MARIA BERMUDEZ, COMPLAINANT, VS. LEODEGARIO D. CASTILLO, RESPONDENT.

In the course of the investigation which
was being conducted by the office of the Solicitor-General against the
respondent, in connection with this administrative case, said
respondent filed, in addition to other evidence in support of his
defense, the six letters which, for purposes of identification, were
marked as Exhibits 32, 33, 34, 35, 36 and 37. He then contended, as he
now continues to contend, that said six letters are the complainant’s,
but the latter denied it while she was testifying as a witness in
rebuttal. She admitted, however, that the letters marked as Exhibits
38, 39 and 40 were in her own handwriting.

As the respondent believed that the three letters admitted by the
complainant to be hers were insufficient for purposes of comparison
with those questioned in this case and as he was determined to show
that said Exhibits 32, 33, 34, 35, 36 and 37, as well as Exhibits 38,
39 and 40 were the complainant’s, he required her to copy them in her
own handwriting in the presence of the investigator. The complainant,
upon advice of her attorney, refused to submit to the trial to which it
was desired to subject her, invoking her right not to incriminate
herself and alleging that Exhibits 38, 39 and 40 and the other letters
already in the respondent’s possession, were more than sufficient for
what he proposed to do. The investigator, upholding the complainant,
did not compel her to submit to the trial required, thereby denying the
respondent’s petition. As the respondent did not agree to this decision
of the investigator, he instituted these proceedings praying that the
investigator and the Solicitor-General in whose representation he
acted, be ordered to require and compel the complainant to furnish new
specimens of her handwriting by copying said Exhibits 32 to 37 for that
purpose.

The question raised before this court is not new. In the case of Beltran vs.
Samson and Jose ([1929], 53 Phil., 570), a similar question was raised
before this court. The respondents therein desired to compel the
petitioner to write by hand what was then dictated to him. The
petitioner, invoking the constitutional provision contained in section
3, paragraph 3, of the Jones Law which reads: “* * * nor shall be
compelled in any criminal case to be a witness against himself, refused
to write and instituted prohibition proceedings against the therein
respondents. This court granted the petition and ordered the
respondents to desist and abstain absolutely from compelling the
petitioner to take down dictation by hand for the purpose of comparing
his handwriting. The reasons then adduced therein can and must be
adduced in this case to decide the same question ; and all the more so
because Article III, section 1, No. 18, of the Constitution of the
Philippines is worded in such a way that the protection referred to
therein extends to all cases, be they criminal, civil or
administrative. The Constitution provides: “No person shall be
compelled to be a witness against himself.” It should be noted that
before it was attempted to require the complainant to copy the six
documents above-stated, she had sworn to tell the truth before the
investigator authorized to receive statements under oath, and under
said oath she asserted that the documents in question had not been
written by her. Were she compelled to write and were it proven by means
of what she might write later that said documents had really been
written by her, it would be impossible for her to evade prosecution for
perjury, inasmuch as it would be warranted by article 183 of the
Revised Penal Code, which reads:

“The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the provisions
of the next preceding articles, shall testify under oath, or make an
affidavit, upon any material matter before a competent person
authorized to administer an oath in cases in which the law so requires.

“Any person who, in case of a solemn affirmation made in lieu of an
oath, shall commit any of the falsehoods mentioned in this and the
three preceding articles of this section, shall suffer the respective
penalties provided therein.”

The respondent invokes in his support the doctrine laid down in Ex Parte
Crow (14 Pac. [2d series], 918), to the effect that “* * * a witness
may not arbitrarily refuse to answer a question on the ground that his
answer might incriminate him when the court can determine as a matter
of law that ‘no direct answer which the witness may make can tend to
criminate him.’ ” It must be taken into account that the question asked
the petitioner in said case, as stated by the prosecuting attorney, was
only a preliminary question, as it was simply attempted to learn from
her who was with her on a certain occasion, and on what date, to the
best of her recollection, had she visited Dr. Grosse. She refused to
answer said questions alleging that her answers might incriminate her.
The court upheld her saying:

“We are therefore of the opinion that the trial
court erred when it determined as a matter of law that petitioner’s
answers to the questions propounded could have no tendency to
incriminate her. They clearly might have such tendency, and it was
petitioner’s right and privilege to decline to answer any of the
above-mentioned questions upon the ground stated. We fully realize the
difficulty encountered in the prosecution of cases under section 274 of
the Penal Code when those present and capable of establishing the facts
are unwilling to testify because of fear of subjecting themselves to
prosecution. But the constitutional and statutory guaranties accorded
to petitioner cannot be swept aside merely because they may result in
making difficult, or even impossible, the conviction of the accused.”

The respondent likewise invokes in his support the doctrine laid down in in re
Mackenzie (100 Vt. Rep., 325). This court is of the opinion that what
had been said in the above-cited case is not applicable to the case
under consideration. The petitioner Mackenzie, upon being required
after he had pleaded guilty of intoxication to disclose the person or
persons who had furnished him the liquor, said that they were strangers
to him, whom he met late in the evening in Barre. The court,
considering his alleged disclosure unsafisfactory, ordered him
committed to jail until he should tell the truth or until further
orders. He instituted habeas corpus proceedings in his favor alleging
in his pleading that as he had already made a truthful disclosure, the
result of his commitment would be to compel him to deny his former
statements and make others which would make him guilty of perjury. The
court, deciding the question, said:

“The privilege against self-crimination is a
personal one. * * * But the privilege is an option of refusal, not a
prohibition of inquiry. Hence, when an ordinary witness is on the
stand, and a self-criminating act relevant to the issue is desired to
be shown by him, the question may be asked, and then it is for the
witness to say whether he will answer it or claim its privilege, for it
cannot be known beforehand what he will do.”

It further states that “the proper place in which to claim the
privilege is in the trial court, when the question is propounded, not
here.” This is exactly the case of the herein complainant. She
opportunely invoked the privilege when it was desired to subject her to
trial by copying the six letters in question, which Mackenzie failed to
do.

It is true that in said case of Mackenzie, it was likewise stated
that “No reason appears why the examination on disclosure should not be
subject to the ordinary rules of cross-examination. The person making
the disclosure is in the position of a witness called by the State, and
is subject to the rule permitting the impeachment of such a witness. It
is no invasion of the constitutional guaranty against self-crimination
to compel the witness to answer questions relating to the truthfulness
of his previous testimony.” This court, however, is of the opinion that
the foregoing is not applicable to the case of the herein complainant,
firstly, because she has made no disclosure; she confined herself to
denying that the letters in question were hers when the respondent,
appearing in court with them, said, rather than insinuated, that they
were hers, presenting, in support of his statement, other letters
which, by reason of the handwriting, were to all appearances similar
thereto; and, secondly, because her testimony, denying that she was the
author of the letters in question, may be attacked by means of other
evidence in the possession of the respondent, which is not precisely
that coming from the complainant herself.

The reason for the privilege appears evident. The purpose thereof
is positively to avoid and prohibit thereby the repetition and
recurrence of the certainly inhuman procedure of compelling a person,
in a criminal or any other case, to furnish the missing evidence
necessary for his conviction. If such is its purpose, then the evidence
must be sought elsewhere; and if it is desired to discover evidence in
the person himself, then he must be promised and assured at least
absolute immunity by one authorized to do so legally, or he should be
asked, once for all, to furnish such evidence voluntarily without any
condition. This court is of the opinion that in order that the
constitutional provision under consideration may prove to be a real
protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.

In view of the foregoing considerations and holding, as it is
hereby held, that the complainant is perfectly entitled to the
privilege invoked by her, the respondent’s petition is denied. So
ordered.

Avancena, C. J., Villa-Real, Imperial, and Concepcion, JJ., concur.

---

The privilege against self-incrimination is guaranteed in the Fifth
Amendment to the federal constitution and in the great majority of the
state constitutions of the United States. In the Philippines, the same
principle obtains as a direct result of American influence. At first,
the provision in our organic laws was similar to that found in the
Fifth Amendment to the Constitution of the United States and was as
follows: “That no person shall * * * be compelled in any criminal case
to be a witness against himself.” (President’s Instructions to the
Philippine Commission; Philippine Bill of July 1, 1902, sec. 5, par. 3;
Jones Law, Act of Congress of August 29, 1916, sec. 3, par. 3.)
Although the provision makes reference only to criminal cases, the
privilege has consistently been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not (70 C. J., sec. 875, p.
722). Prof. Wigmore states these principles clearly in his valuable
work on Evidence (vol. IV, sec. 2252, pp. 834, 835), in the following
language:

“This variety of phrasing, then, neither enlarges nor narrows
the scope of the privilege as already accepted, understood, and
judicially developed in the common law. The detailed rules are to be
determined by the logical requirements of the principle, regardless of
the particular words of a particular constitution. This doctrine, which
has universal judicial acceptance, leads to several important
consequences :

“(a) A clause exempting a person from being ‘a witness against himself protects as well a witness as a party accused in the cause;
that is, it is immaterial whether the prosecution is then and there
‘against himself or not. So also a clause exempting ‘the accused’
protects equally a mere witness.

“(b) A clause exempting from self-criminating testimony ‘in criminal cases’ protects equally in civil cases, when the fact asked for is a criminal one.

“(c) The protection, under all clauses, extends to all manner of proceedings
in which testimony is to be taken, whether litigious or. not, and
whether ‘ex parte’ or otherwise. It therefore applies in all kinds of
courts * * * in all methods of interrogation before a court, * * * and in investigations by a legislature or a body having legislative functions.”

When the Constitution of the Philippines was drafted, the
phraseology in the previous organic, acts was altered by omitting the
phrase “in any criminal case” to make the letter conform with the
evident spirit of the provision. The Constitution provides that “No
person shall be compelled to be a witness against himself.” (Article
III, sec. 1, subsec. 18.) Similar provisions are to be found in our
statutes (G. O. No. 58, sec. 15, subsec. 4; Act No. 194 as amended,
sec. 2; Act No. 2711, sees. 1687 and 2465; Act No. 3108, sec. 26).

This court has had occasion to rule that the constitutional provision relates solely to testimonial compulsion (U. S. vs. Tan Teng, 23 Phil., 145; U. S. vs. Salas, 25 Phil., 337.; U. S. vs. Ong Siu Hong, 36 Phil,, 735; Villaflor vs. Summers, 41 Phil., 62). In the case of Beltran vs.
Samson and Jose (53 Phil., 570, cited in 70 C. J., sec. 887, p. 727),
however, this court enlarged the application of the provisions by
holding that a person may not be compelled to produce specimens of his
handwriting for purposes of confrontation with certain documents
supposed to have been falsified by him. It was there said that “writing
is something more than moving the body, or the hand, or the fingers;
writing is not a purely mechanical act, because it requires the
application of intelligence and attention; and in the case at bar
writing means that the petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as the petition of the
respondent fiscal clearly states.” (Pages 576, 577.)

It must be admitted that the case before us is one in which
differences of opinion may reasonably be expected; and in other
jurisdictions conflict of opinion is clearly noticeable. In some
jurisdictions it is ruled that a person who denies during his
examination in chief the authenticity of handwriting purporting to be
his may be asked to write specimens of his handwriting for the purposes
of comparison, while in other jurisdictions and under practically the
same circumstances, a directly opposite view is reached. The reason for
this is not far to seek. One vainly looks at the naked text of the
constitutional provision for unalterable rules applicable in particular
cases. Courts have to deal with cases as they arise and while agreeing
on the principle they do not and can not unite on the application. But
I vote to sustain the objection of the witness for the following
reasons:

(1) As between two possible and equally rational constructions,
that should prevail which is more in consonance with the purpose
intended to be carried out by the Constitution. The provision, as
doubtless it was designed, should be construed with the utmost
liberality in favor of the right of the individual intended to be
secured. (Boyd vs. United States, 116 U. S., 616; 6 S. Ct., 524; 29 Law. ed., 746; Counselman vs. Hitchcock, 142 U. S., 562; 12 S. Ct, 195; 35 Law. ed., 1110; Brown vs. Walker, 161 U. S., 596; 16 S. Ct., 644; 40 Law. ed., 819; Interstate Commerce Commission vs. Baird, 194 U. S., 45; 5 S. Ct., 563; 48 Law. ed., 860; Gouled vs. United States, 255 U. S., 298; 41 S. Ct, 261; 65 Law. ed., 647; In re Machman, 114 Fed., 995; U. S. vs. Wetmore, 218 Fed;, 227; People vs. Hackley, 24 N. Y., 74; 24 How. Pr., 369, 372 [Off. 12 Abb. Pr., 150; 21 How. Pr., 54]; People vs. Cassidy, 213 N. Y., 388, 107 N. E., 713; Ann. Cas. [1916C], 1009; People vs. Forbes, 38 N.E., 303; 143 N. Y., 219; People vs. Spain, 138 N. E., 614; 307 111., 283; People vs. Newmark, 144 N. E., 338; 312 111., 625; Gillespie vs. State, 5 Okla. Crim., 546; 115 Pac, 620; Ann. Cas. [1912D], 259; 35 L. R. A. [N. S.], 1171; Ward vs. State, 228 Pac, 498; 27 Okla. Crim., 362; Thornton vs. State, 117 Wis., 338; 93 N. W., 1107; 98 A. S. R., 924; People vs. Danziger, 213 N. W., 448; 238 Mich., 39; 52 A. L. R., 136; Underwood vs.
State, 78 S. E., 1103; 13 Ga. App., 206.) Justice Bradley of the
Supreme Court of the United States once said that “illegitimate and
unconstitutional practices get their first footing * * * by silent
approaches and slight deviations from legal modes of procedure. This
can only be obviated by adhering to the rule that constitutional
provisions for the security of person and property should be liberally
construed. A close and literal construction deprives them of half their
efficacy and leads to gradual depreciation of the right, as if it
consisted more in sound than in substance. It is the duty of courts to
be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. Their motto should be obsta priciipiis.” (Boyd vs. United States, supra.) An equally liberal interpretation should be given to similar provisions found in our statutes. (People vs. Forbes, supra.)

(2) I am averse to the enlargement of the rule allegedly calculated
to gauge more fully the credibility of a witness if the witness would
thereby be forced to furnish the means for his own destruction. Unless
the evidence is voluntarily given, the policy of the constitution is
one of protection on humanitarian considerations and grounds of public
policy (see U. S. vs. Navarro, 3 Phil., 143). This is
not saying that the constitutional privilege was intended to shield the
witness from the personal disgrace or opprobrium resulting from the
exposure of crime. It was only intended to prevent the disclosure of
evidence that may tend to render the witness liable to prosecution in a
criminal case. (70 C. J., sec. 880, p. 729.)

(3) The privilege should not be disregarded merely because it often
affords a shelter to the guilty and may prevent the disclosure of
wrongdoing. Courts can not, under the guise of protecting the public
interest and furthering the ends of justice, treat a sacred privilege
as if it were more excrescence in the Constitution.

(4) It is true that the privilege afforded by the constitution is
purely personal to the witness and may be waived by him; (U. S. vs. Cofrada, 4 Phil., 154; U. S, vs. Rota, 9 Phil., 426; U. S.-m–Grant and Kennedy, 18 Phil., 122; U.S. vs.
Binayoh, 35 Phil., 23) either by a failure to claim the privilege on
time or by testifying without objection; and a witness who has waived
the privilege is not permitted to stop but must go on and make a full
disclosure of all matters material to the case (Fitzpatrick vs. United States, 178 U. S., 304; 20 S1. Ct., 944; 44 Law. ed., 1078; Reagan vs. United States, 157 U. S., 301; 15 S. Ct, 610; 39 Law. ed., 709; Sawyer vs. United States, 202 U. S., 150; 26 S. Ct., 575; 50 Law. ed., 972; Powers vs.
United States, 223 U. S., 303; 32 S. Ct, 281; 56 Law. ed., 448). But in
the case before us there has not been a waiver. The privilege was
invoked on time. The objection to the question of respondent’s counsel
was raised upon the asking of the question which would subject the
witness to the danger of committing perjury. This the witness had a
right to do. (State vs. Blake, 25 Me., 350; Friess vs. New York Cent, etc, R. Co., 22 N. Y. S., 104; 67 Hun., 205, aff. 55 N. E., 892; HON. Y., 639.)

(5) It was riot the complainant but the respondent who offered the
letters (Exhibits 32 to 37) in evidence. The complainant was presented
in rebuttal and she simply denied having written the letters. She
should not be made to furnish the other party evidence by which to
destroy her own testimony under circumstances which tend to incriminate
her. She was not even presented by the respondent as his own witness.

(6) There are already in evidence letters written by the
complainant and admitted by her to be genuine. The purpose then of
respondent’s counsel can be attained without extracting from the
witness herself evidence which would subject her to punishment for a
felony.

---

ABAD SANTOS, J,;

I am unable to concur in the opinion of the court in this case,
because the doctrine it lays down is, in my judgment, not only unsound
but in conflict with the great weight of competent authority on the
subject. We are called upon to determine, for the first time the scope
and application of an important provision of the Constitution and it
goes without saying that the matter requires careful consideration,
since our decision is bound io have a far-reaching effect.

The Constitution provides that “no person shall be compelled to be
a witness against himself.” (Article III, section 1, cl. 18.) This
provision has been derived from that clause of the Fifth Amendment to
the Constitution of the United States which declares that; no person
“shall be compelled in any criminal case to be a witness against
himself.” While the omission of the words “in any criminal case” from
the Philippine version may seem important, the truth is that such a
change in phraseology carries no legal significance whatever, ,inasmuch
as the Supreme Court of the United States had construed the provision
in the Federal Constitution to mean that the privilege against
self-incrimination is not confined to the accused; that it is also
available to witnesses both in criminal and civil cases; and that it
may be invoked in court, before legislative committees, grand juries,
and other tribunals. (McCarthy vs. Arndstein, 266 U. S., 34; 69 Law. ed., 158.)

The origin of this constitutional inhibition is related by the Supreme Court of the United States as follows: “The maxim Nemo tenetur seipsum accusare had
its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which has long obtained in
the continental system, and, until the expulsion of the Stuarts from
the British throne in 1688, and the erection of additional barriers for
the protection of the people against the exercise of arbitrary power,
was not uncommon even in England. While the admissions of confessions
of the prisoner, when voluntarily and freely made, have always ranked
high in the scale of incriminating evidence, if an accused person be
asked to explain his apparent connection with a crime under
investigation, the ease with which tlie questions put to him may assume
an inquisitorial character, the temptation to press the witness unduly,
to browbeat him if he be timid or reluctant, to push him into a corner,
and to entrap him into fatal contradictions, which is so painfully
evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system
so odious as to give rise to a demand for its total abolition. The
change in the English criminal procedure in that particular seems to be
founded upon no statute and no judicial opinion, but upon a general and
silent acquiescence of the courts in a popular demand. But, however
adopted, it has become firmly embedded in, English, as well as in
American, jurisprudence. So deeply did the iniquities of the ancient
system impress themselves upon the minds of the American colonists that
the states, with one accord, made a denial of the right to question an
accused person a part of their fundamental law, so that a maxim which
in England was a mere rule of evidence became clothed in this country
with the impregnability of a constitutional enactments (Brown vs. Walker, 161 U. S., 591, 597; 40 Law. ed., 819, 821.)

While the courts have guarded the privilege with great care and
liberally extended the mantle of its protection in appropriate cases,
they have at the same time insisted that the constitutional provision
embodying it “should be construed, as it was doubtless designed, to
effect a practical and beneficent purpose—not necessarily to protect
witnesses against every possible detriment which might happen to them
from their testimony, nor to unduly impede, hinder, or obstruct the
administration of criminal justice.” (Brown vs. Walker, supra.)
It has been held that the privilege against self-incrimination, like
any other privilege is one which may be waived. It may be waived by
voluntarily answering questions, or by voluntarily taking the stand, or
by failure to claim the privilege. (People vs. Nachowicz, 340 111., 480; 172 N. E., 812; Salibo vs. United States, 46 Fed. [2d], 790; United States vs.
Murdock, 284 U. S., 141; 76 Law. ed., 210.) A party who voluntarily
takes the stand in his own behalf, thereby waiving his privilege, may
be subjected to a cross-examination covering his statement.

In Fitzpatrick vs. United States (178 U. S., 304; 44 Law,
ed., 1078, 1083), the Supreme Court of the United States said: “Where
an accused party waives his constitutional privilege of silence, takes
the stand in his own behalf and makes his own statement, it is clear
that the prosecution has a right to cross-examine upon such statement
with the same latitude as would be exercised in the case of an ordinary
witness, as to the circumstances connecting him with the alleged crime.
While no inference of guilt can be drawn from his refusal to avail
himself of the privilege of testifying, he has no right to set forth to
the jury all the facts which tend in his favor without laying himself
open to a cross-examination upon those facts. The witness having sworn
to an alibi, it was perfectly competent for the government to
cross-examine him as to every fact which had a bearing upon his
whereabouts upon the night of the murder, and as to what he did and the
persons with whom he associated that night. Indeed, we know of no
reason why an accused person who takes the stand as a witness should
not be subject to cross-examination as other witnesses are. Had another
witness been placed upon the stand by the defense, and sworn that he
was with the prisoner at Clancy’s and Kennedy’s that night, it would
clearly have been competent to ask what the prisoner wore, and whether
the witness saw Corbett the same night or the night before, and whether
they were fellow occupants of the same room.”

It is well-settled that the right to cross-examine witnesses of the
adverse party, being absolute, should not be unduly restricted,
especially when the witness is the opposite party and is testifying to
make out his own case. (70 C. J., 615.) And while there is some
conflict of authorities, the better view appears to be that when a
witness has” denied what purports to be his handwriting, he may on
cross-examination be called upon to write in order that such writing
may be compared with the disputed writing for the purpose of
contradicting him. (22 C. J., 785.)

The petitioner in this case having waived her privilege against
self-incrimination by voluntarily taking the stand and testifying, it
was legitimate cross-examination to call on her to write in order that
such writing may be compared with the disputed writing for the purpose
of contradicting her, and the investigating officer erred in sustaining
her objection on the ground that she might incriminate herself.