JUANITO SUAREZ, PETITIONER, VS. HON. DAMASO S. TENGCO, JUDGE OF THE COURT OF FIRST INSTANCE OF BATANGAS, DOMINGO DE LA ROCA, BENEDICTA UMALI AND DANILO DE LA ROCA, RESPONDENTS.

Juanito Suarez petitions for a writ of prohibition against the Honorable
Damaso S. Tengco, as Judge of the Court of First Instance of Batangas, to
restrain him from compelling petitioner to testify in Civil Case No. 1058 of
said court.

It would appear that a jeep in which plaintiffs in the civil case (the other
respondents herein De la Roca and Umali) were riding, had collided with an
automobile driven by petitioner, and as a sequel thereto, Criminal Case No, 1458
was filed against petitioner in the Court of First Instance of Batangas. On
August 28, 1959, Civil Case No. 1058 was also filed against petitioner to
collect damages allegedly suffered by the plaintiffs as a result of his reckless
negligence in the same incident involved in the criminal case. On the first day
of trial of the civil case, and while Criminal Case No. 1458 was also pending in
the same court, plaintiffs therein required defendant Suarez (petitioner herein)
to take the stand and testify as their first witness. Petitioner objected,
averring that there wag a pending criminal case (Criminal Case No. 1458) against
him for the very acts upon which the civil action was based; that the purpose of
plaintiffs was merely to fish for evidence to be utilized in the pending
criminal suit; and that for him to be compelled to testify in the civil case was
violative of the constitution guaranty against self-incrimination. Petitioner’s
objections, which were later set in writing in a motion for reconsideration,
were overruled by the respondent judge, who directed petitioner to take the
stand and testify.

We think the lower court did not err in directing petitioner to take the
witness stand. No legal impediment exists against a litigant calling any of the
adverse parties to be his witness. In fact, Section 83, Rule 123 of the Rules
provides—

“A party may interrogate any unwilling or hostile witness by leading
questions. A party may call an adverse party * * *, and interrogate
him by leading questions and contradict and impeach him in all respects as
if he had been called by the adverse party, and the witness thus called may be
contradicted and impeached by or on behalf of the adverse party also, and may be
cross-examined by the adverse party only upon the subject-matter of his
examination in chief.” (Italics supplied)

True, an accused in a criminal case may not be compelled to testify, or to so
much as utter a word, even for his own defense (U.S. vs. Junio, 1 Phil.,
50; U.S. vs. Luzon, 4 Phil., 344; U.S. vs. Binayoh, 35 Phil., 23;
Sec. 1 (c), Rule 111, Rules of Court). But while the constitutional guaranty
against self-incrimination protects a person in all types of cases, be they
criminal, civil, or administrative (Art. III, sec. 1, No. 18, Phil.
Constitution; Bermudez vs. Castillo, 64 Phil., 483), said privilege, in
proceedings other than a criminal case against him who invokes it, is considered
an option of refusal to answer incriminating questions, and not a prohibition of
inquiry.

“Except in criminal cases, there is no rule prohibiting a party litigant from
utilizing his adversary as a witness. As a matter of fact, section 83 of Rule
123, Rules of Court, expressly authorizes a party to call an adverse party to
the witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a question
calling for a criminating answer is propounded. This has to be so, because
before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify ‘cannot decline to appear, nor can he decline to be sworn as
a witness’ and ‘no claim of privilege can be made until a question calling for a
criminating answer is asked; at that time, and, generally speaking, at that time
only, the claim of privilege may properly be interposed.'” (Gonzales vs.
Sec. of Labor, 94 Phil., 325; 50 Off. Gaz., 1080, cit. in Navarro, Criminal
Procedure, p. 302).

Here, petitioner invoked the privilege even prior to any question, and simply
declined to take the witness stand. Note that in the Gonzales case, above-cited,
the adverse party was directed to take the witness stand in proceedings to
investigate an alleged failure to pay overtime compensation, which, under the
corresponding special laws, carries a penal sanction. Here, petitioner was being
directed to take the stand, not in a criminal case where he is an accused, but
in an independent civil action which, although arising from the same facts
involved in a criminal case pending before the same court, is still regarded by
law as an “entirely separate and distinct” action, governed by a correspondingly
different set of rules (Civil Code of the Phil., Art. 2177).

Wherefore, the petition to prohibit the respondent judge from directing
petitioner to take the witness stand and testify is denied, without prejudice to
petitioner’s properly invoking the guaranty against self-incrimination when and
as questions are propounded to him on the stand. Costs against
petitioner.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion,
Paredes, Dizon, De Leon, and Natividad, JJ., concur.