1. CRIMINAL. PROCEDURE; TRIAL; RIGHT OF ACCUSED TO AT LEAST TWO DAYS TO PREPARE; WAIVER. — The defendant after arraignment is entitled to at least two days to prepare for trial, except when the case is on appeal from the justice of the peace. But this right may be waived either expressly, or impliedly by not asking for time to prepare for trial.

2. ID.; PRELIMINARY INVESTIGATION UNDER SECTIONS 1 AND 7 OF RULE 108; MEANING OF. — Sections 1 and 7, Rule 108, of the Rules of Court use the words "preliminary investigation," but a cursory reading thereof would clearly show that the investigation mentioned therein is not the preliminary investigation proper in which the defendant has the right to present his evidence. That is the reason why said investigation made for the purpose of issuing the warrant of arrest of a defendant if it appears that his arrest is justified, is defined by section 1 as "a previous inquiry or examination made before the arrest of the defendant."cralaw virtua1aw library

3. ID.; WARRANT OF ARREST; QUESTION RELATING TO ISSUANCE OF NOTHING TO DO WITH PRELIMINARY INVESTIGATION AND CANNOT BE RAISED FOR FIRST TIME ON APPEAL. — Whether or not the warrant of arrest issued by the municipal judge of Zamboanga was issued without a probable cause, has nothing to do with the right of the defendant to a preliminary investigation, and cannot be raised for the first time on appeal from a judgment in which the defendant is found guilty of the offense charged beyond a reasonable doubt and sentenced to death.

4. ID.; PRELIMINARY INVESTIGATION AS PART OF DUE PROCESS OF LAW; WHAT IS. — The preliminary investigation proper to which the defendant is entitled as a part of the due process of law in those cases in which the statute provides for it, is that established by section 11, of same Rule 108, and consist in the right of the defendant, after his arrest, to "be informed of the complaint or information filed against him . . .", of the substance of the testimony and evidence presented against him, and to be allowed "to testify or to present witnesses or evidence in his favor."cralaw virtua1aw library

5. CRIMINAL LAW; MURDER; OBEDIENCE TO ORDER OF SUPERIOR, WHEN A DEFENSE CASE AT BAR. — In killing the deceased, the defendant has not acted in obedience to an order issued by a superior for some lawful purpose. The alleged order was not for lawful purpose, because the deceased was to be killed without any previous trial or hearing, and commander S has no authority to give or issue such an order.

6. ID.; ID.; COMPULSION OF IRRESISTIBLE FORCE; IMPULSE OF UNCONTROLLABLE FEAR OF EQUAL OR GREATER INJURY; WHEN CONSIDERED DEFENSES; CASE AT BAR. — The appellant is not exempt from criminal liability under subsections 5 and 6, article 12, of the same Revised Penal Code, which exempt from criminal liability any person "who acts under the compulsion of an irresistible force," or "who acts under the impulse of an uncontrollable fear of an equal or greater injury. "Because it is plain that there was no compulsion of an irresistible force that compelled the defendant to kill the victim against his will; nor was there any threat of such a serious character and imminence as to create in the mind of the defendant an uncontrollable fear that an equal or greater evil or injury would be inflicted upon him if he did not comply with the alleged order to kill the deceased.

Per PERFECTO, M., tutol:chanrob1es virtual 1aw library

7. KARAPATAN NG NASASAKDAL; SALIGANG BATAS. — Sangayon sa rekord, sa lahat ng mga hakbang na ginawa sapul sa pagkahuli ng nasasakdal hanggang ang mga papel ng usapin ay mailipat sa hukumang unang dulugan, kahit sa alin mang sandali ay ang nasasakdal ay hindi nagkamit ng kahit kaunting tulong ng isang manananggol. Itong kakulangang ito ay isang maliwanag na pag labag sa Saligang Batas.

8. ID.; PALATUNTUNAN NG HUKUMAN. — Ang karapatan ng isang nasasakdal na ipagtanggol ng isang manananggol ay dapat kamtan sa lahat at bawat isa sa mga hakbang ng paglilitis, sapul sa siya’y basahan ng sakdal (section 1, Rule 111). Sang-ayon sa mga palatuntunan ng mga hukuman, sa sandaling pagharap ng nasasakdal sa pagbasa ng sakdal, pag ang nasasakdal ay humarap ng walang kasamang manananggol, tungkuling mahigpit ng hukuman na tanuñgin ang nasasakdal kung nais niyang siya’y tulungan ng isang manananggol, at pag ang nasasakdal ay walang kayang kumuha ng sariling manananggol, tungkulin ng hukuman ang humirang ng isang manananggol (section 3, Rule 112). Sa nasa ng Kataastaasang Hukuman na ang karapatan na ating pinaguusapan ay huwag matawaran kahit sa anong paraan, iniuutos tuloy na pag kalooban ang isang nasasakdal ng isang manananggol kahit hindi titulado sa mga pook na walang maapuhap na kahit isa mang may titulo, huwag lamang mangyari na ang isang nasasakdal ay mawalang mahusay na katulong sa sakunang kaniyang hinaharap (section 4, Rule 112).

9. ID.; ID. — Sangayon sa mga palatuntunan ng mga hukuman katapus na sagutin ang sakdal, ang nasasakdal ay mayroong karapatang pagkalooban ng panahong hindi bababa sa dalawang araw upang makapaghanda sa paglilitis (section 7, Rule 114). gayon pa man, itong mahigpit na kautusan ng tuntunin ay sadyang nilabag, at pagkaraan ng mga ilang minuto lamang na mabasa ang sakdal sinimulang agad ang paglilitis sa ika siyam ng umaga ding iyon. Dahil sa mga pangyayaring nasasaad sa itaas, ay aming ipinalalagay na ang nasasakdal na si M ay pinagkaitan ng kaniyang karapatan na bigyan ng panahong hindi bababa sa dalawang araw upang makapaghanda sa paglilitis at ng kaniyang karapatang nasasalig sa Saligang Batas na magkaroon ng tulong ng isang manananggol at ito’y laban sa mga subsexion 15 at 17 ng sexion 1, Artikulo III, ng Saligang Batas.

This is an appeal by the defendant Miguel M. Moreno from the judgment of the Court of First Instance of Zamboanga, which found him guilty of the crime charged with the aggravating circumstances of premeditation and cruelty and without any mitigating circumstance, and sentenced the defendant to death and to indemnify the heirs of the deceased.

The appellant was at the outbreak of the war a prisoner serving sentence in the San Ramon Penal Colony Farm, situated in the City of Zamboanga. During the Japanese occupation, he befriended and gained the confidence of the Japanese naval authorities, was released from prison, and appointed Captain of a semi-military organization known as Kaigun Jeutay, composed of Filipinos and sponsored by the Japanese navy. On October 23, 1944, the defendant was appointed by the Japanese naval authorities as section commander of the San Ramon Penal Colony with plenary powers of supervision and control over said colony and its environs.

On November 23, 1944, a group of defendant’s soldiers went to the house of Paciano de los Santos, and too with them two single young daughters of said Paciano, and on the next day, when the deceased went to San Ramon Penal Colony, he was confined in a cell by order of the defendant.

On the night of December 1, 1944, defendant gathered all the prison officials and employees of San Ramon Penal Colony in a meeting in the house of P. D. Dellosa then Assistant Superintendent of the institution, and in that gathering the accused arrogantly announced that he was not afraid to cut the head of anybody, ordered all those present to witness the execution of Paciano de los Santos the following day, and instructed Gregorio Magalit, a prisoner employee of said institution to prepare the grave for said Paciano and issue a formal memorandum to that effect. A photostatic copy of which was presented as Exhibit D during the trial.

And in the morning of December 2, 1944, Paciano de los Santos was taken to a place known as Fishery Division of the colony with both hands tied at the back, and there the defendant ordered the victim Paciano to kneel down with the head bent forward by the side of the grave already prepared for him by order of the accused, and in that position the accused with a Japanese sobre held in the handle by his both hands, hacked the head of Paciano de los Santos, and immediately kicked the prostrate body of the victim into the grave.

The facts above stated were established beyond a peradventure of doubt by the testimony of the witnesses for the prosecution, and are substantially admitted by the defendant in his testimony during the trial. When the defendant was asked whether he killed Paciano de los Santos in the form and manner described by the witness for the prosecution, he answered the following: "When I arrived at the place the deceased Paciano de los Santos was already in the place where I was to execute him, and was taken there by four Japanese and several guards of San Ramon, and on the way they have instructed me how should I kill him, I did kill him in the form and manner testified to by the witnesses for the prosecution." (Pp. 49, 50, t. s. n.)

The attorney de oficio appointed by this court for the defendant contends, in the four assignments of errors as signed in his brief, that the court below erred (1) in trying the defendant in the same day on which he was arraigned and pleaded not guilty, and not granting him two days to prepare for trial as provided by law; (2) in trying and convicting the accused without a preliminary investigation by the municipal judge or Fiscal of Zamboanga City; (3) in not compelling, by process of subpoena, the attendance of witnesses in behalf of the defendant, and finding, despite this failure, that the latter’s testimony was not corroborated by any witness; and (4) in finding the accused guilty of murder with two aggravating circumstances and imposing upon him the penalty of death.

(1) As to the first assigned error of the court below, it is true that, according to section 7, Rule 114, the defendant after arraignment is entitled to at least two days to prepare for trial, except when the case is on appeal from the justice of the peace. But this court in several cases, among them, the case of People v. Cruz (54 Phil., 24, 28), has already construed said section and held that the said right may be waived either expressly, or impliedly by not asking for time to prepare for trial. In the present case, the defendant has waived his right to have at least two days to prepare for trial, by submitting himself and not objecting to the trial ordered by the court on the same day in which he was arraigned. The decision of this court in the case of People v. Valte (43 Phil., 907), quoted by the attorney for the accused, does not support his contention, for in the said case the defendant did not waive but exercised his right by demanding that he be granted two days to prepare for trial.

Besides, taking into consideration the fact that the defendant admitted having killed the victim in the form and manner testified to by the witnesses for the prosecution, and the only defense he alleged is that he was ordered to do by Japanese naval authorities; that the defendant had in fact been given time to prepare for his defense, because before the trial had begun, the said attorney, after a conference with the defendant, asked the court to issue subpoena and subpoena duces tecum to Nicanor Punsalan and Timoteo Almonte, employees in San Ramon Penal Colony, and to Gregorio Magalit, a detainee in the stockade of Zamboanga, and the suboenas were issued and served on the same date, August 6, upon them; and that after three of the witnesses for the prosecution had testified, the trial was adjourned and continued on August 7 and 8; it may be concluded that had there been any error such an error is not a reversible one, for it did not impair the substantial rights of the defendant.

(2) With respect to the second assignment of error, the record shows that the defendant has waived his right to a preliminary investigation in a communication called a motion of July 30, 1945, filed with the court, in which the said defendant states that "he respectfully waives his right to a preliminary investigation and request that this case be remanded to the Court of First Instance of Zamboanga for final decision."cralaw virtua1aw library

Sections 1 and 7, Rule 108, of the Rules of Court use the words "preliminary investigation," but a cursory reading thereof would clearly show that the investigation mentioned therein is not the preliminary investigation proper in which the defendant has the right to present his evidence. That is the reason why said investigation made for the purpose of issuing the warrant of arrest of a defendant if it appears that his arrest is justified, is defined by section 1 as "a previous inquiry or examination made before the arrest of the defendant." Whether or not the warrant of arrest issued by the municipal judge of Zamboanga was issued without a probable cause, has nothing to do with the right of the defendant to a preliminary investigation, and cannot be raised for the first time on appeal from a judgment in which the defendant is found guilty of the offense charged beyond a reasonable doubt and sentenced to death.

The preliminary investigation proper to which the defendant is entitled as a part of the due process of law in those cases in which the statute provides for it, is that established by section 11, of same Rule 108, and consist in the right of the defendant, after his arrest, to "be informed of the complaint or information filed against him . . . of the substance of the testimony and evidence presented against him," and to be allowed "to testify or to present witness or evidence in his favor." And the defendant has waived expressly his right to that preliminary investigation, as above stated.

(3) In this third assignment of error, the attorney for the defendant states that "the lower court erred in not compelling by process of subpoena the attendance of witnesses in behalf of the appellant as provided by the Philippine Constitution, and finding despite this failure, that the testimony of the appellant was corroborated by any witnesses."cralaw virtua1aw library

This assignment of error is clearly without foundation; because the same attorney admits in his brief that, the would be witnesses for the defense Nicanor Punsalan, Timoteo Almonte and Gregorio Magalit were, upon petition of his attorney in the court below, served on August 6 with subpoena and subpoena duces tecum issued by the court. That "Nicanor Punsalan and Timoteo Almonte were not examined or presented as witnesses in behalf of the appellant," does not support the contention of defendant’s attorney that they have not been compelled by subpoena to appear in court as witnesses. The presumption is that they had appeared in compliance with the subpoena, there being nothing in the record to show the contrary, and that if they had not been presented as such by the attorney for the defendant, it was because their testimonies were not favorable to the latter; as evidenced by the testimony of said Magalit, the other witness subpoenaed for the defense, who was used by the prosecution as a rebuttal witness and testified against the accused.

(4) The fourth or last assignment of error, is also without merit. Because the defendant, testifying in his own behalf, admitted having killed Paciano de los Santos on the date and in the form and manner testified to by the witnesses for the prosecution, and the only defense that he executed or killed the deceased in obedience to an order given him by Japanese officers of the navy, by whom he was informed that the deceased was one of those who were encountered by the Japanese in a mountain and wounded a Japanese soldier, is not supported by any evidence in the record. And because assuming that there was such an order, It would not justify the crime committed by defendant and exempt him from criminal liability.

That there was no such order, oral or written is clearly shown by the defendant’s own incredible, contradictory and unsupported testimony relating it his having ordered by the Japanese naval officer to kill the deceased which reads as follows:jgc:chanrobles.com.ph

"P. Declarando aqui los testigos de la acusaci6n todos dijeron de que ejecucion de aquel Paciano de los Santos era por orden de Vd., es cierto eso?

R. No, señor.

"P Tambien declararon aqui de que Vd. habia ordenad a un tal Magalit, su assistant para que notificara al jefe y a los empleados de la Colonia de San Ramon para que estuviera presente en el dia y hora de ejecucion de Paciano de los Santos, es cierto esto?

R. Eso era el diciembre 1.