regardless of their private opinions. * * * The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. While the members of the judiciary as citizens
or as judges may regard certain laws as harsh, unwise or morally wrong,
and may recommend to the authority or department concerned, its amendment, modification or repeat, stHl, as long as said law is in force, they
must apply it and give it effect 8S decreed by the law-making body."
Crimina! Law and Proeedure--No
Atlulterous Acts.
PEOPLE
V. ZAPA'fA
Double Jeopardy for Separate
AND BONDOC
G. R. No. L-3047, Prom. May 16, 1951
For a continuous crime to exist certain elements must be present. Plurality of acts performed separately during a period of
time; unity of penal provision infringed upon or violated; and unity
of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and the same
intent leading to the perpetration of the same criminal purpose or
aim are such· elemen.ts. Thus, ruled the Supreme Court through
Mr. Justice Padilla, in a far-reaching decision which it had but the
first opportunity to announce.
The case giving rise to the above doctrine is a prosecution for
adultery. On complaint of the husband, defendants, wife and para'mour, were tried for adultery covering their illicit acts from 1946
to 14 March 1947. The wife pleaded guilty and was convicted. Subsequently, on 17 September 1948, the offended husband filed another
complaint for adulterous acts committed by his wife and the same
paramour from 15 March 1947 to 17 September 1948. A motion
to quash on the ground that they would be twice put in jeopardy of
punishment for the same offense was filed by each of the defendants,
which motion was sustained on the ground set forth, and the complaint was accordingly quashed. The prosecution appealed 1 from
the order sustaining the motion to quash.
Reversing the order appealed from, the Supreme Court explained that adultery is a crime of result and not of tendency (s. 10
diciembre 1945). It is an instantaneous crime which is consummated .and exhausted or completed at the moment of the carnal
union. Each sexual intercourse constitutes a crime of adultery. It
may therefore be committed as many times as there are carnal acts
consummated and the fact that in the present case the adulterous
acts were committed by the same defendants against the same offended party, the same status (the marital union) and the same
community represented by the State for its interest in maintaining
1 Defendants. having moved to quash, the case was not terminated without their
express consent (see Rule 113, sec. 9), and the State is not prevented from taking
an appeal. (Propl~ Y. Romero, G.R. Nos. L.4517·20, July 31, 1951).
and preserving such status does not argue against the existence of
as many crimes of adultery as there were carnal acts, each adul.
terous act consummated constituting one crime.2
There was therefore no unity of criminal intent or purpose, as
every sexual intercourse gives rise to a fully consummated crime.
When one of the above elements is absent, there is no continuou's
offense.3
One of the requisites for a valid plea of double jeopardy is identity of offense.4 The defendant should, therefore, be charged with
the same offense. The illicit relations or adulterous acts specified
in the second complaint not being a continuation of those charged
in the first complaint, but a separate offense not existing at the
time of the first prosecution,5the defense of double jeopardy cannot
prosper.
, To show the absurdity of the contention that several adulterous
acts by the same parties make up one continuous offense and therefore falling under the protection against double jeopardy, the Court,
apparently having in min.d the Topino case,6 reasoned that a male
defendant in one adultery prosecution who may be absolved therefrom upon evidence of lack of knowledge of the fact that his co2 In the same vein, the Spanish Supreme Court in its sentence of 11 March 1943
says with respect to acts of l<tsciviousness:
"que el realiza en cinco ocasiones clistintas actos lubricos con una menor, comete
cinco delitos de abusos deshonestos . . ., delitos que no pueden estimarse como con·
tinuacior, del primero de los cometidos, sino otras tantas violaciones de la ley penal,
completas e indepenclientes, pues cada una qued6 perfecta en el momento de su consumasion por satisfacer el culpable la finalidad lubrica que se proponia." (I CALON,
DERECHOPENAL, 523, note 20).
3 I CalOl1)op. cit., 523.
4 "No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same aet." Art. III, sec. 1,
clause 20, Constitution of the Philippines.
"It must be notiiced that the protection of the constitutionalinhibi~on is against
a second jeopardy for the same offense, the only exception being, as stated in the same
Constitution, that 'if an act is pWlished by'a law ,and an ordinance, conviction. or acquit.
tal under either shall constitute a bar to another prosecution for the same act.' The
phrase rame of/emrt:. under the general rule, has always been construed to mean not
only that the second offense charged is exactly the same as the one alleged in the
first information, but also that the two offenses are identical." Mdo Y. People, 47
O.G. No.9, 4631.
5 "This rule of identity does not apply, however, when the second offense was
not in existence at the time of the first prosecution, for the simple reason that in such
case there is no possibility for the accused, during the first prosecution, to be con·
victed for an offense that was then inexistent." Mao Y. People, rupra.
635 Phil. 901. Where a man at the commencement of his illicit relations with
a married woman had no knowledge that the woman was married, continues such
relations after being infonned of the fact, he commits adultery, and not even the
fact that he was swayed by the sentiment natural to and innate in every father, the
fact of his paternity of the foetus which the woman was carrying in her belly being
incontrovertible, would excuse him therefrom.
defendant was a married woman, would go unpunished should he
continue having relations with her after his acquittal and be prosecuted .therefor. Also, upon the same claim, should the husband pardon his adulterous wife, such pardon would exempt the wife and her
paramour from criminal liability for adulterous acts committed after
the pardon was granted, contrary to the constant holding in this
jurisdiction that the pardon refers to subsequent adulterous acts.7
The decision in this case finds additional justification in that
the public is deeply concerned in the purity of the marital union,s
marriage being an inviolable social institution 9 and the rock bottom
of the family and of society, without which there could be neither
civilization nor progress.1O
Criminal La,w and Procedure-Retrial of Undecided Case Due to
Destruction of Judicial Records and Impossibility of Rec.o'nstitutiolYlrNo Double Jeopardy.
THE PEoPLE OF THE PHILIPPINES
V. SERGIO DAGATAN
G. R. No. L-4396, Prom. October 30, 1951
An information for murder was filed against defendants on October 6, 1937. Trial was had but for one reason or another no judgment was rendered. The case remained undecided until the last war
when the records were destroyed. The case lay dormant until February 22, 1949 when the provincial fiscal filed a petition for reconstitution of the original records. Counsel for the accused did not
appear at the hearing of the petition and so was directed to produce
copies of pertinent papers in his possession. Failing to do so, a new
information for murder was filed. The accused pleaded not guilty
but counsel moved to quash the information on the sole ground of
double jeopardy.1 The trial court sustained the Illotion and dismissed the information on October 31, 1950. Prosecution appealed.2
People v.Guinucud, 58 Phil. 621; People v. Engle and Price, 43 O.G., No.9,
8 Goitia Y. Campos Rueda, 35 PhiL 252; Ramirez l'. Gmur, 42 Phil. 855.
9 Art. 52, Civil Code.•
10 Ramirez Y. Gmur, supra.
1 It is to be noted that the motion to quash was made after the plea of not guilty
was entered. Under Sec. 1, Rule 113 of the Rules of Court, the question of double
jeopardy should be raised in a motion to quash upon arraignment. The section reads
as follows: "Upon being arraigned the defendant shall immediatel:" unless the court
grants him further time, either move to quash the complaint or information or plead
thereto, or do both. If he moves to quash without pleading, IUld the motion is
withdrawn or overruled he shall immediately plead." According to Section 10 of the
same.rule, however, it is always in the discretion of the court to entertain a motion to
quash based on former jeopardy at any time before judgment is entered which.may
mean even after pleading. Apparently, such was the case here.
2 The right of the state to appeal in case of a dismissal of the proceedings before
final judgment is recognized only in those cases where a motion to quash the infor7
3733.
,.
L
I:
In reversing the appealed order and remanding the case to the
lower court for further proceedings, the Supreme Court ruled that
there was no double jeopardy since there was no acquittal or conviction in the former case, and neither was said case dismissed or otherwise terminated without the consent of the accused.3 On the other
hand, the Court observed, the fiscal took the proper step in filing the
petition for reconstitution of the records destroyed during the last
war.4, And the petition was filed on time.5
The only issue at once apparent in the instant case is whether
or not a new trial of the same offense under the peculiar set-up
therein would place the accused twice in jeopardy. A literal application of the law applicable ~-as the Court did in the case--in~
evitably yields the conclusion that double jeopardy was absent.7
mation is sustained, provided always that the accused is not thereby placed in jeopardy.
(U. S. '1'. Perez, 1 Phil. 203; People '1'. Pom:e de uon, 56 Phil. 386; People v. Caderao, G.R. No. 1.-46517, January 15, 1940; see also People '1'. Romero, G.R. No.
1.-4517-20, July: 31; 1951) •. Therefore, if the order dismissing the information acquits the accused or sets him at liberty, no appeal can be taken from said order.
(People '1'. Ponce de Leon, 56 Phil. 386). The appeal by the Government in the
instant case was proper.
.
3 Citing Sec. 9, Rule .113, Rules of Court:
"When a defenchnt shall have been
convicted or acquitted, or the case against him dismissed or otherwise terminated
without the express consent of the defendant, by a . court of compe~ent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, and after the defendant had pleaded to the charge,
the conviction or acquittal of the defendant or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or ·for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offe~e charged in the former complaint. or' information."
4 Citing Act No. 3110 and Rule 124, Section 5, paragraph (h)
Rules of Court
("Every court shall have power: (h) to authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restlore,'and.
supply deficiencies in its records and proceedings.") Even in the absence of Act
No. 3110, courts have the inhereJ;ltpower of restoring their lost records by the.m~
which they may deem best under, the peculiar circurnstancs of each case. This powl[r
is essential to their function of administering justice.2 (MORAN ON RULESOF COURT,
2nd ed., p. 767). Also, People 'Y. Coman, Criminal Case No. 4798 of the
Court of First Instance of Surigao, Resolution of October 8, 1948, and Ramos '1'.
Director of PrisOlfls, G.R. No. 1.-3017, Resolution of July 22, 1949, where the Court
authorized the filing of new information against the accused in view of the loss or
destruction of the records and the impossibility of reconstitution.
S Under Republic Act No. 441, the period for reconstituting destroyed judicial
recotds was extended until J~e 7, 1951.
6 Section 9, Rule 113, Rules of Court, sUf1Ta, note 3.
7 On this score alone could the appealed order have been reversed.
But the
Court did not rest its decision on this, cognizant as it was of t;he peculiar situation
in the case-records were destroyed during the war without the former case. having
been decided. It thus made further observations on the impossibility of reconstruction as a Justification for the filing ofa new information for the same offense against
the accused.
To sustain the plea of double jeopardy, it is necessary that the
first jeopardy shall have attached and terminated, that is, that the
proceedings on account of which jeopardy exists have ended. Upon
the accused rests the burden of proving that the case against him
has been dismissed or otherwise terminated without his express consent, in the absence of an acquittal or conviction.8
For jeopardy to attach, it is well-settled that the defendant must
have been placed on trial in a court of competent jurisdiction, upon
a valid complaint or information, and after arraignment and plea.!!
Issue is thereby joined and it is only in this event when the defendant is legally placed on tria1.10 The defendant is said to be in
danger when the court is in a position to render judgment, and the
court can render judgment only after a lawful trial which takes
place after the defendant has pleaded to the information. Jeopardy
certainly had attached against the defendants in the instant case.
It is conceded that the parties had long presented their respective
evidence in the pre-war undecided case. A trial, therefore, was had
which consequently placed the court in a position to render judg-ment, whether for conviction or acquittal. At .no other time could
the defendants have been in danger and this is the very essence of
legal jeopardy.
But there is the further requisite: The jeopardy must have
been terminated by either a conviction or an acquittal of the accused,
or a dismissal of the proceedings without his express consent.11 Legal jeopardy attaches with the commencementof the trial during the
progress of which the accused is ever in jeopardy. Once the trial
ends in the manner herein set forth, jeopardy ends with it. This
can only mean then that where there is no co.nviction,acquittal, dismissal or termination of the case, Jeopardy, while it has attached,
is not terminated, The result is that the accused may be validly
tried anew for the same offense. Thus, for the purpose of retaking
evidence, for example, which was destroyed by fire, or lost, the appellate court may order a new trial without thereby subjecting the
defendant to a seco.ndjeopardy.12 But in the case at bar, there is
absolutelv no showing how and why the trial in the prewar case was
ended. That there was no conviction or acquittal of the accused is
obvious from the established fact that the case remained undecided.
The only question that remains to be asked is whether or not the
proceedings were in any way dismissed or otherwise terminated without the express consent of the accused. Neither does the answer to
this question appear in the case. It is safe to assert then that in
the absence of any showing to the contrary, there was no such dismissal of the pre-war case here as would have terminated legal jeo8 See Me'oll'doza.•.. Almeda.Lopez,
64 Phil. 820 and People .•.. Daylo, 54 Phil.
862; also Sec. 9, Rule 113, supra, note 3.
9 People .•.. Ylagam, 58 Phil. 851; see also People .•.. Soo Po Kuat, G.R. No.
Mendoza .•..Almeda.LOpez, supra.
'Y. Ylagan, Sllpra.
11 Section 9. Rule 113, supra; note 3.
12 See U. S ..•.. Q,uiltttan, 4 Phil. 481; U. S.
Laglma, 17 Phil. 532.
1.,·30131 and
10
'1'.
People
Y.
Noque, 11 Phil. 422, and U. S.
pardy against the accused. The irresistible conclusion is obvious.
While jeopardy had attached against the defendants herein it was
not terminated. No plea of double jeopardy, therefore, will be sustained.
It is important to observe in this connection that to terminate
jeopardy it is not necessary that there be a formal final judgment
of conviction or acquittal. Any act of the court terminating the
proceedings without the defendant's consent, not founded on some
constraining necessity arising from circumstances beyond the court's
control, terminates the jeopardy and a retrial violates the constitutional right of the accused.13 This observation begets an inquiry as
to whether or not there was any such act in the instant case. As
already pointed out it does not appear how and why the pre-war
case came to all.end without having been decided. Was there a constraining necessity arising from circumstances beyo.ndthe court's control that prevented the court from deciding the case? Could it have
been the war 'f
1937 to 1941 is a period of four years, quite long for a trial.
But this is not inconceivable considering the· usual delays caused by
postponements and adjournments. The gathering and presentation of
evidence consumes time. So, assuming that the impending outbreak
of the war during which the records were destroyed really necessitated the withholding of the court's decision without dismissing the
case in any other way the case for the people is bolstered; and a
ret.rial becomes justified.
Admitting that there might have been a delay in the case that
has worked hardship or disadvantage on the accused 14 the court
pointed out that the government is not alone to blame since reconstitution of records is as much the duty of the prosecution as of the
defense.15 Mandamus to compel the lower court to render the necesU. S. Y. Laguna, supra; Art. III, Sec. 1 (20), Constitution of the Philippines.
1937 to 1950 is a long wait, too long in fact for one of the accused who did
not survive it.
15 Gunabe Y. Director of Prisons, 44 O.G. 1244. And in the apt words of OUr
Supreme Court (U. S. Y. Lagund, 17 Phil. 532, 540) quoted in the case at bar:
"Every person who finds himself in a court of justice, in whatever capacity, must
hold himself while there subject to those unforeseen events which suddenly and un·
avoidably intervene and change the whole aspect of things. The sickness or death of
the judge, or of counsel for the prosecution, the destruction by fire or flood of
the court-house and all the records and evidence of the pending trial-any of these
things are sufficient to interrupt the course of the proceedings and to require that
they be begun anew. Such events weigh equally against all. . .. While the law
protects persons charged with crime from the unjust and arbitrary acts of man, there
is no shield which may be interposed against the. tyranny of unforeseen events. Until
the proceedings which ... ,constitute his trial ar,e terminated, the happening of an
unforeseen event which renders the continuance of his trial for the time impossible,
as it can not be used for his conviction, can not be urged for his absolution. As the
burning of this court-house with all the criminal records which it contains could not
be used as a basis for the affirmance of the conviction of all those whose causes are
pending in this court, so the same event could not be urged as a reason for the
13
14
sary judgment was available to the accused as an ample remedy by
any: unreasonable delay in the decision of the former case.16
Criminal Procedure-Discretwn
with Plea of Guilty
of Judg,es i,n Dec'iding Cases
PEOPLE OF THE PHILIPPINES V. SANTA ROSA
q. R. No. L-3487, Prom. April
18, 1951
A defendant enters a plea of "guilty" or "not guilty" upon
arraignment in order that issue be joined and the cause stands for
trial.1 A pIca of "not guilty" imports a denial of the facts alleged
in the information,2 a plea of guilty is a voluntary admission by the
accused of his guilt,s together with all the material facts alleged in
the complaint or information,' not excluding those alleging recidivism or habitual delinquency.5
Hence, a plea of guilty entered fOrmally is sufficient to convict
the defendant, the plea in itself supplying the necessary proof of
his guilt.~ The Court, however, to avoid the danger of improvident
pleas, is required to .exercise its sound judicial discretion in the appreciation of "the plea of guilty," by taking testimonies of witnesses
for the purpose of ascertaining the guilt and degree of culpability
of the accused.7
In the present case the Supreme Court held that the hearing of
witnesses after the defendant has pleaded is discretionary with the
court.
The defendant was convicted by the Mindoro Court of First
Instance of illegal possession of firearm (a carbine) in violation of
Sec. 2692 of the Revised Administrative Code. Upon arraignment,
the said defendant pleaded guilty to the crime charged, but upon the
delivery of such persons from jail on the ground that a retrial would be a second
jeopardy."
16 Talabony.
Iloilo Pro.•.incial Warden, 44 D.G. 4826.
1 Sec. 1, Rule 114 of the Rules of Court; People v. Ylagan, 58 Phil. 851.
2 U. S. y. Lim San, 17 Phil. 273.
3 The essence of the plea of guilty in a criminal trial is that the accused admits
his guilt freely, voluntarily, and with full knowledge of the consequences and mean·
ing of his act, and with a clear understanding of the precise nature of the crime or
crimes charged in the complaint or information. (U.S..... Burlado, 42 Phil. 72;
U. S ..•.. Dineros, 18 Phil. 566; U. S. y. Jamad,37 Phil. 305).
'U.s ..•..Burlado, 42 Phil. 72, 74; "A plea of guilty is an admission of all the
material facts alleged in the information . . ."
5 U.S ..•.. Barba, 29 Phil. 206; U.S. y. Burlado, 42 Phil. 72.
6 U. S. Y. Jamad, supra; such a plea of guilty, when formally entered on
arraignment is sufficient to sustain a conviction of any offense charged in the information, even a capital offense, without the introduction of further evidence, the'
defendant himself having supplied the necessary proof.
'1 See II MORAN, CoMMBNTS ON THB RULES OF COURT; 2nd ed. 643.
rendition of the judgment by the lower court imposing a penalty of
imprisonment of not less than 5 years nor more than 10 years, the
defendant appealed on the ground that the lower court should, on
plea of guilty, have compelled the prosecutor to introduce evidence
in order to have some basis for the imposition of the correct penalty.
1'he Court ruled that the court has discretion, in plea of guilty, to
hear testimony of witnesses, "especially in the present case where .:
the facts alleged arc simple."
. The present case is but a reaffirmation of the wise practices
suggested in a long array of previously decided cases,8 which now
find sanction in. express provision of the law.9 The discretion of
judges in the appreciation of witnesses is not arbitrary nor devoid
of any standard. to Especially in cases where the accused is ignorant
8 In U. S. '1'. Burlado, 42 Phil. 72; U. S. '1'. DineroJ, 18 Phil. 566; U. S. '1'. Ja.
mad, 37 Phil. 305; U. S. '1'. Barbd, 29 Phif. 206; U. S. 'Y. TalbanoJ, 6 Phil. 541;
U. S. '1'. Ag£OOili, 31 Phil. 91, and others, the judge has a wide discretion to hear
testimony of witnesses when the defendant pleads guilty to the offense charged, to
ascertain the guilt or degree of culpability of said accused.
". . . can the CPI sentence defendants in criminal causes upon the plea of guilty
without further proof of' the guilt of the defendants? ...
The procedure. . ,
makes no specific provision for the trial of a cause when the defendant pleads guilty.
We are of the opinion ...
the CFI may sentence defendants·, .. who plead guilty
. . . without the necessity of taking testimony. ...
While there is no law requiring·
it, yet in every case under the plea of guilty. . . it is advisable for the court to call
witnesses for the purpose of establishing the guilt. ..
This, however, must be left
to the discretion of the trial court ... " U.S, '1'. TalbemoJ, 6 Phil. 541, 542. See
II MORAN, op. cit., p. 686.
Also III FRANCISCO,ANN:OTATED
RULES OF CoURT,
p.227.
9 Rule 114, Sec. 5.
to In the case of U. S. '1'. Jamad, 37 Phil. 305, on request of the Atty.-Gen. for
a more definite ruling as to the practice which should be followed in admitting evidence after a plea of guilty by the accused, the Supreme Court gave as ruling the
following:
.
(a) The essence of the plea of guilty in a criminal trial is that the accused, on
arraignment, admits his guilt freely, voluntarily. . .
(b) Such a plea of guilty, when formally entered on arraignment, is sufficient
to sustain a conviction of any offense charged, even a capital offense, without the
introduction of further evidence, the defendant· having himself supplied the necessary
proof.
(c) There is nothing in the law in this jurisdiction which forbids the introduction of evidence as to the guilt of the accused, and thecirc1lffiStances attendant upon
the commission of the crime after the entry of a plea of guilty.
(d) Having in mind the danger of the entry of improvident pleas of guilty
the prudent and advisable course, especially in cases wherein grave crimes are
charged, is to take additional evidence as to the gtJilt of the accused and the circum.
stances attendant upon the commission of the crime.
(e) The better practice would indicate that, when practicable, such additional
evidence shoul~ be sufficient to sustain a judgment of conviction independently of
the plea of guilty. . .
.
(f) Notwithstanding what has been. said, it lies in the sound judicial discretion
of the trial judge whether he will take evidence or not in any case wherein he is saris-
of the nature of the charges against him,ll or the punishment to be inflicted is more or less severe,l2 or when grave crimes are charged,t3
it is advisable for the court to call witnesses for the purpose of
establishing the guilt and degree of culpability of the accused.H
With more reason should this action be justified in cases charging
capital offenses where the possibility of misunderstanding or mistake is greaterY
It is within the Judge's sound discretion to take evidence or not
in any case wherein he is satisfied that the plea of guilty has been entered by the accused with a full knowledge of the meaning and consequences of his act 16 especially in simple cases like the present.
fied that a plea of guilty has been entered by the accused, with full knowledge of the
meaning and consequences of his act.
.
(g) But in the event that no evidence is taken, this court, if called upon to
review the proceedings had in the court below, may reverse and send back for a new
trial, if on·the whole record, a reasonab~e doubt arises as to whether the accused did
in fact enter the plea of guilty with full knowledge of the meaning and consequences
of the act.•
11 II MORAN,
op.cit., at p. 683. But if it appears or the court has reasonable
grounds to believe that the accused does not clearly ~d fully understand that mean·
ing and effect of the technical language so often used in formal complaints or in·
formation in qualifying the acts constituting the offense, . . . his plea should not be
accepted, and if accepted, the prudent and advisable course, to avoid the danger of
improvident pleas . . . is to take the testimony of witnesses . . . to leave no room
for reasonable doubt in the mind of the court as to the possibility of misunderstanding
on the part of the accused as to the precise nature of the charges. "
(V. s. Y.
Jamad, supra; V. S~ Y. Agcaoili, 31 Phil. 91.)
12 • • • Where the Court is required to exercise its discretion in imposing a
more or less severe penalty considering the circumstances attending the commission
of the crime, the testimony of witnesses is to be taken for the purpose of ascertaining
the guilt and degree of culpability of the accused. (0. S. Y. Rota, 9 Phil. 426).
13 III MORAN,
op. cit., p. 109.
14 V. S. Talbanos, 6 Phil. 541.
15 While it is true that a judgment convicting and sentencing a defendant may
lawfully be pronounced upon a solemn plea of guilty in open court and on arraignment, entered by the accused with full knowledges of the meaning and effect of his
plea, nevertheless, where the complaint charges' a capital offense, the possibility of
misunderstanding or mistake i.n so grave a matter, justifies and in most instances requires the taking of such available evidence in support of the allegation . . . as may
deem necessary to remove all reasonable possibility that the accused might have entered
his plea of guilty improviden.t1y or without a clear and precise understanding of its
meaning and effect. (Italics mine) V.S. v. Agcaoili, 31 Phil. 91, 93.
16
III
MORAN,
op. cit., p. 109; also People vs. Palupe, 40
a.G .. (7-S),
p. 99.
Criminal Procedure-Waiver
tigation
of the Right to Prelitmina.1'YInves-
PEOPLE V. EUSEBIO MEJARES
G. R. No. L-3494, Prom. Sept. 28, 1951
Where the record in a criminal case states that the accused
specifically waived his right to a preliminary investigation by the
justice of the peace, or where such record does not disclose that the
accused broached the question of preliminary investigation at any
stage of the trial in the Court of First Instance, said accused is
estopped to raise an objection based on this ground for the first time
in the appellate court. This is so because the right to a preliminary
investigation, although substantial in character, 1 is a personal one 2
and may, therefore, be waived either expressly or by implication.
The foregoing is the ruling laid down by our Supreme Court in
the recently decided case of The People of the Philippin:es v. Eusebit> Mejares.'
A l'eview of the decisions of our Supreme Court reveals that
the doctrine above enunciated is not a new one. As early as April
25, 1906, the Supreme Court, in the case of U. S. v. Cockrill/' already laid down the rule that the !'ight of an accused to a preliminary trial is a right' which may be waived by him. Although substan,tial in character,-so that its denial to the defendant when
claimed by him "is a prejudicial error in that it subjects the accused
to the loss of life, liberty, or property without due process of law,"s"it is not such a fundamental right of a person that is guaranteed
by the Constitutio.n."6 It is "at most" a statutory right,7 and hence,
like any other right of the same nature. may be renounced by the
person in whos,efavor such right is established.
The case of Cockrill was followedin 1907 by the case of U. S. v.
Asebuque.8
In. this case, the Supreme Court reiterated the same
U. S. YS. Marfori, 35 Phil. 666; U. S. 'l's. Asebuque, 9 Phil. 241.
II MORAN,COMMENTSON RULESOF COURT,2nd ed., p. 556.
3 G.R. L-3494.
Promulgated: Sept. 28, 1951.
48 Phil. 742 at 745; the Supreme Court, speaking through Justice Carson, said:
"It does not appear from the record that such preliminary examination was not in fact
s.;ranted the accused, and where the contrary does not affirmatively appear it must
be presumed that the proceedings in the trial court were had in accordance with law,
and furthermore, no objection having been made on. this ground at the trial, the
accused must be held to have waived his right to such preliminary examination if in
fact it was not granted him."
:;U.S. 'l's. Marfori, supra.
6 II MORAN, op. cit., at p. 555; People 'l'S. Carlos, G.R. No. L-239.
7 II MORAN, op. cit., at p. 555.
8 9 Phil. 241 at 243: "But, granting that it affirmatively appeared that the accused did not have a preliminary investigation and trial, his right thereto must be
taken to have been w,!ived, in view of the fact that he does. not appear to have made
any objection, based upon that ground, to proceeding with the trial in the court
below. The right to preliminary examination is a personal privilege, and one which
may be waived by the accused."
1
2
principle and held that where the accused raised no objection in the
court below upon the ground that he has not been accorded a preliminary investigation, he is deemed to have waived his right thereto
and could not subsequently raise such objection in the appellate
court. To the same effect are the holdings of the Court in the
subsequent cases of V. S. v. Lete,9 U. S. v. Esealante/o People v.
Pili/1 and People v. Lara.12 The case of U. S. v. Marfiori 13 may
also be cited in support of the same pri.nciple, although it may be
availed of to sustain the view that "in the absence of such a waiver,
the law expressly secures the right to a preliminary investigation
to all persons in these Islands charged with crimes cognizable in the
Courts of First Instance . . .."
It would be interesting to note, however, that the foregoing cases
deal, for the most part, on the waiver by the accused of said statutory right. Except in the ca,sesof Cockrill and Asebuque, no mention was made of the presumption which, in a way, may prove disadvantageous to the accused. Nevertheless, the fact that such presumption was not expressly referred to by the Court ·in those cases
does not mean that the said presumption which was laid down in
9 17 Phil. 79 at 81, quoting U. S. ". Aquino,
11 Phil. 244, 247 "No objection
appears to have been made to this proceeding either in the court of the justice of the
peace or in the trial court, nor did the accused raise any objection at the trial upon
the ground now raised for the first time upon appeal, that they were not given a
preliminary trial. Under these circumstances, we are of the opinion that they must
be taken to have waived any other preliminary investigation than that which was
accorded them in the court of the justice of the peace . . . and to have waived those
defects in. the preliminary proceedings which are now indicated by counsel upon appeal.
It has been uniformly held, not only by this court, but by the various courts of the
United States, that when provision is made for preliminary trial of accused persons
by a justice of the peace, this right is one which may be waived by the accused . . .;
and this court has frequently held that where the accused fails to object' to the proceedings upon the ground that he has had no preliminary investigation, he must be
taken to have waived his right thereto, and cannot raise an objection upon this ground
for the first time on appeal."
10
36 Phil. 743.
,"The right to a preliminary investigation is a personal right conferred by statute
and may be waived. If no objection is raised in the court below on the ground
that there has been no preliminary investigation the accused will be deemed to have
waived his right thereto ar...dsuch objection cannot be raised for the first time upon
appeal."
11 51 Phil. 965.
". . . it does not appear that the accused made any objection either in the
justice of the peace court (of Santa Cruz) or in the Court of First Instance of Davao
to the preliminary investigation made, which proceeding the accused may waived.
Said question cannot be raised for the first time on appeal."
1242 O.G. 1496.
]335 Phil. 666.
The Court said: "We have held heretofore that preliminary investigations in
criminal cases may be waived and that waiver will be presumed unless timely objec.
tion is made when the accused is brought to trial."
the earli.er cases of U. S. v. Cruz 14 and U. S. v. Ago-Chi/6 is abrogated. In these two earlier cases, the Court laid down the rule that
judicial officers are presumed to ha.ve proceeded in accordance with
the. provisions of law.16 For this reason, the mere absence of an
affirmative statement in the record to the ef~ect that a preliminary
investigation. was in fact granted does not mean that the accused
was denied of such right. Hence, as a. presumption exists that such
duties were regularly performed in the absence of a clear showing
to the contrary, the accused is presumed to have been accorded such
preliminary investigation, and therefore, he cannot raise the ques~
tion for the first time on appeal.
Thus, if the accused desires to avail himself of this right he
must always be alert in claiming it at the early stage of the proceedings. His failure to do so in the court below will prove fatal
to him. His express or implied waiver is reenforced by a presumption which may be detrimental to his case.
The doctrine laid down in this recent case of People v. Mejar,es
seems to obtain in many of the states of the American Union. In California,17 Kansas,ls Nebraska,I9 Wisconsin,20Florida 21 and Michigan,22the same principle obtains. The Supreme Courts of those states
have repeatedly held that the right to a preliminary trial which is
accorded to the accused in criminal proceedings is a personal one
which he may waive either expressly or impliedly.
As the principle, therefore, is well settled in this and in other
jurisdictions, our Supreme Court did not consider it necessary to
elaborate upon it. In fact Justice Tuason in conclusion said, "This
is a rule so well settled and so frequently reiterated as to make further discussion absolutely superfluous."
Taxation..-Test
to Distinguish Retail from Wholesale
JOSE TAN V. DE LA FUENTE, ET AI.;
G. R. No. L-3925, Prom. December 14, 1951.
The power of taxation as an essential and inherent attribute of
sovereignty, belonging as a matter of right to every independent
government,1 implies the authority to classify the objects of taxation.
5 Phil. 575.
6 Phil. 227.
16 Despite the fact that these cases were decided before the Rules of Court, the
doctrine laid down in these cases still holds because under the present Rules of Court,
Rule 123 provides: "That official duty has been regularly performed," an~ also that
"the ordinary course of business has been followed.".
17 People 'l'o!". Tarbox, 115 Cal. 57.
IS Stdie '1'1. Myers, 54 Kansas 206.
19 Korth '1'1. State, 46 Neb. 631.
20 Ryan '1'1. The State, 83 Wis. 486.
21 Benjamin' 'l's. State, 25 Fla. 675.
22 People 'Vs. Harris, 103 Mich. 473.
1 Union Pac. Ry Co. '1'1. Peniston, 18 Wall. 5.
14
15