1. BIENVENIDO O. MARCOS, Petitioner, v. HON. FERNANDO S. RUIZ, RTC Judge, 7th Judicial Region, Tagbilaran City, and THE PEOPLE OF THE PHILIPPINES, Respondents.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO DISMISS; MAY BE RESOLVED AFTER ARRAIGNMENT. — All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved by the trial court. Respondent Judge asserts that the petitioner is estopped from questioning the inaction on this motion because he voluntarily appeared at his arraignment, entered a plea and agreed to the scheduling of the case for trial on the merits; besides, the Prosecution, by presenting its evidence, is deemed to have abandoned the motion. While the first proposition is incorrect, the second is inaccurate. Estoppel does not operate in the present case for the motion may still be resolved after the arraignment; by its nature, it may be filed by the prosecution at any time. As a matter of fact, had the petitioner not signed his conformity thereto, it would have been to his benefit or advantage that the motion be resolved after his plea for, by then, if the same is granted, the Prosecution would be precluded from refiling the case on the ground of double jeopardy.

2. ID.; ID.; ID.; ACTION ON MOTIONS MUST BE UNEQUIVOCAL AND NOT BE LEFT TO CONJECTURE. — The manifestation and withdrawal of the motion (to dismiss) were made in the presence of the accused and his counsel; neither of them objected thereto for they knew too well that they had no legal basis therefor. The only flaw in this regard is the respondent Judge’s failure to explicitly make a ruling on the oral motion. He merely granted the motion impliedly by immediately directing the arraignment of the accused. He should have taken the trouble of making an unequivocal ruling thereon by simply stating: "Motion is granted; the motion to dismiss is considered withdrawn. All right, arraign the accused." The demands of orderly procedure require that a judge of a court of record must ensure that actions on motions must not be left to conjecture but must, in a manner of speaking, be done in black and white.

3. ID.; ID.; HEARING IN ABSENTIA, PROPER. — Having failed to appear on 8 April 1985 despite due notice, and considering that on said date the urgent motion for resetting had not yet been received by the court, respondent Judge could not be faulted for believing that petitioner’s non-appearance was unjustified. Hence, a hearing in absentia was proper under the aforequoted provision of the Constitution and Sections 2(c) and 1(c) of Rules 114 and 115, respectively, of the Rules of Court.

4. ID.; ID.; BAILBOND; FORFEITURE. — A bail bond may be forfeited only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required. There is no showing that the court had specifically required the bonding company to produce the body of the petitioner on 8 and 9 April 1985. Moreover, since Criminal Cases Nos. 3890 and 3892, which involve two (2) checks with a face value of P3,000.00 each, were merely for the violation of Batas Pambansa Blg. 22 which imposes a penalty of "imprisonment of not less than thirty (30)

days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court," the presence of the accused at the hearing on 8 and 9 April 1985 was not indispensable.

5. ID.; ID.; ARRAIGNMENT; ACCUSED REQUIRED TO PERSONALLY ENTER HIS PLEA. — It will, however, be noted that insofar as the second case, Criminal Case No. 3892, is concerned, the court made no ruling on the manifestation and offer by petitioner’s counsel that the reading of the information be waived and a plea of not guilty be entered. The petitioner was neither made to confirm the manifestation nor directed to personally make the plea. There was, therefore, no valid arraignment in Criminal Case No. 3892. Section 1(b), Rule 116 of the Rules of Court, as amended, requires the accused to personally enter his plea.

6. ID.; ID.; MOTION FOR POSTPONEMENT; COUNSEL BOUND TO GIVE PRIORITY TO HEARING SET ON AGREED DATE. — The motion to reset the hearing was a mere subterfuge to obtain a postponement of and delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April 1985 hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no prior commitment on those dates and he was thereby bound to give priority to the same, unless events of greater importance or of a more serious nature requiring his presence, supervened.

7. ID.; ID.; ID.; GRANTING IN CRIMINAL CASE IS LEFT TO SOUND DISCRETION OF COURT. — Counsel for petitioner should not have presumed that the motion, which he prepared and sent by registered mail only on 29 March 1989, would reach the court and be granted before 8 April 1985. He knew, or ought to know that the granting of motions for postponement in criminal cases is left to the sound discretion of the Court — a rule which has been steadfastly adhered to since United States v. Lorenzana and which this Court more explicitly expressed in Unites States v. Ramirez.

8. ID.; ID.; ID.; A MERE SCRAP OF PAPER WHERE NOTICE OF HEARING IS LACKING. — The urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not contain a notice of hearing to the Prosecution; all it had was a mere request, addressed to the Clerk of Court, that it be submitted for the consideration and approval of the court immediately upon his receipt thereof. There was, therefore, a clear violation of Section 5, Rule 15 of the Rules of Court, which is also applicable in motions for continuance in criminal case.

9. ID.; ID.; WHEN NON-APPEARANCE OF ACCUSED CONSIDERED A WAIVER. — With respect to an accused who is not in custody, his non-appearance constitutes a waiver of his right to be present only for the trial set for the particular date of which he had notice. Upon the other hand, such non-appearance by an accused in custody and who later escapes is considered a waiver of the right on such date and all subsequent trial dates until such custody is regained

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The Facts :

On 2 August 1984, after conducting the appropriate preliminary investigation, Acting 2nd Assistant City Fiscal Lorenzo A. Lopena of the City of Tagbilaran filed with the Regional Trial Court of Bohol two (2) informations against petitioner herein for violating Batas Pambansa Blg. 22; said violations allegedly took place on 5 July 1983 in the City of Tagbilaran when the petitioner, knowing fully well that he did not have sufficient funds deposited with the Far Fast Bank and Trust Company (Cebu North Proclamation Area Branch), delivered to Fulgencia Oculam, in payment for assorted pieces of jewelry taken by petitioner’s wife Anacleta Marcos, two (2) checks drawn against said bank in the amount of P3,000.00 each. The informations were docketed as Criminal Cases No. 3890 1 and No. 3892 2 and were raffled to Branch II of said court. The petitioner posted a surety bond for his temporary liberty.

The arraignment was set for 12 November 1984. The petitioner appeared on that date but asked for a resetting on the ground that his lawyer had just withdrawn and he had to look for another lawyer. The court granted his request and the arraignment was reset to 29 November 1984. 3 

It turned out, however, that petitioner settled his obligation with the offended party who, on 3 November 1984, executed an Affidavit of Desistance which she subscribed and swore to before Notary Public Paulino G. Clarin.

When the cases were called in the afternoon of 8 April 1985, neither petitioner nor counsel appeared. The prosecution presented its evidence ex-parte and rested its case. The court then issued an Order 8 forfeiting the bond posted by the petitioner, directing Paramount Insurance Corp., the bondsman, to show cause, within thirty (30) days form notice, why no judgment should be issued against the bond and declaring that as no evidence has been submitted by the petitioner, the cases were deemed submitted for decision.

On 9 April 1985, the trial court received an urgent motion for the resetting of the hearing filed by counsel for the petitioner. In justifying petitioner’s failure to appear at the hearing on 8 April 1985, counsel contends:j

"THAT in view of the said motion [for resetting of hearing] the accused, in good faith, believed that the hearing set on April 8, 1985 would not proceed and his presence would thus be unnecessary; that to save money for fare and meals in a trip to Tagbilaran City from Cebu City, and vice versa, the accused who is a government employee did not anymore attend the hearing which he believed was cancelled on account of the motion aforementioned;

Held: A bail bond may be forfeited only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required. 21 There is no showing that the court had specifically required the bonding company to produce the body of the petitioner on 8 and 9 April 1985. Moreover, since Criminal Cases Nos. 3890 and 3892, which involve two (2) checks with a face value of P3,000.00 each, were merely for the violation of Batas Pambansa Blg. 22 which imposes a penalty of "imprisonment of not less than thirty (30) days but not more than one (1) year or by a fine of not leas than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court," the presence of the accused at the hearing on 8 and 9 April 1985 was not indispensable.

Under the Rules of Court, the accused has to be present:c

(a) at the arraignment pursuant to paragraph (b), Section 1, Rule 116;

(b) at the promulgation of judgment, except when conviction is for a light offense, in which case the judgment may be pronounced in the presence of his counsel or representative pursuant to Section 6 of Rule 120, or unless promulgation in absentia is allowed under the third paragraph of said section; and

(c) when the prosecution intends to present witnesses who will identify the accused. 22 

In the second place, the motion to reset the hearing was a mere subterfuge to obtain a postponement of and delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April 1985 hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no prior commitment on those dates and he was thereby bound to give priority to the same, unless events of greater importance or of a more serious nature requiring his presence, supervened. The only reason he gave for the notice was that he "has a previous legal commitment in Manila needing his personal attention." 26 He did not elaborate on what that legal commitment was.

If he indeed had such a commitment and his conformity to the 8 and 9 April 1985 setting was a mistake, he should have immediately filed a motion for the resetting of hearing. It hardly needs to be said that either the so-called "legal commitment" in Manila — whatever that could have been — was made sometime after 7 February 1985 or that it never existed at all. In the motion to reconsider the 8 April 1985 Order, petitioner’s counsel did not bother to explain the importance of that commitment or convince the court that he actually made the trip to Manila.chanrobles lawlibrary : rednad Thirdly, counsel for petitioner should not have presumed that the motion, which he prepared and sent by registered mail only on 29 March 1989, would reach the court and be

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granted before 8 April 1985. He knew, or ought to know that the granting of motions for postponement in criminal cases is left to the sound discretion of the Court — a rule which has been steadfastly adhered to since United States v. Lorenzana 27 and which this Court more explicitly expressed in United States v. Ramirez 28 in this wise:jgc:chanrobles.com.ph

"Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial, nor for light causes jeopardize the rights or interests of the public. Where the court conceives it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance."cralaw virtua1aw library

This rule was succinctly stated in Section 2 of Rule 119 before its amendment by the 1985 Rules of Criminal Procedure as follows:jgc:chanrobles.com.ph

"SEC. 2. Continuance or postponement of the trial. — The court on the application of either party or on its own motion, may in its discretion for good cause postpone the trial of the case for such period of time as the ends of justice and the right of the defendant to a speedy trial require." chanrobles virtual lawlibrary

As amended, it now reads:jgc:chanrobles.com.ph"SEC 2. Continuance trial until terminated; postponements. — Trial once commenced shall continue from day to day as far as practicable until terminated; but for good cause, it may be postponed for a reasonable period of time."cralaw virtua1aw library

Finally, the urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not contain a notice of hearing to the Prosecution; all it had was a mere request, addressed to the Clerk of Court, that it be submitted for the consideration and approval of the court immediately upon his receipt thereof. There was, therefore, a clear violation of Section 5, Rule 15 of the Rules of Court, which is also applicable in motions for continuance in criminal cases. Said section provides as follows:jgc:chanrobles.com.ph

"SEC. 5. Contents of notice. — The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion."cralaw virtua1aw library

In Bank of the Philippine Islands v. Far East Molasses Corp., 29 this Court explicitly ruled that a motion that does not contain a notice of hearing is but a mere scrap of paper, it presents no question which merits the attention and consideration of the court. It is not even a motion for it does not comply with the rules and hence, the clerk has no right to receive it.

Since on 8 April 1985 the motion for resetting had not yet been received by the court, the respondent Judge committed no error, much less abuse of discretion, in allowing the prosecution to present, ex parte, its evidence and rest its case immediately thereafter in

Criminal Case No. 3890; the same, however, cannot be said about Criminal Case No. 3892 for, as earlier mentioned, no valid arraignment had as yet been conducted thereon. Petitioner should blame no one else but his counsel. Nonetheless, a client is bound by the acts, even mistakes of his counsel in the realm of procedural technique; however, if the former is prejudiced by the latter’s negligence or misconduct, he may recover damages. 30 

However, respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he capriciously and arbitrarily considered Criminal Cases Nos. 3890 and 3892 — more particularly the latter wherein there was no valid arraignment — submitted for decision after the prosecution rested its case on 8 April 1985. He thus blatantly ignored and disregarded Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court which merely consider the accused’s non-appearance during trial — 8 April 1985, in this case — as a waiver of his right to be present for trial on such date only and not for the succeeding trial dates. This is quite clear from Section 1(c) of Rule 115 which further provides:chanrobles virtual lawlibrary

". . . The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. When an accused under custody had been notified of the date of the trial and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial dates until custody is regained." (Emphasis supplied)

Thus, with respect to an accused who is not in custody, his non-appearance constitutes a waiver of his right to be present only for the trial set for the particular date of which he had notice. Upon the other hand, such non-appearance by an accused in custody and who later escapes is considered a waiver of the right on such date and all subsequent trial dates until such custody is regained.

The hearing on 8 April 1985 was actually the initial hearing for the two (2) cases, albeit erroneously for the second due to the infirmity referred to earlier, it was likewise for the purpose of receiving the evidence for the prosecution. It cannot be fairly presumed that said setting was also for the purpose of presenting the accused’s evidence considering that neither the court nor the parties knew in advance the number of cases to be tried on those dates and the length of the direct and cross examinations of the witnesses. Besides, even assuming for the sake of argument that the prosecution could rest its case on 8 April 1985, the defense could have still filed a demurrer to evidence under Section 15, Rule 119 of the Rules of Court, which would have necessarily meant a deferment of the reception of the evidence for the accused.

The order of the respondent Judge declaring the two (2) cases submitted for decision is not only a violation of Section 1(c) of Rule 115 but is also a pronouncement that the petitioner had waived his constitutional right to be heard by himself and counsel, 31 and present his evidence. This is certainly lamentable for he thus allowed his court to breach one of its highest, duties — the protection of the citizen and the maintenance of his constitutional

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rights. 32 

1. SETTING ASIDE that portion of the Order of respondent Judge of 3 April 1985 forfeiting the bond posted by petitioner’s bondsmen and declaring Criminal Cases Nos. 3892 and 3892 submitted for decision;

2. DECLARING that there was no valid arraignment in Criminal Case No. 3892;chanrobles law library : red

3. UPHOLDING the validity of the ex-parte reception of the prosecution’s evidence on 8 April 1985 insofar as Criminal Case No. 3890 is concerned and DECLARING petitioner as having waived his right to cross-examine the witness presented by the prosecution in said case;

4. SETTING ASIDE the Notice of Promulgation issued on 3 May 1985; and

5. DIRECTING the court below to arraign the petitioner in Criminal Case No. 3892, set the case for trial for the reception of the evidence for the prosecution, hold a joint hearing of both cases for the reception of the evidence for the petitioner and, in due course, render judgment thereon.

No pronouncement as to costs.

2. FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO,Petitioners, vs. HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance of Cebu and TEODORO DE LA VEGA, JR., Respondents

April 15, 1988

Gimenez v. Nazareno, 160 SCRA 1 (1988) Where one of the co-accused escapes after arraignment, trial by absentia should ensue. Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in court. The court need not wait for the time for the escapee to decide to appear in court to present his evidence and cross-examine the witnesses against him. By his failure to appear during the trial of which he had notice, an escapee waives his rights to cross-examine and to present evidence on his behalf.

Facts:

On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio Baguioand the herein private respondent Teodoro de la Vega Jr., were charged with the crime of murder.On August 22, 1973 all of them were arraigned and each of them pleaded

not guilty to the crimecharged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set thehearing of the case for September 18, 1973 at 1:00 o'clock in the afternoon. All the acused including De la Vega, Jr., were duly informed of this.

Before the scheduled date of the first hearing, De la Vega, Jr., escaped from his detention centerand on the said date, failed to appear in court. This prompted the fiscals (FISCAL CELSO M.GIMENEZ and FEDERICO B. MERCADO) handling the case to file a motion to proceed with the hearing of the case against all the accused praying that de la Vega, Jr. be tried in absentia invoking the application of Section 19, Article IV of the 1973 Constitution.

SEC. 19. In all criminal prosecution, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to the attendance of witnesses and the production of evidence in his behalf. However, after arraignment trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified. (Emphasis supplied.) 

Pursuant to the provision, the lower court proceeded with the trial of the case but nevertheless gave De la Vega, Jr., the opportunity to take the witness stand the moment he showsup in court.

On November 6,1973, the lower court rendered a decision dismissing the case against the fiveaccused while holding in abeyance the proceedings against the private respondent.On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the decision ofthe trial court on the ground that it will render nugatory the constitutional provision on "trial inabsentia" cited earlier. However, this was denied by the lower court, hence this petition.

Issues:1. whether or not a court loses jurisdiction over an accused who after being arraigned,

escapes from the custody of the law2. whether or not under Section 19, Article IV of the 1973 Constitution, an accused

who has been duly tried inabsentia retains his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him.

Ruling:

1. NO. The court did not lose jurisdiction over an accused who after being arraigned, escapes from the custody of the law. Jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated. Where the accused appears at the arraignment and pleads not guilty to the crime charged, jurisdiction is acquired by the court over hisperson and this continues until the termination of the case, notwithstanding his escape fromthe custody of the law.

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2. NO. An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him.

A "trial in absentia"may be had when the following requisites are present: (1) that there has been an arraignment; (2) that the accused has been notified; and (3) that he fails to appear and his failure to do so is unjustified.

In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, the private respondent was arraigned on August 22, 1973 and in the said arraignment he pleaded not guilty. He was also informed of the scheduled hearings set on September 18 and 19, 1973 and this is evidenced by his signature on the notice issued by the lower Court. 7 It was also proved by a certified copy of the Police Blotter 8 that private respondent escaped from his detention center. No explanation for his failure to appear in court in any of the scheduled hearings was given. Even the trial court considered his absence unjustified.

The Court ruled that an escapee who has been duly tried in absentia waives his right topresent evidence on his own behalf and to confront and cross-examine witnesses whotestified against him. Upon the termination of a trial in absentia, the court has the duty to ruleupon the evidence presented in court. The court need not wait for the time until the accused who escape from custody finally decides to appear in court to present his evidence and crossexamine the witnesses against him. To allow the delay of proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. As it has been aptly explained:

. . . The Constitutional Convention felt the need for such a provision as there were quite a number of reported instances where the proceedings against a defendant had to be stayed indefinitely because of his non- appearance. What the Constitution guarantees him is a fair trial, not continued enjoyment of his freedom even if his guilt could be proved. With the categorical statement in the fundamental law that his absence cannot justify a delay provided that he has been duly notified and his failure to appear is unjustified, such an abuse could be remedied. That is the way it should be, for both society and the offended party have a legitimate interest in seeing to it that crime should not go unpunished

Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine and to present evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. 10 In the same vein, his right to present evidence on his behalf, a right given to him for his own benefit and protection, may be waived by him. Under Sec. 1(c) Rule 115 of ROC:

... The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be

present during that trial. When an accused under custody had been notified of the date of the trail and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial dates until custody in regained....

WHEREFORE, the respondent judge is hereby directed to render judgment upon the innocence or guilt of the herein private respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the applicable law.

3. MANUEL F. CABAL, Petitioner, v. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, Respondents.

2. ID.; EXEMPTION OF DEFENDANTS FROM OBLIGATION TO BE WITNESS AGAINST THEMSELVES. — Proceedings for forfeiture of property are deemed criminal or penal, and hence, the exemption of defendants in criminal cases from the obligation to be witness against themselves are applicable thereto. 3. ID.; FORFEITURE OF PROPERTY IN SUBSTANCE IS A CRIMINAL PROCEEDING FOR THE PURPOSE OF PROTECTION OF THE RIGHTS OF THE DEFENDANT AGAINST SELF-INCRIMINATION; CASE OF BOYD vs. U.S. and THURSTON vs. CLARK, CITED. — In Boyd vs. U.S. (116 U.S. 616, 29 L. ed., 746), it was held that the information, in a proceeding to declare a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding, is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason of criminal proceedings for the purposes of that portion of the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecuted is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is an action, suit or cause instituted to punish an infraction of the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case . . . ." 4. ID.; ID.; CASE OF ALMEDA vs. PEREZ, DISTINGUISHED. — In Almeda vs. Perez, L-18428 (August 30, 1962) the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding is civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing on the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination.

Principle: In criminal or penal proceedings, the right may be invoked by the accused in refusing to take the witness stand or giving a blanket refusal to answer any questions. “The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he refuses to answer. The privilege is simply an option of refusal, not a prohibition of inquiry.”

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Note: 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. Forfeiture of property in substance is a criminal proceeding for the purpose of protection of the rights of the defendant against self-incrimination (Boyd v US and Thurston, 116 US 616).

FACTS: 1. Col. Jose C. Maristela filed with the Secretary of National Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the AFP, with "graft, corrupt practices, unexplained wealth, and other equally reprehensible acts". 2. The President of the Philippines created a committee to investigate the charge of unexplained wealth. 3. The Committee ordered petitioner herein to take the witness stand in the administrative proceeding and be sworn to as witness for Maristela, in support of his aforementioned charge of unexplained wealth. 4. Petitioner objected to the order of the Committee, invoking his constitutional right against self-incrimination. 5. The Committee insisted that petitioner take the witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. 6. This notwithstanding, petitioner respectfully refused to be sworn to as a witness to take the witness stand. 7. The Committee referred the matter to the Fiscal of Manila, for such action as he may deem proper. 8. The City Fiscal filed with the Court of First Instance of Manila a "charge" of contempt for failing to obey the order of the Committee to take the witness stand. 9. The "charge" was assigned to the sala of respondent judge Kapunan. 10. Petitioner filed with respondent Judge a motion to quash, which was denied. 11. Hence this petition for certiorari and prohibition.

ISSUE: WON the Committee's order requiring petitioner to take the witness stand violates his constitutional right against self-incrimination.

HELD: YES. Although the said Committee was created to investigate the administrative charge of unexplained wealth, it seems that the purpose of the charge against petitioner is to apply the provisions of the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property.

However, such forfeiture has been held to partake of the nature of a penalty. As a consequence, proceedings for forfeiture of property are deemed criminal or penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto.

No person shall be compelled in any criminal case to be a witness against himself. This prohibition against compelling a person to take the stand as a witness against himself

applies to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in nature.

The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A question is not improper merely because the answer may tend to incriminate but, where a witness exercises his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the witness is improper.

The possibility that the examination of the witness will be pursued to the extent of requiring selfincrimination will not justify the refusal to answer questions. However, where the position of the witness is virtually that of an accused on trial, it would appear that he may invoke the privilege in support of a blanket refusal to answer any and all questions. 

4. FRANCISCO BELTRAN, Petitioner, v. FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of Isabela, Respondents. 

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 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

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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 crossexamination (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.

FACTS:Beltran (petitioner), as a defendant for the crime of Falsification, refused to write a

sample of his handwriting as ordered by the respondent Judge. The petitioner in this case contended that such order would be a violation of his constitutional right against self-

incrimination because such examination would give the prosecution evidence against him, which the latter should have gotten in the first place. He also argued that such an act will make him furnish evidence against himself.

ISSUE:Whether or not 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.

RULING:The court ordered 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. 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. 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. 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, it should not be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to obtain specimen or specimens without resorting to the means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of innocent persons.

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

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really been written by her, it would be impossible for her to evade prosecution for perjury (art. 183, Revised Penal Code). 2. ID.; ID.; REASON FOR THE PRIVILEGE. — The reason for the privilege is to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised or assured, at least, absolute immunity by one authorized to do so legally, or he should be asked, once for all, to furnish such evidence voluntarily without any condition. In order that the constitutional provision in question may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.

FACTS:Respondent Castillo filed six letters in addition to other evidence in support of his

defense, contending that these letters came from the complainant Bermudez. Three of the letters were admitted by Bermudez as in her handwriting. So respondent required her to copy by hand the other letters.

Bermudez invoked her right not to incriminate herself. The investigator did not compel her to submit to the trial. Castillo’s petition was denied which prompted him to institute proceedings to require Bermudez to copy the exhibits and furnish specimens of her handwriting.

Respondent invoked the doctrine laid down in Ex Parte Crow , to the effect that ". . . a witness may not arbitrarily refuse to answer a question on the ground that his answer might incriminate him when the court can determine as a matter of law that no direct answer which the witness may make can tend to criminate him.'"

What was asked of the petitioner, who was with her and what date did she visit Dr. Goose, was only a preliminary question to which she refused alleging that her answer might incriminate her. But the trial court determined that her answer would not have the tendency to incriminate her.

ISSUE:WON the petitioner’s answer have such tendency to incriminate her and so can she

invoke the privilege not to incriminate herself.

HELD:The Court held that the trial court erred in determining that there would be no

tendency to incriminate herself had the petitioner answered the question. She has the right and privilege to decline to answer said questions on the ground stated.

It was not the complainant but the respondent who offered the letters (Exhibits 32 to 37) in evidence. The complainant was presented in rebuttal and she simply denied having written the letters. She should not be made to furnish the other party evidence by which to destroy her own testimony under circumstances which tend to incriminate her. She was not even presented by the respondent as his own witness.

The Court added that although difficulty arises in the prosecution of cases under section 274 of the Penal code, when the person is unwilling to testify for fear of being prosecuted himself, but the constitutional right accorded to petitioner cannot be set aside just because it would make the conviction of the accused difficult if not impossible.

The proper place to claim the privilege is in the trial court when the question is propounded. The petitioner opportunely invoked such privilege when she was required to copy the letters. The reason for this privilege is to avoid compelling a person in criminal or any other case, to furnish the missing evidence necessary for his conviction. The privilege against self-incrimination is a personal one but an option of refusal, not a prohibition of inquiry. A question on a self-incriminating act desired to be shown by him relevant to the issue may be asked and then it is for the witness to answer or claim the privilege.

Section 17 of the Constitution provides that "No person shall be compelled to be a witness against himself”. The Constitution extends this protection to all cases, be they criminal, civil or administrative.

The Respondent’s petition was denied.

6. CRISTOPHER GAMBOA, Petitioner, vs. HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX,Respondent.

7. THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GLENN HATTON, Defendant-Appellant.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; TRIAL; A JUDGE MAY PROPERLY INTERVENE THEREIN TO PROMOTE EXPEDITION AND AVOID UNNECESSARY WASTE OF TIME OF TO CLEAR SOME OBSCURITY; CASE AT BAR. — We read the transcript of stenographic notes and indeed, it is true that the judge was overzealous in controlling the conduct of the hearing. He asked more questions than did counsel of the accused or the fiscal. It is conceded though that the trial judge did not manifest any bias in favor of the prosecution in asking the witnesses for the prosecution nor any hostility or malice against the defense witnesses. We note also that the questions asked by the court were clarificatory questions aimed to paint a clearer picture of what was testified to by the witnesses. As we held in People v. Ibasan, Sr., G.R. No. L-61652, June 22, 1984; 129 SCRA 695: ". . . It is not denied that the court had at certain points conducted its own questioning during the proceedings. The records, however, show that the court's questions did not amount to interference as to make the case for the prosecution and deprive the accused of their defense. The questions of the judge addressed to the witnesses and the accused were merely to clarify certain points and confirm certain statements. The number of times that a judge intervenes is not necessarily an indication of bias. It cannot be taken against a judge if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. "As held in the case of Ventura v. Yatco (105 Phil. 287) 'Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues

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involved, clarifying ambiguous remarks by witnesses, etc.' "A judge may properly intervene in the trial of a case to promote expedition and avoid unnecessary waste of time or to clear up some obscurity (People v. Catindihan, 97 SCRA 196; Par. 14 Canons of Judicial Ethics; Administrative Order No. 162 dated August 1, 1946, 42 O.G. 1803). In this respect, the record shows no irregularity in the conduct of the trial judge."

2. ID.; ID.; IDENTIFICATION OF THE ACCUSED; POLICE LINE-UP, NOT ESSENTIAL THERETO. — In People v. Llaneras, et al., G.R. No. 89117, June 19, 1991, We held that "(T)here is no law requiring a police line-up as essential to a proper identification (People v. Espiritu, G.R. No. 80406 , November 20, 1990). Thus, even if there was no police line-up, there could still be proper identification as long as such identification was not suggested to the witnesses by the police." The prosecution through witness Ongue, made it appear that the latter identified the accused-appellant in a police line-up. The details however, showed otherwise.

3. ID.; ID.; ID.; ID; REGULARITY THEREON MAY BE DOUBTED WHERE THE INFLUENCE OF IMPROPER MOTIVE IS STRONG; CASE AT BAR. — There is every reason to doubt the regularity of the identification by Ongue of the accusedappellant. From his testimony, it is clear that he did not positively identify the accused-appellant. At the time of the incident he made a very fleeting glance on the person who stabbed the victim. At that moment, he had the impression that the assailant was a mestizo. During the proceedings in the police station where he was supposed to identify the assailant, he identified the accused-appellant as allegedly the person who stabbed the deceased, not because he was certain that the accusedappellant was really the assailant but because he was the only mestizo in the station and because he was pointed to the policemen as their suspect. The fact is that the accused-appellant was not identified in a police line-up. He was pointed to by the police as their suspect. He being the only mestizo in the station, Ongue pointed to him as "the man." From all indications, the identification of accusedappellant by Ongue was suggested by the police and this is objectionable.

4. ID.; ID.; ID.; ID; NOT BEING A PART OF CUSTODIAL INVESTIGATION, ACCUSED CANNOT INVOLVE HIS RIGHT TO COUNSEL. — The doctrine enunciated in the case of U.S. v. Wade (388 U.S. 218; 18 L ed. 2d 1149, 87 S Ct. 1926). is that the presence of counsel is indispensable in a post-indictment line-up. In that case, the accused had already been arrested and a lawyer already appointed to represent him. It was fifteen days after his arrest and the appointment of a lawyer to represent him when he was presented in a police line-up to be identified by the prosecution witness. There was no doubt that Wade in that case was already under custodial investigation where his right to counsel already attached. "Since it appears that there is grave potential for prejudice, intentional or not, in the pre-trial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel] . . . as at the trial itself.'" (United States Supreme Court Reports, Lawyer Edition, vol. 18, p. 1163). In the instant case, Hatton was brought to the police station only to be identified, by a witness to the killing of Algarme.

Technically, he was not yet under custodial investigation. "The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense."

5. ID.; ID.; ID.; FAILURE TO MENTION THEREOF IN THE SWORN-STATEMENT, AND IN COURT; MAY BE FATAL TO THE PROSECUTION. — Third, the other prosecution witness who identified the accused-appellant as the knife wielder was Romeo Basierto. He claimed in his testimony that at the time the victim was stabbed, he did not at once recognize him. However, when he chased him, he recognized the man as the herein accused-appellant when the latter turned his face towards Basierto before he allegedly entered the house of Nonong Hatton. He knew the accused appellant because they were both residents of Catarman. However, as the defense counsel pointed out in the cross-examination, Basierto never mentioned the name of the accused-appellant in the sworn statement he executed on the 2nd of September 1986. In fact, he categorically stated that he did not recognize the man who stabbed Algarme. While an affidavit being taken ex parte is almost incomplete and often inaccurate (People v. Avanzado, 158 SCRA 427) the affiant Basierto could not have omitted the identity of accused-appellant as the knife-wielder if it were true that he was able to identify him at that time he gave chase. The matter of the identity of the knife-wielder could not have been omitted by him considering its importance in the resolution of the death of his friend. While Basierto's other companions brought the victim to the hospital, he allegedly went to the police station to report the incident. The police on duty, Alfredo Nocha, however, testified that there was no entry in the police blotter regarding the death of Algarme in the evening of August 29, 1986. There was an entry in the police blotter on August 30, 1986 that at 8:10 in the morning, a certain Vicente Rojas reported the stabbing of Algarme by an unidentified man. More importantly, the accusedappellant was not positively identified in court. True, his name was referred to by both Basierto and Ongue in their respective direct testimonies. However, he was not identified in Court. The failure of the prosecution witness to positively identify the assailant in court is fatal to the prosecution's cause. Pre-trial identification is not sufficient.

6. ID.; EVIDENCE; CONVICTION; PROSECUTION MUST RELY ON THE STRENGTH OF ITS OWN EVIDENCE AND NOT ON THE WEAKNESS OF THE DEFENSE. — While it is true that the defense of alibi is weak, it holds true only if the prosecution's evidence is strong. The better rule is, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense (People v. Solis, et al., 182 SCRA 182 (1990); People v. Buenaflor, 181 SCRA 225 (19190), People v. Rodrigueza, G.R. No. 95902, Feb. 4, 1992). With the exclusion of the pre-indictment identification of the accused-appellant and the failure of the prosecution witnesses to positively identify him in court, the case against him must fail.

7. CRIMINAL LAW; MURDER; MAY BE PROVED BY THE LOCATION OF THE WOUND, THE RELATIVE POSITION OF ASSAILANT AND VICTIM AND TRAJECTORY OF THE

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BLOW. — We are of the considered opinion that the matter of the accusedappellant being left-handed and the testimony of the prosecution witness that the assailant delivered the fatal blow with his right hand is not a trivial matter. A lefthanded person cannot be expected to deliver a thrust with the same intensity using his right hand. The intensity of the blow can be deduced from the fact that the assailant failed to remove the knife after the thrust despite his attempt, as testified to by witness, Ongue. In fact, the knife was deeply embedded with such force that it had to be removed in the hospital. It is erroneous for the trial judge to conclude that there was no direct proof that from 'the location of the wound, the relative positions of assailant and victim and the trajectory of the blow considering the internal organ pierced thereby, the injury could not have been inflicted by a right-handed person.' What could be a more positive proof of this fact than the categorical statement of the prosecution witnesses who saw the incident and who categorically stated that the assailant delivered the fatal blow with his right hand. It is unnatural for a left handed person to use his right hand in accomplishing a tough act as stabbing another. It is also hard to believe that the left handed assailant can deliver a stab blow with the same force as that of his right, as in this case.

Facts, issue ruling:

Accused-appellant, Glenn Hatton, was charged with the crime of murder, for the death of one Faustino Algarme, in a complaint signed by P/Cpl. Jose C. Custorio of the Catarman Police Station.

Upon arraignment, accused-appellant, duly assisted by his counsel pleaded not guilty to the charge.

According to the principal witnesses for the prosecution, Edgardo Ongue and Romeo Basierto, the incidents surrounding the death of Algarme were as follows:

The town of Catarman, Northern Samar was celebrating its fiesta on that day of August 29, 1986. The victim, Faustino Algarme and three (3) of his friends. namely: Jesus Aboda, Romeo Basierto and witness Edgardo Ongue were on their way to the house of Engr. Corbillo after drinking two (2) bottles of beer each at Aileen's Restaurant. The group walked abreast Algarme, who was on the extreme left at the edge of Bonifacio street, with Ongue, Basierto and Aboda, in that order, to his right. It was about seven (7) o'clock in the evening. When they neared the CLAO office, they noticed two (2) men coming towards their direction. One was short and stocky and the other was tall. While the tall man was one step behind them, he tapped the shoulder of Faustino Algarme with his left hand and stabbed him with his right hand. Algarme shouted for help and called "Romy (Basierto), please help me I was struck." At that moment. Ongue gazed at the tall man who tried to pull back the knife from the victim's back. Ongue did not know the man who stabbed Algarme, but he took notice of his mestizo features. The tall man failed to get the knife. Then he ran towards the corner of a house owned by Nonong Hatton.

Another witness for the prosecution, Romeo Basierto testified that as soon as the tall man stabbed Algarme, he ran and Basierto chased him. Basierto recognized the tall man who stabbed Algarme when the latter turned his face towards. He recognized the accused because both of them were residents of Catarman.

Edgardo Ongue brought the victim to the hospital where he died of "massive hemorrhage secondary to stab wound. Meanwhile, Basierto reported the incident to the police headquarters. Three policemen, one of whom was identified as Titing Varela, accompanied him to the scene of the crime where they beamed their flashlights towards the house of Nonong Hatton where he believed the tall man and his companion entered.

According to Ongue, the day after the incident when he went to the Police station to shed light on the incident, he narrated to the police officers what really transpired. He told them that the features of the assailant was still in his memory and that if they can show or present a person who will fit his description, he can identify him. He waited at the police station from 8:00 to 11:00 o'clock but the police failed to present any person to him. On the second day after the incident, he was picked-up from his office and made to identify their suspect who turned out to be the accused-appellant. The latter was sitting on a bench in the police station and a policeman pointed to him as their suspect.

The accused-appellant interposed the defense of alibi. He testified that on that same night, from 6:00 p.m. to 10:30 p.m., he was in the house of his friend Eddie Laguitan. They were joined by their friends Eric Parnam, Edgar Maningcay, Marlon Acibar, Jaime Mijares and a girl named Imelda. Since it was the town fiesta and the baptism of the niece of Eddie Laguitan, they were invited by Eddie for some snacks and drinks. During the entire period, he got up only twice to go to the comfort room. His testimony was corroborated by Mrs. Laguitan, Eddie's mother who served them, and another person who was with the group, Jaime Mijares.

The accused-appellant denied having stabbed the victim. He categorically stated also that he was left-handed.

After trial, judgment was rendered finding the accused-appellant guilty beyond reasonable doubt of the crime charged.

From the judgment of conviction, accused-appellant filed this appeal.

In his brief, the following issues were raised by him in the assignment of errors:

I. The accused-appellant was condemned before he was heard by a court that allied itself with the prosecution, in violation of the constitutional right to due process of law.

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II. The trial court erred in holding that the accused-appellant's being left-handed is a detail "comparatively trivial and does not destroy the credibility of the witness or his testimony."

III. The trial court erred in holding the identification of the accused-appellant to the victim's attacker is positive and convincing considering that no courtroom identification was made, and the said identification was based solely on a pre-trial line-up of sorts, conducted in violation of the accused-appellant's right to counsel, and in a manner filled with innumerable "suggestive influences."

IV. The lower court erred in not giving credence to the evidence presented by the accused-appellant.

V. The lower court erred in holding that the accused-appellant is guilty beyond reasonable doubt.

The accused-appellant objected to the conduct of the judge during trial. He alleged that the judge manifested bias and partiality in hearing the case. The judge allegedly asked leading questions and various points not asked by the fiscal when the prosecution presented its first witness. He practically took over the task of conducting the direct examination, asking fifty one (51) questions while the fiscal asked only a total of twenty-five (25) questions. The judge also asked another forty (40) questions during cross-examination and practically took over the task of re-direct examination. The same attitude was displayed by the judge during the entire trial of the case.

Likewise, the accused-appellant pointed out that after the direct examination of the first witness for the defense, Jaime Mijares, the judge took the task of conducting the cross-examination by asking fifty-nine (59) questions while the Fiscal only asked nine (9) questions.

The counsel for the accused pointed out also that the decision was rendered by the judge on June 19, 1987 when it was only on June 29, 1987 when the accused-appellant and another witness for the defense. Jaime Mijares, was presented as a witness in court. This fact allegedly showed the bias of judge who already adjudged the accused guilty before hearing his defenses.

It appears from the record of this case that the decision was dated June 29, 1987. The transcript of stenographic notes showed, however, that the last hearing was conducted the next day, June 30, 1987. It appears to the court that the date appearing in the decision was only a typographical error. There was no irregularity in the promulgation of the decision. The record reveals that the promulgation of the decision was set on July 7, 1987 after both parties submitted their respective testimonial and documentary evidence. Moreover, the

decision reflected that the trial judge took into consideration the defense of the accused and the testimony of the witnesses in arriving at his decision.

After a careful study of the case, We hold that the judgment of conviction must be reversed.

First, the witness for the prosecution positively stated that the victim was stabbed with a knife using the right hand of the assailant. The accused-appellant on the other hand testified that he is left-handed.

We are of the considered opinion that the matter of the accused-appellant being left-handed and the testimony of the prosecution witness that the assailant delivered the fatal blow with his right hard is not a trivial matter. A left-handed person cannot be expected to deliver a thrust with the same intensity using his right hand. The intensity of the blow can be deduced from the fact that the assailant failed to remove the knife after the thrust despite his attempt, as testified to by witness. Ongue.In fact, the knife was deeply embedded with such force that it had to be removed in the hospital. It is erroneous for the trial judge to conclude that there was no direct proof that from "the location of the wound, the relative positions of assailant and victim and the trajectory of the blow considering the internal organ pierced thereby, the injury could not have been inflicted by a right-handed person."

Second, in People v. Llaneras, et al., G.R. No. 89117, June 19, 1991, We held that "(T)here is no law requiring a police line-up as essential to a proper identification (People v. Espiritu, G-R. No. 80406, November 20, 1990). Thus, even if there was no police line-up, there could still be proper identification as long as such identification was not suggested to the witnesses by the police."

The prosecution through witness Ongue, made it appear that the latter identified the accused-appellant in a police line-up. The details however, showed otherwise.

There is every reason to doubt the regularity of the identification by Ongue of the accused-appellant. From his testimony, it is clear that he did not positively identify the accused-appellant. At the time of the incident he made a very fleeting glance on the person who stabbed the victim. At that moment, he had the impression that the assailant was a mestizo. During the proceedings in the police station where he was supposed to identify the assailant, he identified the accused-appellant as allegedly the person who stabbed the deceased, not because he was certain that the accused-appellant was really the assailant but because he was the only mestizo in the station and because he was pointed to the policemen as their suspect. The fact is that the accused-appellant was not identified in a police line-up. He was pointed to by the police as their suspect. He being the only mestizo in the station, Ongue pointed to him as "the man." From all indications, the identification of accused-appellant by Ongue was suggested by the police and this is objectionable. We quote hereunder a portion of the decision of the U.S. Supreme Court expressing its

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misgivings on the identification of a suspect in a police line-up where the influence of improper suggestion is strong.

Seeking shelter under the just quoted U.S. v. Wade case, the accused-appellant also argued that when he was presented in a line-up of sorts he was not represented by a counsel. This allegedly violates his constitutional right to counsel during custodial investigation.

This argument raised by appellant has no merit. The doctrine enunciated in the case of U.S. v Wade is that the presence of counsel is indispensable in a post-indictment line-up. In this case, the accused had already been arrested and a lawyer already appointed to represent him. It was fifteen days after his arrest and the appointment of a lawyer to represent him when he was presented in a police line-up to be identified by the prosecution witness. There was no doubt that Wade in that case was already under custodial investigation where his right to counsel already attached.

In the instant case, Hatton was brought to the police station only to be identified. by a witness to the killing of Algarme. Technically, he was not yet under custodial investigation.

Third, the other prosecution witness who identified the accused-appellant as the knife wielder was Romeo Basierto. He claimed in his testimony that at the time the victim was stabbed. he did not at once recognize him. However, when he chased him. he recognized the man as the herein accused-appellant when the latter turned his face towards Basierto before he allegedly entered the house of Nonong Hatton. He knew the accused appellant because they were both residents of Catarman. However, as the defense counsel pointed out in the cross-examination, Basierto never mentioned the name of the accused-appellant in the sworn statement he executed on the 2nd of September 1986. In fact, he categorically stated that he did not recognize the man, who stabbed Algarme.

While an affidavit being taken ex parte is almost incomplete and often inaccurate (People v. Avanzado, 158 SCRA 427) the affiant Basierto could not have omitted the identity of accused-appellant as the knife-wielder if it were true that he was able to identify him at that time he gave chase The matter of the identity of the knife-wielder could not have been omitted by him considering its importance in the resolution of the death of his friend.

While Basierto's other companions brought the victim to the hospital, he allegedly went to the police station to report the incident. The police on duty, Alfredo Nocha. however, testified that there was no entry in the police blotter regarding the death of Algarme in the evening of August 29, 1986. There was an entry in the police blotter on August 30, 1986 that at 8:10 in the morning, a certain Vicente Rojas reported the stabbing of Algarme by an unidentified man.

More importantly, the accused-appellant was not positively identified in court. True, his name was referred to by both Basierto and Ongue in their respective direct testimonies. However. he was not identified in Court. The failure of the prosecution witness to positively identify the assailant in court is fatal to the prosecution's cause. Pre-trial identification is not sufficient.

While it is true that the defense of alibi is weak. it holds true only if the prosecution's evidence is strong. The better rule is, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense (People v. Solis. et al., 182 SCRA 182 (1990); People v. Buenaflor. 181 SCRA 225 (1990), People v. Rodriguez. G.R. No. 95902, Feb. 4, 1992). With the exclusion of the pre-indictment identification of the accused-appellant and the failure of the prosecution witnesses to positively identify him in court, the case against him must fail.

8. THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.ANGELES CRUZ, Defendant-Appellant.

SYLLABUS 1. CRIMINAL LAW; MURDER; FACTS REVEALING WEAK IDENTIFICATION OF ACCUSED — The lighting situation in the house was wholly uncertain, rendering highly suspect and questionable, if not altogether infirm, the ability of the two girls to shape out a positive identification of appellant Cruz. Besides, the manner by which Emma and Zenaida were made to identify the accused at the police station was pointed suggestive. It generated confidence where there was none, activated visual imagination, and, all told, subverted their reliability as eye-witnesses. This unusual, coarse and highly singular method of identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem of every just man, and commands neither the court's respect nor acceptance. 2. ID.; ID.; ALIBI; WEAKNESS OF DEFENSE DOES NOT RELIEVE PROSECUTION OF RESPONSIBILITY TO PROVE GUILT.— Although there are indications in the record that the alibi offered by appellant Cruz may stand searching scrutiny, nevertheless, it acquires commensurate strength where, as in this case, no positive and proper identification has been made by the witnesses of the offender. The prosecution still has the onus probandi in establishing the guilt of the accused, and the weakness of the defense does not relieve it of this responsibility.

D E C I S I O N CASTRO, J p:

Ten persons were charged with the offense of robbery with homicide committed in the early morning of November 3, 1962 in the barrio of Goso-on, municipality of Carmen, province of Agusan. Six of them, described in the indictment by the appellations John, Peter, Joseph, Walter, Caezar and Roberto, all surnamed Doe, were, up to the promulgation of the judgment a quo, at large. Of the remaining four accused, two, Inecito Hevero and Nonilon Butao, were, after due trial, acquitted for insufficiency of evidence. The last two, Angeles

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Cruz and Arturo Bonifacio, were found guilty, and each was sentenced to life imprisonment; both were also adjudged, jointly and severally, to indemnify the heirs of the two deceased victims, in the sum of P6,000 each. From this decision of the Court of First Instance of Agusan, these two appealed.

Bonifacio later withdrew his appeal; under Resolution of November 16, 1966, we granted the withdrawal.

Only the appeal of Angeles Cruz is the object of this review.

The heart of this appeal is the correctness of the identification of Angeles Cruz by the two principal witnesses for the prosecution, the sisters Zenaida and Emma Cabillo, 15 and 12 years of age, respectively, in June 1963 when they testified in Court.

We address the question: Was the identification of Angeles Cruz so positive and certain as to meet the inflexible requirement of proof beyond reasonable doubt of his criminal participation? Our answer is in the negative.

The prosecution's version may be summarized briefly. A band of robbers, numbering from five to ten, at about one o'clock in the morning of November 3, 1962, broke into the house of Tarciano Cabillo in Goso-on, Carmen, Agusan. They scaled the front wall by the use of an improvised ladder. Upon reaching its veranda, they drilled holes in the wall to loosen the boards, after the removal of some of which they gained entrance into the house. Mixed eerie sounds of screaming and simultaneous discharge of firearms forthwith followed. Soon thereafter the robbers hurriedly fled, away to a waiting speedboat and out to the sea and darkness. Behind them lay a terror-stricken household, its master Tarciano Cabillo dead from a spray of bullets, and a housemaid, Margarita Cabilogan, profusely bleeding from a gunshot wound which inexorably caused her death.

It was the integrated testimony of Zenaida and Emma Cabillo upon which the trial court principally based its conviction of Angeles Cruz. They were roused from slumber, so they testified, by the instantaneous presence of at least five men, all masked, in the living room where they were sleeping. When they had sprung to their feet, they were grabbed by two of the robbers. Zenaida was held fast by Arturo Bonifacio, with his arms slung around her waist, while Emma was held in a similar fashion by Angeles Cruz; both girls were utilized as shields when the robbers commenced firing into the master's bedroom where Tarciano Cabillo apparently held out for sometime with his own gun. After resistance had altogether ceased, the robbers ransacked every known drawer and container. Zenaida and Emma were then forced down to the store below where, with the aid of electric lights, they marked the identities of Arturo Bonifacio and Angeles Cruz whose masks had fallen off during the confusion. The drawers in the store were chiseled open and their contents seized by the robbers. Angeles Cruz then returned upstairs, Emma with him, unlocked the door to the master's bedroom, and ransacked the two drawers therein, Zenaida, meanwhile, succeeded in slipping out to safe refuge in the house of a neighbor, Ben Maol. Emma had remained

upstairs, after the robbers beat a hasty escape, stunned by the sight of her father lying inert in a pool of blood.

The appellant's challenge against the identification made of him by Zenaida and Emma is two-pronged: first, the conditions that hapless morning were not conducive to, but on the contrary were suppressive of, definitive identification; and second, the subsequent actuations and declaration of Emma and Zenaida are irreconcilable with their avowed certainty as to the identity of the appellant Cruz.

We have committed the records of this case to an exacting study. Unhappily, our minds cannot rest easy on the evidence of guilt adduced against the appellant.

In the wee hours after midnight when the robbery took place, what was the lighting situation in the house? Let us examine the record. In her statements given to the Butuan City police just a few hours after the perpetration of the crime, and to the police authorities of Carmen the day after, Zenaida was explicit that the living room of the house was sufficiently lighted to enable her to identify at least two of the armed malefactors. On the witness stand, however, she admitted, contrary to her statements to the police, that the living room was unlighted and "so dark that I could not see clearly their faces that night." It was only later when they were down in the store that she came face to face with two of the robbers, one of these being the appellant Cruz. In the latter part of her testimony in court, however, she reneged on her previous declaration and stated that while they were still upstairs, the light in the living room was switched on by one of the malefactors who commenced to ransack the drawers in that room. This narration hardly squares with the testimony of the other girl, Emma, who testified that the light in the living room was already on and was put out only when the firing started. Completely negating the testimony of these two girls, their mother, Remedios Cabillo, declared positively that the entire house was enveloped in darkness at the time of the perpetration of the crime, except for a small lamp in the master's bedroom — and this, because the family was economizing on electrical consumption.

The lighting situation in the house was therefore wholly uncertain, and renders highly suspect and questionable, if not altogether infirm, the ability of the two girls to shape out a positive identification of the appellant Cruz.

But let us probe further into their other declarations. Under oath they testified that all the robbers were masked, It was downstairs in the store that these two sisters allegedly identified the faces of Bonifacio and Cruz, when the latter's masks suddenly fell off their faces. Rendered dramatic by the production in court of two handkerchiefs alleged to have been recovered from the scene of the crime that morning, this twist is remarkable for its inverisimilitude. In the first place, these handkerchiefs were not properly or satisfactorily identified because Zenaida, who had supposedly found them, could not say whether those produced in court were the self-same handkerchiefs that she had found. In the second place, these handkerchiefs were alleged to have been turned over by Zenaida to municipal judge Quirino Battad of Carmen, yet when called to the witness stand the latter failed to affirm the discovery of such handkerchiefs. Finally, no mention — not even the slightest hint

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— was ever made of these handkerchiefs in the various statements given by the two girls to the police investigators. A facet so significant and vital as the falling off of the masks, the two girls would not have escaped mentioning when shortly after the incident they were closely interrogated by the police.

In the afternoon of November 3, 1962, Zenaida and Emma were brought to the police department in Butuan City and, while there, made to examine photographs of several "tough guys" in that city. Zenaida singled out Arturo Bonifacio from the pictures, pointing to him as one of the robbery. Just then, one Sgt. Baril of the Philippine Constabulary remarked to her that Bonifacio belonged to a gang, a member of which was Angeles Cruz.

That very same afternoon, Angeles Cruz was picked up In front of a moviehouse and brought to the police station for questioning. He was made to walk and turn around in the presence of Zenaida and Emma. Cruz was not placed in a police lineup, contrary to standard stationhouse verification procedure, to test the accuracy of the witnesses' memory, and to afford a mere suspect a fair chance of early relief from the inconvenience inflicted on one who is mistakenly identified. Moreover, Zenaida and Emma testified that the several accused, including Cruz, were pointed out to them as the persons suspected by the police as the perpetrators of the robbery committed in Goso-on, and as notorious "tough guys" in Butuan City. The identification at the police station was attended, as the two girls themselves admitted, by a great deal of whispered conversations as well as by at least one unexplained conference elsewhere in the municipal building, at which they were present, immediately prior to their being confronted with the accused.

The manner by which Emma and Zenaida were made to identify the accused at the police station was pointedly suggestive, generated confidence where there was none, activated visual imagination, and, all told, subverted their reliability as eyewitnesses. This unusual, coarse and highly singular method of identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem of every just man, and commands neither our respect nor acceptance.

Finally, chief of police Dionisio Pacon of Carmen, Agusan, whom the lower court praised and commended in no uncertain terms as. ". . . an impartial witness. . . . incumbent Chief of Police . . . no relation to any one of the accused . . . no motive to distort the truth . . . his testimony ringing with truth and sincerity,"

testified candidly on the witnesses' efforts at identification of the appellant Cruz. Pacon's unrebutted testimony is hereunder reproduced: "Q What transpired when Angeles Cruz arrived in the police station? A He was brought to a table which was fenced around and he was interrogated, while the children were outside. "Q Then what transpired? A They asked the children who were beside me. "Q What did they ask? A They were asked if they know the person who was sitting near the table of the office. Then I asked Emma first whether or not she know the person (referring to Angeles Cruz) and Emma answered: 'He is not the one.' Then Captain Villaremo went outside and inside the railing and related something to them and asked the children if said person was the one who, one of the members of the

barcada of Arturo Bonifacio, robbed their father in Goso-on; that upon being asked, she said that he is not the one. 'Keep on watching and examine whether or not he is one who robbed your father in Goso-on,' Captain Villaremo said. So the children kept on watching Angeles Cruz. Shortly thereafter, Captain Villaremo asked again if he is the one and told them, saying: 'He is the one, Day, no?' He is the one Day, no ?' And then Zenaida said, 'Maybe he is the one ' After that the children were brought to the P.C. Headquarters." (Dionisio Pacon, t.s.n., pp. 300-301, February 5, 1964.)

We must hasten, at this juncture, without need of elaboration, to stress that the record is sufficiently interspersed with reliable proof of the identification of Arturo Bonifacio as one of the particeps criminis. In sharp contrast, there is a paucity of evidence of identification with respect to the appellant Cruz.

Although indications there are in the record that the alibi offered by the appellant Cruz may stand searching scrutiny, we will merely repeat, as we come to the end of our travail, what we said in one case: "Although alibi is the weakest defense that an accused can avail of, it acquires commensurate strength where, as in this case, no positive and proper identification has been made by the witnesses of the offender. The prosecution has the onus probandi in establishing the guilt of the accused and the weakness of the defense does not relieve it of this responsibility," (People vs. Baquiran, L-20153, June 29, 1967, 20 SCRA 451, 460-461.) ACCORDINGLY, the judgment a quo is reversed, and the appellant Angeles Cruz is hereby acquitted. Costs de officio.

9. PEOPLE OF THE PHILIPPINES, Petitioner, v. THE PRESIDING JUDGE, REGIONAL TRIAL COURT, FIRST JUDICIAL REGION, BRANCH XLV, URDANETA, PANGASINAN, and RODOLFO VALDEZ, JR.,Respondents.

. BILL OF RIGHTS; RIGHTS OF THE ACCUSED; TRIAL IN ABSENTIA; PERMITTED BY 1973 CONSTITUTION EVEN IN CAPITAL OFFENSES; CONDITIONS; REASON FOR REQUIRING PRESENCE OF ACCUSED DURING TRIAL DESPITE HIS WAIVER. — The 1973 Constitution now unqualifiedly permits trial in absentia even of capital offenses, provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People’s witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to an acquittal.

FACTS:Private respondent Rodolfo Valdez, Jr. is charged with murder before the Regional Trial Court of Pangasinan and he is out on a P30,000.00 bail bond which contains the following conditions —

The aforenamed, as bondsmen, hereby jointly and severally undertake that the above-mentioned defendant, as principal therein will appear and answer the

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charge above-mentioned in whatever Court it may be tried, and will at all times hold himself amenable to the orders and processes of the Court, and if convicted, will appear for judgment, and render himself to the execution thereof; or that if he fails to perform any of these conditions will pay to the Republic of the Philippines the sum of Thirty Thousand Pesos (P30,000.00) ...

He waived his right to be present on trial, orally after arraignment. However, the fiscal moved that he should be present during trial for identification by the witnesses. The judge ruled in favor of the respondent and held that respondent cannot be validly compelled to do so.Hence, a petition for certiorari was filed against the judge.

ISSUE:Whether or not the order of the judge, allowing the respondent not to be present in trial, is valid.Respondent’s contention: The 1973 Consti grants him the absolute right to absent himself from the trial of the case despite the conditions laid upon in his bail bond.Article IV of the 1973 Constitution, Section 19 thereof provides —

SEC. 19. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified.

RULING: NO, the order was invalid. It was declared as null and void.The 1973 Constitution certainly has made a dent on the traditional and correct

concept of a bail as given to allow the release of a person in the custody of the law on condition that he would appear before any court whenever so required. The accused may waive his presence in the criminal proceedings except at the stages where Identification of his person by the prosecution witnesses is necessary. Reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People's witnesses the opportunity to Identify him in court, he may in his defense say that he was never Identified as the person charged in the information and, therefore, is entitled to an acquittal. Furthermore, it is possible that a witness may not know the name of the culprit but can Identify him if he sees him again, in which case the latter's presence in court is necessary.

10. Borja vs mendozaFacts:Petitioner Borja was charged with the crime of slight physical injuries before the court of Judge Senining. He was not arraigned, and the trial was held in absentia (meaning without his presence in court). He was thereafter sentenced guilty and sentenced to suffer imprisonment of 20 days. Bereaved, the accused appealed to the CA (Justice Mendoza)

alleging that his constitutional rights to procedural due process (the right to be informed of the nature and cause of accusation against him and of his right to be heard by himself and counsel) were violated. The CA affirmed the decision of the Trial Court without any notice to Borja or requiring him to submit his memorandum (wala jud nix a gi ingun, but mao ni ang gi imply sa facts kay wala man klaro). Thus, this present petition.

Issues:Whether or not the petitioner’s constitutional right was violated when he was not arraigned.

Held: YES.

First, arraignment is a requirement of procedural due process. The Constitution requires that the accused be arraigned so that he may be informed as to why he was indicted, and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him.

Due Process is identified as to involve the following:1. The accused having been heard in a court of competent jurisdiction,2. proceeded against under the orderly processes of law;3. only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and (satisfied by arraignment). 4. a judgment awarded with the authority of a constitutional law. An arraignment thus becomes indispensable as the means "for bringing the accused into court and notifying him of the cause he is required to meet.

Second, arraignment is also required for the accused to know the crime charged against him, and its possible consequences. It is imperative that he is thus made fully aware of Possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. An arraignment serves that purpose. He would be in a much worse position though if he does not even have such an opportunity to plead to the charge. With his counsel by his side, he is thus in a position to enter his plea with full knowledge of the consequences. He is not even required to do so immediately. He may move to quash. What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital aspect of the constitutional rights guaranteed him. It is not useless formality, much less an Idle ceremony.

Third, the judge committed an error when it convicted the accused after a trial in absentia.  It is indisputable then that there was a denial of petitioner's constitutional right to be heard by himself and counsel. As categorically affirmed by Justice Ozaeta for this Court in the leading case of Abriol v. Homeres:  "It is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him."  He added further that such "constitutional right is inviolate."  There is no doubt that it could be waived, but here there

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was no such waiver, whether express or implied. "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence."

Fourth: When trial in absentia can be had…that is after arraignment. It cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit. What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 21 As pointed out then by the Solicitor General, the indispensable requisite for trial in absentia is that it should come "after arraignment." The express mention in the present Constitution of the need for such a step emphasizes its importance in the procedural scheme to accord an accused due process. Without the accused having been arraigned, it becomes academic to discuss the applicability of this exception to the basic constitutional right that the accused should be heard by himself and counsel.

Furthermore, the absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a fair and impartial trial. Therefore, the decisions of RTC and CA should be nullified for lack of due process.

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