RIGHTS OF THE ACCUSED

PP v. Crisologo (Right to counsel, right to be informed, right to be heard) FACTS:

On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal Court of Magsaysay, Davao del Sur against the accused Zosimo Crisologo alias "Amang," a deaf-mute, for robbery and homicide

On 12 December 1977, arraignment was set. The accused was allegedly informed of the charge against him through sign language by Special Policeman Alejandro Munoz a childhood acquaintance. Mr. Munoz subsequently entered a plea of guilty on behalf of the accused. Upon objection of counsel, however, this plea was disregarded and arraignment was rescheduled until such time as the Court could avail of the services of an expert in the sign language from the school of the deaf and dumb.

After five years from the date of filing of the information, another order for a deaf and dumb expert was made. Apparently no sign language expert or representative ever arrived.

On 6 April 1983, the accused through a counsel de oficio waived the reading of the information and pleaded not guilty. Trial proceeded without any evidence being presented on his part. Finally, on 10 February 1986, without the services of an expert in sign language ever being utilized at any stage of the proceedings, the accused was found guilty beyond reasonable doubt of robbery with homicide and sentenced to die by electrocution. Executive clemency was recommended, however, in view of the accused's infirmity and his nearly ten-year detention as a suspect.

RULING The absence of a qualified interpreter in sign language and of any other means, whether in writing or otherwise, to inform the accused of the charges against him denied the accused his fundamental right to due process of law. 1 The accuracy and fairness of the factual process by which the guilt or innocence of the accused was determined was not safeguarded. The accused could not be said to have enjoyed the right to be heard by himself and counsel, and to be informed of the nature and cause of the accusation against him 2 in the proceedings where his life and liberty were at stake. Terry v. State: ... The Constitution of this state expressly provides that an accused has a right to be heard by himself and counsel, also, to demand the nature and cause of the accusation; against him, and, further to be confronted by the witnesses, who are to testify against him. In constructing this constitutional provision it needs no discussion in deciding that all this must be done in a manner by which the accused can know, the nature and the cause of the accusation he is called upon to answer, and all necessary means must be provided, and the law so contemplates, that the accused must not only be confronted by the witnesses against him, but he must be accorded all necessary means to know and understand the testimony given by said witnesses, and must be placed in a condition where he can make his plea rebut such testimony, and give his own version of the transaction upon which the accusation is based. The basic constitutional infirmity alone in the conduct of the case against the accused is, in our candid assessment, fatal to the judgment of conviction meted out against him.

Also, the circumstantial evidence against the accused is not enough to convict him beyond reasonable doubt. (that they were drinking together and went home together. The single blood stain in his shirt after the accused claimed he witnessed a fight, the watch and flashlight of the victim found in the house of the accused’s father, the medical examiner’s report that the 15 stab wounds could have been made by several assailants with different weapons, presence of slippers and eyeglasses on crime scene) The testimony of the police who arrested and investigated him was inconsistent. The police claimed that Crisologo made gestures admitting his guilt. He later on claimed that he may have misinterpreted such gestures. . He also acknowledged his failure to notify the accused of his right to counsel before interrogation and investigation due to difficulty in conveying the matter by sign language. Earlier plea of guilty cannot be also considered because of investigator's own admission that the accused was never informed of his right to counsel. Tubb v. People (Right to be informed) Facts:

Tubb talked Quasha into investing in the rattan business. Quasha delivered the sum of P6,000.00

Quasha subsequently did not hear from Tubb again. Tubb no longer resides in Quezon and no longer stays in his office.

They had a chance meeting in the Manila Hotel where Quasha demanded the return of the money. Tubb merely said that there is no use in explaining the situation and that he would pay him back.

Tubb still did not pay and Quasha wrote him a letter threatening to file criminal charges

Trial court found Tubb guilty of estafa under Art. 315 1B ( misappropriation, necessitates demand)

Upon appeal, CA convicted him of estafa under Art. 315 2A (There is here, therefore, a perfect case of swindling by means of false pretenses, where formal demand is not necessary)

ISSUE: WON a person charged in the information with estafa as defined in Article 315, paragraph 1 (b) of the Revised Penal Code may be convicted of estafa as defined in Article 315, paragraph 2 (a) of the same code. RULING: In this case, NO This offense is, however, entirely different and distinct from that described in paragraph 1 (b) quoted above. Moreover, some of the essential elements of the offense defined in said paragraph 2 (a) are not alleged in the information herein. For instance, there is no averment therein of any "false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud," which distinguishes said offense from that referred to in paragraph 1 (b), the main characteristic of which is "unfaithfulness or abuse of confidence", and this is the essence of the crime charged in said information. The allegations thereof are such as not to permit petitioner's conviction for estafa under said paragraph 2 (a), without violating his constitutional right to be informed of the nature and cause of the accusation against him. Note: accused was still convicted, but under estafa 315 1B again. Demand made in Manila Hotel was sufficient.

PP v. Presiding Judge (Right to be present during trial) FACTS:

Rodolfo Valdez was charged with murder, but was out on bail

After his arraignment, Rodolfo Valdez, Jr., thru his counsel, manifested orally in open court that he was waiving his right to be present during the trial.

The prosecuting fiscal moved that respondent Rodolfo Valdez, Jr. be compelled to appear and be present at the trial so that he could be Identified by prosecution witnesses

Respondent judge in his Order, sustained the position of private respondent who cited the majority opinion in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, and held that "he cannot be validly compelled to appear and be present during the trial of this case."

ISSUE: WON respondent Rodolfo Valdez, Jr.. despite waiver of his right to be present, can be compelled by the trial court to be present during the trial RULING: YES Dissenting opinion of J. Castro in Benigno Aquino v. Military Commission: "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. Stated differently, 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: 1. 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. 2. 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. Borja v. Mendoza (right to be informed, right to be heard, lack of arraignment) FACTS:

Manuel Borja was convicted of slight physical injuries at the trial court of respondent Judge Romulo R. Senining even without arraignment and him being present in the trial.

Decision appealed to CFI Cebu City(Judge Mendoza) that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered.

RULING: Due process and constitutional rights violated 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.

8 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.. Demand by the accused not necessary to enforce right to arraignment That upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This duty is an affirmative one which the court, on its own motion, must perform, unless waived. No such duty, however, is laid on the court with regard to the rights of the accused which he may be entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of which he himself must demand. Rules of Court requires arraignment As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. 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. On being convicted without ever being present: Abriol v. Homeres :"It is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him.” such "constitutional right is inviolate." There is no doubt that it could be waived, but here there was no such waiver, whether express or implied. PP v. Holgado: 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." (records clearly show that petitioner was not arraigned at all and was not represented by counsel throughout the whole proceedings in the respondent City Court) PP v. Santos (Sec.12 rights; right to competent and independent counsel; extrajudicial confession) FACTS:

Mercy Santos was charged with kidnapping and serious illegal detention for taking Charmaine Mamaril, a 7 year old girl from her school

Charmaine was found five days from the kidnapping in the house of Bautista, to whom Mercy left Charmaine with. Bautista called Raquel, mother of Charmaine after she heard of the kidnapping.

Two days after Charmaine was claimed, Bautista called again to inform that a woman tried to claim Charmaine from her house. The woman was Mercy Santos. This led to the arrest of Mercy Santos.

Testimony of NBI agent: Santos was investigated in the presence of counsel, Atty. Gordon Uy, after she was informed of her rights under the Constitution; that she executed and signed a statement, on the occasion of which she admitted the kidnapping; that during the investigation by question and answer, Atty. Uy would raise objections by cautioning Santos against answering, in which case the objection and the question objected to were not anymore typed in the statement; and that photographs were taken of Charmaine and the accused during the confrontation.”

Accused claims that she was not able to confer with any Atty. Uy and she might have merely signed the affidavit; that she did not know Atty. Uy; and that she signed Exhibit C only because she was threatened by NBI Agent Rodrigo Mapoy and was maltreated.”

Trial court convicted her and admitted the extrajudicial confession as evidence ISSUE: Is the extrajudicial confession admissible? RULING: NO. (but accused was still convicted because of testimonies and sufficiency of other evidence) A confession is not admissible in evidence unless the prosecution satisfactorily shows that it was obtained within the limits imposed by the 1987 Constitution. (sec. 12) If the extrajudicial confession satisfies these constitutional standards, it is subsequently tested for voluntariness,[10] i.e., if it was given freely -- without coercion, intimidation, inducement, or false promises; and credibility,[11] i.e., if it was consistent with the normal experience of mankind. A confession that meets all the foregoing requisites constitutes evidence of a high order because no person of normal mind will knowingly and deliberately confess to be the perpetrator of a crime unless prompted by truth and conscience.[12] Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule. Consequently, the burden of evidence to show that it was obtained through undue pressure, threat or intimidation shifts to the accused.[13] Accused not properly informed of constitutional rights: (puro “opo sir” iya tubag sa questions na char2x) These questions and the corresponding responses thereto are insufficient proof of compliance with the constitutional requirements. They are terse and perfunctory statements which do not evince a clear and sufficient effort to inform and explain to appellant her constitutional rights, much less satisfy the constitutional prerequisites. The right of a person under custodial investigation to be informed of his rights entails an effective communication that results in an understanding thereof. Any effort falling short of this standard is a denial of this right. No presence of competent and independent counsel Thus, the trial court erred in admitting appellant’s extrajudicial confession without showing that Atty. Gordon Uy was indeed the “competent and independent counsel of appellant’s own choosing.” The Court notes appellant’s insistent and persistent disavowals of knowing said Atty. Uy, much less of retaining him as her counsel of choice. The prosecution, for unexplained reasons, failed to present Uy as a witness to show his role in the taking of the alleged confession.

Pp v. Deniega: “The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. If the lawyer’s role is reduced to being that of a mere witness to the signing of a pre-prepared document albeit indicating therein compliance with the accused’s constitutional rights, the constitutional standard guaranteed by Article III, Section 12(1) is not met. PP v. Hernandez (rights under custodial investigation; waiver of such rights; extrajudicial confession) FACTS:

Felicisimo Hernandez and Carlos Imperial, who are both beauticians, were placed under surveillance until they were arrested on July 20, 1984. Marked money of P20.00 in two ten peso (P10.00) bills 1 were found in the possession of Hernandez while marijuana leaves contained in a matchbox 2 were in the possession of Rizaldy Angcaya, an informer, who allegedly purchased the same from Hernandez.

Upon investigation by the police, both of them admitted in their sworn statements having sold marijuana to Rizaldy Angcay.

Both were convicted in the trial court based on the extrajudicial confession. Informer was never presented in court.

ISSUE: WON the extrajudicial confession is admissible RULING: No Under the foregoing provisions a person under custodial investigation is entitled to the following rights: (a) the right to remain silent: (b) the right to counsel; and (c) the right to be informed of these rights. An examination of the extrajudicial confession of appellant 6 shows that he was informed of his constitutional right to be silent and of his right to be assisted by counsel during the said investigation. He was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative. However, this waiver was made without the assistance of counsel. The clear rule this Court has set is that the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of this procedure, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. PP v. Luvendino (reenactment, uncounseled waiver of right to counsel; extrajudicial confession) FACTS:

Rowena Capcap was found raped and brutally killed on Jan. 17, 1983. Her body was found in a grassy lot near her home.

On February 10, 1983, Panfilo Capcap, father of the victim, was awakened by the police and brought to the lot where they found the body.

A police officer told him they had arrested Ernesto Luvendino, alias "Joey". The accused was then demonstrating how they brought the girl to the vacant lot. While Luvendino was re-enacting the events that transpired in the evening of January 17, pictures were taken by a photographer brought by the police officers. As the re-enactment was going on, Capcap said he heard the accused said that he and his companion boxed her in the stomach, dragged her to the

lot and raped her there. The accused allegedly admitted he and Cesar Borca had strangled Rowena and he likewise admitted he had abused her.

Luavendino executed an extrajudicial statement, which also set out a separately signed waiver of his rights, at the police department (without presence of counsel)

He was later brought to the office of Provincial Fiscal Mateo, where he subscribed to or signed once more the same document, this time under oath. When Luvendino subscribed under oath to his extrajudicial confession in the presence of the Provincial Fiscal, his mother and Atty. Eustacio Flores were also present.

ISSUE: Is the reenactment admissible as evidence? Is the extrajudicial confession admissible? RULING: No, Yes Reenactment, not admissible as evidence We note that the re-enactment was apparently staged promptly upon apprehension of Luvendino and even prior to his formal investigation at the police station. 10 The decision of the trial court found that the accused was informed of his constitutional rights "before he was investigated by Sgt. Galang in the police headquarters" and cited the "Salaysay" 11 of appellant Luvendino. 12 The decision itself, however, states that the re-enactment took place before Luvendino was brought to the police station. Thus, it is not clear from the record that before the re-enactment was staged by Luvendino, he had been informed of his constitutional rights including, specifically, his right to counsel and that he had waived such right before proceeding with the demonstration. Under these circumstances, we must decline to uphold the admissibility of evidence relating to that re-enactment. Extrajudicial confession, uncounseled but admissible Luvendino may be deemed to have in effect ratified, before the Fiscal and with the aid of counsel, the extrajudicial confession and waiver of the right to counsel which he had earlier signed without the presence of counsel in the police station. In the morning of February 10, 1983. At that office, he was at first aided by a lawyer from the CLAO. He did not sign the statement for he wanted to talk to his mother. He was returned to the police station where his mother saw him in the afternoon. In the headquarters, they requested that they be allowed to engage a lawyer of their choice and their request was granted. The mother called for Atty. Flores who arrived when the accused was already back in the Office of the Fiscal. In the presence of Atty. Flores and his mother, the accused was investigated by the fiscal after which, also in the presence of his mother and assisted by Atty. Flores, the accused signed Exhibit " The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales v. Enrile 22 and reiterated on 20 March 1985 in People v. Galit While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983, the date of promulgation of Morales. (note: his was done on Feb. 10,1983)

PP v. Nabaluna: Uncounseled waiver of right to counsel was held valid for the reason that at the time such waiver was made, there was no rule or doctrine or guideline requiring the waiver of the right to counsel should itself be made only in the presence and with the assistance of counsel. In Magtoto v. Manguera: Section 20, Article IV of the 1973 Constitution, was to be given prospective effect only. Applying Nabaluna to the case at bar, we believe and so hold that appellant Luvendino validly waived his right to counsel so far as his extrajudicial confession was concerned, although he was not assisted by counsel when he initially signed his confession at the police headquarters (disregarding for present purposes only, the subsequent events in the office of the Provincial Fiscal). At the time the extrajudicial confession and waiver were first executed (i.e., 10 February 1983), there was no rule of doctrine prescribing that waiver of the right to counsel may be validly made only with the assistance of counsel. It is scarcely necessary to add that we are here referring only to extrajudicial confessions and waivers which were made voluntarily and intelligently. On alleged deprivation of due process because of mental reservations of his counsel: Atty. Sardillo had appeared in at least two (2) previous hearings and had cross-examined prosecution witness Cemitara before he (Sardillo) offered in open court to withdraw as defense counsel on 14 November 1983. The trial court could scarcely be faulted for declining Atty. Sardillo's offer to withdraw, considering that such offer had been made without the conformity or permission of Luvendino. Atty. Sardillo himself did not insist on withdrawing as defense counsel. If appellant Luvendino in truth had entertained substantial doubts as to the sincerity or capability or impartiality of his lawyer, he could have easily terminated the services of that counsel and retained a new one or sought from the trial court the appointment of counsel de officio. Instead, Luvendino continued to retain the services of Atty. Sardillo until the trial court rendered its decision. Romero concurring, separate opinion: Republic Act No. 7438 is already in place. It provides that Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceedings. It can be applied retroactively because it is beneficial to the accused. However, the uncounseled extrajudicial confession was later on ratified by his sworn statement in the fiscal’s office and with counsel. Cruz, concurring and dissenting: Right to counsel has been present even before the 1973 Constitution. And even before the doctrine in PP v. Nabaluna and Magtoto v. Manguera. The present ponencia says that the Magtoto decision "has been reiterated many times and it is much too late in the day to consider re-examining the doctrine laid down." I regret I have to disagree. It is never too late to re-examine any decision of this Court and amend or even reverse it whenever warranted regardless of the number of times it has been reiterated. Rectifying error is better than persisting in it.

Calderon-Bargas v. RTC Pasig (right to speedy trial) FACTS:

Respondent Raul, Locsin was the editor and publisher of the newspaper, Business Day. Other respondents, Leticia Locsin and Salvador Lacson, were the managing editor and columnist, respectively, of said newspaper. On 7 April 1987, Salvador Lacson published in Business Day an article entitled "Insurance Monopoly", which allegedly contained defamatory statements against petitioner Bennett LL. Thelmo, and maliciously tried to make it appear that Thelmo was a grafter and bribe-giver.

On 10 April 1987, Thelmo filed an affidavit-complaint with the Office of the Provincial Prosecutor

On 23 May 1988, the corresponding informations were filed and assigned to respondent trial court.

Salvador filed a motion to quash on the ground of prescription. Prosecution was asked to comment but failed to do so.

on 03 January 1991, respondent court issued an order granting the motion to quash the informations, on the ground of prescription

MFR was filed and granted and the three informations were reinstated (3 May 1991)

Respondents filed MFR again based on the right to speedy trial. Court granted the motion and such order is now assailed.

RULING In the criminal cases at bench, it is clear that the prosecution failed to prosecute them for an unreasonable length of time. Clearly, the prosecution failed to file comment on the accused's motion to quash, despite the admitted service of a copy thereof on the then trial fiscal handling the case (Fiscal Simon, Jr.), and despite order of respondent court directing comment on said motion to quash. When the respondent court issued the order of 03 January1991, granting accused's motion to quash, more than two (2) years had lapsed, without public prosecutor having filed any comment despite, we repeat, several extensions of time granted to the prosecution, within which to file comment . And such non-filing of the comment, on the part of the prosecution for more than two (2) years, is undoubtedly an unreasonable failure or delay. Under Section 1(h), Rule 115, Revised Rules on Criminal Procedure, one of the rights of the accused is the right "to have a speedy, impartial and public trial." A denial of this right entitles the accused to a dismissal of the case, upon filing the appropriate motion to dismiss and the dismissal operates as an acquittal. There are only two occasions when double jeopardy will attach even if the motion to dismiss the case is made by the accused himself. The first is when the ground is insufficiency of the evidence of the prosecution, and the second is when the proceedings have been unreasonably prolonged in violation of the right to a speedy trial.

In Bermisa vs. Court of Appeals, 13 it was held that the right to a speedy trial is denied the accused "where through the vacillation and procrastination of prosecuting officers, the accused is forced to wait many months or years for trial. However, the motion to quash the informations was not strictly the proper remedy, because a denial of the right to speedy trial is not one of the grounds (Sec. 3 Rule 117 of the Revised Rules on Criminal Procedure) upon which a motion to quash a complaint or information may be grounded. The denial of the accused's right to speedy trial as a consequence of the prosecution's failure to prosecute for over two (2) years gave rise to a motion to dismiss. The cases were properly dismissable on this score." On prescription of the offense: In Francisco v. Court of Appeals, this Court held that the filing of a complaint in the fiscal's office interrupts the period of prescription. Offense has not yet prescribed when filed but the case must be dismissed. Jaca v. Blanco (double jeopardy) FACTS:

Romeo Jaca was accused before the Court of First Instance of Iloilo of triple homicide through reckless imprudence. After arraignment the case was called for trial at 8:06 in the morning of February 3, 1949, and counsel for the accused entered his appearance.

The accused was present. But as nobody appeared for the prosecution, the court then and there dismissed the case without prejudice.

Four minutes later counsel for the private prosecution arrived, followed a little later by the City Fiscal together with the witnesses for the prosecution, and explained to the court that their tardiness was due to the fact that the chauffeur of the jeep in which they were riding was detained by a policeman for driving on the wrong side of the street.

Satisfied with the explanation, the respondent judge set aside the order of dismissal and reset the case for trial on the following morning, February 4, 1949.

Accused filed MFR for the reversal of the dismissal order claiming double jeopardy-denied RULING We at the dismissal contemplated in the abovequoted section of the rule(section 9 of the Rule 113) is definite or unconditional dismissal which terminates the case, and not a dismissal without prejudice as in the present case. In the absence of any statutory provision to the contrary, we find no reason why the court may not, in the interest of justice, dismiss a criminal case provisionally, i.e., without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the same offense. Under the circumstances we find no violation of any constitutional right of the accused by the

respondent judge in reconsidering his previous order of dismissal a few minutes after it was dictated

and in reinstating the case against accused. The accused had been neither previously convicted nor

acquitted, nor had the case against him been definitely dismissed since the dismissal was without

prejudice. Had the respondent judge refused to vacate the order of dismissal under the circumstances,

we think he would have committed a grave miscarriage of justice.

Beltran v. Samson and Jose (right not to be a witness against himself) FACTS:

Accused was investigated for falsification (no information yet filed)

Fiscal asked the court to compel the accused to appear before him to take dictation in the accused’s own handwriting from the fiscal for the purpose of determining whether he falsified certain documents.

Court granted the petitioned and issued the assailed order RULING Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion of the fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But this power must be exercised without prejudice to the constitutional rights of persons cited to appear. Nor shall be compelled in any criminal case to be a witness against himself." (Jones Law pa kai before nis 1935 Constitution) As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing of evidence. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret. Furthermore, in the case before us, writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of producing documents or chattels in one's possession. We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. And we say that the present case is more serious than that of compelling the production of documents or chattels, because here the witness is compelled to write and create, by means of the act of writing, evidence which does not exist, and which may identify him as the falsifier. It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting is not granted, the crime would go unpunished. Considering the circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to obtain specimen or specimens without resorting to the means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not

constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of innocent persons. The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived by any one entitled to invoke it. As compared to Villaflor v.Summers: The said reason of the case there consisted in that it was the case of the examination of the body by physicians, which could be and doubtless was interpreted by this court, as being no compulsion of the petitioner therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute any positive act, much less a testimonial act; she was only enjoined from something preventing the examination; all of which is very different from what is required of the petitioner of the present case, where it is sought to compel him to perform a positive, testimonial act, to write and give a specimen of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it was sought to exhibit something already in existence, while in the case at bar, the question deals with something not yet in existence, and it is precisely sought to compel the petitioner to make, prepare, or produce by this means, evidence not yet in existence; in short, to create this evidence which may seriously incriminate him.