1. CRIMINAL LAW AND PROCEDURE; "JUDICIAL AUTHORITY" ; MEANING AS USED IN ARTICLE 125 OF THE REVISED PENAL CODE. — In view of the history of article 125 of the Revised Penal Code penalizing any ’public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours," the precept of the Constitution guaranteeing individual liberty, and the provisions of the Rules of Court regarding arrest and habeas corpus, the words "judicial authorities," as used in said article 125, mean the courts of justice or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law." (Section 1, Article VIII of the Constitution.)

2. ID.; ID.; ID.; CITY FISCAL NOT JUDICIAL AUTHORITY AND CANNOT ISSUE WARRANT OF ARREST OR OF COMMITMENT. — The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant.

3. ID.; ID.; ID.; INVESTIGATION BY CITY FISCAL NOT PRELIMINARY INVESTIGATION PROPER. — The investigation which the city fiscal of Manila makes is not the preliminary investigation proper provided for in section 11 of Rule 108 to which all persons charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendants charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation.

4. ID.; ID.; ID.; ID.; EXECUTIVE OFFICERS AUTHORIZED TO MAKE PRELIMINARY INVESTIGATION PROPER. — The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the accused.

5. ID.; ID.; ID.; ID.; COMPLAINTS IN MANILA TO BE FILED WITH CITY FISCAL. — Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because the latter do not make or conduct preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigations, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest of the accused.

6. ID.; ID.; ID.; ID.; ID.; DUTY OF OFFICER ARRESTING WITHOUT WARRANT. — When a person is arrested without warrant in cases permitted by law, the officer or person making the arrest should without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108. In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and the latter shall make the corresponding investigation and file, if proper, the necessary information within the time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the accused.

7. ID.; ID.; ID.; ID.; ID.; ID.; CIRCUMSTANCES CONSIDERED IN DETERMINING LIABILITY OF OFFICER DETAINING A PERSON BEYOND LEGAL PERIOD. — For the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration.

8. ID.; ARREST; PEACE OFFICER WITHOUT POWER TO ARREST WITHOUT WARRANT EXCEPT IN AUTHORIZED CASES. — A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and other political subdivisions. If the city fiscal has no authority, and he has not, to order the arrest of a person charged with having committed a public offense even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of the offense charged.

9. CRIMINAL LAW AND PROCEDURE; PROVISIONAL LAW FOR APPLICATION OF SPANISH PENAL CODE, STATUS OF. — The provisions of the Provisional Law for the application of the provisions of the Spanish Penal Code in the Philippines by Royal Decree of September 4, 1884, are in force in these Islands in so far as they have not been repealed or amended by implication by the enactment of the body of laws put in force in these Islands since the change from Spanish to American sovereignty.

10. ID.; ID.; ARREST WITHOUT WARRANT; LAWS IN FORCE ON. — According to the ruling in United States v. Fortaleza (12 Phil., 472), a person may be arrested without warrant in the cases specified in Rules 27 and 28 of said Provisional Law and section 37 of Act No. 183 (Charter of Manila). The provisions of said Rules 27 and 28 are substantially the same as those contained in section 6 Rule 109 of the Rules of Court which superseded them; and the provisions of section 37 of Act No. 183 above referred to have been incorporated in section 2463 of the Revised Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said section 2463 of the Revised Administrative Code are now the laws in force on the subject.

11. ID.; ID.; ID.; PRELIMINARY INVESTIGATION; CITY OF MANILA AND PROVINCES. — Persons arrested or accused in the City of Manila are not entitled to preliminary investigation. In provinces the justice of the peace or judge shall, according to section 2 of Act No. 194, "Make the preliminary investigation of the charge as speedily as may be consistent with the right and justice but in any event he must make the 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." This provision of section 2 of Act No. 194 is still in force, because no law has been enacted amending or repealing it. (Marcos v. Cruz [May 13, 1939], 1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court on Criminal Procedure do not undertake to dispose of all subjects of preliminary investigation, and repeal all laws on the subject not incorporated therein; specially those that, like the said provisions of section 2, Act No. 194, confer substantive rights upon defendants which can not be diminished, increased or modified by the Rules of Court (section 13, Article VIII, of the Constitution).

12. ID.; JUDICIAL AUTHORITY; MEANING AS USED IN ARTICLE 125 OF REVISED PENAL CODE. — In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the old Penal Code, from which article 125 of the Revised Penal Code was taken, and section 1(3), Article III of the Constitution, there can be no doubt that the judicial authority within the meaning of article 125 of the Revised Penal Code must be a judge who has authority to issue a written warrant of commitment or release containing the ground on which it is based (auto motivado).

13. ID.; ID.; DELIVERY TO JUDICIAL AUTHORITY OF PERSON ARRESTED WITHOUT WARRANT. — The surrender or delivery to the judicial authority of a person arrested without warrant by a peace officer, does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner, because the arresting officer can not transfer to the judge and the latter does not assume the physical custody of the person arrested.

14. ID.; ID.; ID.; FAILURE OF CITY FISCAL TO FILE INFORMATION WITHIN PRESCRIBED PERIOD; CONTINUED DETENTION OF ARRESTED PERSON. — If the city fiscal does not file the information within the period of six hours prescribed by law and the arresting officer continues holding the prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said article 125, because he is not the one who has arrested and illegally detained the person arrested, unless he has ordered or induced the arresting officer to hold and not release the prisoner after the expiration of said period.

15. ID.; ID.; ID.; ID.; ID.; CITY FISCAL WITHOUT POWER TO ORDER DETENTION OF ARRESTED PERSON UNDER SECTION 2460 OF REVISED ADMINISTRATIVE CODE. — Section 2460 of the Revised Administrative Code which specifies the powers and duties of the chief of police of Manila and authorizes the latter "to take good and sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance: Provided, however, That he shall not exercise this power in cases of violation of any penal law except when the fiscal of the city shall so recommend and fix the bail to be required of the person arrested," do not authorize, either expressly or by implication, the city fiscal to order the detention of the prisoner if bond is not given, not only because they refer to the powers of the chief of police of Manila and not of the city fiscal, but because the only incidental authority granted to the latter is to recommend the granting of the bail by the chief of police and to fix the amount of bail to be required of the person arrested for violation of any penal law in order that the chief of police may release the latter on bail.

16. ID.; ARREST WITHOUT WARRANT; LAWS IN FORCE. — Section 2463 of the Revised Administrative Code and section 6 of Rule 109 of the Rules of Court are the only provisions of law in force in these Islands which enumerate the cases in which a peace officer may arrest a person without warrant, and the so called common law relating to other cases of arrest without warrant has no application in this jurisdiction. "The right to make arrests without a warrant is usually regulated by express statute, and except as authorized by such statutes, an arrest without a warrant is illegal." (5 C. J., pp. 395, 396.) And statutory construction extending the right to make arrest without a warrant beyond the cases provided by law is derogatory of the right of the people to personal liberty (4 Am. Jur., p. 17).

Upon complaint of one Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal’s office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper courts of justice.

This case has not been decided before this time because there was not a sufficient number of Justices to form a quorum in Manila, and it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the complaint filed by Dumlao against the petitioners. But whatever might have been the action taken by said office, if there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the information and guidance in the future of the officers concerned.

The principal question to be determined in the present case in order to decide whether or not the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of Manila a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code?

Article 125 of the Revised Penal Code provides that "the penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours."cralaw virtua1aw library

Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law." (Section 1, Article VIII of the Constitution.) .

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force in these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to the judicial authority within twenty four hours after his arrest." There was no doubt that the judicial authority therein referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to commit such prisoner formally by written order containing a statement of the grounds upon which the same is based."cralaw virtua1aw library

Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the mere omission of said provision in the Revised Penal Code.

Besides, section 1(3), Article III, of our Constitution provides that "the right of the people to be secure in their persons . . . against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom a person arrested by a public officer must be surrendered can not be any other but a court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for more than six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of Court, which, referring to the duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action as they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him."cralaw virtua1aw library

And it is further corroborated by the provisions of sections 1 and 4, Rule 102 of the Rules of Court. According to the provisions of said section, "a writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is illegally deprived of his liberty" ; and "if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be allowed." Which a contrario sensu means that, otherwise, the writ shall be allowed and the person detained shall be released.

The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashin v. Boncan, 40 Off. Gaz. 13th Suppl., p. 13; Lino v. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city fiscal of Manila makes is not the preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which all persons charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendants charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation.

The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the accused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the investigation referred to in the preceding paragraph.

Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with the municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused.

When a person is arrested without warrant in cases permitted by law, the officer or person making the arrest should, as above stated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108.

In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and the latter shall make the investigation above mentioned and file, if proper, the corresponding information within the time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the accused. And the city fiscal or his assistants shall make the investigation forthwith, unless it is materially impossible for them to do so, because the testimony of the person or officer making the arrest without warrant is in such cases ready and available, and shall, immediately after the investigation, either release the person arrested or file the corresponding information. If the city fiscal has any doubt as to the probability of the defendant having committed the offense charged, or is not ready to file the information on the strength of the testimony or evidence presented, he should release and not detain the person arrested for a longer period than that prescribed in the Penal Code, without prejudice to making or continuing the investigation and filing afterwards the proper information against him with the court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any process issued by a court of competent jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or weeks without any process issued by a court or judge.

A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and other political subdivisions. If the City Fiscal has no authority, and he has not, to order the arrest of a person charged with having committed a public offense even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of the offense charged.

In view of all the foregoing, without making any pronouncement as to the responsibility of the officers who intervened in the detention of the petitioners, for the policeman Dumlao may have acted in good faith, in the absence of a clear cut ruling on the matter, in believing that he had complied with the mandate of article 125 by delivering the petitioners within six hours to the office of the city fiscal, and the latter might have ignored the fact that the petitioners were being actually detained when the said policeman filed a complaint against them with the city fiscal, we hold that the petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now detained by virtue of a process issued by a competent court of justice. So ordered.

Paras, Actg. C. J., Pablo and Bengzon, JJ., concur.



PERFECTO, J., concurring:chanrob1es virtual 1aw library

Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the morning of April 2, 1948, upon complaint of Bernardino Malinao, for the crime of alleged robbery.

The fact is alleged expressly in respondents’ answer, supported by the affidavit of Benjamin Dumlao (Exhibit 1), the patrolman who made the arrest. Therein it is also alleged that petitioners were "finally" placed under arrest at 4:30 p.m. and 5:00 p.m., respectively, on the same day, April 2, 1948.

The distinction between the two arrests, the apprehension made at 11:30 a.m. and the "final arrest at 4:30 and 5:00 p.m., is purely academic or imaginary. There was but one arrest, effected at 11:30 a.m., April 2, 1948, and continued without interruption until the petition had been filed with us on April 6, 1948, at the hearing on the next day. Until the moment we are writing this opinion we have not heard that petitioners have been released at any time.

Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint was filed with the fiscal’s office of Manila, and that by said filing their duty to deliver arrested persons, within six hours from their arrest, to a proper judicial authority has been duly complied with.

There is no dispute that no warrant of arrest has ever been issued for the apprehension of petitioners:.

Petitioners pray for their immediate release, alleging that, as the six-hour period provided in article 125 of the Revised Penal Code had expired, their continued detention is illegal.

Article 125 of the Revised Penal Code provides for the penalty of arresto mayor in its maximum period to reclusion temporal, or from 4 months and 11 days to 20 years imprisonment, for the crime of a public officer or employee who, after detaining a person, "shall fail to deliver such person to the proper judicial authorities within the period of six hours."cralaw virtua1aw library

Both parties implying from the above provision that after six hours of said failure, petitioners shall be entitled to be released, discussed the question whether there is such failure or not.

Upon the very facts alleged by respondents and supported by documentary evidence accompanying it, there should not be any dispute that there is such failure:chanrob1es virtual 1aw library

(a) Respondents have not delivered the persons of petitioners to any authority, and much less to any judicial authority.

(b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the persons of petitioners. Said persons are not a complaint. A complaint, whether oral or written, can never be elevated to the category of a person. No one is crazy enough to confuse or identify a person with a complaint.

(c) Even in the false hypothesis that respondents, by filing the complaint, intended to make a delivery of the persons of petitioners, if not actually, constructively, the fiscal’s office is not a judicial authority.

(d) Under our Constitution and laws, judicial authorities comprehend only courts of justice, such as the Supreme Court and all other inferior courts, and justices and judges. The authority possessed and exercised by judicial authorities is judicial, and the Constitution (section 1, Article VIII) vests the judicial power exclusively "in one Supreme Court and in such inferior courts as may be established by law."cralaw virtua1aw library

Respondents’ pretension in making the fiscal of Manila a judicial authority is absolutely groundless, upon the clear letter of the fundamental law. Counsel for respondents himself had to admit that said officer belongs to the administrative or executive department. Under the tripartite system of government established by the Constitution, it is extreme absurdity to make an administrative or executive officer, or any officer of the executive department or branch, a judicial authority. Such will make of separation of powers a madman’s illusion.

That a fiscal is not a judicial authority has been unmistakably declared in the decision in Lino v. Fugoso, L-1159, 43 Off. Gaz., 1214. The statement made therein that there was yet no purpose of deciding whether a fiscal is a judicial authority or not, is just a rhetorical figure that should not deceive any one. All those who can read, will find that the decision has made the declaration. It is there stated in plain language that the fiscal is "unlike" a judicial authority.

"Unlike" means, as an elementary school student knows, not like, dissimilar, diverse, different.

No warrant of arrest having been issued by any competent tribunal for the apprehension of petitioners, said apprehension appears to be illegal.

At any rate, even under the hypothesis that it was legal and continued to be so for six hours, this time having expired several days ago, the continued detention and confinement of petitioners is clearly illegal, and not only illegal but criminal, involving an offense committed by public officers and heavily punished by the Revised Penal Code.

Regarding the question as to legality of the arrest, counsel for respondents has advanced the shocking theory that police officers may arrest any person just for questioning or investigation, without any warrant of arrest.

The theory is absolutely unconstitutional and could have been entertained only under the "Kempei" system implanted by the brutal Japanese army of occupation. Such a theory represents an ideology incompatible with human dignity. Reason revolts against it.

Respondents are ordered, upon notice of the decision, to immediately release the two petitioners and to report to this Court the time when the release shall have been effected.

TUASON, J., dissenting:chanrob1es virtual 1aw library

I dissent on the grounds stated in my dissent in Lino v. Fugoso Et. Al., Off. Gaz., 1214.

RESOLUTION

August 27, 1948 - FERIA, J.:

This is a motion for reconsideration of our decision which holds that the phrase "judicial authority" used in article 125 of the Revised Penal Code, to whom a person arrested without warrant shall be delivered by the officer making the arrest within the period of six hours from the arrest, means a competent court or judge, and the City Fiscal is not such a judicial authority.

We have already held, in the United States v. Fortaleza, 12 Phil., 472, 477-479, that the provisions of the Provisional Law for the application of the provisions of the Spanish Penal Code in the Philippines by Royal Decree of September 4, 1884, are in force in these Islands in so far as they have not been repealed or amended by implication by the enactment of the body of laws put in force in these Islands since the change from Spanish to American sovereignty. According to the ruling of this court in said case, a person may be arrested without warrant in the cases specified in Rules 27 and 28 of said provisional law and section 37 of Act No. 183 (Charter of Manila). The provisions of said Rules 27 and 28 are substantially the same as those contained in section 6 Rule 109 of the Rules of Court which superseded them; and the provisions of section 37 of Act No. 183 above referred to have been incorporated in section 2463 of the Revised Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said section 2463 of the Revised Administrative Code are now the laws in force on the subject.

Article 30 of said Provisional Law for the application of the Penal Law in the Philippines also provides:jgc:chanrobles.com.ph

"The executive authorities or the agents detaining a person shall release the same or else turn him over to the judicial authorities within twenty four hours after the arrest if made in the head town of the district, or within as brief a period as the distance and transportation facilities permit."cralaw virtua1aw library

And the next article 31 of the same law reads as follows:jgc:chanrobles.com.ph

"Within twenty four hours after the person arrested has been surrendered to the competent judge of Court of First Instance, the latter shall order the commitment or release of the prisoner by a warrant containing the grounds on which it is based (auto motivado).

"If it is impossible to do so because of the complexity of the facts, the number of defendants or any other serious cause, which must be made of record, the time of detention may be extended to three days. Upon the expiration of that period of time the judge shall order the commitment or the release of the defendant. The warrant of commitment shall be ratified after the defendant has been heard within the period of sixty two hours from the time the defendant has been committed to prison."cralaw virtua1aw library

Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any person making arrest for legal ground shall, without unnecessary delay and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action as they may deem proper to take," and by article 125 of the Revised Penal Code already quoted.

But the provisions of Rule 31 above quoted are still in force because they have not been repealed, either expressly or by implication, by any law or the present Rules of Court, except the last sentence, thereof which is no longer in force. The procedure of hearing the accused after he has been committed to prison referred to in said last sentence, is a sort of preliminary investigation by the judge or justice of the peace according to the present procedure. Persons arrested or accused in the City of Manila are not entitled to such investigation. In provinces the justice of the peace or judge shall, according to section 2 of Act No. 194, "make the preliminary investigation of the charge as speedily as may be consistent with the right and justice, but in any event he must make the 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." This provision of section 2 of Act No. 194 is still in force, because no law has been enacted amending or repealing it. (Marcos v. Cruz [May 13, 1939] 1st Supp., 40, Off. Gaz., 174, 182.) The Rules of Court on Criminal Procedure do not undertake to dispose of all subjects of preliminary investigation, and repeal all laws on the subject not incorporated therein; specially those that, like the said provisions of section 2, Act No. 194, confer substantive rights upon defendants which can not be diminished, increased or modified by the Rules of Court (section 13, Article VIII, of the Constitution).

In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the old Penal Code, from which article 125 of the Revised Penal Code was taken, and section 1(3) Article III of the Constitution, there can be no doubt that the judicial authority within the meaning of article 125 of the Revised Penal Code must be a judge who has authority to issue a written warrant of commitment or release containing the ground on which it is based (auto motivado). Because said section 17 of Rule 109 expressly provides that the officer making the arrest without warrant shall, within the time prescribed in the Revised Penal Code, take the person arrested to a court or judge for such action as the latter may deem proper to take; Rule 31 expressly states that, within twenty four hours or at most three days after the person arrested has been delivered to the judge of Court of First Instance (and also the justice of the peace now), the latter shall order the commitment or release of the prisoner, by a warrant containing the ground upon which the commitment or release is based (auto motivado); article 204 of the old Penal Code (not incorporated in the Revised Penal Code), penalize the judicial authority or judge who fails to comply with the provisions of said Rule 31; and section 1(3) Article III of the Constitution provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affidavit of the complainant and witnesses he may produce," in order to safeguard "the right of the people to be secured in their person . . . against unreasonable seizure" or detention for a longer period than that fixed or considered by law as reasonable (six hours according to section 125 of the Revised Penal Code).

It is obvious that the city fiscal is not a judge, and has no power to issue order of commitment or release by a written warrant containing the ground on which it is based. As a matter of fact the city fiscal has never exercised such power since that office was created. In justice to the city fiscal, we have to state that the latter did not and does not contend in his motion for reconsideration that it has the power to issue such a warrant, as contended in the dissenting opinion.

To consider a city fiscal as a judicial authority within the meaning of article 125 of the Revised Penal Code, would be to place a person arrested in provinces without warrant in a better position than those arrested in the City of Manila. Because, as there is no law requiring the city fiscal to act or file an information against such person within a limited period of time, after the arresting officer has taken the prisoner to the city fiscal within six hours, the prisoner may be held under detention without any warrant for days and weeks and possibly months until such time as the city fiscal may take action, either by releasing the prisoner without filing any information, or filing an information with the proper city court and obtain a warrant of commitment. While a person arrested outside of the City of Manila has to be delivered by the arresting person or peace officer to the competent judge within six hours after his arrest, and the latter shall have to investigate the charge and issue a warrant of release or commitment of the prisoner within the period of twenty four hours or at most three days prescribed in said article 31 of the Provisional Law.

It is obvious that the surrender or delivery to the judicial authority of a person arrested without warrant by a peace officer, does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner, because the arresting officer can not transfer to the judge and the latter does not assume the physical custody of the person arrested. And in the City of Manila it does not consist in delivering physically the body of the prisoner to the city fiscal, for the latter will not assume the responsibility of being the custodian of the prisoner; nor in making or lodging a complaint against him with the said fiscal, because the latter has no power to order the commitment or release of the prisoner by a warrant containing the ground on which it is based (auto motivado). Such delivery is a legal one and consists in making a charge or filing a complaint against the prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an information with the corresponding city courts after an investigation if the evidence against said person so warrants. Upon the filing of such information will the prisoner be deemed delivered to a judicial authority in the City of Manila within the meaning of article 125 of the Revised Penal Code?

The city court or judge need not make an investigation of the facts alleged in the information, which the judge or justices of the peace in provinces have to make before issuing the proper warrant, because the law vest that power in the city fiscal, but said city judge shall determine only the legal question whether said facts constitute an offense or violation of ordinances, and issue a warrant of commitment if they do, or of release if they do not.

As a peace officer can not deliver directly the person arrested to the city courts, he shall deliver him to said court through the city fiscal, and if the latter does not take the prisoner in time to the latter so that the proper investigation may be made and information filed within six hours, he has to release the prisoner in order to avoid criminal liability for violation of article 125 of the Revised Penal Code. The city fiscal is not an agent of the arresting officer, but as prosecuting officer, he will be recreant to his duty if he does not do his best to make the investigation and file the corresponding information in time against the person arrested without warrant, in order to effect the delivery of the prisoner to the city courts within the period of six hours prescribed by law, and thus prevent his being released by the officer making the arrest. If the city fiscal does not file the information within said period of time and the arresting officer continues holding the prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said article 125, because he is not the one who has arrested and illegally detained the person arrested, unless he has ordered or induced the arresting officer to hold and not release the prisoner after the expiration of said period.

Section 2460 of the Revised Administrative Code which specifies the powers and duties of chief of police of the City of Manila, authorizes the latter "to take good and sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance: Provided, however, That he shall not exercise this power in cases of violation of any penal law except when the fiscal of the city shall so recommend and fix the bail to be required of the person arrested." These provisions do not authorize, either expressly or by implication, the city fiscal to order the detention of the prisoner if bond is not given, not only because they refer to the powers of the chief of police of Manila and not of the city fiscal, but because the only incidental authority granted to the latter is to recommend the granting of the bail by the chief of police and to fix the amount of bail to be required of the person arrested for violation of any penal law in order that the chief of police may release the latter on bail. If no bail is given by the person arrested, neither the chief of police, who is only authorized to release on bail, has power to detain the person arrested for more than six hours; nor the city fiscal, who is only empowered to fix and recommend the bail to the chief of police, has authority to order the detention of persons arrested for violation of a penal law.

The above-quoted provisions of section 2460 of the Revised Administrative Code refers evidently to persons arrested without warrant, for accused arrested by virtue of a warrant issued by the courts may be released on bail only by order of the court or judge that issued the warrant and has exclusive jurisdiction or control over the person arrested. The purpose of the law in empowering the chief of police of Manila to release the prisoner if he puts up a bail, is to relieve the officer making the arrest from the necessity of taking the prisoner to the city fiscal, and the latter from filing an information with the proper courts within the period of time prescribed by law.

The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris Secundum quoted therein which says that "the officer however need not necessarily have personal knowledge of the facts constituting the offense in the sense of having seen or witnessed the offense himself, but he may if there are no circumstances known to him which materially impeach his information, acquire his knowledge from information imparted to him by reliable and credible third persons or by information together with other suspicious circumstances" (6 C. J. S., 599, 600), and after the quotation adds: "This is a common law rule implanted in the Philippines along with its present form of government, a rule which has been cited and applied by this Court in a number of cases (U. S. v. Santos, 36 Phil., 853, U. S. v. Batallones, 23 Phil., 46; U. S. v. Samonte, 16 Phil., 516)."cralaw virtua1aw library

The above-quoted excerpt is not a general principle of law or a common law rule implanted in the Philippines. It is a summary of the ruling of several State courts based on statutory exceptions of the general rule. "It is the general rule, although there are statutory exceptions and variations, that a peace officer has no right to make an arrest without a warrant, upon a mere information of a third person" (5 C. J., p. 404), because "statutes sometime authorize peace officer to make arrest upon information" (4 Am. Jur., p. 17). In none of the cases cited in the dissenting opinion has this Court quoted and applied it. In U. S. v. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28 of the "Provisional Law for the Application of the Penal Law" and section 37, Act No. 183, as the law in force in these Islands providing for cases in which a person may be arrested without a warrant, said:jgc:chanrobles.com.ph

"These provisions quite clearly set out the powers usually conferred by American and English law upon ’peace officers’ including ’constables,’ in making arrests without warrants; and since similar powers are clearly included in the powers conferred upon ’agents of authority’ in the above cited articles of the ’Provincial Law,’ there can be no doubt that the Commission, in imposing the duty of maintaining order and preserving and protecting life and property within their respective barrios upon municipal councilors and their lieutenants of barrios, conferred upon such official authority to make arrests without warrant not less extensive than that conferred upon peace officers in Manila in the above-cited provisions of the Manila Charter. (United States v. Vallejo, No. 4367, decided by this court on September 3, 1908; also United States v. Burgueta, 10 Phil., 188.)" (Italics ours.)

The case of U. S. v. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph of the dissenting opinion, does not contain anything about the implantation in these Islands of the so-called common law rule. In the case of U. S. v. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this Court, following the ruling in U. S. v. Fortaleza, said:jgc:chanrobles.com.ph

"In a former case we held that officials in these Islands, who, ’by direct provisions of law or by appointment of competent authority are charged with the maintenance of public order and the protection and security of life and property,’ have authority to make arrests without warrant substantially similar to the authority generally conferred upon ’peace officers’ in the United States, and more especially that class of ’peace officers’ known to American and English law as constables; and that ’the provisions of section 37 of Act No. 183’ (the Charter of Manila) ’quite clearly set forth the powers usually conferred by American and English law upon; ’peace officers’ including ’constables’ in making arrests without warrant, any person found in suspicious places or under suspicious circumstances, reasonably tending to show that such person has committed or is about to commit any crime or breach of the peace; may arrest, or cause to be arrested without warrant, any offender, when the offense is committed in the presence of a peace officer or within his view’." (U. S. v. Fortaleza, 12 Phil., 472, 479.)

And in Case of U. S. v. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in the previous cases and held:jgc:chanrobles.com.ph

"The powers of peace officers in the Philippines, generally stated, are the same as those conferred upon constables under the Anglo-American Common Law. The extent of their authority to make arrests without warrant and the limitations thereon, as held by the Supreme Court, are as stated in the language of the Legislature in the Charter of the City of Manila. (U. S. v. Fortaleza [1909], 12 Phil., 472). The Administrative Code (section 2204, edition of 1916; section 2258, edition of 1917) enjoins municipal policemen to ’exercise vigilance in the prevention of public offenses’."cralaw virtua1aw library

The provisions above quoted of Section 37 of Act No. 183 have been incorporated in section 2463 of the Revised Administrative Code and those of Rules 27 and 28 were substantially incorporated in section 6, Rule 109 of the Rules of Court. Section 2463 of the Revised Administrative Code reads as follows:jgc:chanrobles.com.ph

"SEC. 2463. Police and other officers — Their powers and duties. — The mayor, the chief and assistant chief of police, the chief of the secret service, and all officers and members of the city police and detective force shall be peace officers. Such peace officers are authorized . . . to pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace; to arrest or cause to be arrested, without warrant, any offender when the offense is committed in the presence of a peace officer or within his view;"

And section 6 of Rule 109 provides:jgc:chanrobles.com.ph

"SEC. 6. Arrest without warrant — When lawful. — A peace officer or a private person may, without a warrant, arrest a person:jgc:chanrobles.com.ph

"(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

"(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

"(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another."cralaw virtua1aw library

These are the only provisions of law in force in these Islands which enumerate the cases in which a peace officer may arrest a person without warrant, and the so called common law relating to other cases of arrest without warrant cited in the dissenting opinion has no application in this jurisdiction. Therefore, all the considerations set forth in the said opinion about the disastrous consequences which this Court’s interpretation of article 125 of the Revised Penal Code will bring to a law enforcement, because "the entire six hours might be consumed by the police in their investigation alone," or that "even if the city fiscal be given the chance to start his assigned task at the beginning of the six hours period, this time can not insure proper and just investigation in complicated cases and in cases where the persons arrested are numerous and witnesses are not at hand to testify," since "the police is not authorized to round up the witnesses and take them along with the prisoner to the city fiscal," are without any foundation. Because they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a peace officer need not have personal knowledge but may arrest a person without a warrant upon mere information from other person. "The right to make arrests without a warrant is usually regulated by express statute, and except as authorized by such statutes, an arrest without a warrant is illegal." (5 C. J., pp. 395, 396.) And statutory construction extending the right to make arrest without a warrant beyond the cases provided by law is derogatory of the right of the people to personal liberty (4 Am. Jur., p. 17).

The investigation which the city fiscal has to make before filing the corresponding information in cases of persons arrested without a warrant, does not require so much time as that made upon a complaint of the offended parties for the purpose of securing a warrant of arrest of the accused. In all cases above enumerated in which the law authorizes a peace officer to arrest without warrant, the officer making the arrest must have personal knowledge that the person arrested has committed, is actually committing, or is about to commit an offense in his presence or within his view, or of the time, place or circumstances which reasonably tend to show that such person has committed or is about to commit any crime or breach of the peace. And the testimony of such officer on the commission of the offense in his presence or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show that said person has committed or is about to commit an offense, would be sufficient evidence or basis for the city fiscal to file an information without prejudice to his presenting of other evidence or witnesses, if any, during the trial to insure the conviction of the defendant. If the city fiscal does not believe the testimony of the officer making the arrest or consider it sufficient, or has any doubt as to the probability of the prisoner having committed the offense charged, and is not ready to file an information against him on the strength of the testimony or evidence presented, there would be no legal reason or ground for him to wait until further evidence may be secured before dismissing the case against the prisoner, or detaining the person arrested without warrant without violating the precept of article 125 of the Revised Penal Code.

After the release of the prisoner, the city fiscal may make or continue the investigation and file afterwards the proper information against him with the corresponding court, if the result of the investigation so warrants, in order to secure a warrant of arrest of the same. Of course, as we have said in our decision for the purpose of determining the criminal liability of a peace officer detaining a person for a longer period of time than the six hours prescribed by article 125 of the Revised Penal Code, "the means of communication as well as the hour of arrest and other circumstances such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration." The period originally fixed by our Penal Code was twenty four (24) hours, and if the city fiscal believes that the period now prescribed by article 125 of the Revised Penal Code is short, and that the law must be amended so as to extend it, it would be proper for the interested parties to take the case to Congress, since it can not be done by judicial legislation.

Motion for reconsideration is denied.

Paras, Actg. C. J., Pablo, Bengzon and Briones, JJ., concur.

PERFECTO, J.:

We agree with the above resolution except that which may be at variance with our concurring opinion in this case and with our written opinion in the case of Lino v. Fugoso, L-1159, 43 Off. Gaz., 1214.

BRIONES, M., conforme:chanrob1es virtual 1aw library

Estoy enteramente conforme con la resolucion. En la opinion concurrente que dicte en el asunto de Lino contra Fugoso y otros (43 Off. Gaz., 1235, 1244) donde se discutio por primera vez el importante punto legal debatido en el presente asunto, dije lo siguiente y lo reafirmo en esta ocasion, a saber:jgc:chanrobles.com.ph

"Sin discutir la responsabilidad de la Fiscalia por la demora — si esta se puede o no justificar administrativamente es cuestion que no nos compete considerar ni resolver — vamos a limitarnos a comentar y discutir la fase juridica legal. Esta en orden naturalmente el hacer la siguiente pregunta: es correcta, es acertada la asercion de que el ’Promotor Fiscal de Manila es un funcionario judicial (judicial officer),’ y que, por tanto, la entrega al mismo de la persona de un detenido dentro del periodo de 6 horas equivale a la entrega a las autoridades judiciales correspondientes (proper judicial authorities) de que habla el articulo 125 del codigo penal revisado? Creemos que no: ni por su letra ni por su espiritu puede aplicarse por extension la fraseologia de ese articulo al Fiscal de la Ciudad de Manila o a cualquier otro Fiscal; ese articulo no puede referirse mas que a un tribunal, a un juzgado, sea municipal, sea de primera instancia. Asi que estoy de perfecto acuerdo con la ponencia cuando positivamente sienta la doctrina de que ’si bien un arresto puede hacerse sin orden cuando hay motivos razonables para ello (regla 109, articulo 6, reglamento de los tribunales), el detenido no puede ser recluido fuera del periodo prescrito por la ley, a menos que una orden de arresto se obtenga antes de un tribunal competente’ (veanse las autoridades que se citan), y que ’en el presente caso el Fiscal de la Ciudad no tenia autoridad para expedir ordenes de arresto y carecia de facultad para convalidar tal detencion ilegal con solo presentar las querellas, o con una orden de su propia cuenta, ora tacita, ora expresa’ (veanse asimismo las autoridades que se citan).

"De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del periodo de 6 horas prescrito por la ley los papeles sobre un detenido arrestado sin previa orden al efecto, no por ello se cura la ilegalidad del arresto y detencion, sino que dicha ilegalidad continua y persiste hasta que el Fiscal presenta la querella y obtiene una orden de arresto del tribunal competente, o que, tratandose de delito, mediante la prestacion de una fianza cuya cuantia se fijare y recomendare por dicho Fiscal, la policia soltare al detenido, a tenor de lo previsto en el articulo 2460 del codigo administrativo.

"Puede ocurrir, sin embargo, que la policia entregue los papeles a la Fiscalia de la ciudad dentro del periodo de 6 horas, pero que la Fiscalia no solo deja pasar dicho periodo, sino que transcurren dias, hasta semanas sin actuar sobre el caso en uno u otro sentido. La cuestion en orden naturalmente es la siguiente: