Notary public need not require affiants to show valid ID if he knows them personally

If the notary public knows the affiants personally, he need not require them to show their valid identification cards. This rule is supported by the definition of ‘jurat’ under Section 6, Rule II of the 2004 Rules on Notarial Practice. A ‘jurat’ refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. 

In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s wife; Herizalyn Brosas Pedrosa is his wife’s sister-in-law; and Elmer Alvarado is the live-in houseboy of the Brosas family. Atty. Revilla, Jr. knows the three affiants personally. Thus, he was justified in no longer requiring them to show valid identification cards. But Atty. Revilla, Jr. is not without fault for failing to indicate such fact in the ‘jurat’ of the complaint-affidavit. No statement was included therein that he knows the three affiants personally [Jandoquile v. Atty. Revilla, AC No. 9514, April 10, 2013].

Failure of the jurat of the verification and certification to indicate a valid ID held not fatal defect

Facts: JG filed a Petition for Certiorari and Prohibition before the Supreme Court. BSA filed a comment stating that the jurat of the Verification and Certification of Non-Forum Shopping failed to indicate a valid identification card as provided under A.M. No. 02-8-13-SC. 

Held: Indeed, A.M. No. 02-8-13-SC, dated February 19, 2008, calls for a current identification document issued by an official agency bearing the photograph and signature of the individual as competent evidence of identity. Nevertheless, we hasten to clarify that the defective jurat in the Verification/Certification of Non-Forum Shopping is not a fatal defect, as we held in In-N-Out Burger, Inc. v. Sehwani, Incorporated. The verification is only a formal, not a jurisdictional, requirement that the Court may waive. [Galicto vs Aquino, G.R. No. 193978, February 28, 2012]

Three-day notice rule, not a hard and fast rule

Although this issue has been obviated by our disposition of the two main issues, the Court would like to point out that the three-day notice requirement is not a hard and fast rule and substantial compliance is allowed.

Pertinently, Section 4, Rule 15 of the Rules of Court reads:

 Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to insure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. [Emphasis supplied]

The law is clear that it intends for the other party to receive a copy of the written motion at least three days before the date set for its hearing. The purpose of the three (3)-day notice requirement, which was established not for the benefit of the movant but rather for the adverse party, is to avoid surprises upon the latter and to grant it sufficient time to study the motion and to enable it to meet the arguments interposed therein. In Preysler, Jr. v. Manila Southcoast Development Corporation, the Court restated the ruling that the date of the hearing should be at least three days after receipt of the notice of hearing by the other parties.

It is not, however, a hard and fast rule. Where a party has been given the opportunity to be heard, the time to study the motion and oppose it, there is compliance with the rule. This was the ruling in the case of Jehan Shipping Corporation v. National Food Authority, where it was written:

Purpose Behind the

Notice Requirement

This Court has indeed held time and time again that, under Sections 4 and 5 of Rule 15 of the Rules of Court, mandatory is the notice requirement in a motion, which is rendered defective by failure to comply with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading. 

As an integral component of procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard.

The test is the presence of the opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based. Considering the circumstances of the present case, we believe that the requirements of procedural due process were substantially complied with, and that the compliance justified a departure from a literal application of the rule on notice of hearing. [Emphasis supplied]

In the case at bench, the RTC gave UPPC sufficient time to file its comment on the motion. On January 14, 2005, UPPC filed its Opposition to the motion, discussing the issues raised by Acropolis in its motion. Thus, UPPCs right to due process was not violated because it was afforded the chance to argue its position. [United Pulp and Paper Co., Inc. vs Acropolis Central Guaranty Corporation, G.R. No. 171750, January 25, 2012]

Pre-trial order is not exclusive about the issues to be resolved by the trial court

It is true that the issues to be tried between the parties in a case shall be limited to those defined in the pre-trial order, as Section 7, Rule 18 of the Rules of Court explicitly provides:

Section 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. (5a, R20) 

However, a pre-trial order is not intended to be a detailed catalogue of each and every issue that is to be taken during the trial, for it is unavoidable that there are issues that are impliedly included among those listed or that may be inferable from those listed by necessary implication which are as much integral parts of the pre-trial order as those expressly listed.

At any rate, it remains that the petitioner impleaded Cuevas and Saddul as defendants, and adduced against them evidence to prove their liabilities. With Cuevas and Saddul being parties to be affected by the judgment, it was only appropriate for the RTC to inquire into and determine their liability for the purpose of arriving at a complete determination of the suit. Thereby, the RTC acted in conformity with the avowed reason for which the courts are organized, which was to put an end to controversies, to decide the questions submitted by the litigants, and to settle the rights and obligations of the parties. [Philippine Export and Foreign Loan Guarantee Corporation vs Amalgamated Management and Development Corporation (AMDC), G.R. No. 177729, September 28, 2011]

Case: SC affirmed certificate of candidacy even though the candidate presented a cedula not competent evidence of identity

Another red flag for the COMELEC to dismiss Olandrias petition is the fact that Amora claims to personally know the notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner Larrazabal aptly disposes of the core issue:

With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it is proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary Public his Community Tax Certificate.

The majority opinion strictly construed the 2004 Rules on Notarial Practice (the “2004 Notarial Rules”) when it provided that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.’s [petitioner’s] COC valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought to be granted, to wit:

Section 2. Affirmation or Oath . The term Affirmation or Oath refers to an act in which an individual on a single occasion:

(a)appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules;

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn affidavit executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioners] COC, affirming in his affidavit that he personally knows [petitioner]

[Respondent], on the other hand, presented no evidence to counter Granadas declarations. Hence, Granada[s] affidavit, which narrates in detail his personal relation with [petitioner], should be deemed sufficient.

The purpose of election laws is to give effect to, rather than frustrate, the will of the voters. The people of Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the candidates for municipal mayor. To disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004 Notarial Rules will effectively deprive the people who voted for him their rights to vote.

The Supreme Courts declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken lightly:

Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.

Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the filing of a COC is mandatory and must comply with the requirements set forth by law.

In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of Amoras victory and proclamation as Mayor of Candijay, Bohol. [Amora v. COMELEC, GR No. 192280, January 25, 2011].

An extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused; exception

An extrajudicial confession is binding only on the confessant and is not admissible against his or her co-accused; exception

Facts: Atty. Franklin V. Tamargo and his 8-year-old daughter were shot and killed in 2003. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit wherein he stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo.

Columna was arrested. On March 8, 2004, he executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated Romulo Awingan as the gunman and one Richard Mecate. He also tagged as masterminds Licerio Antiporda, Jr. and his son, Lloyd Antiporda, ex-mayor and mayor, respectively, of Buguey, Cagayan.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by Columna in the Office of the City Prosecutor of Manila. Columna affirmed his affidavit before the investigating prosecutor. During the preliminary investigation, Licerio presented Columna’s handwritten letter wherein the latter disowned the contents of his earlier affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no participation in the killings.

The investigating prosecutor set a clarificatory hearing. During the hearing, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. Thus, the investigating prosecutor recommended the dismissal of the charges. In another handwritten letter addressed to City Prosecutor, Columna said that he was only forced to withdraw all his statements against respondents during the clarificatory hearing because of the threats to his life inside the jail.

The RTC judge Daguna denied the motion to withdraw the informations and held that based on the affidavit which Columna affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. CA reversed the decision. Tamargo appealed.

Petitioner argues that, based on the independent assessment of the Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columna’s recantation.

Awingan and the Antiporda's, on the other hand, contend that Columna’s extrajudicial confession was inadmissible against them because of the rule on res inter alios acta.

Held: Judge Daguna failed to consider that Columna’s extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta.

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused and is considered as hearsay against them. The reason for this rule is that:

on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court:

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them.

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. [Harold V. Tamargo vs Romulo Awingan, et al., G.R. No. 177727, January 19, 2010]

Extrajudicial confession before barangay tanods and barangay chairman is inadmissible in evidence

Barangay tanods including the barangay chairman may be deemed law enforcement officers; extra-judicial confession before them is inadmissible.

Facts: Appellant Edna Malngan was convicted with arson. On appeal, she questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant.

Held: Article III, Section 12 of the Constitution in part provides:

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x x x x

(3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence.

To be admissible in evidence against an accused, the extrajudicial confessions made must satisfy the following requirements:

1. it must be voluntary;
2. it must be made with the assistance of competent and independent counsel;
3. it must be express; and
4. it must be in writing.

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr.  She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12(1), of the Constitution should have already been observed or applied to her. Accused-appellant’s confession to Barangay Chairman Remigio Bernardo was made in response to the “interrogation” made by the latter – admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her constitutional rights.

Be that as it may, the inadmissibility of accused-appellant’s confession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automatically lead to her acquittal. It should well be recalled that the constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors of Roberto Separa, Sr., to having started the fire in the Separas’ house.  The testimony of Mercedita Mendoza recounting said admission is, unfortunately for accused-appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on the other; it does not concern itself with the relation between a private individual and another private individual – as both accused-appellant and prosecution witness Mercedita Mendoza undoubtedly are. Here, there is no evidence on record to show that said witness was acting under police authority, so appropriately, accused-appellant’s uncounselled extrajudicial confession to said witness was properly admitted by the RTC. [People of the Philippines vs Edna Malngan, G. R. No. 170470, September 26, 2006]

Extrajudicial confession before a barangay captain who is also a lawyer is inadmissible in evidence.

Extrajudicial confession before a barangay captain who is also a lawyer is an uncounselled confession and therefore, inadmissible in evidence. 

Facts: Appellant Elizar Tomaquin was convicted with murder. There were no eyewitnesses to the incident, and the prosecution’s evidence, aside from appellant’s extrajudicial confession, was mainly circumstantial. Said extrajudicial confession was given in the presence of Atty. Parawan, a barangay captain who is also a lawyer. Tomaquin questions the admissibility of the extrajudicial confession because it was an uncounselled confession. Tomaquin contends that the barangay captain, although a lawyer, may not be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution.

Held: Section 12, Article III of the 1987 Constitution provides:

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 

The words “competent and independent counsel” in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.

A barangay captain is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times.

In fact, a barangay captain is deemed a person in authority under Article 152 of the Revised Penal Code, to wit:

Art. 152. Persons in authority and agents of persons in authority. – Who shall be deemed as such. – In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. 

On these bases, it is not legally possible to consider the barangay captain as an independent counsel of appellant.

In this case the role of the barangay captain, was a peacekeeping officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, the barangay captain could not be considered as an independent counsel of appellant, when the latter executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his client’s defense without any intervening conflict of interest.

Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An “effective and vigilant counsel” necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession.  As held in People vs. Velarde:

. . .  The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.

[People of the Philippines vs Elizar Tomaquin, G.R. No. 133188, July 23, 2004]

Child witnesses may testify in a narrative form and leading questions may be allowed by the trial court

Facts: Cañete was convicted of the crime of rape. Cañete appealed, alleging that the presiding judge was biased and partial to the prosecution. He averred that when the prosecution tried to elicit from the offended party how his penis could have been inserted into her vagina with his pants still on and the his counsel objected to the question, the presiding judge himself took the cudgels for the prosecution and propounded questions on the private complainant. Worse, the presiding judge posed leading questions to the private complainant. May child witnesses testify in narrative form?

Held: Yes. Under Sections 19 to 21 of the Rule on Examination of a Child Witness which took effect on December 15, 2000, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child:

Sec. 19.  Mode of questioning. – The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. 

The court may allow the child witness to testify in a narrative form.

[People of the Philippines vs Kakingcio Cañete, G.R. No. 142930, March 28, 2003]

A descendant is not incompetent or disqualified to testify against an ascendant

A descendant is not incompetent or disqualified to testify against an ascendant; filial privilege can be invoked or waived like other privileges

Facts: Appellant Artemio was charged with the the crime of rape committed against his 16-year child. One of the witnesses of the prosecution was Elven, the 8-year-old son of Artemio with his second common-law wife. The trial court convicted Artemio. On appeal, he attacks the competency and credibility of Elven as a witness. He argues that Elven, as his son, should have been disqualified as a witness against him under Section 20(c), Rule 130 of the Rules of Court.

Held: The competency of Elven to testify is not affected by Section 25, Rule 130 of the Rules of Court, otherwise known as the rule on “filial privilege.” This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio.  Elven declared that he was testifying as a witness against his father of his own accord and only “to tell the truth.” [People of the Philippines vs Artemio Invencion y Soriano, G.R. No. 142930, March 28, 2003]

Extrajudicial confession before a mayor is inadmissible in evidence

A municipal mayor cannot be an independent counsel as required by the Constitution; extra-judicial confession before him is inadmissible.

Facts: Barangay tanods and officials of Barangay Tikay, Municipality of Malolos arrested appellant Crispin Velarde while he was selling balut on the night of May 11, 1997. He was subsequently brought to the Malolos Police Station, where he was initially incarcerated and allegedly mauled. On May 14, 1997, his case was referred by the Malolos police to the incumbent mayor of Malolos, Bulacan, Atty. Danilo Domingo, who asked that appellant be brought to him. Upon the advice of the mayor, Velarde’s written extrajudicial confession was taken. During the investigation, appellant was assisted by the mayor as counsel. Armed police officers were also present during the investigation. The trial court found Velarde guilty beyond reasonable doubt of rape with homicide. On appeal, Velarde that the trial court erred in finding and declaring that there was nothing irregular or objectionable in Atty. Domingo's representation who is a lawyer of good standing and being the local chief executive of Malolos, Bulacan, to serve as counsel for the accused. Is the extrajudicial confession of accused admissible in evidence?

Held: No. Under the circumstances, Atty. Domingo cannot be considered as an independent counsel. He was the mayor of Malolos at the time. As such, he exercised “operational supervision and control” over the PNP unit in that municipality. His powers included the utilization of the elements thereof for the maintenance of peace and order, the prevention of crimes, the arrest of criminal offenders and the bringing of offenders to justice.

As mayor of Malolos, his duties were inconsistent with those of his responsibilities to appellant, who was already incarcerated and tagged as the main suspect in the rape-slay case. Serving as counsel of appellant placed him in direct conflict with his duty of “operational supervision and control” over the police. “What the Constitution requires in Article III Section 12 (1) is the presence of competent and independent counsel, one who will effectively undertake his client’s defense without any intervening conflict of interest.” Evidently Atty. Domingo, being the mayor of the place where the investigation was taken, could not act as counsel, independent or otherwise, of appellant.

Furthermore, the right to counsel is a fundamental right and contemplates not just the mere presence of a lawyer beside the accused. The competent and independent lawyer so engaged should be present “at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning.  If the advice given is so cursory as to be useless, voluntariness is impaired.”

During the investigation, Atty. Domingo failed to act as the independent and competent counsel envisioned by the Constitution. He failed to give any meaningful advice to protect the rights of appellant.  The former did not even bother to inform the latter of the consequences of an extrajudicial confession. It is clear that appellant was not assisted by a competent and independent counsel during the custodial investigation and the taking of his extra-judicial confession. Hence, the Court is duty-bound to disregard it. [People of the Philippines vs Crispin Velarde y Bandojo, G.R. No. 139333 July 18, 2002]

Writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is charged with an offense

The writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is charged with an offense in the Philippines.

Facts: In 1996, Lucien was deported and was barred from again entering the Philippines. In 1997, he was able to re-enter the country using an alias. He was subsequently caught by immigration agents and charged with violation of §45(d) of the Philippine Immigration Act for having entered the country illegally. He then filed a petition for habeas corpus.

Held: The writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is charged with an offense in the Philippines. Lucien is charged with violation of §45(d) of the Philippine Immigration Act. He is now detained because of said charge and therefore his petition for release on a writ of habeas corpus is without merit. [Lucien Tran Van Nghia vs. Rodriguez, G.R. No. 139758, January 31, 2000]

Extrajudicial confession before a municipal attorney is inadmissible in evidence

Municipal attorney cannot be an independent counsel as required by the constitution; extra-judicial confession before him is inadmissible in evidence.

Facts: Culala was charged with the crime of Robbery with Homicide. During trial, the prosecution introduced in evidence the extra-judicial confession of the Culala admitting the commission of the crime, alleged to have been obtained in the presence and with the assistance of the municipal attorney, who testified that he apprised the accused of his constitutional rights. Culala placed reliance on the defense of denial and alibi. He pointed out that the extra-judicial confession executed by him suffered from constitutional infirmities and consequently, inadmissible as evidence because it was extracted under duress, force and intimidation and was only countersigned later by the Municipal Attorney. After trial, the court convicted and sentenced Culala of death penalty. Is the extrajudicial confession of accused admissible in evidence?

Held: On the admissibility of subject extra-judicial confession of accused-appellant, it is worthy to note that during the custodial investigation he was assisted by Atty. Celso E. Santamaria, Municipal Attorney of Valenzuela, Metro Manila.  In People vs. Bandula, it was held that a Municipal Attorney cannot be an independent counsel as required by the Constitution. As a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order.  It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. He is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations. Consequently, for being violative of the Constitution, the extrajudicial confession of accused-appellant is inadmissible. [People of the Philippines vs Elizalde Culala y Bognot, G.R. No. 83466, October 13, 1999]

Court has the sound discretion to determine whether a witness will be permitted to testify in a narrative form

It is within the sound discretion of the trial judge to determine whether a witness will be permitted to testify in a narrative form.

Facts: Appellant Calixtro was convicted of the crime of rape. On appeal, he contends that the trial court erred in allowing the complainant-witness to testify in narrative form.

Held: Usually in criminal cases, the material facts within the knowledge of a witness are elicited by questions put to him by the counsel calling him. By this means, the evidence is readily limited and confined within the issue for the reason that the relevancy of the answer can in most cases be ascertained from the character of the question (Underhill's Criminal Evidence, Sec. 387, p. 742). While this is the general rule, it still rests within the sound discretion of the trial judge to determine whether a witness will be required to testify by question and answer, or will be permitted to testify in a narrative form (98 C.J.S., Sec. 325, p. 26). There is no legal principle which prevents a witness from giving his testimony in a narrative form if he is requested to do so by counsel. A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could state concerning the matter at issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies. But if, in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case (98 C.J.S., Ibid.). While a witness may be permitted in the discretion of the court to narrate his knowledge of material facts bearing upon the case without specifically being interrogated in detail, it is also within the discretion of the court to prohibit a witness from volunteering unsought information in connection with the case (5 Jones on Evidence, Sec. 2312). [People of the Philippines vs Pedring Calixtro, G.R. No. 92355, January 24, 1991]

The remedy against a defect in the averment as to the time of the commission of the crime charged is a motion for a bill of particulars

A defect in the averment as to the time of the commission of the crime charged is not a ground for a motion to quash; the right remedy is a motion for a bill of particulars.

Facts: Rocaberte and two others were charged with the crime of theft. The Information states:

That on or about the period from 1977 to December 28, 1983 at the off offshore of West Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines, the above-named accused, conspiring, confederating and helping each other, with intent to gain and without the consent of the owner, did then and there, willfully, unlawfully and feloniously take, steal and carry away the following properties...

Rocaberte moved to quash the information, alleging that the statement of the time of commission of the felony charged, "from 1977 to December 1983, a period of 7 years," or "about 2,551 days," was fatally defective; there was "so great a gap as to defy approximation in the commission of one and the same offense"; "the variance is certainly unfair to the accused for it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. The trial court denied the motion. Hence, the appeal.

Held: The rules of criminal procedure declare that a complaint or information is sufficient if it states the approximate time of the commission of the offense. Where, however, the statement of the time of the commission of the offense is so general as to span a number of years, i.e., "between October, 1910 to August, 1912," it has been held to be fatally defective because it deprives the accused an opportunity to prepare his defense.

A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment.

The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars.

The information against Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed. [Felicisimo Rocaberte vs People of the Philippines, G.R. No. 165879, G.R. No. 72994, January 23, 1991]