PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. GREGORIO D. MONTEJO, JUDGE OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA CITY, AND FELIX WEE SIT, RESPONDENTS. D EC I S I O N

In this petition for certiorari and mandamus with preliminary
injunction, the novel question presented is whether respondent Judge, in
denying a motion for the arrest of a material witness, in a criminal case, or
in the alternative, to cite him for contempt, relying on Section 9 of Rule 23
of the Rules of Court to the effect that a witness is not bound to attend as
such before any court, judge or other officer out of the province in which he
resides unless the distance be less than 50 kilometers
from his place of residence the place of trial by the usual course, acted with
grave abuse of discretion.

In a petition dated February 4, 1965, it was alleged by the City
Fiscal of Zamboanga, as counsel for the People of the
Philippines, that on September 23, 1963, Criminal Case No. 3225 was filed in
the Court of First Instance of Zamboanga City against
a certain Felix Wee Sit for double homicide and serious physical injuries thru
reckless imprudence, the trial of the case having
commenced on November 7, 1963,
and thereafter continued subsequently.^[1]
After which, it was stated that a certain Ernesto Uaje
y Salvador, “a permanent resident of Montalban, Rizal, then a patrolman in the Montalban
Police Department,”as a material and important
witness in the case” his affidavit having served as the basis for filing
the information as he happened to be an eye-witness during the traffic incident
wherein a Private Jeep bearing Plate No. J-6172 driven recklessly by the
accused Felix Wee Sit on August 15, 1963, turned turtle in the public highway
in Zamboanga City causing the death of two (2)
prominent young girls and serious physical injuries to four (4) equally pro­minent
young girls, who are all students of a local religious institution.”^[2]

It was then alleged that at the time the case against the accused
was called for trial in the Court of First Instance of Zamboanga
City, then presided by respondent Judge, the witness had returned to Montalban, Rizal; that pursuant
to a formal request of the City Fiscal, respondent Judge issued a subpoena to
patrolman Uaje addressed at his known address at Montalban, Rizal, for him to
appear at the trial of the case set for continuation on February 1, 1965; that
such sub­poena was served on Uaje, the return showing
that he bad received it on January 19, 1965, at Montalban,
Rizal; that when the case was called for continuation
on February 1, 1965, he did not appear “and forthwith the undersigned City
Fiscal formally moved for an order of arrest” or in the alternative
“to cite him for contempt for willful failure to appear at the trial of
the case as a material witness, * * *.”^[3]  Such a motion was formally presented on
February 3, 1965 and denied on the same day by the respondent Judge in the
Order sought to be annulled in this petition. 
Then came a motion for reconsideration which
was likewise denied for not being “well-founded”.  In addition to the plea to declare void such
order refusing to have the witness either arrested or cited for contempt, there
was the further prayer that respondent Judge be required to grant the aforesaid
motion.

The petition was given due course with preliminary injunction
issued.  Respondent Judge and the other
respondent, the accused in Criminal Case No. 3225, were required to
answer.  In their answer filed on March
4, 1965, there was a denial of the allegation that Uaje
was “a material, much less an important, witness,” such denial being
based on the very affidavit executed by him which as noted in the answer
admitted “that the said witness did not see how the accident had occurred
” and was, therefore not an eye-witness * * *.” There was an
admission that respondent Judge was “poised to order the immediate,
continuation of the trial of the case upon the insistence of the accused who
relies upon his constitutional right to a speedy trial but denied that the
prosecution is entitled to compulsory process” for under the Rules of
Court it is the defendant, not the prosecute that is conferred such a right,
alleging further that the issuance of compulsory process is under the Constitution,
a right granted to the accused ‘only and exclusively” no corresponding
provision being made for the prosecution. 
As a First and Special Affirmative Defense, they relied on the aforesaid
Section 9 of Rule 23 contending that if a witness was not bound by a subpoena
since his residence was admittedly not less than 50 kilometers from the place
of trial, the failure to obey the same or to comply with it could not in any
manner whatsoever constitute contempt of court. 
Respondent Judge therefore did not commit any error; nor did he abuse
his discretion in refusing to issue an order of arrest or to cite said witness
for contempt.  There are other special
and affirmative defenses but they are not decisive of the question
presented.  The prayer was for the
lifting of the preliminary injunction and the denial of the petition.

Thus vas the issue joined. 
Instead of relying on an oral argument, the parties preferred to file
memoranda, and the petition was submitted for decision.

That the question is novel admits of no doubt.  It is true in two (2) cases, Cruz v. Sison,^[4]
and Cruz v. Rabanera,^[5]
decided jointly, one of the errors assigned was that the lower court erred in
holding that the above provision of the Rules of Court applies to both civil
and criminal cases.  This Court however,
speaking through Justice Makalintal, did not deem it
necessary to pass on the above question as “the petitions for contempt
were prematurely filed and hence their dismissal was in order.” Moreover,
this Court further noted “that the subpoenas were issued so that they
could give evidence in Criminal Case No. 47152. 
‘People of the Philippines v. Secretary of Jaime
Hernandez,’ which was then already pending trial before a branch of the Court
of First Instance of Manila.  The
power of the City Fiscal of Manila to issue subpoenas extends to cases pending
investigation before him, but not where the complaint or information has been
filed in court, in which case it is the court that should issue the necessary
processes.  (Concepcion v. Gonzales, L-15638, April 26, 1962).

How did petitioner sustain its stand that respondent Judge was
called upon to compel the attendance of witness living in Montalban,
Rizal, to testify at a trial in Zamboanga
City, or in the alternative to cite him for contempt? Its counsel, the City
Fiscal of Zamboanga City, cited, without
incorporating the terms thereof, the following legal provisions:  Section 1687 of the Revised Administrative
Code and Republic Act No. 1799, Section 19(g) of Commonwealth Act No. 39, the
City Charter of Zamboanga , and Section 3, Rule 135 of the Rules of Court.  A perusal of each of the above legal
prescriptions yields no support for petitioner’s theory.

Section 1687 of the Revised Administrative Code
as amended by Republic Act No. 1799,^[6]
which was approved and took effect on June 21, 1957, speaks of the authority of
Provincial Fiscal and Assistant fiscal and Special Counsel to conduct
investigation in criminal matters. 
All that the City Charter of Zamboanga^[7]
provides is that its Fiscal “may conduct investigations in respect to crimes,
misdemeanors and violations of ordinances by taking oral evidence of repu­table
witnesses, and for this purpose one may, by subpoena, summon witnesses to
appear and testify under oath before him, and the attendance of an absent or
recalcitrant witness may be enforced by application to the Municipal Court or
the Court of First Instance of the Province of Zamboanga.”
The particular rule cited provides process issued from a superior court “in
which a case is pending to bring in a defendant, or for the arrest of any
accused person, or to execute any order or judgment of the court, may be
enforced in any part of the Philippines.”^[8]  It is obvious then that the argument of
counsel for the City Zamboanga based on the above
legal provision is, to put it at its mildest, far from persuasive.

Counsel for respondent, Atty. Rosauro
Alvarez, did in his thorough and exhaustive memorandum, stress anew that the
first and decisive question is whether a Court of First Instance possesses
authority in a criminal case “to compel by subpoena the attendance of the
witness who, as in this case, resides hundreds of miles away from the place of
trial.” According to him, “an examination of the placement of Section
9 of Rule 23 discloses to us, that it is found under topic Procedure in Courts
of First Instance which unquestionably would include both criminal and
civil cases.  It will be noted further
that the provision of Section 9, Rule 23 above quoted makes no distinction
between a criminal or civil case and it is a fundamental rule or statutory
construction that where the law makes no distinction it is not proper for the
interpreter to make any such distinction.” After which counsel invoked the
Constitution as well as the Rules of Court,^[9]
particularly the provisions contained therein granting to the accused in a
criminal case the right to have compulsory process issued to secure
the attendance of witnesses in his behalf, which right was not conferred on the
prosecution.  Thus, he would sustain the
actuations of respondent Judge not only as free from error but as correct and
proper.

While not lacking in plausibility, this contention of respondent
failed to enlist the assent of a majority of the Court.  It is loathe to clip
what undoubtedly is the inherent power of the Court to compel the attendance of
persons to testify in a case pending therein.^[10]
Section 9 of Rule 29 is thus interpreted to apply solely to civil cases.  A recognition of such power in a court of
first instance conducting the trial of an Accused may be gleaned from principle
that justifies it when satisfied “by proof or oath, that there is reason
to believe that a material witness, for the prosecution will not appear end
testify when required, to order that he given bail in as such sum as [it] may
deem proper for such appearances.  Upon
refusal to give bail, the court must commit him to prison until he complies or
is legally discharged.”^[11]

Under the circumstances, in view of the serious handicap to which
the prosecution would thus be subjected in proving its case, the order of
respondent judge denying the motion for an order of arrest or a citation for
contempt in the alternative, based on a clear misapprehension of the Rules of
Court, could be viewed as amounting to grave abuse of discretion.  It would follow then that respondent Judge
should decide said motion without taking into consideration Section 9 of Rule
23.

WHEREFORE, the preliminary injunction is lifted, the
orders of February 3, 1961 set aside, and respondent Judge ordered to pass upon
the aforesaid motion of petitioner.  Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Bengzon, J.P., Zaldivar, Sanchez, Castro, and
Angeles, concur.

^[1]
Par. 1, Petition.

^[2]
Par. 2, Petition.

^[3]
Par. 2, Petition.

^[4]
L-15902, December 23, 1964.

^[5]
L-15903, December 23, 1964.

^[6] “SEC. 1687.  Authority of fiscal, assistant fiscal and special counsel to
conduct investigation in criminal matter. – A provincial fiscal, an
assistant provincial fiscal and a special counsel appointed under section 1686
of this Code shall have authority, to conduct investigation into the matter of
any crime or misdemeanor and have the necessary information or complaint
prepared or made against persons charged with the commission of the same.  If the offense charged falls within the
original jurisdiction of the Court of First Instance, the defendant shall not
be entitled as a matter of right to preliminary investigation in any case where
the provincial fiscal himself, or an assistant provincial fiscal, or a special
counsel, after due investigation of the facts made in the pre- sauce of the
accused if the latter so requested, shall have presented an information against
him in proper form and certified under oath by the said provincial fiscal or
assistant provincial fiscal or special counsel that he conducted a proper
preliminary investigation. To this end, who may, with due notice to the
accused, summon reputed witnesses and require them to appear, before him and
testify and be cross-examined under oath by the accused upon the latter’s
request.  The attendance or evidence of
absent or recalcitrant witnesses who may be summoned or whose testimony may be
required by the provincial fiscal, or assistant provincial fiscal, or special
counsel under the authority herein conferred shall be enforced by proper
process upon application to be made by the provincial fiscal, or assistant
provincial fiscal, or special counsel to any Judge of First Instance of the
Judicial District. But no witness summoned to testify under this section shall
be compelled to give testimony to incriminate himself.

^[7] Section 19, (g) Commonwealth Act No. 39 (1936).

^[8] Section 3, Rule 135 of the Rules of Court.

^[9] Section
1, sub-paragraph (g) Rule 115.

^[10] 10
According to Section 5 of Rule 135: 
“Every Court shall have power:

(e) To compel the attendance of persons to testify in a case
pending herein; * * *.

^[11] Section 6, Rule 119.