SEC. 17 RIGHT AGAINST SELF INCRIMINATIONU.S v TAN TENGFACTS:The
defendant was charged of the crime of rape. 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.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,
Manila.That on said day a number of Chinamen were gambling had been
in the habit of visiting the house of the sister of the offended
party; that Oliva Pacomio, on the day in question, after having
taken a bath, returned to her room; defendant followed her into her
room and asked her for some face powder, which she gave him; that
after using some of the face powder upon his private parts he threw
the said Oliva upon the floor, placing his private parts upon hers,
and remained in that position for some little time. Several days
later, perhaps a week or two, the sister of Oliva Pacomio
discovered that the latter was suffering from a venereal disease
known as gonorrhea. It was at the time of this discovery that Oliva
related to her sister what happened upon the morning of the 15th of
September. The sister at once put on foot an investigation to find
the Chinaman. A number of Chinamen were collected together. Oliva
was called upon to identify the one who had abused her. The
defendant was not present at first. Later he arrived and Oliva
identified him at once as the one who had attempted to violate
her.The policeman who examined the defendant swore from the
venereal disease known as gonorrhea.CONTENTION: 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 creditDEFENSE: Attempted to show that the venereal disease of
gonorrhea might be communicated in ways other than by contact such
as is described in the present case, and called medical witnesses
for the purpose of supporting the contention.HELD: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.The defendant testifed
and brought other Chinamen to support his declaration, that the
sister of Oliva threatened to have him prosecuted if he did not pay
her the sum of P60.ALLEGED INADMISSIBBLE EVIDENCE. That to admit
such evidence was to compel the defendant to testify against
himself.Judge Lobingier: 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. THERE WAS NO OBJECTION
WHEN THE SUBSTANCE WAS TAKEN FROM HIM.ANALOGY: 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.Holt vs. U.S.: But the prohibition of
compelling a man in a criminal court to be a witness against
himself, is aprohibition 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.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.NOTE: The prohibitioncontained 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 other words, it is not
merely compulsionthat is the kernel of the privilege, . . . but
testimonial compulsion.MAIN PURPOSE: isto 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. (Peoplevs. Gardner,
144 N. Y., 119.)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.IN THE CASE AT BAR: Evidence 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.RULING: GUILTY.
VILLAFLOR v. SUMMERSFACTS:The petitioner prays that a writ of
habeas corpus issue to restore her to her liberty.Emeteria
Villaflor and Florentino Souingco are charged with the crime of
adultery. Upon the petitioner of the assistant fiscal for the city
of Manila, the court ordered the defendant Emeteria Villaflor 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 relating to
self-incrimination. Thereupon she was found in contempt of court
and was ordered to be committed to Bilibid Prison until she should
permit the medical examination required by the court.ISSUE: 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 the Philippine Bill of Rights and 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.
Mr. Justice Holmes in Holt v.U.S: 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."BUT, 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.Here in the Philippines, being in the
agrreable 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 blind adherence to tradition and precedent.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, AN
OCULAR INSPECTION OF THE BODY OF THE ACCUSED IS PERMISSIBLE. The
proviso is that torture of 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.Itis a reasonable
presumption that in an examination by reputable and disinterested
physicians due care will be taken not to use violence and not to
embarass 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.RULING: WRIT OF HABEAS CORPUS DENIED.
BELTRAN v. JUDGE SAMSONFACTS:This is a petition for a writ of
prohibition, wherein the petitioner complains that the respondent
judge ordered him to appear before the provincial fiscal to take
dictation in his own handwriting from the latter.The order was
given upon petition of said fiscal for the purpose of comparing the
petitioner's handwriting and determining whether or not it is he
who wrote certain documents supposed to be falsified.Of course, the
fiscal under section 1687 of the Administrative Code, and the
proper judge, upon motion of the fiscal, may compel witnesses to be
present at the investigation of any crime or misdemeanor. But this
power must be exercised without prejudice to the constitutional
rights of persons cited to appear.And the petitioner, in refusing
to perform what the fiscal demanded, seeks refuge in the
constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.Par 3, section 3 of the
Jones Law which (in Spanish) has been incorporated in our Criminal
Procedure (General Orders, No. 58) in section 15 (No. 4 ) and
section 56.English text of the Jones Law, which is the original
one, reads as follows: "Nor shall be compelled in any criminal case
to be a witness against himself."As to its scope, this privilege is
not limited precisely to testimony, but extends to all giving or
furnishing of evidence.The rights intended to be protected by the
constitutional provision that no man accused of crime shall be
compelled to be a witness against himself is so SACRED, and the
pressure toward their relaxation so great when the SUSPICION OF
GUILT IS STRONG AND THE EVIDENCE OBSCURE,that is the duty of courts
liberally to construe the prohibition in favor of personal rights,
and to refuse to permit any steps tending toward their invasion.
Hence,there is the well-established doctrine that the
constitutional inhibition is directed not merely to giving of oral
testimony, but embraces as well the furnishing of evidence by other
means than by word of mouth, the divulging, in short, of any fact
which the accused has a right to hold secret. (28 R. C. L.,
paragraph 20, page 434 and notes.) (Emphasis ours.)ISSUE: 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.NOTE: Whenever
the defendant, at the trial of his case, testifying in his own
behalf, denies that a certain writing or signature is in his own
hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting
with the one in question.We have also come upon a case wherein the
handwriting or the form of writing of the defendant was
obtainedbeforethe 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 offeredto write, to furnish a specimen of his
handwriting. Measuringorphotographingthe party is not within the
privilege. Nor it is theremovalorreplacementof 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
makespecimens of handwritingis no more than requiring him to move
his body . . ."People vs. Molineux which, as we have seen, has no
application to the case at bar because there the defendant
voluntary gave specimens of his handwriting, IN THE CASE AT BAR:
the petitioner refuses to do so and has even instituted these
prohibition proceedings that he may not be compelled to do
so.Furthermore, in the case before us, writing is something more
than moving the body, or the hands, or the fingers; WRITING IS NOT
A PURELY MECHANICAL ACT, BECAUSE IT REQUIRES THE APPLICATION OF
INTELLIGENCE AND ATTENTION; and in the case at bar writing means
that the petitioner herein is to furnish a means to determine
whether or not he is the falsifier, as the petition of the
respondent fiscal clearly states. Except that it is more serious,
we believe the present case is similar to that of producing
documents or chattels in one's possession. And as to such
production of documents or chattels. which to our mind is not so
serious as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864): MAY BE
REFUSED UNDER THE PROTECTION OF PRIVILEGE.SIMILARITY. 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.MORE SERIOUS than compelling the production of docs of
chattelsbecause here the witness is COMPELLED TO WRITE create, by
means of the act of writing, evidence which does not exist, and
which may identify him as the falsifier.ALTHOUGH NOT ORAL IN FORM
still no line can be drawn short of any process which treats him as
a witness; because in virtue it would be at any time liable to make
oath to the identity or authenticity or origin of the articles
produced.NOTE: Considering the circumstance that the petitioner is
a municipal treasurer, according to Exhibit A, it should not be a
difficult matter for the fiscal to obtained genuine specimens of
his handwriting. But even if supposing it is impossible to obtain
sig. specimen, that is no reason for trampling upon a personal
right guaranteed by the constitution.PRIVILEGE NOT TO GIVE
SELF-INCRIMINATING EVIDENCE ABSOLUTE when CLAIMED, WAIVABLE by
anyone entitled to invoke it. In Villamor v. Summers, she was not
compelled to execute any positive act, much less a testimonial act;
she was only enjoined from something preventing the examination;
all of which is very different from what is required of the
petitioner of the present case, where it is sought to compel him to
perform apositive, testimonial act, to write and give a specimen of
his handwriting for the purpose of comparisonBesides, in the case
of Villamor vs. Summers, it was sought to exhibit something already
in existence, while in the case at bar, the question deals with
something not yet in existence, and it is precisely sought to
compel the petitioner to make, prepare, or produce by this means,
evidence not yet in existence; in short, to create this evidence
which may seriously incriminate hiRULING: DESIST FROM COMPELLING
PETITIONER TO TAKE DOWN DICTATION IN HIS HANDWRITING FOR
COMPARISON.
CHAVEZ v CAFACTS: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 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.QUALIFIED THEFT of motor vehicle. 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. During the trial, the counsel for the accused, herein
petitioner Chavez, was surprised that his client was presented as a
witness for the prosecution. When askd by the Court if the accused
will going to be a state witness, the Fiscal replied that he will
serve as a ordinary witness. Counsel: As a matter of right, because
it will incriminate my client, I object. AFTER RECESS so that
counsel would explain the consequences of the accuseds acts, judge
said: What he will testify todoes 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.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, Trial proceed. It began with the
"direct examination" of Roger Chavez by "Fiscal Grecia".VERSION OF
PROSECUTION: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.PLAN: 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.CONSPIRACY. Here,
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.The trial court gave evidence 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.he 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 ofqualified theft and indemnify Dy
Sun Hiok and/or Johnson Lee in the sum of P21,000.00. 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.HELD: 1.Petitioner's plea: his rights against
self-incrimination was violated. 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,"9fully 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."NOTE: It has been said that forcing a man to be a witness
against himself is at war with "the fundamentals of a republican
government";1that [i]t may suit the purposes of despotic power but
it can not abide the pure atmosphere of political liberty and
personal freedom.HISTORICAL BACKGROUND OF THIS RIGHT (J. Abad
Santos). Nemo tenetur seipsum accusare(No one is bound to accuse
himself) 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. DURING CUSTODIAL 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,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."NOTE:
Not merely 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.INTENDED AS SHIELD.
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."ESTABLISHED ON 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. (US v.
Navarro)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.NOTE: compulsion
DOES NOT necessarily connote 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."2. 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
thathe will not testifyBut 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
standincluding the accused," CUMULATIVE IMPACT: petitioner had take
the stand.In reality, the purpose of calling the accused to the
witness stand is 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.INTERPRETATION OF THE CONSTITUTIONAL PRECEPT. Accused shall
not be compelled to furnish evidence against himself "is not the
probability of the evidence but it is thecapability of abuse."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.Chief Justice Marshall in Aaron
Burr's Trial: 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.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. 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.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
caseThe decision was built primarily around the admissions of
Chavez himself. STAR WITNESS - 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.4. With all these, the Court have no hesitancy in saying
that petitioner was forced to testify to incriminate himself in
full breach of his constitutional right to remain silent. NOTE:
There is therefore NO WAIVER OF THE PRIVILEGE IN THIS CASE. "To be
effective, a waiver must be certain andunequivocal,
andintelligently,understandably,andwillinglymade; such waiver
following only whereliberty of choicehas been fully accorded. After
a claim a witness cannot properly be held to have waived his
privilege on vague and uncertain evidence."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 rampart that gives protection -even to the guilty.5. ISSUANCE
OF WRIT IS PROPER (extends to all cases of confinement)RULING:
DISCHARGE ACCUSED
PEOPLE v GALLARDEFACTS:Accused-appellant Radel Gallarde was
found guilty beyond reasonable doubt of the crime of murder.
Gallarda was charged of special complex crime of rape w/ homicide.
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.In the
evening of May 26, 1997, at the house of spouses Eduardo and Elena
Talan in Brgy. Trenchea, 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.By 10:00
oclock that evening, the drinking buddies had dispersed but Jaime,
Francisco, Edwin and Rose regrouped at Renatos 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. Elena Talan informed his uncle, Barangay Ex-kagawad Mario
Fernandez, about her daughters 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.About 7 meters away from appellants house, one of the
searchers, Alfredo Cortez, found Edithas 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 appellants 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.From the
dishevelled grasses, nephew of the Ex-kagawad found Edithas hand
pitted out. 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.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 Edithas parents suspected him of the crime, he was still on
friendly terms with them. However, he did no go to them to tell
them he was innocent because they brandished a bolo in anger.RTC:
Murder only.HELD:We sustain GALLARDEs 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.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.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.TAKING OF PICTURES NOT VIOLATION OF RIGHT AGAINST
SELF-INCRIMINATION. We cannot agree with the trial courts 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]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. Testimonies of witnesses
who have no motive or reason to falsify or perjure their
testimonies should be given credence.RULING: HOMICIDEaPASCUAL v.
BOARD OF MEDICAL EXAMINERSFACTS: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. (Bermudez v. Castillo)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. 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. OBJECTED invoking right to be exempt from being witness
against himself.RTC ordered a writ of preliminary injunction
against respondent Board.CONTENTION: 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. HELD:The Court find
for the petitioner appelle.1. InCabal v. Kapunan, 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, 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, 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."IN THE CASE AT BAR: The petitioner will be similarly be
disadvantaged for his license will be revoked as a medical
practitioner. J. DOUGLAS: 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. MISCONCEPTION OF THE RIGHT TO OBJECT ONLY WHEN THERE
IS AN INCRIMINATING QUESTION. The constitutional guarantee protects
as well the right to silence. As far back as 1905, we had occasion
to declare: "The accused has a perfect right to remain silent and
his silence cannot be used as a presumption of his guilt."12Only
last year, inChavez v. Court of Appeals,13speaking through Justice
Sanchez, we reaffirmed the doctrine anew that it is the right of a
defendant "to forego testimony, to remain silent, unless he chooses
to take the witness stand with undiluted, unfettered exercise of
his own free genuine will."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."NOTE: 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.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.CANNOT
COMPEL A PERSON TO TAKE THE WITNESS STAND W/O HIS CONSENT.RULING:
AFFRIMED.
MAPA, JR. v. SANDIGANBAYANFACTS: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 appear 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.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).Accused Mapa, Jr. among others,
acting in various capacities as mgt officials of the PNB, Natl
Investment and Devt Corp. and Pantranco North Express Inc., ALL
GOCCs, with intent to gain, conspiring w/ 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, PROMOTE AND FACILITATE THE SALE OF A MAJOR PORTION of the
public utility assets of Pantranco Express for P775M to North
Express Transport, Inc. owned and controlled by co-accused Gregorio
Araneta III (utility buses).IN THE INTERIM: former Pres. Marcos and
wife were charged by violation of Racketeer Influenced and Corrupt
Org Act (RICO) by transporting investment money thru cronies. To
insure conviction, petitioner herein and Vergara were to testify in
the said cases IN EXCHANGE OF A PROMISE OF IMMUNITY FROM FURTHER
PROSECUTION. They agreed. PCGG formalized agreement w/ petitioners
in writing.IMMUNITY. 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.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.After, petitioners filed a Joint Motion
to Dismiss concurred by PCGG on the ground of immunity. Respondent
court denied MR. Hence, this recourse where petitioners charge the
respondent court with grave abuse of discretion in denying their
Motion to Dismiss and Motion for Reconsideration.HELD:There is
merit in petition. The practice of granting government, its
officials, and some accused or respondents immunity from suits, has
a long history.EXPRESS PROVISIONS ALLOWING IMMUNITIES.Article XVI,
section 3 provides that "the State may not be sued without its
consent."Mr. Justice Oliver Wendell Holmes: ". . . there can be no
legal right against the authority which makes the law on which the
right depends." Article VI, section 11 of the Constitution also
grants parliamentary immunities. Pres. is also immunized from suit
during tenure.PD 749. 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 ResolutionSection 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 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: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; and5. The informant or witness has not been
previously convicted of a crime involving moral turpitudePD 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.(Note: he shall NOT be exempt from perjury)2
types of immunity (US):a. Transactional immunity- broader in the
scope of protection; a witness can no longer be prosecuted for any
offense whatsoever arising out of the act or transaction.b.
Used-and-derivative use immunity - witness is only assured that his
or her particular testimony andevidence derived from it will not be
used against him or her in a subsequent prosecutionRATIONALE
(Kastigar v US): 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. . .NOTE:
Power to compel is NOT absolute. EXCEPTIONS: PRIVILEGE AGAINST
COMPULSORYSELF-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.We shall now examine the powers granted to PCGG by EO 14,
as amended, to grant immunity from criminal prosecution.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 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 other.'Section 4 deals with the power which PCGG
can use to compel anunwilling witness/hostileto testify. On the
other hand, section 5 speaks of the power which PCGG can wield to
secure information from afriendly witness.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.IN
THE CASE AT BAR: exercise of immunity under Sec. 5 Petitioners are
not hostile but friendly witnesses.ISSUE to resolve 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. RTC: 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.SC: 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
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.Accdg to the Court 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.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.NOTE: 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 itsprocedural regularity.THE court
need only to 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)
whetherin 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) whetherin 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.GRAVE ABUSE OF DISCRETION. With this, 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.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.Thus, after their interview, the PCGG was
obviously convinced of the evidentiary value of the information
given by the petitioners.FAILURE TO TESTIFY IN NY CAN NOT NULLIFY
IMMUNITY. Their duty was to give info to the prosecution which they
did. 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.EVEN IF PETITIONERS WERE UNDERGOING TRIAL, PCGG NOT
BARRED.PROPER CONSTRUCTION OF SEC. 5 This is a special privilege
NOT to be construed against accused.To guard against the recurrence
of this totalitarian method, the RIGHT AGAINST SELF-INCRIMINATION
was ensconced in the fundamental laws of all civilized countries.
To accommodatethe 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 rightagainst 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 discussedThose given the
privilege of immunity paid a high price for it the surrender of
their precious right to be silent.RULING: RESOLUTION ANNULLEDSEC.
18 RIGHT AGAINST INVOLUNTARY SERVITUDEPHIL. REFINING CO. WORKERS
UNION v PHIL. REFINING CO.FACTS:On September 26, 1946, Philippine
Refining Company, Inc. vs. Philippine Refining Company Worker's
Union (CLO),was scheduled for hearing before the Court of
Industrial Relations. Upon that date, said court renewed its
efforts to effect a temporary settlement of the case before going
on the merits of the petition. Thereafter, considering the
circumstances and facts of the case at that stage of the
proceedings, the Court of Industrial Relations came to the
conclusion that, "for the welfare of everybody concerned, for the
interest of the public," and because the court might not be able to
decide the case promptly, the striking laborers should be directed
to return and resume their work in the Philippine Refining Company
on September 27, 1946, at 7:00 o'clock in the morning, and the
management of the respondent company should accept them beginning
that date; and it was so ordered by the court.FROM THE ORDER: The
striking laborers, pending the final determination of this case,
are enjoined not to stage any strike or walk out from their
employment without authority from and without first submitting the
grievances to the Court.The court ruled that the strike staged by
the union or by the workers of the company therein mentioned on
April 30, 1947, "is contemptuous and illegal because it is a
violation of the law and the order of the court.CONTENTION: Such
order was an infringement of constil inhibition prohibiting
involuntary servitude in any form.HELD:The question in the case is
the same as Kaisahan ng mga Manggagawa sa Kahoy sa Pilipinas vs.
Gotamco Saw Mill, wherein judgment went against the petitioning
union. There the court's order for the striking workers to return
to their work was made after hearing.The power conferred upon the
Court of Industrial Relations by section 19 of its organic law to
enjoin, under the circumstances therein required, a strike or walk
out, or to order the return of the striking workers and to
correspondingly enjoin the employer to refrain from accepting other
employees is one of the most important virtues of this
capital-labor legislation.As to the contention that section 19 of
Commonwealth Act No. 103 is unconstitutional, we held in, Kaisahan
ng mga Manggagawa sa Kahoy sa Pilipinas vs. Gotamco Saw Mill,supra,
that it is unconstitutional. NO OFFENSE TO RIGHT AGAINST
INVOLUNTARY SERVITUDE. An employee entering into a contract of
employment after said law went into effect,VOLUNTARILYACCEPTS,
among other conditions, those prescribed in said section 19, among
which is the "implied condition that when any dispute between the
employer or landlord and the employee, tenant or laborer has been
submitted to the Court of Industrial relations for settlement or
arbitration, the employee, tenant or laborer shall not strike or
walk out of his employment when so enjoined by the court after
hearing and when public interest so requires, and if he has already
done so, that he shall forthwith return to it, upon order of the
court, which shall be issued only after hearing when public
interest so requiresor when the dispute can not, in its opinion, be
promptly decided or settled. ..." The voluntariness of the
employee's entering into such a contract of employment he has a
free choice between entering into it or not with such an implied
condition, negatives the possibility of involuntary servitude
ensuing. RULING: ORDERS AFFIRMED.
IN THE MATTER OF HABEAS CORPUS OF SEGIFREDO ACLARACION v.
GATMAITANFACTS:Segifredo L. Aclaracion functioned as a temporary
stenographer in the Gapan branch of the CFI of Nueva Ecija His
appointment expired on November 21, 1972 while he was working as a
temporary stenographer in the CFI of Manila. Thereafter, he was
employed as a stenographer in the Public Assistance and Claims
Adjudication Division of the Insurance Commission, where he is now
working.After having ceased to be a court stenographer, CA REQUIRED
him to transcribe the steno notes in 2 cases decided by Gapan court
which had been appealed. He had failed to comply declared in
contempt of court.Justice Magno S. Gatmaitan and Justice Jose N.
Leuterio, Chairmen of the Third and Seventh Divisions of the Court
of Appeals, respectively, ordered the Chief of Police of Makati,
Rizal, to arrest Aclaracion, a resident of that municipality, and
to confine him in jail until he submits a complete transcript of
his notes in the said cases. he was arrested and incarcerated in
jail.CA then ordered his release. Later on he transcribed the notes
in Muncal case. Still, warden did no release him bec. of an order
of arrest issued.The petitioner now filed habeas corpus. He
advanced the novel contention that to compel him to transcribe his
stenographic notes, after he ceased to be a stenographer, would be
a transgression of the rule that "no involuntary servitude in any
form shall exist except as a punishment for a crime whereof the
party shall have been duly convicted."The petition was moot since
the 3rd div. ordered his release. At that hearing, this Court
resolved to order Aclaracion's provisional release on condition
that within twenty days thereafter he would complete the
transcription of his notes in thePaderescase in his office at the
Insurance Commission, Manila.He was provisionally released without
prejudice to the final ruling on his contention that he could not
be compelled to transcribe his notes in the other cases because he
was no longer connected with the judiciary and because his
stenotype machine notes were standard notes which could be
transcribed by stenographers trained in stenotype machine
shorthand.SC:After much reflection, we have come to the conclusion
that his request that he be relieved from transcribing his notes in
the other cases cannot be granted.Why? We hold that an Appellate
Court may compel a former court stenographer to transcribe his
stenographic notes. That prerogative is ancillary or incidental to
its appellate jurisdiction and is a part of its inherent powers
which are necessary to the ordinary and efficient exercise of its
jurisdiction and essential to the due administration of
justice.NOTE: Section 12, Rule 41 of the Rules of Court INCLUDES
stenographers who are no longer in the judiciary.The traditional
mode of exercising the court's coercive power is to hold the
recalcitrant or negligent stenographer in contempt of court if he
does not comply with the order for the transcription of his notes
and imprison him until he obeys the order (Sec. 7, Rule 71, Rules
of Court). Another SANCTION to compel the transcription is to hold
in abeyance the transfer, promotion, resignation or clearance of a
stenographer until he completes the transcription of his notes.
This is provided for in Circular No. 63 of the Secretary of
Justice.The same Court in its resolution of February 20, 1975
inPaterno vs. Tumibay, CA-G. R. No. 51330-R imposed on Aclaracion a
fine of one hundred fifty pesos for his failure to transcribe his
notes in the said case and warned him that he would be arrested if
he failed to submit his transcript within ten days from
notice.CONTENTION was untenable. Involuntary servitude denotes a
condition of enforced, compulsory service of one to another (Hodges
vs. U.S., 203 U.S. 1; Rubi vs. Provincial Board of Mindoro, 39
Phil. 660, 708) or the condition of one who is compelled by force,
coercion, or imprisonment, and against his will, to labor for
another, whether he is paid or not (Black's Law Dictionary, 4th
Ed., p. 961). That situation does not obtain in this case.NOTE: The
incarceration of the contemning stenographer is lawful because it
is the direct consequence of his disobedience of a court
order.RULING: HABEAS CORPUS DISMISSED. FINE OF P150 WAS
REMITTED;
SEC. 19 PROHIBITED PUNISHMENTPEOPLE v. ESTOISTAFACTS:The
appellant was acquitted of the first offense (homicide thru
reckless imprudence) and found guilty of the second, illegal
possession of firearms. Objection: Penalty from 5 10 years of
imprisonment and fines provided by RA No. 4 is cruel and
unusual.Firearm with which the appellant was charged was a rifle
belonging to his father, Bruno Estoista, who held a legal permit
for it. From a spot in the plantation the defendant took a shot at
a wild rooster and hit Diragon Dima a labourer of the family who
was setting a trap for wild chicken and whose presence was not
perceived by the accused.The evidence is somewhat conflicting on
whether the owner of the rifle was with the accused at the time of
the accidental killing.The defendant's key testimony is: "When I
heard wild rooster crowing I told my father about the said wild
rooster crowing near our house and he told me to shoot the said
wild rooster, so I went to shoot it." but fathers testimony was
different.It being established that the defendant was alone when he
walked to the plantation with his father's gun, the next question
that presents itself is: Does this evidence support conviction as a
matter of law?HELD:Republic Act No. 4, amending section 2692 of the
Revised Administrative Code, in it pertinent provision is directed
against any person whopossessesany firearm, ammunition therefor,
etc. A point to consider in this connection is the meaning of the
word "possesses.It should be construed in its broadest sense to
carry and hold. The same evils, the same perils to public security,
which the Act penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. Proprietary concept
has no bearing whatever.In the light of these considerations, it is
a mistake to point toUnited States vs. Samson, supra,as authority
for the appellant's plea for acquittal. The implied holding in that
case that the intention to possess is an essential element of a
violation of the Firearms Law was not intended to imply title or
right to the weapon to the exclusion of everyone else. The court
did not mean only intention to own but also intention to use.
CONTROL or DOMINION is an essential factor.TEST: Possession that is
temporary, incidental, casual or harmless possession or control of
a firearm is not a violation of a statute prohibiting the
possessing or carrying of this kind of weapon (US v Samson).
APPELLANT does not meet the above test. Away from his father's
sight and control, he carried the gun for the only purpose of using
it, as in fact he did, with fatal consequences.NOTE: In Samson
case, the defendant was permitted by owner to carry shortgun for
hunting. IN THE CASE AT BAR: Unlike the appellant herein, Samson
carried the gun solely in obedience to its owner's order or request
without any inferable intention to use it as a weapon. It is of
interest to note that even in the United States where, as stated,
the right to bear arms as a means of defense is guaranteed,
possession such as that by Samson is by the weight of authority
considered a violation of similar statutes.PROHIBITION OF CRUEL AND
UNUSUAL PUNISHMENT. it is our opinion that confinement from 5 to 10
years for possessing of carrying firearm is not cruel or unusual,
having due regard to the prevalent conditions which the law
proposes to suppress or curb (date of decision was 1953)The rampant
lawlessness against property, person, and even the very security of
the Government, directly traceable in large measure to promiscuous
carrying and use of powerful weapons, justify imprisonment which in
normal circumstances might appear excessive.BUT, the
constitutionality of an act of the legislature is not to be judged
in the light of exceptional cases. Small transgressors for which
the heavy net was not spread are like small fishes, bound to be
caught, and it is to meet such a situation as this that courts are
advised to make a recommendation to the Chief Executive for
clemency or reduction of the penalty.RULING: RECOMMENDATION OF 6
MOS. INSTEAD OF 5 YEARSPEOPLE v ESPARASFACTS:Accused Josefina A.
Esparas was charged with violation of R.A. No. 6425 as amended by
R.A. No. 759 for importing into the country twenty (20) kilograms
of "shabu.After arraignment, the accused escaped from jail and was
tried inabsentia.On March 13, 1995, the trial court found her
guilty as charged andimposed on her the death penalty.ISSUE: W/N
the Court shall automatically review her death sentence as she was
at largeHELD:In the 1910 ground-breaking case ofU.S. vs. Laguna,et
al.,[1]we already held thru Mr. Justice Moreland, that thepower of
this Court to review a decision imposing the death penalty CANNOT
BE WAIVED EITHER BY THE ACCUSED OR BY THE COURTS."It is apparent
from these provisions that the judgment of conviction and sentence
thereunder by the trial court does not, in reality, conclude the
trial of the accused.The judgment of conviction entered on the
trial is not final, can not be executed, and is wholly without
force or effect until the cause has been passed upon by the Supreme
Court."The requirement that the Supreme Court pass upon a case in
which capital punishment has been imposed by the sentence of the
trial court is one having for its object simply and solely the
protection of the accused.Having received the highest penalty which
the law imposes, he is entitled under that lawthat all the facts
and circumstances be clearly and conclusively determined. Such
procedure is merciful.It gives a second chance for life.Neither the
courts nor the accused can waive it.It is a positive provision of
the law that brooks no interference and tolerates no
evasions."Laguna case: Both our Rules of Court of 1940[2]and
1964[3]require the transmission to this Court of the records
ofallcases in which the death penalty shall have been imposed by
the trial court, whether the defendant shall have appealed or not,
for review and judgment as the law and justice shall dictate. Both
our Rules of Court of 1940[2]and 1964[3]require the transmission to
this Court of the records ofallcases in which the death penalty
shall have been imposed by the trial court, whether the defendant
shall have appealed or not, for review and judgment as the law and
justice shall dictate.NOTE: Withdrawal of appeal by death convict
does not bar the Court to review his conviction (People v.
Villanueva).In the 1971 case of People v Cornelio escape of the
death convict does not relieve this Court of its duty of reviewing
his conviction. Moreover, until after this Court has spoken, no
finality could be attached to the lower court decision.NOTE: 1935
and 1973 Consti did NOT prohibit imposition of death penalty.
Section 10, Rule 122 of the 1985 Rules on Criminal Procedure even
reenacted this procedure of review.Significantly, it expressly used
the term "automatic review and judgment" by this Court.Finally, we
have the 1987 Constitution which prohibits the imposition of the
death penalty unless for compelling reasons involving heinous
crimes Congress so provides. On December 13, 1993, Congress
reimposed the death penalty in cases involving the commission
ofheinous crimes.(n December 13, 1993, Congress reimposed the death
penalty in cases involving the commission ofheinous crimes.)This is
the text and tone of section 10, Rule 122,Sec. 10. In all cases
where the death penalty is imposed by the trial court, the records
shall be forwarded to the Supreme Court for automatic review and
judgment,within twenty (20) days but not earlier than (15) days
after promulgation of the judgment or notice of denial of any
motion for new trial or reconsideration.The transcript shall also
be forwarded within ten (10) days after the filing thereof by the
stenographic reporter."NOTE: the reliance inPeoplevs.
Codilla,[13]by our dissenting colleagues is misplaced.Codillais not
a death penalty case.Only the penalty ofreclusionperpetuawas
imposed on appellant.Consequently, we ruled that the escape of the
appellant or his refusal to surrender to the proper authorities
justifies dismissal of his appeal.NOTE: Nothing less than life is
at stake and any court decision authorizing the State to take life
must be as error-free as possible Our efforts must not depend on
whether appellant has withdrawn his appeal or has escaped. The
power is more of a sacred duty which we have to discharge to assure
the People that the innocence of a citizen is our concern not only
in crimes that slight but even more, in crimes that shock the
conscience.This concern cannot be diluted.RULING: COUNSEL GIVEN 30
DAYS TO FILE BRIEF OF ACCUSED.ECHAGARAY v. SEC. OF JUSTICE
SEC. 20 NON IMRPISONMENT OF DEBTSERAFIN v. JUDGE
LINDAYAGFACTS:Respondent municipal judge grossly failed to perform
his duties properly and is UNFIT FOR THE OFFICE and therefore
orders his separation from the service. It is self-evidentfrom the
very faceof the "criminal complaint" for estafa, filed with and
sworn to before him as well as the very notes of preliminary
examination taken by him that the "criminal" charge against
complainant showed no vestige of the essential elements of estafa
but ONLY complainant's failure to pay the creditors as alleged
offended parties asimple indebtedness. Respondent judge's
subsequent crass attempt at exculpation by the submission of
spurious evidence to cover up his liability shows his unworthiness
for the office.Complainant originally filed with the Sec. of
Justice the instant administrative complaint for capricious and
malicious admission of a criminal complaint for estafa against
complainant and causing her wrongful arrest and detention, against
respondent Santiago Lindayag, municipal judge of Guiguinto,
Bulacan. Then Executive Judge Andres Sta. Maria sent his
indorsement to the Department of Justice recommending the
exoneration of respondent on the ground that complainant, assisted
by her counsel, had filed a motion to withdraw her complaint.2
years after, Department of Justice forwarded the record of the case
to this Court. The Court per its Resolution of December 19, 1973
denied respondent's petition to "consider the matter close and
terminated" by virtue of the previous recommendation in 1971 of
Judge Sta. Maria and directed the District Judge to proceed with
the investigation.The complaint with its documentary evidence, the
Investigator's Report and record of the proceedings and the
evidence of record amply substantiate the complaint,
notwithstanding complainant's desistance because she afterwards
took pity on respondent and no longer wanted to be involved in the
case, as manifested by her when she appeared at the hearing and
submitted the documentary evidence supporting her complaint,
pursuant to the process issued by the Investigating Judge for her
attendance.Said complaint sworn to by said police chief (who filed
the complaint) before respondent judge on its face does not charge
any crime but merely recites complainant's failure to pay asimple
indebtedness.It was a simple debt of P1,500.00 borrowed by
complainant from Mrs. Mendoza and which she hadfailed to
repaydespite her promise to do so by January and February,
1971.Based on prelim. Examination: no vestige of the essential
elements of estafa as provided in Article 315 of the RPC but that
they had simply lent complainant the sum of P1,500.00 without any
collateral or security because complainant was an old friendNOTE:
Non-payment of an indebtedness is not a criminal act, much less
estafa; and that no one may be criminally charged MOTION TO QUASH -
well taken and ordered dismissal of the case.ALSO, respondent
utterly failed to comply with this requirement of searching
questions and answers in his examination of the complaining
witness. AMENDED COMPLAINT WAS FOUND SPURIOUS. The absence of
"staple-holes on the top and sides of these documents" which are
present in the admitted genuine and authentic records of said Crim.
Case 1602, would lead us to the inescapable conclusion that these
Exhibits (1, 1-a, 1-b, 1-c, 1-d and 2) aredefinitely not genuine
and authentic partsof the records of Crim. Case No. 1602; SIGNATURE
OF ESTRELLA was also NOT GENUINE.In the analogous case ofCarreon
vs. Flores,16the Court ordered therein respondent municipal judge's
separation from the service for having rendered a verdict of
conviction against therein complainant for alleged theft of about a
cavan of palay which could in no way be factually or legally
justified, in that the essential elements of unlawful taking and
that the property stolen belonged to another were lacking.RULING:
DISMISSED FROM OFFICE.
LOZANO v MARTINEZAmong the constitutional objections raised
against BP 22, the most serious is the alleged conflict between the
statute and the constitutional provision forbidding imprisonment
for debt. It is contended that the statute runs counter to the
inhibition in the Bill of Rights which states, "No person shall be
imprisoned for debt or non-payment of a poll tax."16Petitioners
insist that, since the offense under BP 22 is consummated only upon
the dishonor or non-payment of the check when it is presented to
the drawee bank, the statute is really a "bad debt law" rather than
a "bad check law." What it punishes is the non-payment of the
check, not the act of issuing it. The statute, it is claimed, is
nothing more than a veiled device to coerce payment of a debt under
the threat of penal sanction.The constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually during
the early part of the nineteenth century in the various states of
the American Union as a result of the people's revulsion at the
cruel and inhumane practice, sanctioned by common law, which
permitted creditors to cause the incarceration of debtors who could
not pay their debts. At common law, money judgments arising from
actions for the recovery of a debt or for damages from breach of a
contract could be enforced against the person or body of the debtor
by writ of capias adsatisfaciendum.By means of this writ, a debtor
could be seized and imprisoned at the instance of the creditor
until he makes the satisfaction awarded. As a consequence of the
popular ground swell against such a barbarous practice, provisions
forbidding imprisonment for debt came to be generally enshrined in
the constitutions of various states of the Union.Mr. Justice
Malcolm speaking for theSupreme Court in Ganaway vs.
Queen,22stated: "The 'debt' intended to be covered by the
constitutional guaranty has a well-defined meaning. Organic
provisions relieving from imprisonment for debt, were intended to
prevent commitment of debtors to prison for liabilities arising
from actionsex contractuThe inhibition was never meant to include
damages arising in actionsex delicto, for the reason that damages
recoverable therein do not arise from any contract entered into
between the parties but are imposed upon the defendant for the
wrong he has done and are considered as punishment, nor to fines
and penalties imposed by the courts in criminal proceedings as
punishments for crime."NOTE: The gravamen of BP 22 is the act of
making and issuing a worthless check or a check that is dishonored
upon its presentation for payment. It is NOT THE NON-PAYMENT OF AN
OBLIGATION which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The thrust of the law
is to prohibit, under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because of its
deleterious effects on the public interest, the practice is
proscribed by the law. The law punishes the act not as an offense
against property, but an offense against public order.It may be
constitutionally impermissible for the legislature to penalize a
person for non-payment of a debtex contractuBut certainly it is
within the prerogative of the lawmaking body to proscribe certain
acts deemed pernicious and inimical to public welfare. Actsmalain
se are not the only acts which the law can punish. An act may not
be considered by society as inherently wrong, hence, notmalumin se
but because of the harm that it inflicts on the community, it can
be outlawed and criminally punished asmalum prohibitum. The state
can do this in the exercise of its police power.POLICE POWER. The
enactment of BP 22 is a declaration by the legislature that, as a
matter of public policy, the making and issuance of a worthless
check is deemed public nuisance to be abated by the imposition of
penal sanctions.CHECK v. PROMISSORY NOTE. check is a bill of
exchange drawn on a bank and payable on demand.It is a written
order on a bank, purporting to be drawn against a deposit of funds
for the payment of all events, of a sum of money to a certain
person therein named or to his order or to cash and payable on
demand.Unlike a promissory note, a check is not a mere undertaking
to pay an amount of money.. There is therefore an element of
certainty or assurance that the instrument will be paid upon
presentation. For this reason, checks have become widely accepted
as a medium of payment in trade and commerce. Although not legal
tender, checks have come to be perceived as convenient substitutes
for currency in commercial and financial transactions. The basis or
foundation of such perception is confidence. According to: CJ Stacy
in a 1927 case of State v. Yarbor: The 'check flasher' does a great
deal more than contract a debt; he shakes the pillars of business;
and to my mind, it is a mistaken charity of judgment to place him
in the same category with the honest man who is unable to pay his
debts, and for whom the constitutional inhibition against'
imprisonment for debt, except in cases of fraud was intended as a
shield and not a sword.In sum, we find the enactment of BP 22 a
valid exercise of the police power and is not repugnant to the
constitutional inhibition against imprisonment for debt.RULING:
PETITION DISMISSED.
SEC. 21- DOUBLE JEOPARDYPS BANK v BERMOYFACTS:Based on a
complaint filed by petitioner Philippine Savings Bank respondents
Pedrito and Gloria Bermoy were charged with estafa thru
falsification of a public document.During the hearings of 18 June
1997 and 3 September 1997,) the prosecution presented the
testimonies of Felisa Crisostomo, manager of petitioners Libertad
Manila Branch, and one Hermenigildo Caluag also an employee of
petitioner. Crisostomo testified that she came to know respondent
spouses when they applied for a loan in February 1994. The spouses
allegedly offered TCT as collateral for loan. (Allegedly forged the
TCT)RTC: Acquitted respondentsCA: DeniedHELD: No merit.On Whether
Double Jeopardy isApplicable Here
Paragraph 1, Section 7, Rule 117 (Section 7) of the 1985 Rules
on Criminal Procedure[14]on double jeopardy provides:Former
conviction or acquittal; double jeopardy. When an accused has been
convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of
competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or
for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included
in the offense charged in the former complaint or information.
For double jeopardy to apply, Section 7 requires the following
elements in the first criminal case:(a) The complaint or
information or other formal charge was sufficient in form and
substance to sustain a conviction;(b)The court had
jurisdiction;(c)The accused had been arraigned and had pleaded;
and(d)He was convicted or acquitted or the case was dismissed
without his express consent.[15]
On the last element, the rule is that a dismissal with the
express consent or upon motion of the accused does not result in
double jeopardy. EXCEPTION: if the dismissal is based on
insufficiency of evidence or on the denial of the right to speedy
trial.[16] A dismissal upon demurrer to evidence falls under the
first exception.[17] Since such dismissal is based on the merits,
it amounts to an acquittal.[18]
As the Court of Appeals correctly held, the elements required in
Section 7 were all present in Criminal Case No. 96-154193. Thus,
the Information for estafa through falsification of a public
document against respondent spouses was sufficient in form and
substance to sustain a conviction. The trial court had jurisdiction
over the case and the persons of respondent spouses. Respondent
spouses were arraigned during which they entered not guilty pleas.
Finally, Criminal Case No. 96-154193 was dismissed for
insufficiency of evidence. Consequently, the right not to be placed
twice in jeopardy of punishment for the same offense became vested
on respondent spouses.The Extent of the Right AgainstDouble
JeopardyTHE RIGHT AGAINST DOUBLE JEOPARDY CAN BE INVOKED IF (a) the
accused is charged with the same offense in two separate pending
cases, or (b) the accused is prosecuted anew for the same offense
after he had been convicted or acquitted of such offense, or(c) the
prosecution appeals from a judgment in the same case.[19]The last
is based on Section 2, Rule 122 of the Rules of Court[20]which
provides that [a]ny party may appeal from a final judgment or
order,except if the accused would be placed thereby in double
jeopardy.Here, petitioner seeks a review of the 21 April 1998 Order
dismissing Criminal Case No. 96-154193 for insufficiency of
evidence. It is in effect appealing from a judgment of acquittal.
By mandate of the Constitution[21] and Section 7, the courts are
barred from entertaining such appeal as it seeks an inquiry into
the merits of the dismissal. Thus, we held in an earlier case:In
terms of substantive law, the Court will not pass upon the
propriety of the order granting the Demurrer to Evidence on the
ground of insufficiency of evidence and the consequent acquittal of
the accused, as it will place the latter in double jeopardy.
Generally, the dismissal of a criminal case resulting in acquittal
made with the express consent of the accused or upon his own motion
will not place the accused in double jeopardy. However, this rule
admits of two exceptions, namely: INSUFFICIENCY OF EVIDENCE AND
DENIAL OF THE RIGHT TO A SPEEDY TRIAL.
The strict rule against appellate review of judgments of
acquittal is not without any basis. As the Court explained inPeople
v. Velasco: It is axiomatic that on the basis of humanity, fairness
and justice, an acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of his acquittal..
The philosophy underlying this rule establishing the absolute
nature of acquittals is part of the paramount importance criminal
justice system attaches to the protection of the innocent against
wrongful conviction.
With this right of repose, the criminal justice system has built
in a protection to insure that the innocent, even those whose
innocence rests upon a jurys leniency, will not be found guilty in
a subsequent proceeding.
The contention has no merit. To be sure, the rule barring
appeals from judgments of acquittal admits of an exception. Such,
however, is narrowly drawn and is limited to the case where the
trial court act[ed] with grave abuse of discretion amounting to
lack or excess of jurisdictiondue to a violation of due
processi.e.the prosecution was denied the opportunity to present
its case xxx orthat the trial was a sham.However, as the Court of
Appeals correctly held, any error committed by the trial court on
this point can only be an error of judgment and not of
jurisdiction.
RULING: PETIITION DENIED.
PEOPLE v. OBSANIA
FACTS:Indictment for rape against Willy Obsania. barely a day
after the occurence of the alleged crime, Erlinda Dollente, the
14-year old victim, and her parents, Ciriaco Dollente and Carmelita
Lureta, filed in the municipal court of Balungao, Pangasinan a
complaint for rape with robbery. the assistant provincial fiscal
filed an information for rape against the accused, embodying the
allegations of the above complaint, with an additional averment
that the offense was committed "with lewd designs".DEFECT. The
accused pleaded not guilty upon arraignment, and forthwith his
counsel moved for the dismissal of the case, contending that the
complaint was fatally defective for failure to allege "lewd
designs" and that the subsequent information filed by the fiscal
which averred "lewd designs" did not cure the jurisdictional
infirmity. court a quo GRANTED motion to dismiss. REASON of judge:
"the failure of the complaint filed by the offended party to allege
that the acts committed by the accused were with 'lewd designs'
does not give this Court jurisdiction to try the case." From this
order, the fiscal brought the instant appeal.ISSUES: first, are
"lewd designs" an indispensable element which should be alleged in
the complaint?, and, second, does the present appeal place the
accused in double jeopardy?HELD:Both must be answered in the
negative.DISPENSABILITY OF ALLEGATION. Judge relied on People v.
Gilo where Court opined that lewd design is an indispensable
element of all crimes against chastity, such as abduction,
seduction and rape, including acts of lasciviousness.Nothing in the
foregoing statement can be reasonably interpreted as requiring
anexplicitallegation of "lewd design" in a complaint for rape. We
hold in no uncertain terms that in a complaint for rape it is not
necessary to allege "lewd design" or "unchaste motive", for to
require such averment is to demand a patent superfluity. Lascivious
intent inheres in rape and the unchaste design is manifest in the
very act itself the carnal knowledge of a woman through force or
intimidation, or when the woman is deprived of reason or otherwise
unconscious, or when the woman is under twelve years of
age.COMPLAINT in the case at bar satisfies the reqts of legal
sufficiency of an indictment for rape as it unmistakably alleges
that the accused had carnal knowledge of the complainant by means
of violence and intimidation. trial judge erred.ISSUE ON JEOPARDY.
Section 9, Rule 117 of the Revised Rules of Court provides THE
REQUISITES for one to invoke double jeopardy. In order that the
protection against double jeopardy may inure in favor of an
accused, the following requisites must have obtained in the
original prosecution: (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge; and
(d) the defendant was acquitted, or convicted, or the case against
him was dismissed or otherwise terminated without his express
consent. IN THE CASE AT BAR:a. Complaint was validb. Court a quo
was a competent tribunal w/ jurisdiction to hear the casec. Accused
pleaded not guilty upon arraignmentd. Now, the QUESTION is whether
the dismissal of the case was without the express consent of the
accused.The accused admits that the controverted dismissal was
ordered by the trial judge upon his motion to dismiss. However, he
vehemently contends that under the prevailing jurisprudence,
citingPeople vs. Bangalao, et al. an erroneous dismissal of a
criminal action, even upon the instigation of the accused in a
motion to quash or dismiss, DOES NOT BAR HIM from pleading the
defense of double jeopardy in a subsequent appeal by the Government
or in a new prosecution for the same offenseSC: This particular
aspect of double jeopardy dismissal or termination of the original
case without the express consent of the defendant has evoked varied
and apparently conflicting rulings from this Court. We must
untangle this jurisprudential maze and fashion out in bold relief a
ruling not susceptible of equivocation. Hence, a searching extended
review of the pertinent cases is imperative.DOCTRINE OFWAIVER OF
DOUBLE JEOPARDY. People vs. Salico: this Court held that the
dismissal was erroneous because the evidence on record showed that
the crime was committed in the town of Victorias and the trial
judge should have taken judicial notice that the said municipality
was included within the province of Negros Occidental and therefore
the offense charged was committed within the jurisdiction of the
court of first instance of the said province.Mr. Justice Felicisimo
Feria, speaking for the majority, reasoned that :When the case is
dismissedwith the express consentof the defendant, the dismissal
WILL NOT BE A BAR to another prosecution for the same offense;
because, his action in having the case dismissed constitutes a
WAIVER of his constitutional right or privilege, for the reason
that he thereby prevents the court from proceeding to the trial on
the merits and rendering a judgment of conviction against
him.Salico doctrine was adhered to and affirmed in People v.
Marapao: ... it appears that the appellee was neither convicted nor
acquitted of the previous charge against him for slight physical
injuries, FOR THAT CASE WAS DISMISSED UPON HIS OWN REQUEST before
trial could be finished. Having himself asked for such dismissal,
before a judgment of conviction or acquittal could have been
rendered, the appellee is not entitled to invoke the defense of
double jeopardy...NOTE: In essence, this Court held that where a
criminal case is dismissed provisionally not only with the express
consent of the accused but even upon the urging of his counsel,
there can be no double jeopardy under section 9, Rule 113, if the
indictment against him is revived by the fiscal. This decision
subscribes substantially to the doctrine on waiver established
inSalico.NO DOUBLE JEOPARDY THRU DISMISSAL. An appeal of the
prosecution from the order of dismissal by the trial court will not
constitute double jeopardy if(1) the dismissal is made upon motion,
or with the express consent, of the defendant, and (2) the
dismissal is not an acquittal or based upon consideration of the
evidence or of the merits of the case; and (3) the question to be
passed upon by the appellate court is purely legal; so that should
the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant. DOCTRINE OF
ESTOPPEL. In relation to the plea of double jeopardy was first
enunciated inAciertowhich held that when the trial court dismisses
a case on a disclaimer of jurisdiction, upon the instigation of the
accused, the latter is estopped on appeal from asserting the
jurisdiction of the lower court in support of his plea of second
jeopardy. same as doctrine of waiverNOTE: From the above named
statement, it is clear that what inSalicowas repudiated
inLabatetewas thepremisethat the dismissal therein was not on the
merits andnottheconclusionthat a dismissal, other than on the
merits, sought by the accused, is deemed to be with his express
consent and therefore constitutes a waiver of his right to plead
double jeopardy in the event of an appeal by the prosecution or a
second indictment for the same offense. This Court, inLabatete,
merely pointed out that the controverted dismissal in Salico was in
fact an acquittal." Reasoninga contrario, had the dismissal not
amounted to acquittal, then the doctrine of waiver would have
applied and prevailed. As a matter of fact we believe with the
majority in Salico that the dismissal therein was not on the merits
and therefore did not amount to an acquittal: If the prosecution
fails to prove that the offense was committed within the
territorial jurisdiction of the court and the case is dismissed,
the dismissal is not an acquittal.InCloribel, the case dragged for
three years and eleven months, that is, from September 27, 1958
when the information was filed to August 15, 1962 when it was
called for trial, after numerous postponements, mostly at the
instance of the prosecution. On the latter date, the prosecution
failed to appear for trial, and upon motion of defendants, the case
was dismissed. This Court held "that the dismissal here complained
of was not truly a 'dismissal' but an ACQUITTAL. For it was entered
upon the defendants' insistence on their constitutional right to
speedy trial and by reason of the prosecution's failure to appear
on the date of trial."Here the controverted dismissal was
predicated on the erroneous contention of the accused that the
complaint was defective and such infirmity affected the
jurisdiction of the courta quo, and not on the right of the accused
to a speedy trial and the failure of the Government to prosecute.
T