G.R. No. 23051. October 20, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. JOSE M.A VELOSO, DEFENDANT AND APPELLANT.
MALCOLM, J.:
Manila finding the accused, Jose M.a Veloso, guilty of the crime of
resistance of the agents of the authority, in violation of article 252
of the Penal Code, and sentencing him to four months and one day
imprisonment, arresto mayor, with the accessory penalties, to
pay a fine of P200, with the corresponding subsidiary imprisonment in
case of insolvency, and to pay the costs. The errors assigned by
counsel for the accused as appellant, go to the proposition that the
resistance of the police was justifiable on account of the illegality
of the John Doe search warrant.
In May, 1923, the building
located at No. 124 Calle Arzobispo, City of Manila, was used by an
organization known as the Parliamentary Club. Jose M.a Veloso was at
that time a member of the House of Representatives of the Philippine
Legislature. He was also the manager of the club.
The police
of Manila had reliable information that the so-called Parliamentary
Club was nothing more than a gambling house. Indeed, on May 19, 1923,
J. F. Town-Send, the chief of the gambling squad, had been to the club
and verified this fact. As a result, on May 25, 1923, Detective Andres
Geronimo of the secret service of the City of Manila, applied for, and
obtained a search warrant from Judge Garduño of the municipal court.
Thus provided, the police attempted to raid the Parliamentary Club a
little after three in the afternoon of the date abovementioned. They
found the doors to the premises closed and barred. Accordingly, one
band of police, including policeman Rosacker, ascended a telephone
pole, so as to enter a window of the house. Other policemen, headed by
Townsend, broke in the outer door.
Once inside the
Parliamentary Club, nearly fifty persons were apprehended by the
police. One of them was the defendant Veloso. Veloso asked Townsend
what he wanted, and the latter showed him the search warrant. Veloso
read it and told Townsend that he was Representative Veloso and not
John Doe, and that the police had no right to search the house.
Townsend answered that Veloso was considered as John Doe. As Veloso’s
pocket was bulging, as if it contained gambling utensils, Townsend
required Veloso to show him the evidence of the game. About five
minutes was consumed in conversation between the policemen and the
accused, the policemen insisting on searching Veloso, and Veloso
insisting in his refusal to submit to the search.
At last
the patience of the officers was exhausted. So policeman Rosacker took
hold of Veloso only to meet with his resistance. Veloso bit Rosacker on
the right forearm, and gave him a blow in another part of the body,
which injured the policeman quite severely. Through the combined
efforts of Townsend and Rosacker, Veloso was finally laid down on the
floor, and long sheets of paper, or reglas de monte, cards, cardboards, and chips were taken from his pockets.
All of the persons arrested were searched and then conducted to the
patrol wagons. Veloso again refused to obey and shouted offensive
epithets against the police department. It was necessary for the
policemen to conduct him downstairs. At the door, Veloso resisted so
tenaciously that three policemen were needed to place him in the patrol
wagon.
In the municipal court of the City of Manila, the
persons arrested in the raid were accused of gambling. All of them were
eventually acquitted in the Court of First Instance for lack of proof,
with the sole exception of Veloso, who was found guilty of maintaining
a gambling house. This case reached the appellate court where the
accused was finally sentenced to pay a fine of P500. (No. 22168.[1])
The foregoing are the principal facts taken mainly from the findings of
the trial judge, the Honorable Vicente Nepomuceno. Counsel for the
appellant makes no effort to impugn these findings, except that he
stresses certain points as more favorable to the case of his client.
The defense, as previously indicated, is planted squarely on the
contention that since the name of Veloso did not appear in the search
warrant, but instead the pseudonym John Doe was used, Veloso had a
legal right to resist the police by force. The nature of this defense
makes it advisable to set forth further facts, relating particularly to
the search warrant, before passing to the law.
There are
found in the record the application for search warrant, the affidavit
for search warrant, and the search warrant. The application reads:
“UNITED STATES OF AMERICA
“PHILIPPINE ISLANDS
“IN THE MUNICIPAL COURT OF THE CITY OF MANILA
] ] ] ] ] ] ” Testimony taken before Hon. L. Garduño, Judge, Municipal Court, Manila.
“Andres Geronimo, being duly sworn, testifies as follows :
“Q. What is your name, residence and occupation?—A. Andres Geronimo, No. 47 Revellin, detective.
“Q. Are you the applicant of this search warrant?—A. Yes, sir.
“Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C, City of Manila?—A. Yes, sir.
“Q.
Do you know who occupies said premises?—A. I do not know. According to
the best of my information the house is occupied by John Doe.“Q.
What are your reasons for applying for this search warrant?—A. It has
been reported to me by a person whom I consider to be reliable that in
said premises there are instruments and devices used in gambling games,
such as cards, dice, chips, lottery tickets, lists of drawing and lists
used in prohibited games kept. It has been reported to me by a person
whom I consider to be reliable that there are or there will be gambling
conducted in said premises. The aforesaid premises are known as
gambling house. I have watched the foregoing premises and believed it
to be a gambling house and a place where instruments and devices used
in gambling games, such as cards, dice, chips, lottery tickets, lists
of drawing and lists used in prohibited games are kept.“I,
Andres Geronimo, being duly sworn, depose and say that I have read the
foregoing questions and answers and that I find the same to be correct
and true to the best of my knowledge and belief.(Sgd.) “ANDRES GERONIMO
“Subscribed and sworn to before me this 25th day of May, 1923.
(Sgd.) “L. GARDUÑO
The
affidavit and the search warrant are so nearly alike that it will
suffice to copy the search warrant alone. This document reads:
“UNITED STATES OF AMERICA
“PHILIPPINE ISLANDS
“IN THE MUNICIPAL COURT OF THE CITY OF MANILA
] ] ] ] ] ] “The People of the Philippine Islands, to any member of the “Police Force of the City of Manila.
“GREETING:
“Proof
by affidavit having this day been made before me by Andres Geronimo
that he has good reason to believe and does believe that John Doe has
illegally in his possession in the building occupied by him and which
is under his control, namely in the building numbered 124 Calle
Arzobispo, City of Manila, Philippine Islands, certain devices and
effects used in violation of the Gambling Law, to wit: money, cards,
chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte
and that the said John Doe keeps and conceals said devices and effects
with the illegal and criminal intention of using them in violation of
the Gambling Law.“Now therefore, you are hereby
commanded that at any time in the day or night within ten (10) days on
or after this date to make a search on the person of said John Doe and
in the house situated at No. 124 Calle Arzobispo, City of Manila,
Philippine Islands, in quest of the above described devices and effects
and if you find the same or any part thereof, you are commanded to
bring it forthwith before me as provided for by law.“Given under my hand, this 25th day of May, 1923.
(Sgd.) “L. GARDUÑO
Coming now to the legal aspects of the case, it is first worthy of
mention that by reason of the Fourth Amendment to the United States
Constitution, and the eleventh and eighteenth paragraphs of the
Philippine Bill of Rights, as found in the present Organic Act, the
security of the dwelling and the person is guaranteed. The organic act
provides “that the right to be secured against unreasonable searches
and seizures shall not be violated.” It further provides “that no
warrant shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the person or things to be seized.”
In the Philippine Code
of Criminal Procedure are found provisions of the same import, although
naturally entering more into detail. It is therein provided, among
other things, that “a search warrant shall not issue except for
probable cause and upon application supported by oath particularly
describing the place to be searched and the person or thing to be
seized.” (Section 97.) After the judge or justice shall have examined
on oath the complainant and any witnesses he may produce, and shall
have taken their depositions in writing (section 98), and after the
judge or justice is satisfied of the existence of facts upon which the
application is based, or that there is probable cause to believe that
they exist, he must issue the warrant, which must be substantially in
the following form: ” * * * You are, therefore, commanded, * * * to
make immediate search on the person of………………………… or
in the house situated……………………………… (describing
it or any other place to be searched with reasonable particularity, as
the case may be) for the following property: * * *.” (Section 99.) It
is finally provided that “a person charged with a crime may be searched
for dangerous weapons or anything which may be used as proof of the
commission of the crime.” (Section 105.)
A search warrant
must conform strictly to the requirements of the constitutional and
statutory provisions under which it is issued. Otherwise, it is void.
The proceedings upon search warrants, it has rightly been held, must be
absolutely legal, “for there is not a description of process known to
the law, the execution of which is more distressing to the citizen.
Perhaps there is none which excites such intense feeling in consequence
of its humiliating and degrading effect.” The warrant will always be
construed strictly without, however, going the full length of requiring
technical accuracy. No presumptions of regularity are to be invoked in
aid of the process when an officer undertakes to justify under it, (24
R. C. L., pp. 711, et seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.], 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)
The search warrant has been likened to a warrant of arrest. Although
apprehending that there are material differences between the two, in
view of the paucity of authority pertaining to John Doe search
warrants, we propose to take into consideration the authorities relied
upon by the appellant, thus following the precedent of Uy Kheytin vs.
Villareal ([1920], 42 Phil., 886), where the regularity of the issuance
of the search warrant was also questioned. In the lower court, and
again in this court, the attorneys for the defense quoted from
Wharton’s Criminal Procedure. In that text at pages 51, 52, 54, 55, and
56 of volume 1 of the Tenth Edition, is found the following:
“Form and Sufficiency of Warrant. Technical accuracy is not required. * * *
* * * * * * * *
“Name and description of the accused
should be inserted in the body of the warrant; and where the name is
unknown there must be such a description of the person accused as will
enable the officer to identify him when found.* * * * * * *
“Warrant for apprehension of unnamed party, or containing a wrong name for the party to be apprehended is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused.
* * * * * * *
” ‘John Doe’ Warrants.
It follows, on principle, from what has already been said regarding the
essential requirements of warrants for the apprehension of persons
accused, and about blank warrants, that a warrant for the apprehension
of a person whose true name is unknown, by the name of ‘John Doe’ or
‘Richard Roe,’ ‘whose other or true name is unknown,’ is void, without
other and further descriptions of the person to be apprehended, and
such warrant will not justify the officer in acting under it. Such a
warrant must, in addition, contain the best descriptio personae
possible to be obtained of the person or persons to be apprehended, and
this description must be sufficient to indicate clearly the proper
person or persons upon whom the warrant is to be served; and should
state his personal appearance and peculiarities, give his occupation
and place of residence, and any other circumstances by means of which
he can be identified.“Person apprehended in act
of committing a crime, under a ‘John Doe’ warrant, on the other hand,
the apprehension will not be illegal, or the officer liable, because
under such circumstances it is not necessary that a warrant should have
been issued.”
The authority most often
cited to sustain the text, and quoted with approval by the United
States Supreme Court, is the case of Commonwealth vs. Crotty
([1865], 10 Allen [Mass.], 403), It there appeared that one Peaslee had
made a complaint to the police court of Lee, charging that “John Doe or
Richard Roe, whose other or true name m to your complainant unknown,”
had committed an assault and battery upon him; upon which complaint a
warrant was issued against “John Doe or Richard Roe, whose other or
true name is to your complainant unknown, named in the foregoing
complaint.” Neither the complaint nor the warrant contained any further
description or means of identification of the person to be arrested.
Crotty resisted the arrest upon the ground that the warrant was
invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court
of Massachusetts, said:
“We cannot
entertain a doubt that the warrant on which the officer attempted to
arrest one of the defendants at the time of the alleged riot was
insufficient, illegal and void. It did not contain the name of the
defendant, nor any description or designation by which he could be
known and identified as the person against whom it was issued. It was
in effect a general warrant, upon which any other individual might as
well have been arrested, as being included in the description, as the
defendant himself. Such a warrant was contrary to elementary
principles, and in direct violation of the constitutional right of the
citizen, as set forth in the Declaration of Rights, article 14, which
declares that every subject has a right to be secure from all
unreasonable searches and seizures of his person, and that all
warrants, therefore, are contrary to this right, if the order in the
warrant to a civil officer to arrest one or more suspected persons or
to seize their property be not accompanied with a special designation
of the persons or objects of search, arrest or seizure. This is in fact
only a declaration of an ancient common law right. It was always
necessary to express the name or give some description of a party to be
arrested on a warrant; and if one was granted with the name in blank,
and without other designation of the person to be arrested, it was
void. (1 Hale P, G. 577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1
Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and cases cited.)“This
rule or principle does not prevent the issue and service of a warrant
against a party whose name is unknown. In such case the best
description possible of the person to be arrested is to be given in the
warrant; but it must be sufficient to indicate clearly on whom it is to
be served, by stating his occupation, his personal appearance and
peculiarities, the place of his residence, or other circumstances by
which he can be identified. (1 Chit. Crim. Law, 39, 40.)“The
warrant being defective and void on its face, the officer had no right
to arrest the person on whom he attempted to serve it. He acted without
warrant and was a trespasser. The defendant whom he sought to arrest
had a right to resist by force, using no more than was necessary to
resist the unlawful acts of the officer * * *“The
defendants, therefore, in resisting the officer in making an arrest
under the warrant in question, if they were guilty of no improper or
excessive force or violence, did not do an unlawful act by lawful
means, or a lawful act by unlawful means, and so could not be convicted
of the misdemeanor of a riot, with which they are charged in the
indictment.”
Appellant’s argument, as based
on these authorities, runs something like this. The law, constitutional
and statutory, requires that the search warrant shall not issue unless
the application “particularly” describe the person to be seized. A
failure thus to name the person is fatal to the validity of the search
warrant. To justify search and arrest, the process must be legal.
Illegal official action may be forcibly resisted.
For the
prosecution, however, as the arguments are advanced by the
Attorney-General, and as the law was summarized by the trial judge,
there is much to be said. Careful and logical rejection brings forth
certain points of paramount force and exercising a decisive influence.
We will now make mention of them by correlating the facts and the law.
In the first place, the affidavit for the search warrant and the search
warrant itself described the building to be searched as “the building
No. 124 Calle Arzobispo, City of Manila, Philippine Islands.” This,
without doubt, was a sufficient designation of the premises to be
searched. It is the prevailing rule that a description of a place to be
searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place intended. (Steele vs.
U. S. [1925], U. S. Supreme Court Advance Opinions 1924-1925; 69 Law.
ed., 757). The police officers were accordingly authorized to break
down the door and enter the premises of the building occupied by the
so-called Parliamentary Club. When inside, they then had the right to
arrest the persons presumably engaged in a prohibited game, and to
confiscate the evidence of the commission of the crime. It has been
held that an officer making an arrest may take from the person arrested
any money or property found upon his person, which was used in the
commission of the crime or was the fruit of the crime, or which may
furnish the person arrested with the means of committing violence or of
escaping, or which may be used as evidence on the trial of the cause,
but not otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.)
Proceeding along a different line of approach, it is undeniable that
the application for the search warrant, the affidavit, and the search
warrant failed to name Jose M.a Veloso as the person to be seized. But
the affidavit and the search warrant did state that “John Doe has
illegally in his possession in the building occupied by him, and which
is under his control, namely, in the building numbered 124 Calle
Arzobispo, City of Manila, Philippine Islands, certain devices and
effects used in violation of the Gambling Law.” Now, in this
connection, it must not be forgotten that the Organic Act requires a
particular description of the place to be searched, and the person or
things to be seized, and that the warrant in this case sufficiently
described the place and the gambling apparatus, and, in addition,
contained a description of the person to be seized. Under the
authorities cited by the appellant, it is invariably recognized that
the warrant for the apprehension of an unnamed party is void, “except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused.”
The description must be sufficient to indicate clearly the proper
person upon whom the warrant is to be served. As the search warrant
stated that John Doe had gambling apparatus in his possession in the
building occupied by him at No. 124 Calle Arzobispo, City of Manila,
and as this John Doe was Jose M.a Veloso, the manager of the club, the
police could identify John Doe as Jose M.a Veloso without difficulty.
Again, it must be remembered that No. 124 Calle Arzobispo was supposed
to be used for club purposes. It was not the home of Veloso; not the
place of abode of the family, which the law carefully protects in all
of its sanctity. It was a club partially public in nature. It was,
moreover, a camouflaged club with a high sounding name calculated to
mislead the police, but intended for nefarious practices. In a club of
such a character, unlike in the home, there would commonly be a varying
occupancy, a number of John Does and Richard Roes whose names would be
unknown to the police.
It is also borne out by the
authorities that, in defense of himself, any member of his family or
his dwelling, a man has a right to employ all necessary violence. But
even in the home, and much less so in a club or public place, the
person sought to be arrested or to be searched should use no more force
than is necessary to repel the unlawful act of the officers. To
authorize resistance to the agents of the authority, the illegality of
the invasion must be clearly manifest. Here, there was possibly a
proper case for protest. There was no case for excessive violence to
enforce the defendant’s idea of a debatable legal question.
(Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42 Phil, 230; 3 Groizard, Codigo Penal, pp. 456, 457.)
The trial judge deduced from the search warrant that the accused Veloso
was sufficiently identified therein. Mention was made by his Honor of
the code provision relating to a complaint or information, permitting a
fictitious name to be inserted in the complaint or information, in lieu
of the true name. The Attorney-General adds to this the argument that
the police were authorized to arrest without a warrant since a crime
was being committed. We find it unnecessary to comment on this
contention.
John Doe search warrants should be the exception
and not the rule. The police should particularly describe the place to
be searched and the person or things to be seized, wherever and
whenever it is feasible. The police should not be hindered in the
performance of their duties, which are difficult enough of performance
under the best of conditions, by superficial adherence to technicality
or far fetched judicial interference.
We agree with the
trial judge and with the Attorney-General in their conclusions to the
effect that the search warrant was valid, and that the defendant has
been proved guilty beyond a reasonable doubt, of the crime of
resistance of the agents of the authority.
The information
alleges that at the time of the commission of the crime, the accused
was a member of the House of Representatives. The trial court was led
to consider this allegation in relation with the facts as an
aggravating circumstance, and to sentence the accused accordingly. We
doubt, however, that advantage was taken by the offender of his public
position when he resisted the officers of the law. The offender did not
necessarily make use of the prestige of his office as a means to commit
a crime. Undoubtedly, Jose M.a Veloso, as Juan de la Cruz, would have
resisted the police just as stoutly, as the Honorable Jose M.a Veloso
did. The penalty, accordingly, falls within the medium of that provided
by the Penal Code.
Finding present no reversible error,
agreeing in all respects with the findings of fact as made by the trial
judge, and concurring with the trial judge in his legal conclusions,
with one exception, it results that the judgment appealed from must be,
as it is hereby, affirmed, with the sole modification that the
defendant and appellant shall be sentenced to two months and one day
imprisonment, arresto mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment into effect issue.
Avanceña, C. J., Street, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
Villa-Real, J., did not take part.
[1] Promulgated October 17, 1924, not reported.