G.R. No. 22942. February 07, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. GERARDO SOLON ET AL., DEFENDANTS AND APPELLANTS.
JOHNSON, J.:
appeal has been brought to reverse a judgment of the Court of First
Instance of Cebu, finding the appellants, Gerardo Solon, Francisco
Solon and Roberto Solon, guilty of the offense of rape, and sentencing
each of them to undergo imprisonment for seventeen years, four months
and one day, reclusion temporal, with the accessories prescribed by law, and requiring each of them to pay one-third of the costs.
On and prior to March 13, 1924, the appellant, Gerardo Solon, was a
policeman in the City of Cebu and on the date stated had been assigned
to duty in the court of the justice of the peace, a circumstance which
left him at liberty during much of the day, as the justice of the peace
held no session in the afternoon. At about 4 p. m. on the date stated,
the said Gerardo Solon, accompanied by his two brothers-in-law,
Francisco Solon and Roberto Solon, also appellants in this case, met
one Lucrecia Mitallas, a married woman, of the age of 20, on the road
near the Golf Club in Cebu. Upon approaching the woman Gerardo Solon
told her that she should consider herself under arrest as her husband
lacked a cedula certificate. Though she recognized Solon as a policeman
from the fact that he carried a revolver, Lucrecia was loath to undergo
arrest on so frivolous a charge and made resistance. Gerardo Solon
thereupon, assisted by his companions, compelled Lucrecia to come along
with them. Arriving at the corner of the street leading to the Osmeña
Fountain, Gerardo Solon caused a passing truck to stop, and the three
placed the woman upon it and she was carried away. The truck continued
its course until it arrived at a bridge near the River Lahug, where it
stopped and the three appellants transferred the woman to a two-wheeled
vehicle, known as tartanilla, which happened to come along at
that moment. In this vehicle the accused conducted Lucrecia to a garden
near the Osmeña Fountain where they alighted, after which they took her
to an unoccupied house in secluded surroundings about a half kilometer
away.
But this time it was getting late, and after the
victim had been placed on the floor, each of the three accused violated
her in turn,—an act which was repeated by each of them before 9 o’clock
at night. After a sleepless night and at about 4 o’clock the next
morning the appellants conducted the woman back to the spot where they
had captured her and there left her to make her way home. In the course
of the night Francisco Solon took from Lucrecia’s fingers two rings
which he did not return, of the value of P14.
The incident
of the making of the supposed arrest by Gerardo Solon, assisted by his
two companions, was seen by two other persons whom we consider credible
witnesses, namely Benito Mabini and Filomena Lardino. It appears from
their testimony that Lucrecia resisted arrest and cried for help, but
no one gave her assistance in view of the fact that she appeared to be
in the custody of an officer of the law. With respect to the revolting
acts which occurred in the lonely house where the appellants kept her
during the night, the injured woman herself is the sole witness; but
her testimony, connected with her condition at the time she was
released and the effect of the incident upon her mentality, leaves no
room to doubt that she had passed through the fearful ordeal above
described.
Soon after the appellants had disappeared and as
Lucrecia was directing her way home, she first met Benito Mabini, who
had seen her as she was carried off in the late afternoon of the
previous day. To him Lucrecia related what had occurred to her. Mabini
at once carried her to the house of the lieutenant of the barrio, who
in turn conducted her to her home in Banilad and delivered her to her
husband, Ceferino Codera. Benito Mabini noted the fact that Lucrecia
was much upset at the time he found her, even to the extent of seeming
to be on the verge of going crazy,—a condition entirely different from
that which he had observed in her the evening before.
Upon
arrival at home Lucrecia told her husband what had happened, and
complained of headache. At this time she was pale and her dress was
torn in front. Her talk was also somewhat incoherent, as if her head
were turned. In the days that succeeded she ceased to concern herself
with household duties and became sick and distracted to the point that
she exhibited little or no reasoning power and appeared to be devoid of
shame. At the end of five days her husband called in Doctor Ylanan, who
treated her for a time; and it was the middle of July before she
recovered her reason and regained her health. At the time of the trial
her faculties appeared to be fully restored.
It should be
stated that if Gerardo Solon had made the arrest in good faith, it was
his duty to have conducted the woman to the municipal building, where
the charge leading to the arrest would have been registered in usual
course. Upon this occasion the records show that no arrested person had
been conducted on the date mentioned by Gerardo Solon to the municipal
building, and the proof shows that during the afternoon and night
stated he was altogether absent from police headquarters. The proof
furthermore shows that when the husband, Ceferino Codera, was first
informed that his wife had been arrested, he went to the municipal
building to make inquiries for her, and when nothing could be there
learned’, spent much of his time during the night in searching for her
in other places.
Owing to the serious condition of the
injured woman, no steps were taken to prosecute the appellants until
about July 24, 1924, when an affidavit sworn to by her was placed in
the hands of the fiscal, alleging that she had been violated and robbed
as above stated. On the same date this affidavit, accompanied by an
information, signed by the fiscal, was placed in the hands of Judge
Adolph Wislizenus. Being impressed with the gravity of the charge, his
Honor caused the woman to be brought before him, when the affidavit
previously verified was read over to her. A detailed oral examination
was also made, in which she was questioned under oath. In the course of
this examination she confirmed her affidavit and added other details in
response to questions directed to her. Thereupon, finding that the
proof was sufficient to justify the belief that the three appellants
were probably guilty of the crime charged, his Honor issued an order of
arrest, with the result that the three appellants were taken into
custody and arraigned for trial. There is some confusion in the record
as to just when the arraignment took place. On page 17 of the expediente
there is an indication that the arraignment took place upon the 30th
day of July, 1924. There is also an indication on the same page that it
did not take place until after the first day of August, 1924, while on
page 18 of the expediente it appears that the arraignment
took place upon the 31st day of July, 1924, and that the cause was set
down for trial on the 4th day of August, 1924, at 7.30 a. m., whereas
on page 91 of the expediente it appears that the cause was
called for trial on the 31st day of July, 1924, when all of the parties
appear to have been present. On the same day the attorney for the
defendants presented a petition that the cause be remitted to the court
of the justice of the peace in order that a preliminary examination
might be had. The fact that the defendants were arraigned upon the 31st
day of July, 1924, is confirmed by an order of the trial court which
appears on page 18 of the expediente. The record shows that at the time of the arraignment the defendants plead not guilty.
From the foregoing facts it is difficult to determine whether the
motion praying that the record be returned to the court of the justice
of the peace for a preliminary examination was made before or after the
arraignment. Whether said motion was made before or after the
arraignment, is of some importance for the reason that if it was not
made before the arraignment or before the plea of the defendants was
entered, it would indicate that they have waived their right to a
preliminary examination, and for that reason the court a quo
would have been justified in denying the said motion. The lower court,
however, denied said motion upon the ground that a preliminary
examination had already been conducted by him. To the denial of that
motion the attorney for the defendants duly excepted, and the cause
proceeded to trial, with the result indicated in the first paragraph
above.
After the cause had been brought to this court on
appeal, the attorneys for the defendants presented a motion praying
that the cause be dismissed on the ground that no preliminary
investigation had been had, which motion was denied on the 7th day of
October, 1924, by the following order: “Upon consideration of the
motion of the attorneys for the defendants-appellants, praying, for the
reasons therein stated, that said case be dismissed; it appearing on
page 92 of the transcript that a preliminary investigation was had in the Court of First Instance, motion denied without prejudice to the right of the attorneys for the accused to discuss that question again in their brief.”
The
appellants in their first assignment of error again raised the question
concerning their right to a preliminary examination, insisting that
they had not been given a preliminary examination, and therefore had
been tried and convicted without due process of law. Upon that
assignment of error a majority of the justices decided that the
appellants had been given a preliminary examination and the first
assignment of error was without foundation Upon the question of whether
or not the appellants had been given a preliminary examination as
stated by the lower court, it may be said: First, that the complaint in
the present cause was presented in the Court of First Instance of the
Province of Cebu on the 24th day of July, 1924; second, that the
complaint was accompanied by an affidavit signed by Lucrecia Mitallas,
which reads as follows:
“Lucrecia Mitallas,
married, 20 years of age, resident of the barrio of Banilad, Cebu,
being first duly sworn, deposes and says:“That at or
about 5 o’clock in the evening of March 13, 1924, having gone out to
buy rice in the City of Cebu, on arriving at a place near the ‘Golf
Club’ she was arrested by the policeman Gerardo Solon, who was armed
with a revolver, and was in company with Francisco alias
Quico and one Mentong, under the pretext that her husband had no
cedula; and once arrested, she was taken by one of said men into a
truck of the municipality which was used for the transportation of
gravel, and upon arriving at the place known as ‘Fuente Osmeña’ (Osmeña
Fountain), the aforesaid persons carried her to a house that was far
away from the road, and there, through force, threat and intimidation,
said accused lied with her one after another against her will, and
afterwards took away her two gold rings, which she wore on her fingers,
valued at P14; that the accused did not let her alone until 1 o’clock
in the morning of the following day; that notwithstanding her cries,
the chauffeur of that truck did not do anything; that she does not know
the name of said chauffeur.“Cebu, July 23, 1924.
“Subscribed and sworn to before me this 24th day of July, 1924.
third,
that upon a consideration of the information which had been signed by
the prosecuting attorney of said province, the Honorable Adolph
Wislizenus, judge, dictated the following order:
“This
day, July 24, 1924, an information was filed in court by the
prosecuting attorney, to which there was attached an affidavit signed
by the offended party, Lucrecia Mitallas, and the court, after reading
the information, personally cross-examined her in detail about the
contents of her affidavit, and she answered the questions under oath,
ratifying fully her sworn declaration given before the prosecuting
attorney, and adding other details elucidated by the questions. The
court finds that the evidence, is sufficient, and therefore it is
ordered that an order of arrest be issued against Gerardo Solon, a
municipal policeman of Cebu, against Francisco (alias) Quico,
herein accused with an unknown surname, against one Mentong, accused
herein with an unknown surname, and one Indong, accused herein with an
unknown surname, in order that they may be brought to this court to
answer the charge against them.“It is hereby ordered that
a copy of the information be delivered to the chief of police of the
municipality of Cebu in order that he may ascertain the surname of the
accused by the name of Francisco (alias) Quico, the surname of
the one named Mentong and also the surname of the other named Indong,
it having been shown by the evidence introduced herein that the said
Indong was the chauffeur of an automobile truck that, passed by the
place at the hour and on the date in question, and the truck driven by
him was one used for placing gravel on the road, that is, on the road
near the Golf Club of the municipality.“It is hereby
ordered that a copy of the information and of this order be delivered
to Honorable Arsenio Climaco, governor of the province, for such
proceedings as may be proper as regards Gerardo Solon, municipal
policeman of Cebu.“Cebu, Cebu, July 24, 1924.
(Sgd.)
Upon said order by the court a quo
of July 24, 1924, the defendants were duly arrested and brought before
the court, where the proceedings briefly related above took place.
The question to be decided is whether or not the Honorable Wislizenus,
Judge of First Instance of Cebu, has held a preliminary investigation
in this case, pursuant to his order of July 24, 1924, hereinbefore set
out. First of all, it is well to remember that section 13 of General
Orders No. 58 provides:
“Sec. 13. When a
complaint or information alleging the commission of a crime is laid
before a magistrate, he must examine, on oath, the informant or
prosecutor and the witnesses produced, and take their depositions in
writing, causing them to be subscribed by the parties making them. If
the magistrate be satisfied from the investigation that the crime
complained of has been committed, and that there is reasonable ground
to believe that the party charged has committed it, he must issue an
order for his arrest. If the offence be bailable, and the defendant
offer a sufficient security, he shall be admitted to bail; otherwise he
shall be committed to prison.”
In August,
1901, Act No. 194 was enacted giving jurisdiction to justices of the
peace and municipal presidents to make preliminary investigations in
cases of criminal offenses. Section 2 of this Act prescribes the manner
in which the preliminary investigation is to be held, providing among
other things that the witnesses, including the complainants, shall be
examined under oath and their testimony taken in writing which must be
signed by the witness giving the testimony.
Act No. 1450
repealed that part of Act No. 194 that requires the testimony of the
witnesses to be taken in writing, with the exception of the case
wherein the accused in a preliminary investigation of a crime should
choose to testify in his behalf, in which case, his testimony shall be
taken in writing and signed by him or certified by the justice of the
peace, in the event that the accused should refuse to sign it.
Section 37 of Act No. 1627 provides that the jurisdiction of the
justices of the peace to hold preliminary investigations in all cases
involving crimes committed within their municipalities and which are
within the jurisdiction of the Court of First Instance, shall not
prevent the Judge of First Instance to exercise said jurisdiction.
Upon the question of preliminary investigations the Supreme Court has established the following doctrines:
“The
purpose of the preliminary investigation as required by section 13 of
General Orders, No. 58, is to determine whether a warrant of arrest
should issue on the information filed by the prosecution, and therefore
the absence of the accused during the course of such investigation
cannot be assigned as error, since in the very nature of things the
accused is seldom present while it is held.” (U. S. vs. Mendoza, 4 Phil., 124.)”
* * * Such, and no other, is the purpose of sections 13 and 14 of
General Orders, No. 58. They require that a preliminary investigation
be held by the court for the purpose only of inquiring as to whether
there is reasonable ground either to order the arrest of the party
charged or to direct that he be released from confinement in case he
has been held in detention for the commission of an alleged crime.” (U.
S. vs. McGovern, 6 Phil., 621.)“Whether certain
facts constitute probable cause is a judicial question and must be
determined by the judge or by the justice of the peace issuing a
warrant of arrest. The determination as to whether or not probable
cause exists is one step in the proceedings in which the person charged
has no right to participate or to be present.* * * * * * *
“The
object of a preliminary investigation, or a previous inquiry of some
kind, before an accused person is placed upon trial, is to secure the
innocent against hasty, malicious, and oppressive prosecutions, and to
protect him from an open and public accusation of crime, from the
trouble, expenses and anxiety of a public trial, and also to protect
the State from useless and expensive prosecutions.* * * * * * *
“When
a preliminary examination, under the provisions of General Orders, No.
58, is conducted by a judge or by a justice of the peace in this
jurisdiction, either within or without the City of Manila, the accused
has a right to be present and to be heard by himself and by counsel and
to present witnesses in his behalf. But such rights are not conferred
upon him by Act No. 612 when the investigation is held by a justice of
the peace. Rights conferred upon accused persons to participate in the
preliminary investigations concerning themselves, depend upon the
provisions of law by which such rights are specifically secured rather
than upon the phrase ‘due process of law.'” (U. S. vs. Grant and Kennedy, 18 Phil., 122.)“Inasmuch
as the law does not require that the declarations of witnesses made in
a preliminary investigation must be in writing, when it is necessary
that the record shall show the details of such proceedings had before a
justice of the peace, it is sufficient that the latter declare under
oath the evidence given by the witnesses, and it is not necessary that
the notes taken with respect to the declarations be exhibited and made
part of the case.” (U. S. vs. Morandarte, 23 Phil., 358.)“The
general provisions contained in section 13 of General Orders No. 58 are
very definite. They provide that when a complaint is laid before a
magistrate, he must make a preliminary investigation, and if he is
satisfied that the crime complained of has been committed and that
there is reasonable ground to believe that the party charged has
committed it, he must take the action the law requires.* * * * * * *
“The
law having explicitly recognized and established that no person charged
with the commission of a crime shall be deprived of his liberty or
subjected to trial without prior preliminary investigation that shall
show that there are reasonable grounds to believe him guilty, there can
be no doubt that the accused who is deprived of his liberty, tried and
sentenced without the proper preliminary investigation having been made
in his regard, is convicted without due process of law.” (U. S. vs. Banzuela and Banzuela, 31 Phil., 564.)“The
right of an accused person not to be brought to trial except when
remanded therefor as the result of a preliminary examination before a
committing magistrate, or, within the City of Manila, not to be brought
to trial except in pursuance of like proceeding or the proceeding
substituted therefor by law, is a substantial one. Its denial, over the
objection of the accused, is prejudicial error, in that it subjects the
accused to the loss of life, liberty or property without due process of
law.” (U. S. vs. Marfori, 35 Phil., 666.)
There is no doubt that an accused in the provinces, outside of the City
of Manila with regard to which Act No. 612 provides otherwise, is
entitled to a preliminary investigation in accordance with Section 13
of General Orders No. 53 and Act No. 194, as amended by Acts Nos. 1450
and 1627. It is, however, necessary to distinguish between an
investigation held by a justice of the peace and one made by a Judge of
First Instance. In the former, the preliminary investigation embraces
two proceedings: First, an investigation for the purpose of determining
whether or not an order of arrest should be issued; and, second, one
which is held after the accused is arrested by virtue of a warrant of
arrest and placed at the disposal of the justice of the peace. In the
latter case, that is, when the investigation is held by the Judge of
First Instance of the province where the crime was committed, there is
but one proceeding and that is the one prescribed by section 13 of
General Orders No. 58, that is to say, the making of an investigation
necessary for determining whether or not a crime was committed and
whether or not there are reasonable grounds to believe that the accused
has committed it, in which event the Judge of First Instance will issue
a warrant of arrest for the detention of the accused and, if the crime
is of the kind that admits of bail and the accused offers one which is
sufficient, he will be set free under bail, otherwise, he should be
committed to prison in order that the proper action may be carried
through all its proceedings.
An examination of section 13 of
General Orders No. 58 and Act No. 194, shows the difference between the
proceedings provided for in said statutes. Section 13 of General Orders
No. 58 does not require but one single proceeding in the preliminary
investigation, whereas Act No. 194 prescribes two proceedings in said
preliminary investigation, as above stated.
Without
determining the reason for this difference, we are of the opinion, and
so hold, that the investigation held by the Honorable Wislizenus, as
may be inferred from his aforesaid order of July 24, 1924, is a
sufficient compliance with section 13 of General Orders No. 58 and,
therefore, the appeal is groundless in so far as the refusal of the
trial court to hold a new preliminary investigation is concerned.
With reference to the assignments relating to the sufficiency of the
evidence, we are of the opinion that the guilt of the appellants is
shown beyond possibility of doubt. The alleged hostile attitude of the
trial judge, to which reference is made in the sixth assignment of
error, even if such attitude were manifested, does not in our opinion
constitute reversible error.
There was present in the
offense, as to all of the accused, the aggravating circumstance that
advantage was taken of superior strength and that the offense was
deliberately augmented by unnecessary wrongs; and, as to Gerardo Solon,
that advantage was taken of his public position. Francisco Solon is
shown to be guilty of robbery in the taking of two rings of the value
of P14. The trial judge therefore committed no error in finding the
appellants all guilty of rape, but in view of the part that Gerardo
Solon played in the commission of the crime and the aggravating
circumstances attributable to him, we think that his Honor would have
done well to have fixed the penalty at the extreme maximum allowed by
law, that is to say, twenty years, reclusion temporal. Francisco Solon should also have been awarded the punishment appropriate to the offense of robbery.
For the reasons stated, the judgment as regards Roberto Solon is
affirmed; as to Gerardo Solon the period of imprisonment will be
increased to twenty years, reclusion temporal. The judgment
against Francisco Solon for rape will be affirmed; but he will be
sentenced, in addition to the penalty for rape, to undergo imprisonment
for the offense of robbery for three years, eight months and one day, presidio correccional,
with the accessories prescribed by law, and to indemnify the injured
party in the amount of P14, with subsidiary imprisonment in case of
insolvency. Each of the appellants will pay his proportional part of
the costs. So ordered.
Malcolm, Villamor, and Ostrand, JJ., concur.
DISSENTING
JOHNS, J., with whom concurs ROMUALDEZ, J.:
We all agree that on the merits, the defendants are guilty of the crime
charged, but in our opinion they did not have the preliminary
investigation which the law requires, and for such reason the case
should be reversed and remanded.
The record is conclusive
that the only investigation which was ever made of the crime was made
by the Judge of the Court of First Instance, and that such
investigation was made before the defendants were arrested, and that
they were arrested as a result of that investigation. That no formal
investigation was ever made by anyone after the defendants were
arrested. That was substantial error.
The apparent
confusion in the practice is caused by the indiscriminate and
interchangeable examinations which are made before the arrest with
those which should be made after the arrest.
Section 1 of Act No. 194 provides:
”
* * * It shall be the duty of every justice of the peace, when written
complaint under oath has been made to him that a crime has been
committed within his municipality and there is reason to believe that
any person has committed the same, which complaint the justice believes
to be well founded, or when he has knowledge of facts tending to show
the commission of a crime within his municipality by any person, to
issue an order for the arrest of the accused and have him brought
before the justice of the peace for such preliminary examination.“The order of arrest shall be directed and delivered to any officer
authorized by law to make arrests, signed by the justice of the peace,
shall contain the name of the accused, if known, and the offense with
which he is charged. * * *”
After the arrest is made on a formal warrant, section 2 provides:
“When the accused is brought before the justice of the peace, it shall
be his duty to inform the accused of the charge, give him an
opportunity to examine the complaint and the affidavits, if any, of all
other witnesses in support thereof * * *. If the accused shall deny his
guilt then it shall be the duty of the justice of the peace to make
preliminary investigation of the charge as speedily as may be
consistent with right and justice, but in any event he must begin such
investigation within three days of the time the accused was brought
before him unless the accused or complainant shall ask for delay in
order that witnesses may be obtained, or for other good and sufficient
reason, in which event a continuance for a reasonable time may be
allowed * * *. Upon conclusion of the evidence of the other witnesses,
the accused may testify under oath, if he so desires, in which case he
may be cross-examined as any other witness. His evidence shall be
reduced to writing and signed by him * * *. Upon the conclusion of the
preliminary investigation, if the justice of the peace is of the
opinion that there is reasonable cause to believe that an offense has
been committed and that the accused is guilty thereof, he shall so
declare and shall adjudge that the accused be remanded to jail for
safekeeping to await the action of the judge or Court of First
Instance, unless he give bail for his appearance if the case be
bailable, as provided in General Order Number Fifty-eight. On the other
hand, if the justice of the peace be of the opinion that no crime has
been committed, or that there is no reasonable ground to believe the
accused guilty thereof, the justice of the peace shall order the
discharge of the accused. Such discharge, however, shall not operate as
a final acquittal of the accused, but he may be again arrested and
prosecuted for the same offense.”
Section 37 of Act No. 1627 provides:
“Every justice of the peace, including the justice of the City of
Manila, shall have jurisdiction to conduct preliminary investigations
of all crimes and offenses alleged to have been committed within his
municipality and cognizable by Courts of First Instance, but this shall
not exclude the proper judge of the Court of First Instance or of a
municipal court from exercising such jurisdiction. * * *”
In legal effect, the majority opinion holds that if an investigation is
made by the Court of First Instance previous to the arrest, that the
defendant is not entitled, as a matter of right, to an investigation
after his arrest. That contention is not legally sound. It will be
noted that in section 37 above quoted, that in all of such matters a
municipal court has equal and concurrent rights with a Court of First
Instance.
It is very apparent that section 37 is copied in
substance from similar laws in all of the States of the United States
and of the United States itself. The same thing is true as to Act No.
194, which is almost a literal copy from such laws. While it is true
that under section 37, the authority conferred to make such
investigation is conferred upon municipal courts and the Courts of
First Instance, it is equally true that in the making of such
investigations, the Courts of First Instance and the municipal courts
are sitting and acting as magistrates with like powers and duties as
those of a justice of the peace. Such is the uniform law and practice,
both state and federal, in all of the States of the United States and
the Government itself.
In holding that a Court of First
Instance does not have to make an investigation after the arrest is
made, the court is driven to the absurd conclusion that a municipal
court outside of Manila would not have to make such an investigation.
That, in legal effect, would nullify all of the provisions of Act No.
194. The fact that under section 37 the same power that is conferred
upon a Court of First Instance to make an investigation is also
conferred upon any municipal court outside of Manila clearly shows
that, in conducting such an investigation, both the Courts of First
Instance and the municipal courts are sitting and acting as
magistrates, with concurrent and like powers and duties as those of a
justice of the peace. Otherwise Act No. 194 is a nullity, and the
municipal court of any province could hold a defendant to await the
action of the Court of First Instance without any preliminary
examination after his arrest. That was never the purpose and intent of
the law.
The law should be construed to mean that when a
Court of First Instance or a municipal court orders the arrest of a
defendant, before any regular term of court, that such courts are
acting and sitting as magistrates, and that all of their proceedings
should conform in substance to the provisions of Act No. 194, and that
after the arrest is made, the defendant has a legal right to a
preliminary investigation into the merits of the charge and to be heard
by both his counsel and witnesses before he is finally bound over to
await the action of the Court of First Instance.
I am authorized to say that Justice Street concurs in this dissent.