
the PCGG, the information or testimony given
would establish the unlawful manner in which the
respondent, defendant or accused has acquired or
accumulated the property or properties in question;
and (c) whether in the bona fide judgment of the
PCGG, such information or testimony is necessary to
ascertain or prove the guilt or civil liability of the
respondent, defendant or accused. Respondent
court cannot substitute its judgment to the
discretion of the PCGG without involving itself in
prosecution and without ceasing to be a court
catering untilted justice.
Applying this standard, we hold that the
respondent court committed grave abuse of
discretion when it denied petitioners' motion to
dismiss based on a claim of immunity granted by
the PCGG under section 5 of E.O. 14, as amended.
The records show that petitioners provided
information to the PCGG relating to the prosecution
of the RICO cases against the Marcoses in New
York. They gave the information in the course of
interviews conducted by PCGG lawyers Kendall
and Severina Rivera and US prosecutor Charles La
Bella. They collaborated with the prosecution. prcd
Sec. 5 requires that the information should relate to
"any case" which PCGG can prosecute as
mandated by the Constitution and E.O. Nos. 1, 2, 14
and 14-A. It does not limit said information to be
given only in a case where the informant is himself
an accused or a respondent. Such a reading
adopted by the respondent court is unduly
restrictive of the intendment of section 5 of E.O. No.
14, as amended, even as it is clearly in
contravention of its plain language.
It is also fairly established that the pieces of
information given by the petitioners would in the
judgment of the PCGG, establish the "unlawful
manner" with which the Marcoses acquired or
accumulated their properties and were "necessary"
to prove their guilt. The totality of the circumstances
of the case established this element. Thus, after their
interview, the PCGG was obviously convinced of
the evidentiary value of the information given by
the petitioners. It forthwith signed and sealed an
agreement with petitioners extending them
immunity from prosecution. In the case of petitioner
37 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n
Mapa, "the Republic shall cause the dismissal or
exclusion of MAPA as party defendant or
respondent in all PCGG initiated civil cases and
criminal proceeding or investigation." In the case of
petitioner Vergara, "the Republic shall cause the
dismissal of Vergara from Criminal Case No. 11960."
This commitment was reiterated by former
Chairman Mateo Caparas of PCGG in his May 16,
1990 letters to the petitioners, as related above. The
parties' agreements were then implemented.
Petitioners travelled to New York to testify in the
RICO cases against the Marcoses. It was even the
PCGG that shouldered their expenses. All these
circumstances prove the judgment of the PCGG
that the pieces of information given by petitioners
would establish the "unlawful manner" with which
the Marcoses acquired their wealth.
Contrary to the ruling of the respondent court, the
failure of petitioners to testify in the RICO cases
against the Marcoses in New York can not nullify
their immunity. They have satisfied the requirements
both of the law and the parties' implementing
agreements. Under section 5 of E.O. No. 14, as
amended, their duty was to give information to the
prosecution, and they did. Under their
Memorandum of Agreement, they promised to
make themselves available as witnesses in the said
RICO cases, and they did. Petitioners were ready to
testify but they were not called to testify by the US
prosecutors of the RICO cases. Their failure to testify
was not of their own making. It was brought about
by the decision of the US prosecutors who may
have thought that their evidence was enough to
convict the Marcoses. Since petitioners' failure to
testify was not of their own choosing nor was it due
to any fault of their own, justice and equity forbid
that they be penalized by the withdrawal of their
immunity. Indeed, initially, the PCGG itself adopted
the posture that the immunity of petitioners stayed
and should not be disturbed. It joined the motion to
dismiss filed by petitioners in the respondent court.
When the respondent court denied the motion,
PCGG stuck to its previous position as it again
joined the petitioners in their motion for
reconsideration. It is only in this petition for review
on certiorari that PCGG, after a change of
Chairman, flip-flopped in its position. cdll
We also rule that there was nothing irregular when
PCGG granted a section 5 immunity to petitioners
while they were already undergoing trial in Criminal
Case No. 11960. Section 5 of E.O. 14, as amended,
does not prohibit the PCGG from granting immunity
to persons already charged in court and
undergoing trial. As long as the privilege of
immunity so given will in the judgment of the PCGG
assist it in attaining its greater objectives, the PCGG
is well within legal grounds to exercise this power at
any stage of the proceedings. This section 5
immunity frees and releases one from liability, and
as it inures to the benefit of an accused, it can be
invoked at any time after its acquisition and before
his final conviction. Our regard for the rights of an
accused dictates this result. Thus, we have
consistently held that laws that decriminalize an act
or a grant of amnesty may be given retroactive self-incrimination and the right to be silent should be
effect. They constitute a bar against the further accorded greater respect and protection. Laws
prosecution of their beneficiaries' regardless of the that tend to erode the force of these preeminent
appearance of their guilt. To be sure, the guilt of rights must necessarily be given a liberal
the petitioners in Criminal Case No. 11960 has yet to interpretation in favor of the individual. The
be established beyond doubt. The PCGG itself does government has a right to solve crimes but it must
not appear certain and confident of the strength of do it, rightly. LLjur
its evidence against the petitioners in said criminal
case. The records show that petitioners Mapa was IN VIEW WHEREOF, the resolutions of the respondent
granted immunity not only because of the court dated March 7, and June 3, 1991 are
information he gave to the prosecution but also ". . . annulled and set aside and the Amended
in light of Republic's review of the cases both civil Information against the petitioners in Criminal Case
and criminal which it has filed or intends to file No. 11960 is ordered dismissed. No costs.
against . . ." him. Similarly, petitioner Vergara was
granted immunity ". . . in light of Republic's review of SO ORDERED.
Vergara's participation in Criminal Case No. 11960. .
. ." After reviewing its evidence against the Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin,
petitioners, PCGG appears to have sensed the Regalado, Davide, Jr., Romero, Bellosillo, Melo,
sterility of its efforts of continuing their prosecution. Quiason, Puno, Vitug and Kapunan, JJ., concur.
Its former chairman, M.A.T. Caparas, learned that
petitioners would file a Motion to Dismiss Criminal
Case No. 11960 after PCGG rest its evidence, "for
failure of the prosecution to prove its case." In his
May 16, 1990 letters to the petitioners, he assured
them that "we shall . . . offer no objection to its
favorable consideration." This is a patent admission
that petitioners' Motion to Dismiss has merit and that
the PCGG cannot prove its case against the
petitioners in Criminal Case No. 11960.

Finally, we reject respondent court's ruling that the

grant of section 5 immunity must be strictly
construed against the petitioners. It simplistically
characterized the grant as special privilege, as if it
was gifted by the government, ex gratia. In taking
this posture, it misread the raison d'etre and the
long pedigree of the right against self-incrimination
vis-a-vis immunity statutes.

The days of inquisitions brought about the most

despicable abuses against human rights. Not the
least of these abuses is the expert use of coerced
confessions to send to the guillotine even the
guiltless. To guard against the recurrence of this
totalitarian method, the right against self-
incrimination was ensconced in the fundamental
laws of all civilized countries. Over the years,
however, came the need to assist government in its
task of containing crime for peace and order is a
necessary matrix of public welfare. To
accommodate the need, the right against self-
incrimination was stripped of its absoluteness.
Immunity statutes in varying shapes were enacted
which would allow government to compel a
witness to testify despite his plea of the right against
self-incrimination. To insulate these statutes from the
virus of unconstitutionality, a witness is given what
has come to be known as transactional or a use-
derivative-use immunity, as heretofore discussed.
Quite clearly, these immunity statutes are not a
bonanza from government. Those given the
privilege of immunity paid a high price for it the
surrender of their precious right to be silent. Our
hierarchy of values demands that the right against
38 | C o n s t i 2 _ S e c t i o n 1 7 _ R i g h t A g a i n s t S e l f - I n c r i m i n a t i o n