1

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82585 November 14, 1988 MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS,petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979. RESOLUTION

PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support.

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It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.

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Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 94054-57 February 19, 1991 VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents. G.R. Nos. 94266-69 February 19, 1991 JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners, vs. HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents. Francisco R. Llamas for petitioners in G.R. Nos. 94054-57. Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:p May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. An investigation of the incident then followed. Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)

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xxx xxx xxx In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused. Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each. On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case. On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail. On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90) On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit: Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved. The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix. Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following: 1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facieevidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause. 2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and 3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

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In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists aprima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution. On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said: In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied) xxx xxx xxx The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order. In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14. In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved: xxx xxx xxx . . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho. The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides: . . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce . . . We ruled:

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. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court. Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed. The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated: The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:

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We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution) First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised. The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke.

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The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. . . . Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms. There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions. At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person. If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion. The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest. We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge.

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The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit: It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201) We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 96080 April 19, 1991 ATTY. MIGUEL P. PADERANGA petitioner, vs. HON. FRANKLIN M. DRILON, HON. SILVESTRE H. BELLO III, ATTY. HENRICK F. GINGOYON, HELEN B. CANOY and REBECCA B. TAN, respondent Concordio C. Diel, Constantino G. Jaraula for petitioner. Benjamin G. Guimong for private respondents.

REGALADO, J.: p

In this special civil action for mandamus and prohibition with prayer for a writ of preliminary injunction/restraining order, petitioner seeks to enjoin herein public respondents from including the former as an accused in Criminal Case No. 86-39 for multiple murder, through a second amended information, and to restrain them from prosecuting him. The records disclose that on October 16, 1986, an information for multiple murder was filed in the Regional Trial Court, Gingoog City, against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe, for the deaths on May 1, 1984 of Renato Bucag, his wife Melchora Bucag, and their son Renato Bucag II. Venue was, however, transferred to Cagayan de Oro City per Administrative Matter No. 87-2-244. Only Felipe Galarion was tried and found guilty as charged. The rest of the accused remained at large. Felipe Galarion, however, escaped from detention and has not been apprehended since then. In an amended information filed on October 6, 1988, Felizardo Roxas, alias "Ely Roxas," "Fely Roxas" and "Lolong Roxas," was included as a co-accused. Roxas retained petitioner Paderanga as his counsel. As counsel for Roxas, petitioner filed, among others, an Omnibus Motion to dismiss, to Quash the Warrant of Arrest and to Nullify the Arraignment on October 14, 1988. The trial court in an order dated January 9, 1989, denied this omnibus motion but directed the City Prosecutor "to conduct another preliminary investigation or reinvestigation in order to grant the accused all the opportunity to adduce whatever evidence he has in support of his defense." In the course of the preliminary investigation, through a signed affidavit, Felizardo Roxas implicated herein petitioner in the commission of the crime charged. The City Prosecutor of Cagayan de Oro City inhibited himself from further conducting the preliminary investigation against petitioner at the instance of the latter's counsel, per his resolution dated July 7, 1989. In his first indorsement to the Department of Justice, dated July 24, 1989, said city prosecutor requested the Department of Justice to designate a state prosecutor to continue the preliminary investigation against herein petitioner. In a resolution dated September 6, 1989, 1 respondent State Prosecutor Henrick F. Gingoyon, who was designated to continue with the conduct of the preliminary investigation against petitioner, directed the amendment of the previously amended information to include and implead herein petitioner as one of the accused therein. Petitioner moved for reconsideration, 2 contending that the

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preliminary investigation was not yet completed when said resolution was promulgated, and that he was deprived of his right to present a corresponding counter-affidavit and additional evidence crucial to the determination of his alleged "linkage" to the crime charged. The motion was, however, denied by respondent Gingoyon in his order dated January 29, 1990. 3 From the aforesaid resolution and order, petitioner filed a Petition for Review 4 with the Department of Justice. Thereafter, he submitted a Supplemental Petition with Memorandum, 5 and then a Supplemental Memorandum with Additional Exculpatory/Exonerating Evidence Annexed, 6 attaching thereto an affidavit of Roxas dated June 20, 1990 and purporting to be a retraction of his affidavit of March 30, 1990 wherein he implicated herein petitioner. On August 10, 1990, the Department of Justice, through respondent Undersecretary Silvestre H. Bello III, issued Resolution No. 648 7 dismissing the said petition for review. His motion for reconsideration having been likewise denied, petitioner then flied the instant petition for mandamus and prohibition. Petitioner raises two basic issues, namely: (1) that the preliminary investigation as to him was not complete; and (2) that there exists no prima facie evidence or probable cause to justify his inclusion in the second amended information. Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the person against whom it is taken in jeopardy. 8 The institution of a criminal action depends upon the sound discretion of the fiscal. He has the quasijudicial discretion to determine whether or not a criminal case should be filed in court. 9 Hence, the general rule is that an injunction will not be granted to restrain a criminal prosecution. 10 The case of Brocka, et al. vs. Enrile, et al. 11cites several exceptions to the rule, to wit: a. To afford adequate protection to the constitutional rights of the accused; b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c. When there is a pre-judicial question which is sub judice; d. When the acts of the officer are without or in excess of authority; e. Where the prosecution is under an invalid law, ordinance or regulation; f. When double jeopardy is clearly apparent; g. Where the court has no jurisdiction over the offense; h. Where it is a case of persecution rather than prosecution; i. Where the charges are manifestly false and motivated by the lust for vengeance; and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. A careful analysis of the circumstances obtaining in the present case, however, will readily show that the same does not fall under any of the aforesaid exceptions. Hence, the petition at bar must be dismissed. 1. Petitioner avers that he was deprived of a full preliminary investigation by reason of the fact that at the time the resolution of September 6, 1989 was issued, there were still several incidents pending resolution such as the validity of the testimonies and affidavits of Felizardo Roxas and Rogelio

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Hanopol as bases for preliminary investigation, the polygraph test of Roxas which he failed, and the clarificatory questions which were supposed to be propounded by petitioner's counsel to Roxas and Hanopol. Petitioner likwise claims that he was deprived of the opportunity to file his counter-affidavit to the subpoena of April 25, 1989. These contentions are without merit. Firstly, it will be noted that petitioner had already filed his counter-affidavit, pursuant to the subpoena issued to him on April 17, 1989, wherein he controverted the charge against him and dismissed it as a malicious design of his political opponents and enemies to link him to the crime. We hold that this is sufficient compliance with the procedural requirement of the Rules of Court, specifically Section 3(b) of Rule 112 thereof. Besides, petitioner failed to show that the subpoena issued on April 25, 1989 involved a separate complaint charging an offense different and distinct from that charged in the complaint attached to the first subpoena issued to him earlier. Secondly, the veracity and credibility of the witnesses and their testimonies are matters of defense best addressed to the trial court for its appreciation and evaluation. Thirdly, the right of petitioner to ask clarificatory questions is not absolute. The fiscal has the discretion to determine whether or not he will propound these questions to the parties or witnesses concerned. As clearly provided for under Section 3(e), Rule 112 of the Rules of Court.: (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the to the investigating officer which the latter may propound to the parties or witnesses concerned. Lastly, it has been held that "the proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance of a preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into by the trail court not an appellate court." 12 2. Petitioner further submits that there is no prima facie evidence, or probable cause, or sufficient justification to hold him to a tedious and prolonged public trial, on the basis of the following grounds: the questioned resolution of respondent Gingoyon is full of factual misrepresentations or misapprehensions; respondent's reliance on the decision of the Regional Trial Court against Felipe Galarion suffers from constitutional and procedural infirmities considering that petitioner was not a party thereto, much less was he given any opportunity to comment on or rebut the prosecution evidence; reliance on Rogelio Hanopol's testimony is likewise "contemptible," it being merely hearsay in addition to the fact that petitioner was never given the opportunity to cross-examine Hanopol at the time he testified in court; and the affidavit of Roxas dated March 30, 1989, which is the only evidence against petitioner, has been rendered nugatory by his affidavit of retraction dated June 20, 1990. A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. 13 The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a wen grounded belief that an offense has been committed and that the accused is probably guilty thereof. 14 We are in accord with the state prosecutor's findings in the case at bar that there exists prima facie evidence of petitioner's involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining therein. Likewise devoid of cogency is petitioner's argument that the testimonies of Galarion and Hanopol are inadmissible as to him since he was not granted the opportunity of cross-examination. It is a fundamental principle that the accused in a preliminary investigation has no right to crossexamine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to

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propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol at the time they were presented to testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to crossexamine them at the preliminary investigation precisely because such right was never available to him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation. Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-examination. WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 126005 January 21, 1999 PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents.

PANGANIBAN, J.: In our criminal justice system, the public prosecutor has the quasi-judicial discretion to determine whether or not case should be filed in court. Courts must. respect the exercise of such discretion when the information filed against the accused valid on its face, and no manifest error, grave abuse of discretion or prejudice can be imputed to the public prosecutor. The Case Before us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of Appeals 1 in CA-GR SP No. 36018. 2 The assailed Decision dismissed the Petition for Certiorari filed by the petitioners, which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan, Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners' motion for reconsideration. The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners' motion for reconsideration. The Facts The case below arose from the fatal shooting of Petitioner Dy's mother, Rosalinda Dy, in which the primary suspect was Private Respondent Jonathan Cerbo, son of Private Respondent Billy Cerbo. The procedural and factual antecedents of the case were summarized in the challenged Decision of the Court of Appeals as follows: On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by private respondent Jonathan Cerbo in the presence and at the office of his father, private respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao. On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying private respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34). On September 20, 1993, private respondent Jonathan Cerbo executed a counteraffidavit interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36). On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a preliminary investigation, found "sufficient ground to engender a wellfounded belief" that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E, Rollo, pp. 37-38).

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After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, executed an affidavit-complaint charging private respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her previous statement that: 3. In addition to my said sworn statement, I voluntarily and freely aver as follows: a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from the kitchen [and to bring it] to the office instead of the dining room. b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair facing the entrance door for an easy target. c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first aid. d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her immediate relatives xxx.' Annex G. Rollo, p. 40.) Private respondent Billy Cerbo submitted a counter-affidavit denying the allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 4142). On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44) which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45). In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an amended information including Billy Cerbo ". . . as one of the accused in the murder case . . ." (Annex K: Rollo, pp. 46-49). Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder case. A warrant for his arrest was later issued on May 27, 1994 (Rollo, p. 27). Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the same was issued without probable cause (Rollo, p. 27). On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads: IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the case as against Billy Cerbo only. Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED. The prosecution is hereby ordered to withdraw its Amended Information and file a new one charging Jonathan Cerbo only. SO ORDERED. (Rollo, pp. 29-30).

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Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the respondent judge in his second assailed order dated August 18, 1994 (Annex B, Rollo, pp. 31-33). 3

The Ruling of the Court of Appeals In its 10-page Decision, the Court of Appeals debunked petitioners' assertion that the trial judge committed a grave abuse of discretion in recalling the warrant of arrest and subsequently dismissing the case against Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows: The ruling is explicit. If upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists, must either call for the complainant and the witnesses or simply dismiss the case. Petitioners question the applicability of the doctrine laid down in the above[]mentioned case, alleging that the facts therein are different from the instant case. We rule that the disparity of facts does not prevent the application of the principle. We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the additional facts and circumstances alleged therein, we cannot say that respondent judge gravely abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of probable cause. xxx xxx xxx The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and credibly demonstrating the existence of probable cause.
xxx xxx xxx 5

In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the evidence presented thus far did not substantiate such charge. Hence, this petition. 6 The Assigned Errors Petitioner Dy avers: 1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had the authority to reverse [the public prosecutor's] finding of probable cause to prosecute accused . . . and thus dismiss the case filed by the latter on the basis of a motion to quash warrant of arrest.
2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on the matter. 7

On the other hand, the solicitor general posits this sole issue:
Whether the Court of Appeals erred in finding that no probable cause exists to merit the filing of charges against private respondent Billy Cerbo. 8

Essentially, the petitioners are questioning the propriety of the trial court's dismissal, for want of evidence, of the Information for murder against Private Respondent Billy Cerbo.

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In resolving this petition, the discussion of the Court will revolve around the points: first, the determination of probable cause as an executive and judicial function and, second, the applicability of Allado and Salonga to the case at bar. The Court's Ruling The petition is meritorious. The trial court erred in dismissing the information filed against the private respondent. Consequently the Court of Appeals was likewise in error when it upheld such ruling. Executive Determination of Probable Cause The determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. It is an executive function, 9 the correctness of the exercise of which is matter that the trial court itself does not and may not be compelled to pass upon. The Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appeals 10 succinctly elucidates such point in this wise: xxx xxx xxx In this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial." It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime. Whether or not that function has been correctly discharged by the public prosecutor i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. It is not for instance permitted for an accused, upon the filing of the information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quash or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. xxx xxx xxx Indeed, the public prosecutor has broad discretion to determine whether probable cause exists and to charge those whom be or she believes to have committed the crime as defined by law. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case list be filed in court. 11 Thus, in Crespo v. Mogul, 12 we ruled: It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient

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or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecutions by private persons. . . . Prosecuting officers under the power vested in them by the law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the duty not to prosecute when the evidence adduced is not sufficient to establish a prima facie case. This broad prosecutoral power is however nor unfettered, because just as public prosecutors are obliged to bring forth before the law those who have transgressed it, they are also constrained to be circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by regional trial courts, preliminary investigations are usually conducted. In Ledesma v. Court of Appeals, 13 we discussed the purposes and nature of a preliminary investigation in this manner: The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. Such investigation is not part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief than an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches. Judicial Determination of Probable Cause The determination of probable cause to hold a person for trial must be distinguished from the determination of probable cause to issue a warrant of arrest, which is a judicial function. The judicial determination of probable cause in the issuance of arrest warrants has been emphasized in numerous cases. In Ho v. People, 14 the Court summarized the pertinent rulings on the subject, as follows: The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence. xxx xxx xxx In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand,

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determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence or non-existence of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of non-existence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as the Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounded duty if he relies merely on the certification or the report of the investigating officer. xxx xxx xxx Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutor's determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient, as in the present case. Indeed, it could be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine "whether there is sufficient ground to engender a well-founded belief that a crime . . . has been committed and that the respondent is probably guilty thereof, and should be held for trial." 15 Evidentiary matters must be presented and heard during the trial. 16 Therefore, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of the public prosecutor , the trial court should respect such determination. Inapplicabilty of Allado and Salonga The Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno:" . . . [I]f, upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, must either call for the complainant and the witnesses themselves or

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simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists." 17 In Allado, Petitioners Diosdado Jose Allado and Roberto I. Mendoza, practicing lawyers, were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned the issuance of the warrants for their arrest contending that the respondent judge acted with grave abuse of discretion and in excess of his jurisdiction in holding that there was probable cause against them. They contended that the trial court relied merely on the resolution of the investigating panel and its certification that probable cause existed, without personally determining the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. They maintained that the records of the preliminary investigation, which was the sole basis of the judge's ruling, failed to establish probable cause against them that would justify the issuance of warrants for their arrest. The Court declared that Judge Diokno has indeed committed grave abuse of discretion in issuing the arrest warrants. Contrary to the constitutional mandate and established jurisprudence, he merely relied on the certification of the prosecutors as to the existence of the probable cause, instead of personally examining the evidence, the complainant and his witness." For otherwise," the Court said "he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of the petitioners" 18 In categorically stating that the evidence so far presented did not meet the standard of probable cause and subsequently granting the petition, the Court noted the following circumstances: first, the corpus delicti was not established, and there was serious doubt as to the alleged victim's death: second, the extra judicial statement of the principal witness, who had priorly confessed his participation in the crime, was full of material inconsistencies; and third, the PACC operatives who investigated the case never implicated the petitioners. Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out that when there was no prima facie case against a person sought to be charged with a crime, "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn out during trial, for this would be flagrant violation of a basic right which the courts are created to uphold." 19 In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information for violation of the revised Anti-Subversion Act, which Judge Ernani Cruz-Pano had ordered to be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the Information was based was not sufficient to charge him for a violation of the Revised Subversion Act. In all, the Court decreed in both cases that there was no basis in law and in fact for the judicial and executive determination at probable cause. The Court also held that the government, while vested with the right and the duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived violators' rights as guaranteed by the Constitution. However, the present case is not on all fours with Allado and Salonga. First, Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was not a participation or conspirator in the commission of the said crime. In Allado and Salonga, however, the main witnesses were the confessed perpetrators of the crimes, whose testimonies the court deemed 'tainted'. 20 Second, in the case at bar, the private respondent was accorded due process, and no precipitate haste or bias during the investigation of the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue haste in the filing of the Information and in the inordinate interest of the government" in pursuing the case; 21 and in Salonga, " . . . the failure of the prosecution to show that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutioner rights [and] the massive and damaging publicity against him." 22 In other words, while the respective sets of evidence before the prosecutors in the Allado and Salonga were "utterly insufficient" to support a finding of probable cause, the same cannot be said of the present case. We stress that Allado and Salonga constitute exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply to it. Motion Without Requisite Notice

22
One more thing, Petitioners aver that Private Respondent Cerbo did not give them a copy of the Motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the scheduled hearing. Thus, they contend, Judge Valles should not have entertained such motion. It is settled that every written motion in a trial court must be set for hearing by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this matter in Section 4 and 5, Rule 15 of the Rules of the Court, 23 are categorical and mandatory character. 24 Under Section 6 of the said rule, no motion shall be acted upon by the court without proof of service thereof. The rationale for this rule is simple: unless the movants set the time and the place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions. 25 The motion to quash the warrant of arrest in the present case being pro forma, inasmuch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it. Epilogue In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for 'want of evidence,' because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood. The rights of the people from what could sometimes be an ''oppressive" exercise of government prosecutorial powers do need to be protected when circumstances so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor's duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties. In any case, if there was palpable error or grave abuse of discretion in the public prosecutor's finding of probable cause, the accused can appeal such finding to the justice secretary 26 and move for the deferment or suspension of the proceeding until such appeal is resolved. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan, Davao, which is ordered to reinstate the amended information against Private Respondent Billy Cerbo and to proceed with judicious speed in hearing the case. No. costs.
1wphi1.nt

SO ORDERED.

23
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 118821 February 18, 2000

MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA, petitioners, vs. HON. JAPAL M. GUIANI, in his capacity as Presiding Judge, of Branch 14 of the Regional Trial Court of Cotabato City, respondent. GONZAGA-REYES, J.: At bench is a petition for certiorari and prohibition to set aside the warrant of arrest issued by herein respondent Japal M. Guiani, then presiding judge of Branch 14 of the Regional Trial Court of Cotabato City, ordering the arrest of petitioners without bail in Criminal Case No. 2376 for murder. The antecedent facts of the case are as follows: On 24 June 1994, a complaint for murder, docketed as I.S. No. 94-1361, was filed before the Criminal Investigation Service Command, ARMM Regional Office XII against herein petitioners and six (6) other persons1 in connection with the death of a certain Abdul Dimalen, the former COMELEC Registrar of Kabuntalan, Maguindanao.2 The complaint alleged that herein petitioners paid the six other respondents the total amount of P200,000.00 for the death of Abdul Dimalen.3 Acting on this complaint, the Provincial Prosecutor of Maguindanao, Salick U. Panda, in a Resolution dated 22 August 19944, dismissed the charges of murder against herein petitioners and five other respondents on a finding that there was no prima facie case for murder against them. Prosecutor Panda, however, recommended the filing of an information for murder against one of the respondents, a certain Kasan Mama. Pursuant to this Resolution, an information for murder was thereafter filed against Kasan Mama before the sala of respondent Judge.
1wphi 1.nt

In an Order dated 13 September 19945, respondent Judge ordered that the case, now docketed as Criminal Case No. 2332, be returned to the Provincial Prosecutor for further investigation. In this Order, respondent judge noted that although there were eight (8) respondents in the murder case, the information filed with the court "charged only one (1) of the eight (8) respondents in the name of Kasan Mama without the necessary resolution required under Section 4, Rule 112 of the Revised Rules of Court to show how the investigating prosecutor arrived at such a conclusion." As such, the respondent judge reasons, the trial court cannot issue the warrant of arrest against Kasan Mama. Upon the return of the records of the case to the Office of the Provincial Prosecutor for Maguindanao, it was assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation. In addition to the evidence presented during the initial investigation of the murder charge, two new affidavits of witnesses were submitted to support the charge of murder against herein petitioners and the other respondents in the murder complaint. Thus, Prosecutor Dimaraw treated the same as a refiling of the murder charge and pursuant to law, issued subpoena to the respondents named therein.6 On December 6, 1994, herein petitioners submitted and filed their joint counter-affidavits. After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December 1994,7 found a prima facie case for murder against herein petitioners and three (3) other respondents.8 He thus recommended the filing of charges against herein petitioners Bai Unggie Abdula and Odin Abdula, as principals by inducement, and against the three (3) others, as principals by direct participation. Likewise in this 28 December 1994 Resolution, Provincial Prosecutor Salick U. Panda, who conducted the earlier preliminary investigation of the murder charge, added a notation stating that he was inhibiting himself from the case and authorizing the investigating prosecutor to dispose of the case without his approval. The reasons he cited were that the case was previously handled by him and that the victim was the father-in-law of his son.9

24
On 2 January 1995, an information for murder dated 28 December 199410 was filed against the petitioner spouses and Kasan Mama, Cuenco Usman and Jun Mama before Branch 14 of the Regional Trial Court of Cotabato City, then the sala of respondent judge. This information was signed by investigating prosecutor Enok T. Dimaraw. A notation was likewise made on the information by Provincial Prosecutor Panda, which explained the reason for his inhibition.11 The following day, or on 3 January 1995, the respondent judge issued a warrant12 for the arrest of petitioners. Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an Urgent Ex-parte Motion13for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that the enforcement of the warrant of arrest should be held in abeyance considering that the information was prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice. A petition for review14 was filed by the petitioners with the Department of Justice on 11 January 1995.15 Despite said filing, respondent judge did not act upon. petitioner's pending Motion to Set Aside the Warrant of Arrest. Hence, this Petition for Certiorari and Prohibition wherein petitioners pray for the following: 1. upon filing of this petition, a temporary restraining order be issued enjoining the implementation and execution of the order of arrest dated January 3, 1995 and enjoining the respondent judge from further proceeding with Criminal Case No. 2376 entitled People of the Philippines vs. Bai Unggie D. Abdula, et al. upon such bond as may be required by the Honorable Court; 2. this petition be given due course and the respondent be required to answer; 3. after due hearing, the order of arrest dated January 3, 1995 be set aside and declared void ab initio and the respondent judge be disqualified from hearing Criminal Case No. 2376 entitled People of the Philippines vs. Bai Unggie D. Abdula, et al.16 In a Resolution17 dated 20 February 1995, this Court resolved to require respondent judge to submit a comment to the petition. The Court further resolved to issue a temporary restraining order18 enjoining the respondent judge from implementing and executing the Order of Arrest dated 3 January 1995 and from further proceeding with Criminal Case No. 2376. At the onset, it must be noted that petitions for certiorari and prohibition require that there be no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law available to the petitioner.19 In the instant case, it cannot be said that petitioners have no other remedy available to them as there is pending before the lower court an Urgent Motion20 praying for the lifting and setting aside of the warrant of arrest. Ordinarily, we would have dismissed the petition on this ground and let the trial court decide the pending motion. However, due to the length of time that the issues raised in the petition have been pending before the courts, it behooves us to decide the case on the merits in order to preclude any further delay in the resolution of the case. Respondent Japal M. Guiani retired from the judiciary on 16 April 1996. For this reason, respondent is no longer the presiding judge of the Regional Trial Court Branch 14 of Cotabato City; and the prayer of petitioner as to respondent's disqualification from hearing Criminal Case No. 2376 is now moot and academic. Thus, there remain two issues left for the determination of the Court: first, the legality of the second information for murder filed before respondent's court; and second, the validity of the warrant of arrest issued against petitioners. With respect to the first issue, petitioners aver that it is the respondent judge himself who is orchestrating the filing of the alleged murder charge against them. In support, petitioners cite five (5) instances wherein respondent judge allegedly issued illegal orders in a mandamus case pending in respondent's sala filed against petitioner Mayor Bai Unggie Abdula. These allegedly illegal orders formed the basis for a criminal complaint which they filed on 6 October 1994 against respondent and ten (10) others before the Office of the Ombudsman for Mindanao.21 In this complaint, herein petitioners alleged that the respondent judge illegally ordered the release of the total amount of P1,119,125.00 from the municipal funds of Kabuntalan, Mindanao to a certain Bayoraiz Saripada, a purported niece of respondent judge. The Office of the Ombudsman for Mindanao, in an Order22 dated 12 December 1994, found "sufficient basis to proceed with the preliminary investigation of the case" and directed the respondents therein to file their respective counter-

25
affidavits and controverting evidence. From these facts, petitioners argue, it is clear that it is the respondent judge himself who is orchestrating and manipulating the charges against the petitioner. Petitioners further state that respondent judge exhibited extreme hostility towards them after the filing of the said complaint before the Ombudsman. Petitioners claim that immediately after the issuance of the Order of the Ombudsman requiring respondent judge to file his counter-affidavit, respondent allegedly berated petitioner Bai Unggie Abdula in open court when she appeared before him in another case Allegedly, in full view of the lawyers and litigants, respondent judge uttered the following words in the Maguindanaoan dialect: If I cannot put you in jail within your term, I will cut my neck. As long as I am a judge here, what I want will be followed.23 Respondent judge, in compliance with the Order of this Court, filed a Comment dated 3 March 1995.24 In this Comment, he argues that petitioners' enumeration of "incontrovertible facts" is actually a list of misleading facts which they are attempting to weave into Criminal Case No. 2376 for the purpose of picturing respondent as a partial judge who abused his discretion to favor petitioner's accuser.25 He claims that the anti-graft charge filed by petitioners against him is a harassment suit concocted by them when they failed to lay their hands on the amount of P1,119,125.00 of municipal funds which respondent had previously ruled as rightfully belonging to the municipal councilors of Kabuntalan, Maguindanao. Respondent vehemently denies having personally profited from the release of the municipal funds. Moreover, respondent points out that the allegations in the complaint seem to imply that the Vice Mayor of Kabuntalan, Bayoraiz Sarupada, was a party to the mandamus case filed with respondent's court when in truth, there was no case filed by the vice mayor pending in his court. Finally, respondent denies berating petitioner Bai Unggie Abdula and uttering the words attributed to him in the petition. According to respondent, the last time petitioner Bai Unggie Abdula appeared in his sala on December 28, 1994, in connection with the lifting of an order for her apprehension in another case, he neither berated nor scolded her and in fact, he even lifted the said order of arrest. In its Comment with Urgent Motion for the Lifting of the Temporary Restraining Order dated 5 June 1995,26 the Office of the Solicitor-General states that petitioner's allegation that the respondent judge was biased and prejudiced was pure speculation as no proof was presented that respondent assumed the role of prosecutor. Moreover, the OSG argued that the fact that the respondent judge and petitioners had pending cases against each other did not necessarily result in the respondent's bias and prejudice. An analysis of these arguments shows that these should have been properly raised in a motion for the disqualification or inhibition of respondent judge. As previously stated however, the issue as to whether respondent should be disqualified from proceeding with the case has been rendered moot and academic as he is no longer hearing the case against petitioners. As such, there is no need for a prolonged discussion on this issue. It is sufficient to say that in order to disqualify a judge on the ground of bias and prejudice, petitioner must prove the same by clear and convincing evidence.27 This is a heavy burden which petitioners have failed to discharge. This Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial.28 Petitioners next argue that the act of respondent in motu proprio ordering a reinvestigation of the murder charge against them is another indication of the latter's bias and prejudice.29 They claim that the filing of their complaint against respondent motivated the latter's Order of 13 September 1994 which ordered the return of the records of the murder case to the provincial prosecutor. Furthermore, they posit that the latter had no authority to order the reinvestigation considering that same had already been dismissed as against them by the provincial prosecutor in his Resolution dated 22 August 1994. A review of the pertinent dates in the petition however show that respondent could not have been motivated by the Ombudsman's complaint when he issued the 13 September 1994 Order. Petitioner Bai Unggie Abdula filed the complaint before the Ombudsman of Cotabato City on October 6, 199430 or about a month after the issuance of the 13 September 1994 Order. As such, when respondent issued the said Order, the same could not have been a retaliatory act considering that at that time, there was as yet no complaint against him.

26
With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the criminal charge considering that the said charge had been previously dismissed as against them, we hold that respondent did not abuse his discretion in doing so.31 It is true that under the circumstances, the respondent judge, upon seeing that there were no records attached to the complaint, could have simply ordered the office of the provincial prosecutor to forward the same. Upon receipt of these records, respondent judge would then have sufficient basis to determine whether a warrant of arrest should issue. However, from the bare terms of the questioned order alone, we fail to see any illegal reason that could have motivated the judge in issuing the same. The order merely stated that the records of the case should be returned to the Office of the Provincial Prosecutor for further investigation or reinvestigation. He did not unduly interfere with the prosecutor's duty to conduct a preliminary investigation by ordering the latter to file an information against any of the respondents or by choosing the fiscal who should conduct the reinvestigation which are acts certainly beyond the power of the court to do.32 It was still the prosecutor who had the final say as to whom to include in the information.33 As pointed out by the Office of the Solicitor General, petitioners only imputed bias against the respondent judge and not against the investigating prosecutor.34 Consequently, this imputation is of no moment as the discretion to file an information is under the exclusive control and supervision of the prosecutor and not of respondent judge. Furthermore, petitioners cannot claim that they were denied due process in the reinvestigation of the charges against them as they actively participated therein by submitting their joint counter-affidavit. Petitioners likewise allege that the information charging petitioners with murder is null and void because it was filed without the authority of the Provincial Prosecutor. They note that in the Resolution dated 28 December 1994 and in the corresponding information, it clearly appears that the same were not approved by the Provincial Prosecutor as it was signed only by the investigating prosecutor, Anok T. Dimaraw. Petitioners' contention is not well-taken. The pertinent portion of the Rules of Court on this matter state that "(n)o complaint or information shall be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor (emphasis ours)." In other words, a complaint or information can only be filed if it is approved or authorized by the provincial or city fiscal or chief state prosecutor. In the case at bench, while the Resolution and the Information were not approved by Provincial Prosecutor Salick U. Panda, the filing of the same even without his approval was authorized. Both the Resolution and information contain the following notation:* The herein Provincial Prosecutor is inhibiting himself from this case and Investigating Prosecutor Enok Dimaraw may dispose of the case without his approval on the following ground: That this case has been previously handled by him, and whose findings differ from the findings of Investigating Prosecutor Dimaraw; and the victim is a relative by affinity, he being a father-in-law of his son. (Signed) Salick U. Panda Provincial Prosecutor It must be stressed that the Rules of Court speak of authority or approval by the provincial, city, or chief state prosecutor. The notation made by Prosecutor Panda clearly shows that Investigating Prosecutor Dimaraw was authorized to "dispose of the case without his approval." In issuing the resolution and in filing the information, the investigating prosecutor was acting well within the authority granted to him by the provincial prosecutor. Thus, this resolution is sufficient compliance with the aforecited provision of the Rules of Court. Having thus ruled on the validity of the information filed against the respondents, we now address the issue as to the legality of the warrant of arrest issued by respondent judge by virtue of the said information.

27
On this issue, petitioners, citing the case of Allado vs. Diokno 35 argue that the warrant for his arrest should be recalled considering that the respondent judge "did not personally examine the evidence nor did he call the complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact that the information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was immediately issued the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge did not even issue an order stating that there is probable cause for the issuance of the warrant of arrest, a clear violation of the guidelines set forth in the Allado case. Respondent, in his Comment, denies any irregularity in the issuance of the warrant of arrest. He argues as follows: Written authority having been granted by the Provincial Prosecutor, as required by the third paragraph of Section 4, Rule 112 of (the) Rules on Criminal Procedure, and there having been no reason for the respondent to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as against those charged in the Information filed, and recognizing the prosecution's legal authority to initiate and control criminal prosecution (Rule 110, Section 5) and considering that the court cannot interfere in said prosecution's authority (People vs. Moll, 68 Phil. 626), the respondent issued the warrant for the arrest of the accused pursuant to paragraph (a), section 6, Rule 112;36 The OSG, in defending the act of respondent judge, argues that the allegation that respondent did not personally examine the evidence is not supported by current jurisprudence. In support, the OSG invokes the pronouncement in Soliven vs. Makasiar 37 that "(I)n satisfying himself of the existence of probable cause, the judge is not required to personally examine the complainant and his witnesses." Moreover, the OSG points out that the judge enjoys a wide degree of latitude in the determination of probable cause for the issuance of warrants of arrest depending on the circumstances of each case.38 The OSG further argues that the case of Allado vs. Diokno, relied upon by petitioners, has no application in the case at bar considering that in the cited case, the documents submitted before the court failed to establish any probable cause as they were conflicting and contradictory. Significantly, the OSG continues, petitioners could not point out a single flaw in the evidence presented by the prosecutor to negate the existence of probable cause. Finally, the OSG points out that petitioner's unfounded allegations cannot prevail over the well-settled rule that official duty is presumed to be regularly performed.39 After a careful analysis of these arguments, we find merit in the contention of petitioners. The pertinent provision of the Constitution reads: Sec. 2 [Article III]. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produceand particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied.) It must be stressed that the 1987 Constitution requires the judge to determine probable cause "personally," a requirement which does not appear in the corresponding provisions of our previous constitutions. This emphasis evinces the intent of the framers to place a greater degree of responsibility upon trial judges than that imposed under previous Constitutions.40 In Soliven vs. Makasiar, this Court pronounced: What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

28
Ho vs. People 41 summarizes existing jurisprudence on the matter as follows: Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. (citations omitted) In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as against those charged in the information filed." The statement is an admission that respondent relied solely and completely on the certification made by the fiscal that probable cause exists as against those charged in the information and issued the challenged warrant of arrest on the sole basis of the prosecutor's findings and recommendations. He adopted the judgment of the prosecutor regarding the existence of probable cause as his own. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which in turn gives his report the presumption of accuracy, nothing less than the fundamental law of the land commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the certification or report of the investigating officer. To be sure, we cannot determine beforehand how cursory or exhaustive the respondent's examination of the records should be.42 The extent of the judge's examination depends on the exercise of his sound discretion as the circumstances of the case require. In the case at bench, the respondent had before him two different informations and resolutions charging two different sets of suspects. In the face of these conflicting resolutions, it behooves him not to take the certification of the investigating prosecutor at face value. The circumstances thus require that respondent look beyond the bare certification of the investigating prosecutor and examine the documents supporting

29
the prosecutor's determination of probable cause. The inordinate haste that attended the issuance of the warrant of arrest and respondent's own admission are circumstances that tend to belie any pretense of the fulfillment of this duty.
1wphi 1.nt

Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification made by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be declared null and void. WHEREFORE, premises considered, the petition for certiorari and prohibition is GRANTED. The temporary restraining order we issued on 20 February 1995 in favor of petitioners insofar as if enjoins the implementation and execution of the order of arrest dated 3 January 1995 is made permanent. Criminal Case No. 2376 is REMANDED to Branch 14 of the Regional Trial Court of Cotabato City for a proper determination of whether a warrant of arrest should be issued and for further proceedings. SO ORDERED.

30
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 147607 January 22, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. BENHUR MAMARIL, appellant. DECISION AZCUNA, J.: Before us is a petition for review on certiorari of the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, finding appellant Benhur Mamaril guilty beyond reasonable doubt of violation of Section 81 of Republic Act (RA) No. 6425, as amended by RA No. 7659. The Information filed against appellant reads: That on or about the 1st day of February, 1999 and sometime prior thereto, in the municipality of Lingayen, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and criminally [did] keep and possess crushed marijuana leaves contained in seventy eight (78) sachets with a total weight of two hundred thirty six and eighty three hundredth (236.83) grams and two (2) bricks of marijuana fruiting tops weighing one thousand six hundred grams, each brick weighing eight hundred (800) grams, with a total weight of one thousand eight hundred thirty six and eighty three hundredth (1,836.83) grams, a prohibited drug, without authority to possess the same. CONTRARY to Sec. 8 of R.A. 6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of 1972.2 When arraigned on October 8, 1999, appellant pleaded not guilty.3 At the pre-trial conference held on October 18, 1999, the parties admitted the following facts: 1. That the search was made in the house and premises of the parents of the accused where he (accused) also lives, at Ramos St., Lingayen, Pangasinan, on February 1, 1999 at about 2:30 o clock in the afternoon; 2. That the search was conducted by the elements of the PNP particularly SPO4 Faustino Ferrer, SPO1 Alfredo Rico and others; 3. That the policemen brought along with them a camera; 4. That the accused was in the balcony of the house when it was searched; 5. The existence of the report of physical science report No. (DT-077-99) issued by the PNP Crime Laboratory through Chemist Theresa Ann Bugayong Cid; 6. That accused was subjected to urine sample laboratory on February 2, 1999.4 Thereafter, trial ensued. The Prosecutions Evidence On January 25, 1999, the Intelligence Section PNCO of the Lingayen Police Station, represented by SPO2 Chito S. Esmenda, applied5 before the Regional Trial Court of Lingayen, Pangasinan, Branch 39, for a search warrant authorizing the search for marijuana, a prohibited drug, at the family

31
residence of appellant Benhur Mamaril, situated at Ramos Street, Poblacion, Lingayen, Pangasinan. On said date, then presiding Executive Judge Eugenio G. Ramos (now retired) issued Search Warrant No. 99-51.6 On February 1, 1999, at about 2:30 p.m., the Chief of Police of the Lingayen Police Station, SPO3 Alfredo Rico, SPO4 Faustino Ferrer, Jr. and other police officers went to the residence of appellant and implemented Search Warrant No. 99-51. When they arrived at appellants house, they saw appellants mother under the house. They asked her where appellant was, and she told them that appellant was in the house, upstairs. When they went upstairs, they saw appellant coming out of the room. Upon seeing the policemen, appellant turned back and tried to run towards the back door. SPO3 Rico told appellant to stop, which appellant did. SPO3 Rico informed appellant that they had a search warrant to search the house premises. They showed appellant and his mother the search warrant. Appellant looked at the search warrant and did not say anything. Thereafter, the policemen searched the house. The search was witnessed by two members of the barangay council in said area, namely, Barangay Kagawad Leonardo Ramos and Barangay Tanod Valentino Quintos, whom the police brought with them.7 The searching team confiscated the following: (1) fifty-five (55) heat-sealed plastic sachets containing suspected marijuana leaves, which were found in a buri bag ("bayong") under appellants house; (2) three heat-sealed plastic sachets containing suspected marijuana leaves and seeds contained in an eye-glass case; (3) twenty-two (22) heat-sealed plastic sachets containing suspected marijuana leaves and seeds taken under a pillow placed on a monobloc chair; and (4) two (2) bricks of suspected marijuana contained inside a white and gray bag found inside the closet of appellants room. SPO3 Alfredo Rico took pictures8 of the confiscated items and prepared a receipt9of the property seized. SPO4 Faustino Ferrer, Jr. prepared a certification10 that the house was properly searched, which was signed by appellant and the barangay officials who witnessed the search. After the search, the police officers brought appellant and the confiscated articles to the Lingayen Police Station and turned them over to the desk officer.11 The next day, on February 2, 1999, police officers Alfredo Rico, Alberto Santiago and Rodolfo Madrid brought the confiscated articles to the Crime Laboratory at Camp Florendo, San Fernando, La Union for examination. Appellant was also brought there for a drug test.12 Police Superintendent Ma. Theresa Ann Bugayong Cid, forensic chemist and head of the PNP Crime Laboratory, Regional Office I, Camp Florendo, Parian, San Fernando City, La Union, testified that on February 2, 1999, she received from the Chief of Police of Lingayen, Pangasinan, a request13 for a drug test on the person of appellant Benhur Mamaril and a laboratory examination of the confiscated specimens.14 After weighing the specimens and testing the same, Police Superintendent Cid issued a report15 finding the specimens16 to be "POSITIVE to the test for the presence of marijuana x x x."17 Moreover, Police Superintendent Cid affirmed the findings in her report18 that the examination conducted on the urine sample of appellant was positive for the presence of methamphetamine hydrochloride known as "shabu."19 After the prosecution formally offered its testimonial and documentary exhibits on March 5, 2000, appellant, through his counsel, filed a motion with memorandum20 contending that: (1) the exhibits of the prosecution are inadmissible in evidence under Section 2 and Section 3 (2) of Article III (Bill of Rights) of the 1987 Constitution as the search warrant, by virtue of which said exhibits were seized, was illegally issued, considering that the judges examination of the complainant and his two witnesses was not in writing; and (2) said search warrant was illegally or improperly implemented. Appellant prayed that all the exhibits of the prosecution be excluded as evidence or in the alternative, that the resolution of the admissibility of the same be deferred until such time that he has completed the presentation of his evidence in chief. On August 25, 2000, the prosecution opposed the motion, and the trial court denied appellants motion.21 The Defenses Evidence Appellant Benhur Mamaril, 31, single, laborer, denied that he was residing at his parents house at Ramos Street, Lingayen, Pangasinan since he has been residing at a rented house at Barangay Matic-matic, Sta. Barabara, Pangasinan since December 18, 1998. Appellant declared that on February 1, 1999, it was his brother and the latters family who were residing with his mother at Ramos Street, but on said day, his brother and family were not in the house since they were at the fishpond.22

32
Appellant testified that on February 1, 1999, he was at his parents house at Ramos Street, Lingayen, Pangasinan, because he and his live-in partner visited his mother on said day and arrived there at 10:00 a.m. At about 2:00 p.m. of February 1, 1999, while appellant was at the back of his parents house, about seven to nine policemen, in civilian clothes, arrived. The policemen asked appellant to go upstairs and they immediately handcuffed him and brought him to the balcony of the house. He stayed at the balcony until the search was finished after more than 30 minutes. Thereafter, he was brought to the clinic of one Dr. Felix and a medical examination was conducted on him. Then he was brought to the municipal hall.23 Appellant testified that he saw the buri bag, the eye-glass case, and the gray and white bag containing suspected marijuana for the first time on the day of the search when he was at the balcony of their house. He also testified that he saw the Receipt of Property Seized for the first time while he was testifying in court. He admitted that the signature on the certification that the house was properly searched was his.24 Moreover, appellant testified that in the early morning of February 2, 1999, he was brought to the PNP Crime Laboratory in San Fernando, La Union where he gave his urine sample. Appellant insinuated that the confiscated items were only planted because he had a misunderstanding with some policemen in Lingayen. However, he admitted that the policemen who searched his parents house did not threaten or harm him in any way and he had no misunderstanding with SPO3 Alfredo Rico.25 Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39, Lingayen, Pangasinan, was requested to testify on the available records regarding Search Warrant No. 99-51 on file in the trial court and to identify said documents. Atty. Castillo testified that he only had with him the application for search warrant, the supporting affidavits of PO3 Alberto Santiago and Diosdado Fernandez and the return of the search warrant.26 Atty. Enrico declared that before he assumed office as Branch Clerk of Court, the person supposed to be in custody of any transcript of the searching questions and answers made by Executive Judge Eugenio G. Ramos in connection with the application for Search Warrant No. 99-51 was Mrs. Liberata Ariston, who was then a legal researcher and at the same time OIC-Branch Clerk of Court. However, during the trial of this case, Mrs. Liberata Ariston was in the United States of America. Atty. Enrico averred that he asked Mrs. Liberata Aristons daughter, Catherine Ramirez, who is a court stenographer, about said transcript, but it has not been found. Atty. Enrico testified that based on the records, there is no stenographic notes. He added that they tried their best to locate the subject transcript, but they could not find it.27 The Trial Courts Decision On January 23, 2001, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of the accused of the crime of possession of marijuana defined and penalized under Section 8 of RA 6425, as amended, this Court in the absence of any modifying circumstances, hereby sentences said accused to suffer the penalty of RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000), plus costs of this suit. The period of preventive imprisonment suffered by the accused shall be credited in full in service of his sentence in accordance with Article 29 of the Revised Penal Code. SO ORDERED.28 The Appeal Appellant contends that the trial court made the following errors: I THE TRIAL COURT ERRED IN NOT DECLARING AS INADMISSIBLE IN EVIDENCE THE ARTICLES ALLEGEDLY SEIZED FROM ACCUSED-APPELLANT CONSIDERING THAT SEARCH WARRANT NO. 99-51 WAS ILLEGALLY ISSUED.

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II THE TRIAL COURT LIKEWISE ERRED IN NOT DECLARING AS TOTALLY INADMISSIBLE THE INVENTORIED ARTICLES IN THE RECEIPT OF SEIZED PROPERTY AND THE CORRESPONDING CERTIFICATION ISSUED THERETO (EXHS. "J" AND "I") SINCE THE ACCUSED-APPELLANT WAS NOT ASSISTED BY COUNSEL WHEN HE SIGNED THE SAME. III THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. 29 Appellant prays for his acquittal on the ground that Search Warrant No. 99-51 was illegally issued considering that there was no evidence showing that the required searching questions and answers were made anent the application for said search warrant. Appellant pointed out that Branch Clerk of Court Enrico O. Castillo testified that based on the records, there was no transcript of stenographic notes of the proceedings in connection with the application for said search warrant. Appellant thus asserts that it cannot be said that the judge made searching questions upon the alleged applicant and his witnesses, which is in violation of Section 2, Article III of the Constitution and Section 5, Rule 126 of the Rules of Court. Our Ruling Appellants contention is meritorious. The right against unreasonable searches and seizures is guaranteed under Article III, Section 2, of the Constitution, thus: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Said Constitutional provision is implemented under Rule 126 of the Rules of Court, thus: Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Sec. 5. Examination of complainant; record. -- The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Under the above provisions, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.30 In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers.31 Atty. Enrico O. Castillo, Branch Clerk of Court, RTC-Branch 39 of Lingayen, Pangasinan, who was requested to testify on the available records kept in their office regarding Search Warrant No. 99-51, presented before the court only the application for search warrant32 and the supporting affidavits33 of PO3 Alberto Santiago and Diosdado Fernandez. Atty. Castillo could not produce the sworn statements of the complainant and his witnesses showing that the judge examined them in the form of searching questions and answers in writing as required by law. Atty. Castillo testified, thus:

34
xxx xxx xxx

Q Would you admit that from the records available there is no transcript of the proceedings of a searching questions and answers made by the Executive Judge upon the complainant as well as the two (2) witnesses not only in connection with application for Search Warrant 99-51 but in all of those application covered by that record namely, 99-49, 99-50, 99-51, 9952, 99-53 and 99-54? A Sir, based on the records there is no transcript of [s]tenographic notes. Q Did you not ask Catherine Ramirez, the daughter of then OIC-Mrs. Liberata Ariston about said transcript? A I asked her for several times, sir, and in fact I asked her again yesterday and she told me that she will try to find on (sic) the said transcript. Q But until now there is no transcript yet? A Yes, sir. Q Because according to the rules the transcript must be attached to the records of this case together with the application for search warrant as well as the supporting affidavit of the said application, but there is no records available to have it with you and there is no proof with you? A Because during the time I assumed the office, sir, the records in the store room which they placed is topsy turvy and all the records are scattered. So, we are having a hard time in scanning the records, sir. Q But did you not try your very best assisted by the Court personnel to locate said transcript, Mr. Witness? A Sir, we tried our best but based on the transcript I can not just read the said transcript. Q You mean to say you were able to [find] the stenographic notes? A No, sir. There are stenographic notes but they are not yet transcribed, sir. Q That is by a machine steno? A Yes, sir. Q Did you not ask the assistance of the co-stenographers in your sala who are using the machine steno to identify what cases does that stenographic notes (sic)? A Sir, I was assisted by some stenographers but we can (sic) not find the transcript of stenographic notes concerning Search Warrant No. 99-49 to 99-54.34 (Underscoring ours) Based on the above testimony and the other evidence on record, the prosecution failed to prove that Executive Judge Eugenio G. Ramos put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant. The records only show the existence of an application35 for a search warrant and the affidavits36 of the complainants witnesses. In Mata v. Bayona,37 we held: Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false.

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We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. We cannot give credit to the argument of the Solicitor General that the issuing judge examined under oath, in the form of searching questions and answers, the applicant SPO2 Chito S. Esmenda and his witnesses on January 25, 1999 as it is so stated in Search Warrant No. 99-51. Although it is possible that Judge Ramos examined the complainant and his witnesses in the form of searching questions and answers, the fact remains that there is no evidence that the examination was put into writing as required by law. Otherwise, the depositions in writing of the complainant and his witnesses would have been attached to the record, together with the affidavits that the witnesses submitted, as required by Section 5, Rule 126 of the Rules of Court. Consequently, we find untenable the assertion of the Solicitor General that the subject stenographic notes could not be found at the time Branch Clerk of Court Enrico Castillo testified before the trial court because of the confused state of the records in the latters branch when he assumed office. The Solicitor General also argues that appellant is deemed to have waived his right to question the legality of the search because he did not protest against it, and even admitted during his testimony that he was neither threatened nor maltreated by the policemen who searched their residence. We disagree. The cases38 cited by the Solicitor General involved a warrantless search. In this case, the police authorities presented a search warrant to appellant before his residence was searched. At that time, appellant could not determine if the search warrant was issued in accordance with the law. It was only during the trial of this case that appellant, through his counsel, had reason to believe that the search warrant was illegally issued causing appellant to file a motion with memorandum objecting to the admissibility of the evidence formally offered by the prosecution. In People v. Burgos,39 we ruled: Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): xxx xxx xxx

"x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent, or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp.1180, 1181)." We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst, 304 U.S. 458). In this case, we construe the silence of appellant at the time the policemen showed him the search warrant as a demonstration of regard for the supremacy of the law. Moreover, appellant seasonably objected40 on constitutional grounds to the admissibility of the evidence seized pursuant to said warrant during the trial of the case,41 after the prosecution formally offered its evidence.42 Under the circumstances, no intent to waive his rights can reasonably be inferred from his conduct before or during the trial. No matter how incriminating the articles taken from the appellant may be, their seizure cannot validate an invalid warrant.43 In Mata v. Bayona,44 we ruled: .[N]othing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera:

36
It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it. We, therefore, find that the requirement mandated by the law that the examination of the complainant and his witnesses must be under oath and reduced to writing in the form of searching questions and answers was not complied with, rendering the search warrant invalid. Consequently, the evidence seized pursuant to said illegal search warrant cannot be used in evidence against appellant in accordance with Section 3 (2),45 Article III of the Constitution. It is unnecessary to discuss the other issues raised by appellant in seeking to exclude the evidence seized pursuant to said illegal search warrant. Without the aforesaid illegally obtained evidence, there is no sufficient basis to sustain the conviction of appellant. WHEREFORE, the decision of the Regional Trial Court of Lingayen, Pangasinan, Branch 39, in Criminal Case No. L-5963, is REVERSED and SET ASIDE. Judgment is hereby rendered declaring Search Warrant No. 99-51 NULL and VOID and the search and seizure made at appellants residence illegal. For lack of evidence to establish appellants guilt beyond reasonable doubt, appellant BENHUR MAMARIL is hereby ACQUITTED and ordered RELEASED from confinement unless he is being held for some other legal grounds. The Director of the Bureau of Corrections is ORDERED to IMPLEMENT without delay this Decision and to INFORM this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from confinement. The confiscated marijuana is ORDERED forfeited in favor of the State and the trial court is hereby directed to deliver or cause its delivery to the Dangerous Drugs Board for proper disposition. Costs de oficio. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 140657 October 25, 2004

PEOPLE OF THE PHILIPPINES, petitioner, vs. CESAR O. DELOS REYES, respondent. DECISION CALLEJO, SR., J.: Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 51759 granting the petition for certiorari of Cesar O. delos Reyes and nullifying Search Warrant No. 98-905 issued on June 18, 1998 by Judge Manuela F. Lorenzo of the Regional Trial Court (RTC) of Manila, Branch 43. The Antecedents On June 18, 1998, SPO3 Benjamin Nuguid of the Western Police District applied for a search warrant with the RTC of Manila, Branch 43, against Cesar Reyes alias "Cesar Itlog." In support of his application, Nuguid submitted his affidavit and that of Alexis Tan, a housewife. Nuguid and Tan also testified in support of the application. After the court conducted examination of the said witnesses, it issued on even date Search Warrant No. 98-905 authorizing the search of the house allegedly under the possession and custody of one Cesar Reyes alias "Cesar Itlog," at No. 2600 Oroquieta Street, Sta. Cruz, Manila, worded as follows: SEARCH WARRANT TO ANY PEACE OFFICER: GREETINGS: Upon sufficient showing of probable cause, after determination personally made by the undersigned on examination under oath of the applicant and his witness, by means of searching questions and answers, that respondent Cesar Reyes alias "Cesar Itlog" has in his possession, custody and control at the house and premises at 2600 Oroquieta St., Sta. Cruz, Manila, the following items: a) undetermined amount of methamphetamine hydrochloride; and b) drug paraphernalia in violation of Republic Act No. 6425 as amended; You are hereby commanded to make an immediate search at anytime of the day or night of the house and premises above-mentioned and forthwith seize and take possession of the above-cited items and to bring said items to the undersigned to be dealt with as the law require. Further, you are required to submit the return within ten (10) days from today. GIVEN UNDER MY HAND AND SEAL this 18th day of June 1998 at the City of Manila. MANUELA F. LORENZO J u d g e2 The policemen conducted a search not only of the house at No. 2600 Oroquieta Street, Sta Cruz, Manila, which turned out to be the house of respondent Cesar delos Reyes, but also of the car and motorcycle owned by the latter, bearing Plate Nos. UBS 463 and TA 8077, respectively. The car and the motorcycle happened to be parked near the house.

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As per the receipt of the property signed by Nuguid, the search of the house, the car and the motorcycle yielded the following: That in the course of orderly search at the premises of Cesar Reyes alias "Cesar Itlog," inside his room at the ground floor was a steel vault and when forced open it yields 13 transparent plastic bags containing [an] undetermined amount of white crystalline substance suspected to be Methamphetamine Hydrochloride or Shabu, three (3) weighing scales "Tamita" broad, drugs paraphernalia and 38 pcs. of Valium-10, also found atop his drawer; a .9mm "Smith & Wesson" pistol, Model 39mm with SN-A643638 with magazines loaded with ammo, one (1) loaded magazine of 9mm and 36 rounds of .25 cal. ammunition inside his drawer, one (1) plastic transparent bag containing white crystalline substance suspected to be Methamphetamine Hydrochloride or Shabu and three (3) 12-gauge shotgun ammo. His personal car, a black VITARA bearing plate No. UBS 463 parked beside his house was also search[ed] in the presence of [a] Bgy. Kagawad and found inside tucked beneath the drivers seat are three (3) sealed transparent plastic bags containing white crystalline substance wrapped in a mail envelope suspected to be Methamphetamine Hydrochloride or Shabu and in his sport Honda Motorcycle 900cc with plate No. TA 8077 also yields one (1) transparent plastic sachet containing white crystalline substance suspected to be Methamphetamine Hydrochloride or Shabu at the motorbike back compartment.3 According to the Certification prepared by the NBI Forensic Chemistry Division, the crystalline substances contained in the transparent plastic bags which were seized in the respondents house, car and motorcycle tested positive for methamphetamine hydrochloride.4 Thereafter, two Informations were filed with the RTC of Manila, Branch 41, against the respondent for violation of Republic Act No. 6425, as amended by Rep. Act No. 8294, docketed as Criminal Cases Nos. 98-165628 and 98-165629, viz: That on or about June 18, 1998, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control eighteen (18) transparent plastic bags (small and big) with [a] total net weight of eight hundred eightysix point eight (886.8) grams of white crystalline substance known as "shabu" containing methamphetamine hydrochloride, a regulate drug, without the corresponding license or prescription thereof. Contrary to law.5 That on or about June 18, 1998, in the City of Manila, Philippines, said accused did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control of one (1) .9mm Smith & Wesson pistol, Model 39 with Serial Number-A643638 with two magazines loaded with ammunitions, 36 rounds of .25 caliber ammunition, three (3) 12-gauge shotgun ammunitions, without first having secured from the proper authorities the necessary license therefor. Contrary to law.6 The respondent filed a motion to quash the informations on the following grounds: (a) as shown by their testimony before the trial court, applicant Nuguid and his witness Tan had no personal knowledge of the factual allegations in their affidavits which were appended to the application for a search warrant; (b) the factual allegations contained in the said affidavits and their testimonies do not support a finding of probable cause for violation of Rep. Act No. 6425, as amended; and (c) Nuguid and Tan did not personally know the respondent as well as the latters house because first, Tan identified the illicit drug seller as Cesar Reyes alias "Cesar Itlog" while the respondents name is Cesar delos Reyes; and, second, the said witnesses described the house as consisting of a twostorey structure with one bedroom located at Oroquieta Street, Sta. Cruz, Manila. On August 11, 1998, the trial court issued an Order denying the respondents motion. The court also denied his motion for reconsideration of said order. The respondent forthwith filed a petition for certiorari against Nuguid and the Public Prosecutor therein in the CA, alleging, inter alia, that the questions propounded by RTC Judge Manuela F.

39
Lorenzo on Nuguid and Tan were leading and not searching. He also alleged that Judge Lorenzo delegated the examination of Tan to Nuguid, and allowed the latter to question her. He, likewise, reiterated that Tan and Nuguid did not know him personally because they identified him as "Cesar Reyes" when his full name was Cesar delos Reyes. Furthermore, contrary to the claim of Tan and Nuguid that his house was a two-storey edifice located at Oroquieta Street, Sta. Cruz, Manila, said house was only a one-storey structure located at No. 2600 Oroquieta Street, Sta. Cruz, Manila. The respondent also assailed the search of his house, car and motorcycle on the ground that he was not there when the search was conducted and that no barangay officials were present as required by Section 7, Rule 126 of the 1997 Rules of Criminal Procedure. On October 15, 1999, the CA rendered a Decision granting the petition and nullifying the search warrant. The decretal portion reads: WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned Order dated January 11, 1999 as well as Search Warrant No. 98-905 dated June 18, 1998 are both hereby ANNULLED and SET ASIDE. Consequently, let a Writ of Prohibition be issued permanently enjoining respondents from using in evidence the articles seized by virtue of Search Warrant No. 98-905 in Criminal Case Nos. 98-165628 and 98-165629. The seized articles obtained by virtue of Search Warrant 98-905, consisting of regulated drug, guns and ammunitions, are hereby ORDERED delivered and turned over to the proper authorities concerned for disposition in accordance with law. No costs. SO ORDERED.7 The appellate court ruled that (a) the RTC delegated its duty to determine probable cause to the applicant; (b) the application for a search warrant was based on hearsay evidence; and (c) the application for the search warrant issued was filed more than four (4) weeks from the alleged time the offense took place; hence, was considered "stale." After the denial of its motion for reconsideration of the said decision, the People of the Philippines filed the instant petition for review of the decision, alleging that THE COURT OF APPEALS [EIGHTH DIVISION] GRAVELY ERRED IN DECLARING SEARCH WARRANT NO. 98-905 NULL AND VOID DESPITE (i) THE UNMISTAKABLE MANNER BY WHICH THE INVESTIGATING JUDGE CONDUCTED A PERSONAL EXAMINATION OF THE APPLICANT AND HIS WITNESS; (ii) THE SEARCHING QUESTIONS PROPOUNDED AND ANSWERS OBTAINED; AND (iii) THE PERSONAL KNOWLEDGE OF THE APPLICANT AND HIS WITNESS OF THE FACTS THAT INEVITABLY JUSTIFIES THE ISSUANCE OF THE SEARCH WARRANT.8 The petitioner avers that Judge Lorenzo did not delegate the determination of probable cause to Nuguid before issuing the subject warrant. While she allowed Nuguid to propound questions on Alexis Tan, the same consisted of only three preliminary questions, and, as such, was inconsequential. The petitioner also asserts that the leading questions propounded by Judge Lorenzo on Tan does not detract from the fact that searching questions were also propounded on the witnesses, and that based on the entirety of such propounded questions and the latters answers, there was probable cause for the issuance of a search warrant. The petitioner maintains that Tan had personal knowledge of the respondents delictual acts which were in violation of Rep. Act No. 6425, as amended. Moreover, as gleaned from the affidavits of Tan and Nuguid and their collective testimonies before the RTC, the respondents house was sufficiently described and identified, which description Nuguid was able to confirm through his surveillance of the house, the place where the crime was committed. The petitioner further contends that although there was an interregnum of six (6) months from the time the commission of the crime came to the knowledge of Tan up to the filing of the application of the search warrant by Nuguid, the same did not obscure the finding of probable cause made by Judge Lorenzo. The Court gave due course to the petition and required the parties to submit their respective memoranda.9

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After a comprehensive and well-studied review of the Rollo and the records of the Court of Appeals, we resolve to deny the petition. The Petition Was Filed Out of Time The Office of the Solicitor General (OSG) admitted in the petition at bar that it received a copy of the assailed decision of the CA on October 21, 1999. Under Section 2, Rule 45 of the Rules of Court, the OSG had until November 5, 1999 within which to file its petition for review on certiorari. However, it did so only on November 25, 1999, long after the period therefor had lapsed. We reject as totally unacceptable the pretext of Solicitor Ma. Theresa Dolores C. Gomez-Estoesta that, because of heavy pressure of work,10 the actual filing of the motion to file the petition at bar prepared on November 3, 1999, was "accidentally slighted." The Solicitor is mandated to insure that her motion for extension was filed within the period therefor.11 Volume of work is a lame excuse.12 She cannot escape the adverse effects of her forgetfulness. Even if we gloss over the gross negligence of the OSG and resolve the petition on its merits, we find the same to be barren of merit. A search warrant must (a) be based on probable cause; (b) contain a particular description of the place to be searched; and (c) must describe the items or property to be seized.13 Probable cause comprehends such facts and circumstances as will induce a cautious man to rely upon and act in pursuance thereof.14 It bears stressing that the requirement of particularity is related to the probable cause requirement in that, at least, under severe circumstances, the lack of a more specific description will make it apparent that there has not been a sufficient showing to the Judge that the described items are to be found in a particular place. Probable cause must first focus on a specific location. If the applicant or official is unable to state with sufficient precision the place to be searched and why he reasonably believes that contraband or evidence of criminal activity will be found therein, it is highly doubtful that he possesses probable cause for a warrant.15 In issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution and the statutory provisions.16 A search warrant shall not issue except upon probable cause to be determined personally by the Judge after examination under oath or affirmation of the complainant and the witnesses he may produce.17 Before issuing a search warrant, the Judge must personally examine, in the form of searching questions and answers, in writing and under oath, the complainant and his witnesses he may produce, on facts personally known to them.18 The mandate of the Judge is for him to conduct a full and searching examination of the complainant and the witnesses he may produce. In the absence of a rule to the contrary, the determination of probable cause cannot be delegated by the Judge, in part, or in whole, regardless of the qualifications of the person on whom reliance is placed. It is not permissible for the Judge to share the required determination with another.19 The searching questions propounded to the applicant and the witnesses must depend on a large extent upon the discretion of the Judge. Although there is no hard-and-fast rule as to how a Judge may conduct his examination, it is axiomatic that the said examination must be probing and exhaustive and not merely routinary, general, peripheral or perfunctory.20 He must make his own inquiry on the intent and factual and legal justifications for a search warrant. The questions should not merely be repetitious of the averments not stated in the affidavits/deposition of the applicant and the witnesses.21 If the Judge fails to determine probable cause by personally examining the applicant and his witnesses in the form of searching questions before issuing a search warrant, it constitutes grave abuse of discretion.22 A search warrant proceeding is independent of any criminal case. It is ex parte and nonadversarial.23 Hence, the Judge acting on an application for a search warrant is not bound to apply strictly the rules of evidence. As ruled in Brinegar v. United States:24 The inappropriateness of applying the rules of evidence as a criterion to determine probable cause is apparent in the case of an application for a warrant before a magistrate, the context in which the issue of probable cause most frequently arises. The ordinary rules of evidence

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are generally not applied in ex parte proceedings, partly because there is no opponent to invoke them, partly because the Judges determination is usually discretionary, partly because it is seldom that, but mainly because the system of evidence rules was devised for the special control of trials by jury. The Judge is not proscribed, at all times, from propounding leading questions on the applicant and the witnesses he may produce. Indeed, the Judge is allowed to propound leading questions if, for instance, the witness is a child or is suffering from mental illness, or if the questions are preliminary or clarificatory, or when there is difficulty in getting direct and intelligent answers from the witness who is ignorant. But it can hardly be justifiably claimed that, by propounding leading questions only on the complainant and the witnesses he may produce, the Judge thereby conducts probing and exhaustive examination. After all, a leading question is one which suggests to the witness the answer which the examining party desires.25 By propounding leading questions, the Judge thereby puts the words or answers in the mind of the witness to be echoed back.26 It bears stressing that the determination of the existence of probable cause must be made by a detached and neutral Judge.27 If he resorts to propounding leading questions to the applicant and his witnesses to determine probable cause, the Judge may be perceived as being partial, or even in cahoots with the officers engaged in the often competitive enterprise of ferreting out crime.28 A search warrant is not thereby rendered invalid; nor is a finding of probable cause proscribed merely because the Judge propounded leading questions on the applicant and the witnesses he produces. The entirety of the questions propounded by the court and the answers thereto must be considered and calibrated by the Judge. The Judge Allowed the Applicant Nuguid to Examine Tan, His Witness, and Failed to Propound Searching Questions The transcript of the stenographic notes taken when Nuguid and Tan testified is quoted, in toto, infra: COURT Who is the applicant here? SPO3 NUGUID: I am the applicant, Your Honor. (Swearing the applicant) COURT: Please stand. COURT: Q You are applying for a search warrant. A Yes, Your Honor. Q Where is this place to be searched? A At no. 2006 Oroquieta St., Sta. Cruz, Manila, Your Honor. Q Is there any person there whom you would want to search? A Yes, Your Honor. Q Who? A In the name of Cesar Reyes, Your Honor, alias "Cesar Itlog." Q Why, what is it he is keeping in his custody? A Undetermined quantities of suspected methamphetamine hydrochloride also known as "Shabu." Q How do you know that such things exist in his place? A Thru my witness, Your Honor, we were able to test-buy and examine the contents in a plastic sachet. Q Why, what did your witness do, if any? A I asked my witness to buy from Cesar Reyes alias "Cesar Itlog" and she was able to buy the subject shabu. Q How did you know that your witness was able to buy from Cesar Reyes and not from other source? A She told me and according to her she got it from Cesar Reyes. Q Who is this witness you are referring to? A Alexis Tan, Your Honor. Q Where is she?

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A She is the one, Your Honor. (Witness pointing to a lady who answered when asked of her name as Alexis Tan). COURT: Alright, I will ask her. (Swearing Ms. Tan) Q Do you swear to tell the truth and nothing but the whole truth? A Yes, I do. Q Please state your name, age and other personal circumstances. A ALEXIS TAN, 34 years old, married, jobless and with address c/o WBD Drug Enforcement Section, U.N. Ave., Manila. Q What is your occupation? A None for the moment, Your Honor. Q What was your occupation, if any, before? A A plain housewife, Your Honor. COURT: (to SPO3 Nuguid) You want to ask her questions on record? SPO3 NUGUID: Your Honor, she has her statement COURT: Yes, but for the record, you may ask her. SPO3 NUGUID: Yes, Your Honor. Q Do you personally know one Cesar Reyes alias "Cesar Itlog?" A Yes, Sir. Q How long have you known Cesar Reyes? A Maybe around 6 months ago. Q How did you come to know him? A I was introduced to him by a friend, Sir. COURT: Q What was the purpose of introducing you to him by your friend? A It started when I was separated from my husband when my friend taught me how to use shabu, Your Honor. Q When you were separated from your husband, what has it something to do with introducing you to Cesar Reyes? A Thru influence, Your Honor. Q What connection does it have? A They know each other, Your Honor. My friend knows that Cesar Reyes is selling shabu, Your Honor. Q Did you really find out if Cesar Reyes alias "Cesar Itlog" is selling shabu? A Yes, Your Honor. Q How? A At first, I was accompanied by my friend, but later I went there on my own alone. Q You mean, this Cesar Reyes is really in the business if (sic) selling shabu? A Yes, Your Honor. Q Knowing his prohibited ((sic) activity, does he also sell to any other people? A Those known to him, Maam. Q You consider yourself as very well known to him? A Yes, Your Honor. Q Have you also seen him in [the] company of that friend of yours who introduced you to him? A Yes, Maam for many times. Q And you have been going to this place of Cesar Reyes several times also. A Yes, Your Honor, I bought shabu from him. Q How did he sell it to you? A I will call him first through the phone before I go to him. Q You make an appointment with him first? A Yes, Your Honor. Q Where is this place? A At Oroquieta Street, Sta. Cruz, Manila, Your Honor. Q Everytime you go and buy shabu from him, is it always ready for sale to you? A Yes, Your Honor. Q You mean he has always in his custody and does not run out of stock? A There was one time when I called him if he could sell one for me he told me through the phone to call back after an hour because he will be getting it from other source.

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Q Did you call him back after an hour? A Yes, Your Honor, and he told me to come over to his place. Q How much quantity (sic) did you buy from him? A For P3,000.00, Your Honor. Q I am referring to the quantity. A 3 grams, Your Honor, he does not sell lower than 3 grams, Your Honor, it must be 3 grams and above. Q You have not yet bought from him only one gram? A No, Your Honor, not less than 3 grams. Q During the time you bought shabu from Cesar Reyes, were you the only customer? A He entertains customer (sic) one at a time, Your Honor, but he has several customers. Q How do you know that he has several customers? A Because he also talked [to] callers on the phone. During the time I bought shabu from him, he also talked to somebody on the phone. Q That is only. . . Q Since when did you start buying shabu from him? A Between December 1997 and January 1998, Your Honor. Q The shabu you had been buying from him, do you use it or sell it to some other person? A No, Your Honor, I do not sell it. Q You use it? A Yes, Your Honor. Q You know the house of Cesar Reyes after confirmation, in what particular part of the house does Cesar Reyes entertain you? A In [the] living room, Your Honor. Q When you go to his house, you usually go and see him in that (sic) living room and not elsewhere before he comes out from that house? A Normally, Your Honor, when I go to his house, he would open the door for me and would say "come in" then ask me "how much." If, for example, I would say 3 grams, he would just go to his room and comes out with the item. Q In other words, everytime you go to his place to buy shabu she (sic) is there ready to entertain you? A Yes, Your Honor. Q Is it not that he is still busy conversing with other people when he comes out from his room? A When I go to his house, he is there ready to open for me (sic) he knows I am coming. Q That is always the case, he is ready to open the door for you? A There was also a time that his maid opened the door for me. Q Aside from the maid, did you see other people inside that house? A His family- his wife and a baby then he would usually let them stay away from the living room or just get inside the room. Q What kind of a house does Cesar Reyes have? A A two-story (sic) house, Your Honor. Q Not an apartment? A No, Your Honor. Q A single detach (sic) house? A Yes, Your Honor. Q Is there any guard on (sic) the main gate of the house? A None, Maam, it is just an ordinary house. Q There are no people you usually see when you go there? A There are some members of the family but usually he let (sic) them stay away from the living room. Q Was there an occasion when somebody arrives when you see him? A None, Your Honor. Q So, this is a one-on-one affair. A Yes, Your Honor. Q How do you know that these things are stored in his house? A Everytime I bought shabu from him, he would get the money from me and then get inside his room to get a sachet of shabu and give it to me. Q Are you sure that these things (shabu) are stocked in his house permanently or maybe they are just brought there from somewhere because he knows you are coming to buy and get it? A There was once when I called him by phone and he asked me "how much" and I told him I will buy for (sic)P4,000.00 worth of shabu and he said "you just proceed to my place by 2 oclock in the afternoon," I will have to get it from other source." Q He got it from other source for you?

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A According to him, if it is by large (sic) quantity and he will just repack it in his house. Q He himself told you? A Yes, Your Honor, but he does not reveal from whom. Q You have no idea? A No, Your Honor. Q You did not ask him? A No, Your Honor. Q You used to transact business on the ground floor of his house? A Yes, Your Honor. Q Did you notice if his house has several rooms? A There is one room on the ground floor, Maam, but sometimes he also goes upstairs and comes down with the shabu item. Most of the time of the transaction just on the ground floor. Q Is there a partition in that particular room? A It is just a single room, Maam. Q Did you not notice if there are other people in that room in the ground floor? A I did not notice but there was one time when I saw a child but he let that child stay away from the visitor. Q You mean this room where you saw him come out serve as storeroom of shabu? A Yes, Maam. Q Did he tell you about it? A Yes, Maam. Q Why did he tell you? A Because when he entertained me, he left me for the moment and I said "where do you go" and he said "I will get inside that room to get the shabu." Q So, since you were requested by the police officer to purchase shabu from Cesar Reyes, how many times? A That was the only time, Your Honor. COURT: (to SPO3 NUGUID) Q Did you make surveillance in that place? A Yes, Your Honor, we made a surveillance after the test-buy. Q What did you do? A During the surveillance, we brought several witnesses. Q Did you notice people going there to the house of Cesar Reyes? A Yes, Your Honor. Q And what have you observed? A Some customers are even using cars. Q You do not know if those people were visitors or not? A We are not sure if those people are visitors of Cesar Reyes because we have no contact inside his house. COURT: (to Ms. TAN) Q When did you buy shabu from Cesar Reyes? A June 13, 1998, Your Honor. Q This Cesar Reyes at the time did not have any idea that you were there being sent by the police officers? A No, Your Honor. Q Did you really go to his place and successfully bought the shabu from Cesar Reyes? A Yes, Your Honor.29 The questions propounded on Nuguid by Judge Lorenzo were not searching and probing, but merely superficial and perfunctory. The records show that in his application for a search warrant, Nuguid described the place to be searched as the house located at "No. 2600 Oroquieta Street, Sta. Cruz, Manila," under the name of Cesar Reyes alias "Cesar Itlog." However, the Judge ignored this inconsistency and did not bother to inquire from Nuguid why he applied for a search warrant of the premises at No. 2600 Oroquieta Street, Sta. Cruz, Manila, when the house where Tan had apparently purchased shabu from the respondent was located at No. 2006 Oroquieta Street, Sta. Cruz, Manila. Nuguid declared that he and the police officers conducted a test-buy on June 13, 1998, using Tan as the buyer for said purpose. The ordinary procedure for a test-buy is for the police officers to monitor and observe, at a distance, the sale of illicit drugs by the suspect to the buyer. In this case, when the Judge asked Nuguid how Tan was able to buy shabu from the respondent, Nuguid reported that Tan told him that he got shabu from Cesar Reyes, implying that he did not witness the test-buy; however, Nuguid also declared that he was at a distance when the test-buy was conducted.

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The Judge also failed to ask Nuguid the circumstances upon which he and the other police officers came to know how Tan was able to purchase shabu from the respondent. Inexplicably, Nuguid conducted a search of the house of the respondent only after the test-buy and not before then. However, the Judge failed to inquire why the application for a search warrant was made only on June 18, 1998, or after the lapse of five days from the time the test-buy was conducted on June 13, 1998. The Judge also failed to ask Nuguid why no surveillance was made before the test-buy and whether any report on the surveillance operations conducted on the respondents house after the test-buy was submitted. Even a cursory reading of the transcript will show that most of the questions propounded on Tan by the Judge were leading questions, and that those which were not leading were merely based on or related to the answers earlier given to the leading questions. By asking such leading questions, the Judge thereby supplied the answers to her questions. Although Tan testified that she used to buy at least three (3) grams for P3,000.00 from the respondent during the period of December 1997 to January 1998, the Judge did not even bother to inquire from Tan, a plain housewife who was separated from her husband, how she could afford to purchase shabu forP3,000.00 on several occasions during the period of December 1997 to January 1998. Indeed, there was an interregnum of more than four (4) months from the time Tan purchased shabu from the respondent up to the time when the test-buy was supposedly made. However, the Judge was not even curious as to why Tan failed to purchase shabu from the respondent for such a long period of time, considering that from her testimony, Tan made it plain that she was a regular user of shabu. The Judge should have asked Tan why she did not buy shabu from the respondent for more than four months. The Judge even failed to inquire from Tan when and under what circumstances Nuguid was able to meet with her to discuss how she would be utilized for the test-buy. The curiosity of the Judge was not even aroused when, in answer to her question on the location of the house of "Cesar Reyes," Tan replied that it was located at Oroquieta Street, Sta. Cruz, Manila, without specifying the house number. At the very least, it behooved the Judge to require Tan to specify the house number if only to test her credibility. And yet, immediately after propounding the questions on Tan and Nuguid, the Judge announced that she was issuing the search warrant. A June 13, 1998, Your Honor. Q This Cesar Reyes at the time did not have any idea that you were there being sent by the police officers? A No, Your Honor. Q Did you really go to his place and successfully bought the shabu from Cesar Reyes? A Yes, Your Honor. COURT (to SPO3 NUGUID) Q During the time that Alexis Tan was being sent there to buy shabu from Cesar Reyes, where were you then? A We were at a distance, Your Honor. COURT: Do you have something to add questions from her? SPO3 NUGUID: No more at the moment, Your Honor. COURT: That will be all for now and the Court will issue the Search Warrant.30 The Judge allowed and even egged on Nuguid to examine Tan and elicit facts and circumstances from her relating to the alleged purchase of shabu from the respondent. What is so worrisome is that Nuguid, besides being the applicant, was the same police officer who asked Tan to buy shabu from the respondent and the one who, along with other officers, arrested the respondent. That Nuguid propounded comparatively fewer questions on Tan is beside the point. By allowing Nuguid himself to examine Tan, the Judge thereby compromised her impartiality. We echo, once again, the oft-cited caveat of the Court:

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It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Thus, in issuing a search warrant, the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity is to be invoked in aid of the process when an officer undertakes to justify it.31 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45950 June 20, 1938

LEONA PASION VIUDA DE GARCIA, petitioner, vs. DIEGO LOCSIN, Judge of First Instance of Tarlac, FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents. Benigo S. Aquino and Marcial P. Lichauco for petitioner Adolfo N. Feliciano for the respondent Anti-Usury Board. Office of the Solicitor-General Tuason for other respondents. LAUREL, J.: This is a petition for mandamus presented to secure the annulment of a search warrant and two orders of the respondent judge, and the restoration of certain documents alleged to have been illegally seized by an agent of the Anti-Usuary Board. It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-Usuary Board, obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding any officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for "certain books, lists, chits, receipts, documents and other papers relating to her activities as usurer." The search warrant was issued upon an affidavit given by the said Almeda "that he has and there (is) just and probable cause to believe and he does believe that Leona Pasion de Garcia keeps and conceals in her house and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, and other papers relating to her activities as usurer, all of which is contrary to the statute in such cases made and provided." On the same date, the said Mariano G. Almeda, accompanied by a captain of the Philippine Constabulary, went to the office of the petitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner's bookkeeper, Alfredo Salas, and, without the presence of the petitioner who was ill and confined at the time, proceeded with the execution thereof. Two packages of records and a locked filing cabinet containing several Papers and documents were seized by Almeda and a receipt therefor issued by him to Salas. The papers and documents seized were kept for a considerable length of time by the Anti-Usury Board and thereafter were turned over by it to the respondent fiscal who subsequently filed, in the Court of First Instance of Tarlac, six separate criminal cases against the herein petitioner for violation of the Anti-Usury Law. On several occasions, after seizure, the petitioner, through counsel, demanded from the respondent Anti-Usury Board the return of the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of the search warrant was challenged by counsel for the petitioner in the six criminal cases and the devolution of the documents demanded. By resolution of October 5, 1937, the respondent Judge of First Instance denied the petitioner's motion of June 4 for the reason that though the search warrant was illegal, there was a waiver on the part of the petitioner. "En el caso presente," declared the respondent judge, "teniendo en cuenta que la acusada Por si o por medio de su representante, no presento protests alguna contra el registro de autos, at verificarse el mismo, o despues de un tiempo rezonable, el juzgado declare que la citada con su silencio y conducta, ha renunciado implicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que no le es pemitido quejarse despues, puesto que cualquier defecto queha adolecido lo expedicion de la orden de registro y su ejecucion, ha quidado implilcitamente subsanado." A motion for reconsideration was presented but was denied by order of January 3, 1938. Petitioner registered her exception. The resolution of October 5, 1937 and the order of January 3, 1938 are sought, together with the search warrant, Exhibit B, to be nullified in these proceedings. Paragraph 3, section 1 of the bill of right of our Constitution provides as follows: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

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Freedom from unreasonable searches and seizures is declared a popular right and for a search warrant to be valid, (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. These requirements are complemented by the Code of Criminal Procedure (G. O. No. 58), particularly with reference to the duration of the validity of the search warrant and the obligation of the officer seizing the property to deliver the same to the corresponding court (secs. 102-104). On more than one occasion, since the approval of the Constitution, we had emphasized the necessity of adherence to the constitutional requirements on this subject (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937], G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco [1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has been said or observed in these cases. In the instant case the existence of probable cause was determined not by the judge himself but by the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did not decide for himself. It does not appear that he examined the applicant and his witnesses, if any. Even accepting the description of the properties to be seized to be sufficient and on the assumption that the receipt issued is sufficiently detailed within the meaning of the law, the properties seized were not delivered to the court which issued the warrant, as required by law. (See, secs. 95 and 104, G. O. No. 58.) instead, they were turned over to the respondent provincial fiscal and used by him in building up cases against the petitioner. Considering that at the time the warrant was issued there was no case pending against the petitioner, the averment that the warrant was issued primarily for exploration purposes is not without basis. The lower court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac. The important question presented is whether upon the facts and under the circumstances of the present case, there has been a waiver by the petitioner of her constitutional immunity against unreasonable searches and seizures. While the Solicitor-General admits that, in the light of decisions of this court, the search warrant was illegally issued, he maintains "(1) that the petitioner had waived her constitutional right by her acquiescence after the search and seizure, and (2) that the application for the return of the documents illegally seized was made after an unreasonable length of time after the date of seizure." Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. (People vs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs. Villamiel, supra.) The waiver may be either express or implied (67 C.J., p. 304). No express waiver has been made in the case before us. It is urged, however, that there has been a waiver by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. (67 C. J., 299.) It is true that the petitioner did not object to the legality of the search when it was made. She could not have objected because she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to know later of the seizure of some of her papers and documents. But this was precisely the reason why she sent her attorneys to the office of the Anti-Usuary Board to demand the return of the documents seized. In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181.) As a general proposition, it may be admitted that waiver may be the result of a failure to object within a reasonable time to a search and seizure illegally made. It must be observed, however, that the petitioner, on several occasions, and prior to the filing of criminal actions against her, had demanded verbally, through counsel, the return by the Anti-Usuary Board of the properties seized. This is admitted by Adolfo N. Feliciano, acting chief of the board, who said that the demand was refused simply because no habiamos terminado con nuestra investigacion. (T.s.n., pp. 24-25.) On July 7, 1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again the return

49
of the documents withheld. And in connection with the criminal cases pending against the petitioner, similar demands were made on January 7, 1937 and on June 4, 1937. In the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication. In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the respondent judge are set aside; and the respondents Anti-Usuary Board and the provincial fiscal of Tarlac or those acting in their behalf, are hereby ordered to return and restore to the petitioner all the properties, documents, papers and effects illegally seized from her, within forty-eight (48) hours from the time this decision becomes final. Without costs. So ordered.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45358 January 29, 1937

NARCISO ALVAREZ, petitioner, vs. THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents. Godofredo Reyes for petitioner. Adolfo N. Feliciano for respondents Anti-Usury Board. No appearance for other respondent. IMPERIAL, J.: The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain accounting books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him. On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money-lender charging usurious rates of interest in violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the petitioner's house at nay time of the day or night, the seizure of the books and documents above-mentioned and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and other papers many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The search for and a seizure of said articles were made with the opposition of the petitioner who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a period of five (5) days within which to show cause why he should not be punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the office of the clerk of court, he had so far failed to file

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an inventory duly verified by oath of all the documents seized by him, to return the search warrant together with the affidavit it presented in support thereof, or to present the report of the proceedings taken by him; and prayed that said agent be directed to filed the documents in question immediately. On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and that it had nit yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible period of two (2) days from the date of notice of said order, why all the articles seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the order of September 25th and that the clerk of court be ordered to return to him all the documents and papers together with the inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official again filed another motion alleging that he needed sixty (60) days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents continue in the possession of the court, the rest having been returned to said petitioner. I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (section 95, General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Carollvs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights or citizen, for the enforcement of no statue is of sufficient importance to justify indifference to the basis principles of government (People vs. Elias, 147 N. E., 472). II. As the protection of the citizen and the maintenance of his constitutional right is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonard vs.U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613). III. The petitioner claims that the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable. To the question "What are your reason for applying for this search warrant", appearing in the affidavit, the agent answered: "It has been reported to

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me by a person whom I consider to be reliable that there are being kept in said premises, books, documents, receipts, lists, chits, and other papers used by him in connection with his activities as a money-lender, charging a usurious rate of interest, in violation of the law" and in attesting the truth of his statements contained in the affidavit, the said agent states that he found them to be correct and true to the best of his knowledge and belief. Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place top be searched, and the persons or things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized." It will be noted that both provisions require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant ands the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause (U. S. vs.Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746). It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable searches and seizure. Unreasonable searches and seizures are a menace against which the constitutional guarantee afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has been defined in general language. All illegal searches and seizure are unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence or probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs.Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99). In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, it is hereby held that the search warrant in question and the subsequent seizure of the books, documents and other papers are illegal and do not in any way warrant the deprivation to which the petitioner was subjected. IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other words, it is contended that the search warrant cannot be issued unless it be supported by affidavits made by the applicant and the witnesses to be presented necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing

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the warrant, examine under oath the complainant and any witnesses he may produce and take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take the deposition of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant of the complaint contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We conclude, therefore, that the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts. V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the affidavits that the property is on the person or in the place ordered to be searched. As we have declared the affidavits insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be made at night. VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued illegally is the lack of an adequate description of the books and documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for determining whether probable cause exist and whether the warrant should be issued, must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munchvs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious rate of interest, in violation of the law." Taking into consideration the nature of the article so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did. VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself with evidence to be used by it in the criminal case or cases which might be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the case raised before the court it clearly appeared that the books and documents had really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles in question as evidence against the petitioner in the criminal cases that may be filed against him. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs.Madden, 297

54
Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence against the petitioner in the criminal proceeding or proceedings for violation against him, we hold that the search warrant issued is illegal and that the documents should be returned to him. The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has emphatically denied the offer of compromise and, second, because if there was a compromise it reffered but to the institution of criminal proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the search and seizure of the articles in question, but such was not the case because the petitioner protested from the beginning and stated his protest in writing in the insufficient inventory furnished him by the agents. Said board alleges as another defense that the remedy sought by the petitioner does not lie because he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders would have to lapse before he recovers possession of the documents and before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456). Summarizing the foregoing conclusions, we hold: 1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure, should be given a liberal construction in favor of the individual in order to maintain the constitutional guaranties whole and in their full force; 2. That since the provisions in question are drastic in their form and fundamentally restrict the enjoyment of the ownership, possession and use of the personal property of the individual, they should be strictly construed; 3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts of probable cause, and (b) because the warrant was issued for the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be instituted against the petitioner, for violation of the Anti-Usury Law; 4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit that the articles were in the possession of the petitioner and in the place indicated, neither could the search and seizure be made at night; 5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or a complainant in cases where the latter has personal knowledge of the facts, when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of other witnesses so that he may determine whether probable cause exists; 6. That a detailed description of the person and place to be searched and the articles to be seized is necessary, but whereby, by the nature of the articles to be seized, their description must be rather general, but is not required that a technical description be given, as this would mean that no warrant could issue; 7. That the petitioner did not waive his constitutional rights because the offer of compromise or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and seizure; and

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8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for mandamusfiled by him, lies. For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of the respondent court authorizing the relation of the books and documents, are declared illegal and are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So ordered. Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 47021 June 25, 1940

YEE SUE KOY and YEE TIP, ET AL., petitioners, vs. MARIANO G. ALMEDA and JOSE ESTRADA, ET AL., respondents. M. H. de Joya and Godofredo P. Escalona for petitioners. Adolfo N. Feliciano and Edmundo S. Picio for respondents. LAUREL, J.: In response to a sworn application of Mariano G. Almeda, chief agent of the Anti-Usury Board, dated May 5, 1938, the justice of the peace of Sagay, Occidental Negros, after taking the testimony of applicant's witness, Jose Estrada, special agent of the Anti-Usury Board, issued on the same date a search warrant commanding any peace officer to search during day time the store and premises occupied by Sam Sing & Co., situated at Sagay, Occidental Negros, as well as the person of said Sam Sing & Co., and to seize the documents, notebooks, lists, receipts and promissory notes being used by said Sam Sing & Co. in connection with their activities of lending money at usurious rates of interest in violation of law, or such as may be found, and to bring them forthwith before the aforesaid justice of the peace of Sagay. On the same date, May 5, 1938, at 10:30 a. m. search was accordingly made by Mariano G. Almeda, Jose the Philippine Army, who seized certain receipt books, vales or promissory notes, chits, notebooks, journal book, and collection list belonging to Sam Sing & Co. and enumerated in the inventory receipt issued by Mariano G. Almeda to owner of the documents, papers and articles seized Immediately after the search and seizure thus effected, Mariano G. Almeda filed a return with the justice of the peace of Sagay together with a request that the office of the Anti-Usury Board be allowed to retain possession of the article seized for examination, pursuant to section 4 of Act 4109, which request was granted. The first unsuccessfully effort exerted by Sam Sing & Co. with a view to recovering the articles seized, was when their attorney, Godofredo P. Escalona, under date of March 4, 1939, addressed a letter to the Executive Officer of the Anti-Usury requesting the return of said articles, on ground that the search warrant and seizure of May 5, 1938 were illegal, only to receive the reply the request "cannot be complied with until after have served the purpose for which they were seized" and that "the return of the papers must be with the consent and knowledge of the court which issued the search warrant." Thereafter, under date of March 11, 1939, the same attorney filed a motion with the Court of First Instance of Occidental Negros praying that the search warrant issued on May 5, 1938 by the justice of the peace of Sagay and the seizure effected thereunder be declared illegal and set aside and that the articles in question be ordered returned to Sam Sing & Co., which motion was denied in the order dated July 24, 1939. A similar motion was presented to the justice of the peace of Sagay on October 27, 1939 but was denied the next day, October 28, 1939, Meanwhile, an information dated September 30, 1939 had been filed in the Court of First Instance of Occidental Negros, charging Yee Fock alias Yee Sue Koy, Y. Tip and A. Sing, managers of Sam Sing & Co., with a violation of Act No. 2655, the case being docketed as No. 11591. Before this criminal case could be tried, the present petition was filed in this court on November 6, 1939, in which the petitioners pray that the search warrant of May 2, 1938 and the seizure of May 5, 1938 of the articles described in annex "D" of the petition be declared illegal and set aside; that the respondents Mariano G. Almeda and Jose S. Estrada, as agent of the Anti-Usury Board, the ordered and directed to return to the petitioners the articles listed in said annex "D" of the petition; that pending these proceedings the provincial fiscal of Occidental Negros be commanded to refrain from using said articles as evidence in criminal case No. 11591 which was set for trial; on November 13, 1939; that the respondent Judge of the Court of First Instance of Occidental Negros, in case all or more of the articles in question should be introduced as evidence for the prosecution in criminal case No. 11591, entitled "People of the Philippines vs. Yee Fock (alias Yee Sue Koy), Y. Tip and A. Sing," be likewise commanded to refrain from admitting the same. The petition is grounded on the propositions (1) that the search warrant issued on May 2, 1938, by the justice of the peace of Sagay and the seizure accomplished thereunder are illegal, because the warrant was issued three days ahead of the application therefor and of the affidavit of the respondent Jose Estrada which is insufficient in itself to justify the issuance of a search warrant, and

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because the issuance of said warrant manifestly contravenes the mandatory provisions both of section 1, paragraph 3, of Article III of the Constitution and of 97 of General Orders No. 58, and (2) that the seizure of the aforesaid articles by means of a search warrant for the purpose of using them evidence in the criminal case against the petitioners, is unconstitutional because the warrant thereby becomes unreasonable and amounts to a violation of the constitutional prohibition against compelling the accused to testify against themselves.. In their answers the respondents deny that the articles in question were seized by the Anti-Usury Board to provide itself with evidence in the criminal prosecution against the petitioners, and allege that the seizure of said articles was an incident of the Government's duty of apprehending violations of the Usury Law, in connection with which the agents of the Anti-Usury Board are authorized, under section 4 of Act No. 4109 in relation to Act No. 4168, to examine the documents, papers and articles seized from the petitioners; that the search warrant complied of is valid and legal; that, granting the existence of any irregularity in the issuance of said warrant, the same has been waived the return of the articles in question because the same constitute of corpus delicti or are pertinent or relevant thereto. The petitioners contend that the search warrant herein complained of is illegal because it was issued three days before the application therefor and the supporting affidavit were signed by Mariano G. Almeda and Jose Estrada respectively. This contention finds no support in the record before us. In the letter of March 4, 1939, written by the attorney for Sam Sing &. Co. to the Executive Officer of the Anti-Usury Board, requesting the return of the articles seized, reference was made to the search warrant and seizure "of May 5, 1938." (Annex F of the petition) In the Court of First Instance of Occidental Negros, praying for the return of the aforesaid articles, the search warrant was again referred to as having been issued on "May 5, 1938." (Annex H of the petition.) It follows, therefore, that there is truth in the allegation of the respondents that although the original order on which the warrant was issued was prepared on May 2, 1938, when the justice of the peace signed the order for search warrant, he placed the date "May 5, 1938." The criticism of the petitioners that the search warrant in question was not issued in accordance with the formalities prescribed by section 1, paragraph, 3, of Article III of the Constitution and of section 97 of General Orders No. 58, is unfounded. On the contrary, we are satisfied that strict observance of such formalities was followed. The applicant Mariano G. Almeda, in his application, swore that "he made his own personal investigation and ascertained that Sam Sing & Co. is lending money without license, charging usurious rate of interest and is keeping, utilizing and concealing in the store and premises occupied by it situated at Sagay, Occidental Negros, documents, notebooks, lists, receipts, promissory notes, and book of accounts and records, all of which are being used by it in connection with its activities lending money rate interest in violation of the Usury Law." In turn, the witness Jose Estrada, in his testimony before the justice of the peace of Sagay, swore that he knew that Sam Sing & Co. was lending money without license and charging usurious rate of interest, because he personally investigated the victims who had secured loans from said Sam Sing & Co. and were charged usurious rate of interest; that he knew that the said Sam Sing & Co. was keeping and using books of accounts and records containing its transactions relative to its activities as money lender and the entries of the interest paid by its debtors, because he saw that said Sam Sing & Co. make entries and records of their debts and the interest paid thereon. As both Mariano G. Almeda and Jose Estrada swore that they had personal knowledge, their affidavits were sufficient for, thereunder, they could be held liable for perjury if the facts would turn out to be not as they were stated under oath. (Alvarez vs. Court of First Instance of Tayabas, et al., 35 Off. Gaz., 1183; People vs. Sy Juco, 37 Off. Gaz., 508; Rodriguez vs. Villamiel, 37 Off. Gaz., 2406.) That the existence of probable cause has been determined by the justice of the peace of Sagay before issuing the search warrant complained of, is shown by the following statement in the warrant itself, to wit: "After examination under oath of the complainant, Mariano G. Almeda, Chief Agent of the Anti-Usury Board, Department of Justice and Special Agent of the Philippine Army, Manila, and the witness he presented, . . . and this Court, finding that there is just and probable cause to believe as it does believe, that the above described articles, relating to the activities of said Sam Sing & Co. of lending money at usurious rate of interest, are being utilized and kept and concealed at its store and premise occupied by said Sam Sing & Co., all in violation of law." The description of the articles seized, given in the search warrant, is likewise sufficient. Where, by the nature of the goods seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. (Alvarez vs. Court of First Instance of Tayabas et al., 35 Off. Gaz., 1183, citing People vs. Rubio, 57 Phil., 384; and People vs. Kahn, 256, Ill. App., 415.) Neither can there objection to the fact the objects seized from the petitioners were retained by the agents of the Anti-Usury Board, instead of being turned over to the justice of the peace of Sagay, for the reason that the custody of said agents is the custody of the issuing officer or court, the retention having been approved by the latter. (Molo vs. Yatco et al., 35 Off. Gaz., 1335.) .

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But it is further contended that the articles seizes should be ordered returned to the petitioners because the seizure is unconstitutional, having been made for the purpose of using the articles as evidence in the criminal case against the petitioners. While we reiterate the rule that the seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Rodriguez et al. vs.Villamiel et al., 37 Off. Gaz., 2416, citing Uy Kheytin vs. Villa-Real, 42 Phil., 886; Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, 35 Off. Gaz., 1183; Brady vs. U. S., 266 U.S. 620; Temparani vs. U. S., 299 Fed. 365; U. S. vs. Madden, 297 Fed. 679; Boyd vs. U. S. 116 U. S. 616; Carroll vs. U. S., 267 U. S. 132), the said rule has no applicable force in the present case. While in the cases of Rodriguez et al. vs. Villamiel et al., supra , and Alvarez vs. Court of First Instance of Tayabas, supra , it appeared that the documents therein involved were in fact seized for the purpose of discovering evidence to be used against the persons from whom they were seized, in the case at bar this fact is not clear and is furthermore denied. In the application for the issuance of the search warrant in question, it was alleged that the articles seized were "being used by it (Sam Sing & Co.) in connection with its activities of lending money at usurious rate of interest in violation of the Usury Law," and it is now suggested (memoranda for respondents) that the only object of the agents of the Anti-Usury Board in keeping the articles is to prevent the petitioners from em plying them as a means of further violations of the Usury Law. In this state of the record, without deciding the question whether the petitioners will in fact use the articles in question, if returned, for illegal purposes, we are not prepared to order the return prayed for by the petitioners. (Cf. People vs.Rubio, 57 Phil., 384, 394-395.) If it be` true, furthermore, without, however, deciding the point, that as alleged by the respondents the articles in question constitute the corpus delicti of the violation of the Usury Law, their return to the petitioners cannot be ordered. (People vs. Judge of the Court of First Instance of Batangas et al., G. R. No. 46361, resolution of February 14, 1939, citing 56 C. J. 1166, 1250 and 1251; Uy Kheytin vs. Villareal, 42 Phil., 886; People vs. Rubio, 57 Phil., 384; People vs. Malasugui, 34 Off. Gaz., 2163, 2165.) The petition is dismissed, with costs against the petitioner. So ordered.