IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON LUNA, PETITIONER-APPELLANT, VS. HON. LORENZO M. PLAZA, AS JUDGE OF THE MUNICIPAL COURT OF TANDAG, SURIGAO DEL…

Appeal from the decision of the Court of First Instance of Surigao del Sur, dated April 20,
1967, dismissing the petition for a
writ of habeas corpus, filed by herein petitioner-appellant Simon
Luna — hereinafter referred to
simply as petitioner — who was
charged with murder in Criminal Case No. 655-New of the same court.

The criminal action was commenced
by T-Sgt. Can­dido Patosa,
PC investigator of Tandag, Surigao
del Sur, by filing with respondent Municipal Judge
Lorenzo M. Plaza, of the Municipal Court of Tandag,
criminal case No. 1138 charging the accused, herein petitioner, with the crime
of murder.  Supporting the complaint were sworn statements of the witnesses
for the prosecution, in the form
of questions and answers taken by T-Sgt. Patosa, and
subscribed and sworn to before the respondent Judge at the time of the filing of the complaint.  The respondent Judge examined the
‘prosecution witnesses by reading to them “all over again the questions
and answers” in their statements in writing, and the witnesses-affiants declared before said Judge that the
questions were propounded by T-Sgt. Candido Patosa, and that the
answers were made by them.  The affiants
further declared before respondent Judge that their answers were true, and were
freely and voluntarily made; that they
fully understood the questions and answers, and that they were willing
to sign their respective affidavits.  The affiants signed their respective affidavits in the presence of the
respondent Judge, who also signed after the usual procedure of administering the oath.

Considering the answers of the affiants to the questions contained in their sworn statements, together with the post-mortem and autopsy report on the
dead body of the victim Jaime Diaz Ng, the
certificate of death, the sketch
showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12,
and 13 of herein respondents, the
respondent Judge opined that there was reasonable ground to believe that the
crime of murder had been committed and
the accused was probably guilty thereof. 
Respondent Judge issued the order and warrant of arrest, specifying
therein that no bail should be accepted for the provisional release of the accused.  On February 20, 1967, upon motion of
petitioner that he be admitted to bail upon the ground that the evidence
of guilt was not strong, respondent Judge
issued an order granting bail, fixing
it at P30,000.00; which order, however, respondent Judge later revoked,
and petitioner was denied bail.

The case was subsequently
remanded to the Court of First Instance of Surigao
del Sur, after petitioner filed a waiver of his right
to preliminary investigation.  On March 9,
1967 respondent
Provincial Fiscal filed an information
charging herein petitioner with the crime of murder.  The petitioner
was detained in the provincial jail of Surigao del Sur under the custody of
respondent Provincial Warden.

On April 5, 1967, petitioner filed a petition for a writ of habeas
corpus with the Court of First Instance of Surigao
del Sur, therein docketed as Special Proceedings No.
105-New, claiming that he was being deprived of liberty without due process of
law, on the ground that the imprisonment and detention was the result of a
warrant of arrest issued by respondent Judge in violation of Republic Act No.
3828, and praying for the annulment of the order for his arrest and his discharge
from confinement.

Herein respondents filed their answer, alleging that Republic Act
No. 3828 had been substantially complied with; that a motion to quash, and not a petition for habeas corpus was the proper remedy; and that petitioners application for
bail constituted a waiver of the right to question the validity of the arrest.

After trial, the Court of First Instance of Surigao
del Sur rendered its decision, dated April 20, 1967, holding that
respondent Municipal Judge had substantially complied with Republic Act No.
3828, and consequent­ly denied the application for the writ of habeas corpus,
and dismissed the case.  Hence this appeal.

Petitioner, in his assignment of errors, claims that the trial
court erred, as follows:

1.       In giving absolute
credence to the oral testimony of the respondent Judge to the effect that he
adopted and made his own the questions and answers taken by T-Sgt. Patosa, PC Investigator, one of the prosecution witnesses,
because the records show the contrary;

2.       In denying the writ
of habeas corpus and in dismissing the petition.

1.       In support of his
first assignment of error, petitioner contends that Republic Act No. 3828
imposes on a municipal judge,
before he can issue a warrant of
arrest, two specific duties, to wit:  (1)
personally examine the complainant and witnesses with “searching questions
and answers”, which means that the judge must cross-examine them in case their
affidavits are presented; and (2) said examination must be reduced to writing
and form part of the records of the case.  The record of the instant case,
according to petitioner, does not show that said examination was performed by
respondent Judge.  Petitioner urges that
the absence of any document in the record that shows that respondent Judge had
performed the examination is positive proof that respondent Judge did not
perform his duty, notwithstanding his testimony before the Court of First
Instance of Surigao del Sur,
during the hearing of this case, to the effect that he adopted the questions
propounded to each of the prosecution witnesses by T-Sgt. Patosa.  Petitioner maintains that this testimony, being self-serving intended to cover up the failure to comply with the law, should not have been believed by the Court of First Instance, and said court
thereby committed error when, believing said testimony, it found that there had
been substantial compliance with the requirement that the municipal judge
should personally examine the witnesses. 
Petitioner further
maintains that assuming that the adoption of the questions made by T-Sgt. Patosa constituted substantial compliance with the
requirement that the judge should examine the witnesses by asking searching
questions, still the second requirement, that of reducing to writing the said
procedure of adoption, has not been complied with; and so, Republic Act No.
3828 was still violated, and the
issuance of the warrant of arrest was
in violation of said Act and the
Constitution and constituted denial of due process.

Petitioner contends
that the trial court erred in giving absolute credence to the testimony of respondent Municipal Judge.  Regarding credibility of witnesses, this
Court has consistently held that, as a general rule, the lower court’s findings
as to the credibility of witnesses will
not be interfered with by appellate courts. 
Thus, in the case of People vs. Sinaon,^[1]
this Court said:

“Time and again, we have
held that as a rule where the issue is one of credibility of witnesses, appellate courts will not generally
disturb the findings of the trial court, considering that it is in a better position to decide the
question, having seen and heard the witnesses themselves and observed their deportment and manner of
testifying during the trial, unless there is a showing that it has overlooked certain facts of substance and value,
that if considered, might affect the result of the case.”

Petitioner has appealed
“from the decision/order” of the trial court “to the Honorable
Supreme Court of the Philippines, on the ground that the same is contrary to law and the Philippine Constitution”
and prayed that “all the records of the proceeding and the evidence, oral
and documentary, be transmitted or forwarded to the Honorable Supreme Court x x x“.^[2] Since petitioner appealed directly to this
Court he must, therefore, raise only questions of law and he has thereby waived
the right to raise any question of fact,^[3]
and the findings of facts of the trial
court, under the rules and precedents, must be deemed final and binding upon this Court.^[4]

The findings of facts of
the trial court are found in the following portion of the decision appealed
from, to wit:

“There is no dispute that there is a valid complaint charging the accused Simon Luna, the herein
petitioner with the crime of Murder filed with the respondent Judge authorized
to conduct the examination of the
witnesses for the prosecution for the purpose of determining the existence of probable cause before the
issuance of the corresponding warrant of arrest; that the complaint is supported by the statements of the witnesses
under oath in writing in the form of questions and answers and other documents
attached to the complaint; that before the issuance of the corresponding
warrant of arrest, the respondent judge
personally examined the witnesses for the prosecution on their statements taken
by T-Sgt. Candido Patosa by
reading the questions and answers all over again to the affiants who confirmed to the respondent Judge that the statements contained
in their sworn statements are true; that being satisfied
that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his
searching questions and answers as required
by law, the respondent Judge adopted them as his own personal examination of the witnesses for the purpose of determining the existence
of probable cause, the order and the
warrant of arrest were issued to take the accused into custody for the commission of the offense charged (Exhibits
“H”, “H-1”, “I” and “I-1” –
petitioner); and that the petitioner waived his right to the prelimin­ary investigation (Exhibit “12” –
respondent) and applied to be admitted to bail.”

Petitioner, however,
claims that the failure of respondent Judge to put in writing that he adopted
the questions asked by T-Sgt. Patosa and his failure
to ask “searching questions” violated Republic Act No. 3828.

Republic Act No. 3828,
approved June 22, 1963, in­serted in section 87 (c) of the
Judiciary Act of 1948 the following paragraph:

“No warrant of arrest
shall be issued by any justice of the peace in any criminal case filed
with him unless he first examines the
witness or witnesses personally, and the examination shall be under oath and
reduced to writing in the form
of searching questions and answers.”

Before a municipal judge may issue a warrant of arrest, the following conditions
must first be ful­filled:  (1) he must examine the witnesses personally;
(2) the examination must be
under oath; (3) the examination
must be reduced to writing in the form of searching questions and answers.  Were these conditions fulfilled in the instant case?

The first condition was fulfilled.  The trial court found as a fact that “the respondent judge personally
examined the witnesses for the prosecution x x x;” that respondent judge adopted as his own personal
examination the questions asked by T-Sgt. Patosa as
appearing in the written statements, which he read over again to the witnesses
together with the answers given therein, asking the witnesses whether said answers were theirs, and whether the same
answers were true, to which the witnesses answered in the affirmative.  Republic Act No. 3828 does not prohibit the
municipal Judge from adopting the questions
asked by a previous investigator.

It appears that the sworn statements^[5]
of the witnesses state at the beginning that the sworn statement was “taken by T-SGT Candido L. Patosa“, and does
not state that it was taken by the respondent municipal Judge himself.  This circumstance is explained by the fact that said written
statements already taken by T-Sgt. Patosa were
delivered to respondent Municipal Judge who adopted the questions therein in
his examination, because he considered them searching questions.  Respondent
Judge presumably did not consider it necessary to change the introductory
remarks in each of the written statements. 
But that he made the examination personal­ly cannot be doubted; it is so
stated in the order dated February 18,
1967, which recites:

“After examining the witnesses personally and under oath there
is reasonable ground to believe that an offense for murder has been
committed and that the accused, Simon
Luna, is probably guilty thereof.” (Exh.
H)

The ruling in Doce vs. Branch II of the Court of First Instance of
Quezon, et al.,^[6]
wherein this Court held that the warrant
of arrest issued therein was irregularly issued is not applicable to the case
at bar for the simple reason that the facts are different.  This Court in that case said:

“There is merit in the assertion that the warrant of arrest
was irregularly issued.  Section 87 of the
Judiciary Act as amended by Republic Act 3828
requires that the Municipal Judge issuing the same, personally examine under oath the
witnesses, and by searching questions and answers which are to be reduced to writing.  Here, instead of searching questions and
answers, we have only the affidavits of respondent and her one witness.  Moreover, said affidavits were sworn to
before Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest.”

In the instant case, as stated above, the respondent Municipal Judge personally examined under
oath the witnesses by asking questions, that were adopted from a previous
investigation, and considered by him as sufficiently searching and which questions and the answers thereto were in writing and sworn to before
him prior to his issuance of the order of arrest.

The second condition
required by Republic Act No. 3828 for the issuance of a warrant of arrest was
also ful­filled.  The trial court found
that the complaint was ”supported by statements of the witnesses under
oath.” The record also shows the following documents to have been
subscribed and sworn to before respondent Judge namely:  Exhibit B, sworn statement of herein
petitioner Simon Luna y Albay; Exhibit C, sworn statement of Euseb­io Corpuz; Exhibit D, sworn statement of Bruno M. Zafra;
Exhibit E, sworn statement of Martiliano J. Bautista;
Exhibit F, sworn statement of Jose F. Suarez; and Exhibit G, sworn statement of
Janedina Diaz y Bandoy.

The third condition
required by Republic Act No. 3828 was likewise fulfilled.  The examination of the witnesses was written
down, in the form of searching questions and answers.  The term “searching questions and,
answers” means only, taking into consideration the purpose of the
preliminary examination which is to de­termine “whether there is a
reasonable ground to be­lieve that an offense has been committed and the
accused is probably guilty thereof so that a warrant of arrest may be issued
and the accused held for trial”^[7],
such questions as have tendency to show the commission of a crime and the
perpetrator thereof.  What would be
searching questions would depend on what is sought to be inquired into, such
as:  the nature of the offense, the date,
time, and place of its commission, the possible motives for its commission; the
subject, his age, education, status, financial and social circumstances, his
attitude toward the investigation, social attitudes, opportunities to commit
the offense; the victim, his age, status, family responsibilities, financial
and social circumstances, characteristics, etc. 
The points that are the subject of inquiry may differ from case to
case.  The questions, therefore, must to
a great degree depend upon the Judge making the investigation.  At any rate, the court a quo found that respondent
Judge was “satisfied that the questions and answers contained in the
sworn statements taken by T-Sgt. Patosa partake of the nature of his searching
questions and answers as required by law,” so the respondent Judge adopted
them.

Petitioner’s further contention that the issuance of the warrant
of arrest was a violation of the Consti­tution and of procedural due process is
likewise untenable.  The Constitution, in
Section 1 (3), Article III, provides that no warrant 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.  The
constitutional requirement of examination of witnesses under oath was, as shown
above, fulfilled.  The existence of
probable cause depended to a large degree upon the finding or opinion of the
judge conducting the examination. 
Respondent Judge found that there was a probable cause, as stated in his
order of arrest, that “after examining the witnesses personally and under
oath there is a reasonable ground to
believe that an offense of
murder has been committed and that the accused, Simon Luna, is probably guilty thereof.”

Petitioner’s last contention that the warrant of arrest issued
was a violation of procedural due process because of the alleged defective
preliminary examination has no leg to stand on, in view of what we have
hereinbefore stated.  Moreover, this
Court has held that preliminary examination is not an essential part of due
process of law.^[8]
Preliminary examination may be con­ducted by the municipal judge, prior to the
issuance of the warrant of arrest, either in the presence, or in the absence,
of the accused.  The record shows that
herein petitioner waived the preliminary investigation before respondent
Municipal Judge, and instead, he filed a petition for bail.  The petition for bail was at first granted by
respondent Judge, but later the order granting bail was revoked.  This conduct of petitioner indicates that he
had waived his objection to whatever defect, if any, in the preliminary
examination conducted by respondent Judge prior to the issuance of the warrant
of arrest.  Indeed, petitioner has no
substantial — much less legal ground to complain that he was denied the due
process of law.

We find that the trial Judge committed no error when he held
that, based upon the facts shown during the hearing of this case, respondent
Municipal Judge had substantially complied with the requirements of the law specifically Republic Act 3828 —
before issuing the warrant of arrest in this case.

2.       In the light of what
has been said above, it appears clear that petitioner’s second assignment of error,
that the trial court erred in denying the writ of habeas corpus,
is untenable.  Moreover, Section 4 of
Rule 102 of the Rules of Court provides in part, as follows:

“Sec. 4.  When writ not allowed or discharge
authorized.  If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge x x x and that the court or judge had jurisdiction to issue the
process x x x or make the
order, the writ shall not be allowed.  x x x“

All the conditions, in
the afore-quoted Section 4, set forth to deny the writ, are present in
the instant case.  It is shown that
petitioner is detained and is in the
custody of the respondent Provincial Warden by virtue of the order of arrest
dated February 18, 1967, and the order dated February 21, 1967, of respondent Judge, to confine petitioner
in the provincial jail.  It is not
disputed by petitioner that respondent Judge had jurisdiction to issue the
warrant of arrest and the order of
commitment under the provisions
of Section 47, Republic Act No. 409, as amended by Republic Act No. 1201, although petitioner did question the
validity of the warrant of arrest for allegedly having been issued in violation
of Republic Act No. 3828 — which claim We have found to be untenable.  Consequently, the trial Judge did not commit
an error in denying the writ of habeas corpus prayed for.

At any rate, We believe
that, if at all, the remedy available to the petitioner herein, under the
circumstances stated in this opinion, is not a petition for a writ of habeas
corpus but a petition to quash the warrant of arrest or a petition for a reinvestigation of the case by the respondent Municipal
Judge or by the Provincial Fiscal.

We wish to stress, however, that what has been stated
in this opinion is certainly not intended to sanction the return to the former
practice of municipal judges of simply relying upon affidavits or sworn state­ments
that are made to accompany the complaints that are filed before them, in
determining whether there is a probable cause for the issuance of a warrant of
arrest.  That practice is precisely what
is sought to be voided by the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of 1948) which requires that before
a mu­nicipal judge issues a warrant of arrest he should first satisfy himself
that there is a probable cause by
examining the witnesses
personally, and that the examination must be under oath and reduced to writing
in the form of searching questions and answers. 
It is obvious that the purpose of this amendment is to prevent the issuance
of a warrant of arrest against a person based simply upon affidavits of
witnesses who made, and swore to, their statements before a person or persons
other than the judge before whom the criminal complaint is filed.  We wish to emphasize strict compliance by municipal or city judges of the
provision of Section 87 (c) of the Judiciary Act of 1948, as amended by
Republic Act 3828, in order to avoid malicious and/or unfounded criminal
prosecution of persons.^[9]

In the case now before
Us, while it is true that the respondent Municipal Judge did not himself
personal­ly cause to be reduced to writing in the form of ques­tions and
answers the examination of witnesses presented before him by the person who
filed the criminal complaint, We are satisfied that, as shown by the evidence,
respond­ent Judge had personally examined the witnesses under oath and that the
questions asked by the Judge and the answers of the witnesses were reflected in
writings which were actually subscribed and sworned
to before him.  Moreover, We are of the considered view that no substantial right of
the petitioner had been violated because, as hereinbefore adverted to,
petitioner waived his right to preliminary investigation after he was arrested,
and he took the step of applying for bail before
respondent Municipal Judge.  These acts of the petitioner subsequent to his arrest constitute an implied
admission on his part that there was a probable cause for the issuance of the
warrant of arrest against him.  Those
acts of the petitioner constitute a waiver of whatever irregularity, if any
there was, that attended his arrest.^[10]

WHEREFORE, the decision of the trial court dated April
20, 1967, appealed
from, is affirmed.  Costs
against petitioner-appellant.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Sanchez, Castro, Fernando, and Capistrano, JJ., concur.

Reyes, J.B.L., J., concurs in
the result.

^[1]
G. R. No. L-15631, May 27, 1966.

^[2]
As quoted from the Notice of Appeal.

^[3]
Millar vs. Nadres, 74 Phil.
307; Portea vs. Pabellon,
47 O.G. 655; Flores vs. Plasina,
50 O.G. 1073.

^[4]
Abijuela,
et al., vs. Dolosa, et al., No.
L-14245, December 29, 1960.

^[5]
Exhibits, B, C, D, E, F, and G.

^[6]
G. R. No. L-26437, March 13, 1968.

^[7]
Sec. 1, Rule 112, Rules of Court.

^[8]
People vs. Olandag, 92 Phil.
286, 289.

^[9]
The amendment is copied at the
earlier part of this opinion.

^[10]
Doce vs.
Branch II of the Court of First Instance of Quezon,
G. R. No. L-26437, March 13, 1968 (22 SPCRA, 1028, 1031).