[ G.R. No. 1272. January 11, 1904 ] 3 Phil. 143
[ G.R. No. 1272. January 11, 1904 ]
THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BALDOMERO NAVARRO ET AL., DEFENDANTS AND APPELLANTS. D E C I S I O N
MCDONOUGH, J.:
The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano (alias Bulag) are charged with the crime of illegal detention, committed, according to the information, as follows:
The said defendants, together with other persons unknown, armed with revolvers and daggers, went one night about the middle of November, 1902, to the house of one Felix Punsalan, situated in Matang-tubig, barrio of Malinta, town of Polo, Province of Bulacan, and by force and violence kidnaped the said Felix Punsalan, without, up to the date of this information, having given any information as to his whereabouts or having proven that they set him at liberty.
The defendants on being arraigned pleaded not guilty. In the course of the trial Teodoro Pangan, Gregorio Mendoza, and Flaviano Punsalan testified as witnesses for the prosecution. The witness Pangan said that one night about the middle of November, 1902, while he was asleep in the house of Felix Punsalan, situated in the barrio of Malinta, in front of Maysilo, he, being at that time a servant of the said Punsalan, was aroused by the barking of the dogs; that his master, Felix Punsalan, arose and opened the window, and, upon seeing’ some people there,asked them who they were; they answered him by asking who was with him in the house, to which he replied that his servant was there; they asked him if he had a gun, and he replied that he had no gun, and they asked him to come down and talk with them, and the said Felix Punsalan, having gone down accordingly, did not return, and the witness added that he had not seen him again since that time. This witness says that he did not see the men who called to his master from below but only heard them.
Gregorio Mendoza, the second witness, testifies that he was taken from his house one night in the month of November, 1902, by seven men, among whom were these defendants; that in addition to himself, the same party on that night kidnaped Felix Punsalan and that the latter, with the witness, were taken by their captors to Pudag-babuy where the defendant Marcelo" de Leon hung them to a tree,demanding of them that they hand over their guns; that on that same night they set the witness at liberty, but kept Felix Punsalan; that the witness did not see Punsalan again since, that time, and that before the kidnaping;he frequently saw him because he lived next door.
Flaviano Punsalan, brother of Felix Punsalan, testified that the latter was kidnaped on the night of November 17,1902, and that he had not been seen since that time; that subsequently, in January, 1903, on occasion of the witness having been called to the barracks of the Constabulary by the officers of that corps, he heard a statement made there by the defendant Baldomero Navarro in the presence of the superintendent of secret information, Captain Crame, Inspector Brown, and Interpreter Austin, in the course of which statement Baldomero Navarro stated that he was the leader of the band that kidnaped Felix Punsalan and Gregorio Mendoza, and that his companions were Marcelo de Leon, Fidel Feliciano, Remigio Delupio, and one Luis; that the said Felix Punsalan died within a, week from the time he was kidnaped, in consequence of the ill treatment received. The witness testified that Navarro made this statement freely and spontaneously, without threats or compulsion. The witness also testified that in the court of the justice of the peace in Malabon he heard one Florencia Francisco testify that when his brother, Felix Punsalan, died he was covered with bruises and was passing blood, and that his body was buried at a place called Ogong, in the village known as Cay-grande.
The defendant Marcelo de Leon, who testified as a witness in the case, stated that Felix Punsalan and Gregorio Mendoza were kidnaped by Baldomero Navarro and Mariano Jacinto, one night in November, 1902, and that the witness knew this because he also was one of the men kidnaped by these defendants.
The court below rendered judgment condemning, each one of the defendants, Baldomero Navarro, Marcelo de Leon, and Feliciano Felix (alias Bulag), to life imprisonment and payment of the costs of prosecution. Against this judgment the defendants appealed.
Article 481 of the Penal Code provides that a private person who shall lock up or detain another, or in any way deprive him of his liberty shall be punished with the penalty of prision mayor.
The second paragraph of article 483 provides that one who illegally detains another and fails to give information concerning his whereabouts, or does not prove that he set him at liberty, shall be punished with cadena temporal in its maximum degree to life imprisonment.
The punishment for the crime mentioned in article 483 of the Penal Code is the penalty of cadena temporal in its maximum degree to cadena perpetua, or in other words one convicted of simply depriving a person of his liberty maybe imprisoned for a term of from six to twelve years and one convicted of depriving a person of his liberty and who shall not state his whereabouts or prove that he had set said person at liberty may be punished by imprisonment for a term of seventeen years four months and one clay, to life, as in this case. In other words, for failure, on the part of the defendant to testify regarding the whereabouts of the person deprived of his liberty, or to prove that he was set at liberty, the punishment may be increased from imprisonment for a term of six years to life imprisonment.
This provision of the law has the effect of forcing a defendant to become a witness in his own behalf or to take a much severer punishment. The burden is put upon him of giving evidence if he desires to lessen the penalty, or, in other words, of criminating himself, for the very statement of the whereabouts of the victim or the proof that the defendant set him at liberty amounts to a confession that the defendant unlawfully detained the person.
So the evidence necessary to clear the defendant, under article 483 of the Penal Code, would have the effect of convicting him under article 481.
The counsel for the defendants claims that such practice is illegal, since the passage by Congress of the act of July 1, 1902, relating to the Philippines, section 5 of which provides that “* * * no person shall be compelled in any criminal case to be a witness against himself.” Section 57 of General Orders, No. 58, provides that a defendant in a criminal case shall be presumed to be innocent until the contrary is proved; and section 59 provides that the burden of proof of guilt shall be upon the prosecution.
In fact he contends that as these provisions are in conflict with those of article 483 they have the effect of repealing that section.
Under the system of criminal procedure existing here under the Spanish Government it was doubtless lawful to require a suspected or accused person to give evidence touching the crime of which he was charged or suspected.
And so in, order to arrive at a true interpretation of article 483 it is necessary to examine that system of procedure.
In Escriche’s Dictionary of Legislation and Jurisprudence, volume 3, page 577, we find the following description of the distinctive features of the inquisitorial system of criminal procedure, which constitutes the machinery by which the legislator proposed to enforce the penalty prescribed in the article under consideration. He says:
“A criminal prosecution is divided into two principal parts or sections which are, first, the summary, and second, the plenary stages. The principal purpose of the summary trial is to inquire whether a criminal act has been committed and to determine by whom the act has been committed—that is to say, the object is to get together all the data possible for the purpose of proving that an act falling within the sanction of the penal law has been committed by such and such persons. In the plenary stage the purpose is a contradictory discussion of the question of the guilt or innocence of the defendant, and the rendition of a judgment of conviction or acquittal. It may well be that although it appear in the summary stage of the proceeding that the act has been performed by the accused,still in the plenary stage it may be shown that the act was not really criminal or that there was a lawful excuse for its commission.
“The record of the summary proceeding should contain evidence of the commission of a punishable act, all possible data tending to point out the delinquent, a record of all proceedings connected with his arrest and imprisonment, the answers of the accused to the interrogatories put to him as to any other witness to obtain from him a statement of all he knows concerning the crime and those guilty of it.”
The record of the proceedings described above was then sent to the prosecuting attorney, or to the private accuser and in view of the facts which appeared from the record the prosecution made out the formal charge, the facts elicited by the proceeding enabling the prosecuting attorney to determine within what article of the Penal Code the criminal act fell. After the filing of such a charge further proceedings were had in which more evidence might be taken by either party and in which the accused had his opportunity to make a defense.
The summary proceeding was secret, but the plenary stage was conducted publicly.
Article 544 of the royal decree of May 6, 1880, which provided the procedural law applicable in criminal cases in the Islands, reads as follows: “The defendant can not decline to answer the questions addressed him by the judge, or by the prosecuting attorney, with the consent of the judge, or by the private prosecutor, even though he may believe the judge to be without jurisdiction, in which case he may record a protest against the authority of the court.”
The author above cited, Escriche, commenting upon this obligation on the part of the defendant to testify, says that in case he stands mute the court can not put him to the torture as formerly, but can only inform the prisoner that his silence is unfavorable to him, that it is an indication of his guilt, that in consequence thereof he will be regarded as guilty for all the purposes of the summary, and that his silence will be taken into account with all the other evidence against him when the time comes for the rendition of judgment upon him.
Now let us apply the rules of law above indicated to the case in question, supposing that the crime had been committed prior to the passage of the Philippine bill or General Orders, No. 58. The judicial authorities having reason to believe that some one has been illegally detained or kidnaped proceed to make a secret investigation of the case, arrest the suspected culprit, and demand of him that he give any information he may have concerning the act under investigation and to state whatever may have been his own participation therein. The evidence shows that some one has been taken away from home and has not been heard of again, and the facts point to the prisoner as the presumptive criminal. He is told to state what he knows of the matter. If he does so, and proves that the person detained was liberated by him, or that such person is living in such and such a place, then the prosecuting attorney will know that he must draw a charge under the first or following sections of article 481, according to whether the facts elicited by the preliminary or summary investigation show only a detention in general, or for the specific periods of time indicated in the latter part of the section. But if the prisoner fails to prove the whereabouts of the person whom he is accused of making away with, or that he liberated him, then the prosecuting attorney has a case falling within the last paragraph of article 483.
It follows, therefore, from an examination of the old law that no prosecution under this article would have ever been possible without a concomitant provision of the procedural law which made it the duty of the accused to testify and permitted the prosecution to draw an unfavorable deduction from his refusal to do so. The crime defined by article 483 was composed of three elements:
“(a) The illegal detention of a person by the accused. “(b) Lack of evidence up to the time of the summary investigation that this person had recovered his liberty. “(c) A failure on the part of the accused in the courseof the summary proceeding to prove that he had liberated the person detained, or to give information at that time of his whereabouts, or a refusal to give any evidence at all which left him in the same position as would an unsuccessful attempt to prove the facts above mentioned, and which were necessary to overcome the prima facie case made out by the proof of the first two elements.”
Now every one of these ingredients of the offense must exist before an information can be filed for a prosecution under this article. The real trial was the plenary and was very similar to our regular trial after arraignment. But the summary, with its secret and inquisitorial methods, was vastly different from our preliminary investigation. If the right had been taken away to question the accused and compel him to testify, then element (c) above indicated, would have always been lacking. And that right has been taken from the prosecution by both General Orders, No. 58, and by the guaranty embodied in the Philippine bill. That being the case the crime defined in article 483 can not now be committed, because the possibility of adding to the element (a) arising from the act of the accused the other two elements equally essential to the offense has been forever swept away by the extension to these Islands of the constitutional barrier against an inquisitorial investigation of crime.
Under the present system the information must charge the accused with acts committed by him prior to the filing of the information and which of themselves constitute an offense against the law. The Government can not charge a man with one of the necessary elements of an offense and trust to his making out the rest by availing himself of his right to leave the entire burden of proceeding on the prosecution from beginning to end.
In this case the prosecuting attorney charges the accused with kidnaping some person and with not having given any information of the whereabouts of that person, of having proved that he—the accused—has set him at liberty. To make out a case the Government must show that the prisoner has been guilty of every act or omission necessary to constitute the crime of which he is charged, and it will not be disputed that the exercise of an absolute right cannot form part of a crime. In this case the Government has proved that the defendant was guilty of a breach of his duty to respect the rights of others by showing that he,with others, carried a certain individual away from his house against his will, the accused not being vested with authority to restrain his fellow-citizens of liberty. It is impossible for the Government to prove the other elements of the crime, because the acts necessary to constitute them must be anterior in point of time to the trial, and must constitute some breach of duty under an existing law. It has been demonstrated that the omission which, under the former law constituted the two remaining elements, is no longer penalized but is nothing more than the exercise of one of the most essential rights pertaining to an accused person.
The provision that no one is bound to criminate himself is older than the Government of the United States. At an early day it became a part of the common law of England.
It was established on the grounds of public policy and humanity—of policy, because if the party were required to testify, it would place the witness under the strongest temptation to commit the crime of perjury, and of humanity,because it would prevent the extorting of confessions by duress.
It had its origin in a protest against the inquisitorial methods of interrogating the accused person, which had long obtained in the continental system. (Jones’s Law of Evidence, sec. 887; Black’s Constitutional Law, 575.)
In other words, the very object of adopting this provision of law was to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with, which they were charged.
In Emery’s case (107 Mass., 172) it was said that the principle applies equally to any compulsory disclosure of the guilt of the offender himself, whether sought directly as the object of the inquiry, or indirectly and incidentally for the purpose of establishing facts involved in an issue between the parties.
If the disclosure thus made would be capable of being used against him as a confession of crime, or an admission of facts tending to prove the commission of an offense, such disclosure would be an accusation against himself.
In the present case, if the defendant, as said before, disclosed the whereabouts of the person taken, or shows that he was given his liberty, this disclosure may be used to obtain a conviction under article 481 of the Penal Code.
The decision of the case of Boyd vs. The United States (116 U. S., 616) is authority for the contention in the present case. There the question raised was one of a violation of the revenue laws, it being claimed that false entry of merchandise had been made, the punishment for which was fixed by law at a fine not exceeding $5,000 nor less than $50, or by imprisonment.
It became important on the part of the prosecution to show the quality of the goods imported. Section 5 of the Revenue Law, passed in June, 1874, authorized the district attorney to obtain an order of court requiring the defendants to produce their invoices, books, papers, etc., to be examined by the district attorney in order to obtain such evidence as he desired. Such an order was served on the defendant. The invoices were produced under protest, the objection being that their introduction in evidence could not be compelled and that the statute was unconstitutional as it compelled the defendant to testify against himself.
The law provided that for a failure or refusal to produce the invoices the allegations stated by the district attorney as to what he expected to prove by them should be taken as confessed, unless the failure or refusal of the defendant to produce the same shall be explained to the satisfaction of the court.
The court stated that a compulsory production of a man’s private papers to establish a criminal charge against himself, or to forfeit his property is unconstitutional.
The law, it is true, only required the defendant to produce the invoices, but it declared that if he did not do so then the allegations which it is affirmed the district attorney will prove shall be taken as confessed. “This,” said the court, “is tantamount to compelling their production for the prosecution will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of.”
Precisely the same principle of law applies to the case at bar. If the defendant does not do certain things, if he does not make certain statements or proofs, he is severely punished.
It may be said that the defendant is only required to speak on one point in the case, that the prosecution must prove the illegal detention, and that the burden of showing the whereabouts only is put upon the defendant.
Chief Justice Marshall, in the trial of Aaron Burr, expressed his views on this question as follows:
“Many links frequently compose the chain of testimony which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness by declaring a single fact may complete the testimony against himself as entirely as he would by stating every circumstance which would be required for his conviction. The fact of itself would be unavailing, but all the other facts without it would be insufficient. While that remains concealed in his own bosom he is safe, but draw it from thence and he is exposed to a prosecution."[1]
If it be urged that the defendant is not compelled to testify, that he may remain mute, the answer is that, the illegal detention only being proved by the prosecution, if he does not make certain proof, if he remains mute, then not only the presumption but the fact of guilt follows as a consequence of his silence, and such a conclusion is not permitted under American law.
In the case of the People vs. Courtney (94 N. Y., 490), decided by the court of appeals of the State of New York, the question to be determined was whether or not a law permitting a person charged with crime to testify in his own behalf was constitutional or not. The law in question provided also that his omission or refusal to testify “should create no presumption against him.” Judge Andrews, in rendering the decision of the court, stated: “A law which, while permitting a person accused of a crime to be a witness in his own behalf, should at the same time authorize a presumption of guilt from his omission to testify, would be a law adjudging guilt without evidence, and while it might not be obnoxious to the constitutional provision against compelling a party in a criminal case to give evidence against himself, would be a law reversing the presumption of innocence, and would violate the fundamental principles binding alike upon the legislature and the courts.”
It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing guilt beyond a reasonable doubt; and the accused can not be called upon.either by express words or acts to assist in the production of such evidence; nor should his silence be taken as proof against him. He has a right to rely on the presumption of innocence until the prosecution proves him guilty of every element of the crime with which he is charged.
In the language of Mr. Justice Bradley, in the Boyd case,“any compulsory discovery by extorting the party’s oath * * * to convict him of a crime * * * is contrary to the principles of free government; it is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American, It may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom.”
The judgment of the Court of First Instance is reversed and the defendants are found guilty of the crime defined and punished by article 482 of the Penal Code; applying the aggravating circumstance of nocturnity each and everyone of them is condemned to eighteen years of reclusion temporal, with the legal accessory penalties, and to the payment of the costs of both instances.
Arellano, C.J., Cooper and Johnson, JJ., concur.