80 Phil.

859

[ G.R. No. L-2128, May 12, 1948 ]

MELENCIO SAYO AND JOAQUIN MOSTERO, PETITIONERS, VS. THE

CHIEF OF POLICE, AND OFFICER IN CHARGE OF THE MUNICIPAL JAIL,
BOTH OF THE CITY OF MANILA, RESPONDENTS.

DECISION

FERIA, J.:

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."

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 word "judicial
authority", as used in said article, means 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". (Sec. I, 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, are not
authorized by law to do so. Because article 204, which complements said Sec. 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."

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, Sec. 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 Sec. 17, Rule 109 of the Rules of Court, which, referring to
the duty of an officer after arrest without warrant, provides that "a person mailing 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 Sec. 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."

And it is further corroborated by the provisions of Secs. 1 and 4, Rule 102 of the Rules of
Court. According to the provisions of said sections, "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 sec. 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 camlet 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. (Sec. 7, Rule 108; Hashim vs.
Boncan, 40 Off. Gaz. 13th Suppl., p. 13; Lino vs. 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 Sec. 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. (Sec. 3, Rule 108, in connection with
Sec. 6, Rule 108, and Sec. 2 of Rule 109). The preliminary investigation which a city fiscal
may conduct under Sec. 2, Rule 108, is the investigation referred to 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 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 (Sec.
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 Sec. 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 Sec. 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 was 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 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.

CONCURRING

PERFECTO, J.:

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 (Exh. 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 bean issued for the apprehension of
petitioners.

Petitioners pray for their immediate release, alleging that, as the six hours 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."

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:

(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 Fiscal1s 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
(Sec. 1, Article VIII) vests the judicial power exclusively "in one Supreme Court and in such
inferior courts as may be established by law."

Respondents' pretension is 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
vs. Fugoso, L-1159, 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 these 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., I dissent on the grounds stated in my dissent in Lino vs. 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 vs. 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:

"The executive authorities or the agents detaining a person shall release the same
or else turn Kim 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."

And the next article 31 of the same law reads as follows:

"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."
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 vs. 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
alter 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. vs. Santos, 36 Phil., 85:5;
U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516)."

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. vs. 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:

"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 'Provisional
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 officials 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 vs. Vallejo, No. 4367, decided by
this court on September 3, 1908; also United States vs. Burgueta, 10 Phil., 188.)"
(Italics ours.)

The case of U, S. vs. 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. vs. Battallones (not Ballesteros) 23 Phil.,
46, cited also therein, this Court, following the ruling in U. S. vs. Fortaleza, said:

"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
warrants,' and provide that they 'may 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; 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. vs. Fortaleza, 12 Phil., 472, 479.)

And in case of U. S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in
the previous cases and held:

"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. vs. 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'."

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:

"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:

"Sec. 6. Arrest without warrant—When lawful.—A peace officer or a private person

may, without a warrant, arrest a person:

"(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."

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
at out 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 vs. Fugoso, L-
1159, 43 Off. Gaz., 1214.

BRIONES, M., conforme:

Estoy enteramente conforme con la resolution. 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:

"Sin discutir la responsabilidad de la Fikcalia por la demora—si esta se puede o no

justificar administrativamente es cuestifin 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 G 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 fiaseologia de ese articulo al Fiscal de la Ciudad de
Manila o a cualquier otro Fiscal; cse articulo no puede referirse mis que a un
tribunal, a un juzgado, soa municipal, sea dc primcra instan-cia. Asi que estoy dc
perfecto acuerdo con la ponencia cuando posi-tivamentc 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' (vcanse lae 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 ordan 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 ile-galidad 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 a prestacion de una fianza cuya cuantia i se
fljare y recomendare por dicho Fiscal, la policia soltare al detenido, a tenor de lo
previsto en el articulo 2460 del codigo administrative'.

"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: ¿es
legal o ilegal la detencion del arrestado en tal caso? En otras palabras: jqueda
suspendido el periodo de 6 horas durante el tiempo que el Fiscal de la Ciudad
tarda en actuar sobre el caso? La contestation tiene que ser necesariamente
negativa. La rigidez, la inflexibilidad del periodo de 6 horas reza no solo para la
policia, sino hasta para cualquier otra agencia o rarao oficial, sin' excluir a la
Fiscalia de la ciudad de Manila. Si por cualquier motivo la Fiscalia dejare de actuar
dentro de dicho periodo, el deber de la policia o del que tenga la custodia del
detenido es soltarle, quiera o no quiera el Fiscal, lo recomiende o no lo
recomiende. De otra manera, la restriction que estatuye la ley a favor de los
 detenidos sin previa orden de arresto— restriction que implementa las garantias
de la libertad establecidas en la Constitution—resultaria un mito. La filosofia de la
ley es, a saber: solamente se verifica un arresto sin previa orden cuando hay
motivos razonables para ello, v. gr., cuando un individuo es cogido in fracranti
cometiendo un delito. La ley presupone, por tanto, que el Estado tiene a niano
todos los elementos necesarios para decidir que action ha de tomar dentro del
periodo de 6 horas, ya entregando la persona del detenido a las autoridades
judiciales correspondientes mediante la querella procedente, a tenor del articulo
125 del Codigo Penal Eevisado; ya poniendole en libertad provisional bajo una
fianza razonable, de acuerdo con el citado articulo 2460 del Codigo
Administrativo; o ya poniendole completamente en la calle por falta de meritos en
el caso. Si ninguna de estas cosas puede hacer el Estado en 6 horas no puede ser
mas que por dos motivos: o por que se quiere cometer una arbitrariedad, o la
maquinaria oficial se halla en un deplorable estado de confusion, ineptitud o
impotencia.

"Se arguye con enfasis que bajo esta interpretation la prosecution del crimen
sufriria un serio quebranto, sobre todo en la Ciudad de Manila; que materialmente
la Fiscalia no puede actuar adecuadamente sobre algunos casos en el plazo
perentorio de 6 horas. Si esto es verdad el remedio no es infringir la ley como
cosa inevitable, rutinaria; el remedio seria—o recabar de la Legislatura que se
reforme la ley en la forma que se estime conveniente, o implementar y
perfeccionar la maquinaria de la prosecution criminal, colocandola a la altura de
las circunstancias. No hay nada mas anarquico, mas subversivo y fatal para el
principio de la autoridad y del buen gobierno que el tener leyes que no se
cumplen, leyes que se infringen hasta por los llamados a ponerlas en vigor. "To be
or not to be, that is the question." O existe la ley y hay que cumplirla; o si la ley
es mala o impracticable, hay que reformarla o derogarla. Lo que no se debe
permitir es el disolvente espectaculo de la diaria inobservancia ie la ley."

Se me ocurre ahora añadir otras observaciones en refuerzo de las arriba transcritas. Creo
que ni siquiera es necesario enmendar la ley en el sentido de alargar el periodo de 6 horas
provisto en el articulo 125 del Codigo Penal Revisado. Creo que con un poco mas de esfuerzo
y buena voluntad la presente ley se podria cumplir en la Ciudad de Manila. La Fiscalia de la
Ciudad podria, por ejemplo, establecer turnos semanales o mensuales, segun como se
estime conveniente, destinando fiscales que se hagan cargo exclusivamente de los casos de
individuos detenidos sin previa orden de arresvo, para los efectos do presentar la
correspondientc querella contra ellos, o de soltarlos si se viere que no existen meritos
suficientes para la prosecucion, sin perjuicio desde luego de ulterioi'es procedimientos. Si
para realizar satisfactoriamente este tiabajo fuesc necesario aumentar el personal de la
Fiscalia, yo no creo que el gobierno escatimaria el dinero para una atencion tan importante.

Es increible que dentro de 6 horas—si hay voluntad de trabajar y sobre todo de hacer buena
y efectiva la ley— la Fiscalia no pueda hacer su composicion de lugar en tales casos, bien
para proseguir, bien para no proseguir, definitivamente o en el entrstanto. Hay que tener en
cuenta que se trata de casos en que el individuo es detenido, ora porque ha sido sorprendido
in fraganti cometiendo una infraccion o un delito, ora porque se le ha cogido"en lugares
sospechosos o bajo cucunstancias sospechosas, que tiendan razonablemente a demostrar
que el mismo ha cometido o esta para cometer cualquier crimen o atentado contra el orden y
la paz" (E. U. contra Fortaleza, 12 Jur. Fil., 486). ¡QuQue es lo que necesita entonces la
Fiscalia en tales casos? ¡No esta alii el testimonio del policia, cbnstabulario o agente del
orden aprehensor? De modo que la cuestion, en ultimo resultado, es que la Fiscalia tenga o
no fe en la integridad y veracidad del agente dc la ley. Si la tiene ique motivo hay para no
formular inmediatamente la querella y obtener as,i del juzgado la correspondiente orden de
arresto? Y si no la tiene ¿que razon hay para pisotear la libertad individual reteniendo la
causa sin accion mas alia de las 6 horas y causando asi una innecesaria vejacion al
ciudadano?

La cuestion se puede simplificar mas todavia. Todo.se reduce, en ultimo termino, a que la
Fiscalia pueda contar con la ayuda de una policia., eficiente, Integra y honrada sobre todo,
que persiga el crimen sin cuartel, pero que tenga el maximo respeto a los derechos del
ciudadano. Si

la Fiscalia puede tener un modus vivendi con una policia de semejante tipo y de tales
quilates, no hay miedo de que una rigida observancia del requerimiento legal de 6 horas
facilite la inmunidad de los tulisanes, bandidos, gangsters y criminates del bajo mundo, y se
ponga en grave peligro la eficaz prosecucion del crimen y la seguridad y sosiego del pueblo.
Dentro de las 6 horas hay tiempo mas que suficiente para meter en cintura a toda la canalla
. . . i Pero por Dios que no se violen ni pisoteen las garantias constitucionales por miedo a los
gangsters!

Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si se verifica
una detention sin previa orden de arresto a medianoche, creo que la ley estaria cumplida si
en las primeras horas de la mafiana siguiente se tomara enseguida action, aunqne olio
rebasara un poquito el periodo de 6 horas.

Se deniega la motion de reconsideration.

DISSENTING

TUASON, J.,

I vote to grant the motion for reconsideration.

In my dissent from the decision of this Court I contented myself with citing my dissenting
opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246, as grounds for my
disagreement. As the present decision has gone farther than that decision and contains new
statements and conclusions, I deem it convenient to enlarge on my dissent.

The term "judicial officers" has been denned to be, in its popular sense, officers of a court
(Hitt vs. State, Miss. 181, So. 331) and in its strict sense, "judges and justices of all courts
and all persons exercising judicial powers by virtue of their office." (Settle vs. Van Evrea, 49
N. Y., 280.) The city fiscal is a judicial officer in both senses. In the popular or larger sense,
he is a judicial officer because he is a part of the legal machinery created for the
administration of justice. A prosecuting attorney, charged with the administration of justice
and invested with important discretionary power in a motion for a nolle prosequi, is a judicial
officer. (State ex rel. Freed vs. Circuit Court of

Martin County, Ind., 14 N. E. 2d 910; State vs. Ellis, 112 ! N. E., 98, 100; 184 Ind., 307.) .
In the strict legal sense, the city fiscal is a judicial officer when making preliminary
examination because he performs the function of a justice of the peace—assuming, as the
majority seem to assume, that the conduct of preliminary examination is a judicial function.
By express provision of section 2465 of the Revised Administrative Code, the city fiscal "shall
cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances,
and have the necessary information or complaints prepared or made against the persons
accused." In addition, section 2, Rule 108, of the Rules of Court states that "every justice of
the peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary
investigation of all offenses alleged to have been committed within his municipality or city,
cognizable by the Court of First Instance."

The city fiscal is not any the less a judicial officer simply because he can not issue warrant of
arrest. The power to issue warrant of arrest is not an essential ingredient of a judicial office.
This is specially so when, as in cases like the present, the accused is already under arrest
when the city fiscal intervenes and there is no need of issuing an order of arrest. As to power
to commit a detained person to prison, if that be necessary, the majority are not exactly
right when they affirm that the city fiscal is not clothed with it. I shall come to this later.

However that may be, the city fiscal is a "judicial authority" within the contemplation of
article 125 of the Revised Penal Code. This is the inevitable result from the fact that in the
City of Manila, the city fiscal under the existing scheme of government is the only officer to
whom the person arrested without warrant may be presented. The majority opinion admits
that the municipal court and the Court of First Instance of Manila "do not make or conduct a
preliminary investigation proper," and criminal complaints are not filed with them but with
the city fiscal. Reasoning from another angle, we reach the same conclusion. We are to
presume that in using the generic term "judicial authorities"—and in plural—instead of the
more specific word "justice," "judge," or "court", the lawmaker intended to include in the
operation of the article under consideration all officers who are named to receive the prisoner
from the arresting officer. We have to adopt this construction if we are to give effect to the
law and the rule of court I have cited, and if we are to avoid what 1 might call, without
meaning offense, an absurdity.

Under no canon of statutory construction is there justification for this Court's opinion that the
police and the city fiscal have to share the six hours fixed in article 125 of the Revised Penal
Code. The language, the nature and the object of this provision unerringly point to the
theory that the six hours mentioned jn the Revised Penal Code are meant exclusively for the
police officer who made the arrest. I can discern absolutely no indication of any intention to
have the city fiscal squeeze in his action within this brief period, a period which, in many
cases, is not even sufficient for the police. Read separately or in conjunction with the entire
criminal procedure, article 125 does not furnish the slightest indication of legislative intent to
place the city fiscal and the police under the same category. Article 125 of the Revised Penal
Code was devised for one purpose ; section 2465 of the Revised Administrative Code and
section 2, Rule 108, of the Rules of Court for another. Article 125 is a penal provision
designed to prevent and ' punish police abuses for which the police are noted. The
investigation by the city fiscal is strictly and essentially procedural. It is an integral part of
the procedure for bringing the case to trial.

Little reflection will disclose the disastrous consequences which this Court's interpretation of
article 125 of the Revise Penal Code will bring to law enforcement. It nullifies the role of the
fiscal in the administration of criminal law. For sheer lack of time, the release of the prisoner
arrested without warrant will, in a great number of cases, be inevitable, unless the city fiscal
files charges without sufficient and adequate investigation. The alternative will be for the city
fiscal to be on a 24-hour watch lest in his sleep the time for him to act might slip by.

But this is only a poor alternative. Regardless of any vigilance on his part the opportunity for
the city fiscal to make the required investigation cannot always be assured. The law gives the
police absolute power to detain a prisoner for six hours without incurring penal liability. There
is no law which obliges the police to take the prisoner to the city fiscal before the expiration
of six hours from the time of arrest. There can be cases where the entire six hours might be
consumed by the police in their investigation alone, or just in the chasing, collection and
transportation to the police station of law breakers. This can happen in tumultuous and other
mob offenses in which many people are involved and there is necessity of screening the
guilty ones.

Supposing then that the police should deliver the prisoner or prisoners to the city fiscal at
the last minute of the six hours through negligence or by force of circumstances, what time
is there for this functionary to comply with his duty? And even if the city fiscal be given the
chance to start his assigned task at the beginning of the six hour period, can this time insure
proper and just investigation in complicated cases and in cases where the persons arrested
are numerous and witnesses are not on hand to testify? It is well to remember that the
police are not authorized to round up witnesses and take them along with the prisoners to
the city fiscal.

In the light of these consequences I can not imagine that the meaning which this Court
attaches to article 125 of the Revised Penal Code so much as entered the thought of the
legislature. No sound-minded legislature could have intended to create such a situation,
which is easy to perceive unless we assume that the legislative purpose was to tie up the
hands of the law and give lawlessness full sway; unless the legislature wanted to coddle and
pamper lawless elements to a calamitous extreme. When the Court says that the prisoner,
after being released at the end of six hours from the time of his arrest may be rearrested
should the city fiscal find sufficient evidence and prefer charges against him, it takes for
granted that underworld characters and hardened criminals are honorable men who would
keep themselves ready and handy for a second arrest.

The Court says:

"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."

What is that "proper process" referred to in the above-quoted portion of the decision?
Whatever is meant by "proper process," we should note that there is no fundamental
difference between the proceeding before a justice of the peace and the procedure followed
by the city fiscal. There is nothing important the justice of the peace may do in the interest
of the accused in the cases triable before the Court of First Instance which the city fiscal may
not do. If the city fiscal can not issue an order of arrest, the j ustice of the peace himself
does not do so to give the detention the stamp of legality. At least, I am aware of no law
which tells him to take this step, and I can see no material .advantage which an accused
could derive from this ceremony. All the justice of the peace does which matters to the
accused is admit him to bail, if the crime be bailable, and proceed to an investigation. '

But the city fiscal does just that; and if it be necessary to order the commitment of the
prisoner pending ascertainment of his guilt, the city fiscal no less than "the justice of the
peace or judge of first instance has that authority also, as I propose to show later. In actual
practice, a person arrested without warrant in a regular municipality frequently suffers
greater injustice and is subject to, and frequently goes through greater hardships than his
counterpart in the City of Manila. We are witness to the common spectacle of cases being
dismissed on motion of the provincial fiscal for want of sufficient evidence after the prisoner
had been bound by the justice of the peace over to the Court of First Instance for trial and
after he had languished in jail for months or years. Prisoner's detention in that case is not
considered illegal.

This anomaly seldom takes place in cities where the preliminary investigation is entrusted to
the city fiscal. Rarely in the City of Manila is a case dropped for insufficiency of evidence after
it has been determined in a preliminary investigation that the prisoner should be held for
trial. On the whole, the method by which the preliminary investigation is conducted by the
prosecuting attorney is more conducive to efficiency, minimizes or eliminates conflicts of
opinion in the existence of probable cause, and better insures prompt dispatch of criminal
cases to the lasting benefit of the prisoner. Only physical impossibility, as I understand it, is
in the way for the adoption of this method throughout the country.

It is a mistake, in my humble judgment, to confuse a prisoner's detention during the six-

hour period fixed in article 125 of the Revised Penal Code and his continued detention after
he is turned over to the city fiscal. As I have said, article 125 regulates the time within which
a police officer may hold the prisoner under his responsibility, and it applies to the police
alone. It will hardly be contended that this article, or any other law, or the constitution limits
the period within which a prisoner may be detained after he is delivered to the justice of the
peace. If that is so, and since the city fiscal acts in lieu of a justice of the peace, there is no
sound basis, legal or practical, for denying to the former the same time and the same
freedom of action that is enjoyed by the latter.

By the same token, there is no sound reason for denying to the proceeding by the city fiscal
the same attributes which adhere to the proceeding before the justice of the peace. After the
arresting officer produced the prisoner before the city fiscal, the law takes its course in the
same manner that it does when the examining officer is the justice of the peace or judge of
first instance. From that time the arresting officer ceases to have any control over the
prisoner save to keep him in custody subject to the orders of the city fiscal. The police step
out and the law steps in and extends to the prisoner the mantle of protection against
inquisitory examination by the police. From that time on he enjoys the rights granted by law
to all accused persons—the right to give bail and the right to testify freely uninfluenced by
any fear of violence or other forms of maltreatment. The danger envisioned by article 125 of
the Revised Penal Code is past.

The proceeding before the city fiscal does not lose its character of due process of law by its
being conducted by the city fiscal instead of a judge. For one thing, preliminary investigation
is not a trial. It is not a constitutional right. It is purely a matter of statutory regulation.
(Potenciana Dequito vs. Hugo O. Arellano et al., G. R. No. L-1336; 32 C. J. S., 456.) A
judicial proceeding which lies within the power of the legislature to provide or withhold
without infringing the fundamental law may be placed in the hands of any officer other than
a judge.

The jurisdiction to make a preliminary examination or investigation is not even considered

judicial. Judges who perform this function do not do so as judicial officers. Municipal
executives here and in the United States are conferred this power. "The power to examine
and to commit persons charged with crime is not judicial, but is one of the duties of the
conservators of the peace, and it may be, and usually is, vested in persons other than
courts, as, for instance, justices of the peace or police magistrates, or persons exercising
jurisdiction analogous to that exercised by justices of the peace, or who are ex officio
justices of the peace, such as mayors, notaries public, or court commissioners. Power to hold
preliminary examinations may be exercised by United States commissioners, and United
States district judges who, while making the preliminary-examination, exercise the powers of
commissioners only." (16 C. J., 319-320.)

There is no basis for the fear that "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." This statement overlooks the consistent and general practice heretofore
followed with clear, express statutory sanction. Section 2460 of the Revised Administrative
Code authorizes the chief of police of the City of Manila "to take good and sufficient bail for
the appearance before the city court of any person arrested for violation of any city
ordinance," while in cases of violation of any penal law, according ta the same article, the
fiscal of the city may, and does, recommend and fix the bail to be required of the person
arrested. Power to fix bail necessarily implies power to recommend or order the detention of
the prisoner if bond is not given. This in its working is no more nor less than the power to
commit an accused to prison pending investigation of this case, power which the majority
erroneously say is not possessed by the city fiscal.

The constitutional and statutory provisions and rules cited by the majority are of general
application which are good only in the absence of specific enactments. The controlling
provisions in the case at bar are sections 2460 and 2465 of the Revised Administrative Code
and section 2, Rule 108, of the Rules of Court.

The decision further says:

"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, lie becomes convinced that the accused is guilty of the offense
charged."
I do not think the foregoing paragraph is relevant to the instant case. We are not dealing
with the authority of a police officer to make arrest without warrant. There is no question
raised against the legality of the petitioners' arrest. Our problem concerns the time in which
the city fiscal may make his investigation and the scope of his power.

Assuming the above-quoted statement to be pertinent to the issues, the same can not, in my
humble view, pass unchallenged. Under certain, well-defmed circumstances, an officer may
and constantly does make arrests without a court order, with or without complaint. An officer
in good faith may arrest without warrant when he believes that a person is guilty of a crime,
and his belief rests on such grounds as would induce an ordinarily prudent and cautious man,
under the circumstances, to believe likewise. (6 C. J. S., 596.) This practice is not derived
from any express authority but on the necessity of catching law violators before they
disappear and hide. I have not come across any law naming specific offenses for committing
which the offenders shall be arrested without court orders.

It is also a general principle of law that an officer 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.
(Id., pp. 599, 600.) This principle ought to serve as a qualification to the ruling laid down by
this Court, that "a peace officer has no power to arrest a person without a warrant upon
complaint of the offended party or any other person." Under the rule I have quoted, a police
officer certainly may arrest a person pointed to him as having" committed a crime provided
that the information or complaint comes from a reliable-source and under circumstances as
to make an ordinarily reasonable man to believe it to be well-founded. When the victim of a
robbery or aggression, for example, should subsequently spot the criminal and request an
officer to arrest him, the officer would not have to seek or wait for a warrant of arrest before
detaining the man, provided again that there was good ground to believe the truth of the
accusation.

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. vs. Santos, 35 Phil., 853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil.,
516.)

PADILLA, J.:

I concur in this dissent.

SUPPLEMENTARY

DISSENTING

TUASON, J.,

When I filed my dissent from the decision of the Court on the occasion of the denial of the
motion for reconsideration, it was my understanding that there was going to be only a
minute resolution. I make this remark not as a complaint but as my explanation for writing
my dissent in advance of the reasoned resolution. Even then I would contend myself with
resting my dissent on what I have already stated did not the resolution contain new
propositions to be answered and disclose misunderstanding of some of my statements to be
cleared. As this is in the nature of reply, topics will be treated without regard to continuity of
thought.

The resolution says that article 30 of the Provisional Law for the Application of the Penal
Code in the Philippines has been repealed by section 17 of Rule 109, but that section 31 is
still in force except the last sentence. And so, according to the resolution, is section 2 of Act
No. 194.

Without discussing the materiality of those laws, I disagree that they are still in effect. Like
article 30, article 31 of the Provisional Law and section 2 of Act No. 194 deal with procedure
in justice of the peace courts in general covered by the new Rules of Court. The Rules of
Court, in the words of their introductory section, concern "pleading, practice and procedure
in all courts of the Philippines, and the admission to practice law therein." These Rules are a
complete revision and a complete re-enactment of the entire field of procedure, and there is
every reason to believe that they were intended to replace, with some exceptions, all
previous laws on the subject, especially Spanish laws which had long been out of harmony
with the new mode of pleading and practice. If the last sentence of article 31 is repealed, as
the resolution says, I see no valid ground for not holding the other parts of that article
repealed also. "Where a later act covers the whole subject of earlier acts, embraces new
provisions, and plainly shows that it was intended, not only a substitute for the earlier acts,
but to cover the whole subject then considered by the legislature, and to prescribe the only
rules in respect thereto, it operates as a repeal of all former statutes relating to such subject
matter. The rule applies not only where the former acts are inconsistent or in conflict with
the new act, but also even where the former acts are not necessarily repugnant in express
terms, or in all respects, to the new act." (59 C. J., 919-920.) "While, as a general rule,
implied repeal of a former statute by a later act is not favored, yet 'if the later act covers the
whole subject of the earlier act and is clearly intended as a substitute, it will operate similarly
as a repeal of the earlier'." Posadas vs. National City Bank of New York, 296 U. S., 497; 80
Law ed., 351.)

As the Rules of Court took effect on July 1. 1940, the case of Marcos vs. Cruz, decided on
May 30, 1939, and cited in the resolution, is no authority for the opinion that no law has
been enacted amending or repealing section 2, of Act No. 192.

But this rule of implied repeal holds good only as regards laws of general application.
Another well known rule of statutory construction tells us that preliminary investigations in
Manila and other chartered cities are to be excluded from the operation of the Rules of Court.
Such investigations are provided for by special enactments which, because of their special
nature and limited application, must be excepted from and prevail over the general
provisions. "When the provisions of a general law, applicable to the entire state, are
repugnant to the provisions of a previously enacted special law, applicable in a particular
locality only, the passage of such general law does not opei'ate to repeal the special law,
either in whole or in part, unless such repeal is provided for by express words, or arises by
necessary implication. An intention to repeal local acts generally is not inferable from the fact
that the general act specifically excludes one locality from its operation." (59 C. J., 934.)
There is no apparent intention in the Rules of Court to repeal the laws under which
preliminary investigations in Manila have to be conducted by the city fiscal. The contrary
intention is evidenced by section 2 of Rule 108, which provides that "Every justice of the
peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary
investigation of all offenses alleged to have been committed within his municipality or city,
cognizable by the Court of First Instance," (Espiritu vs. De la Rosa [July 31, 1947], L-1156,
45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22, 1941], 40 Off. Gaz., 13th Supp., p. 13.) In
the first of these cases, Mr. Justice Padilla, speaking for the Court, categorically held that the
"Rules of Court had not repealed and supplanted the provisions of the Revised Administrative
Code regarding the power and 'authority of the City Fiscal to conduct preliminary
investigation." And in Hashim vs. Boncan, the Court, through Mr. Justice Laurel, said:

"The framers of the Rules could not have intended to brush aside these lessons of
experience and to tear down an institution recognized by law and decision and
sanctioned by years of settled practice. They could not have failed to keep intact
an effective machinery in the administration of criminal justice, as expeditious and
simple as any reform they have infused into the new Rules."

The term "proper court or judge" in section 17, Rule 109, of the Rules of Court[1] should be
interpreted to mean, in the case of Manila, city fiscal, under the last mentioned canon of
interpretation. In Manila, the city fiscal performs the duties devolving on justices of the
peace in regular municipalities in the conduct of preliminary investigations, and all criminal
charges by the police and offended parties are filed with him. And it is admitted that
prisoners arrested without warrant in Manila may be taken only to the city fiscal by the
arresting officer. Let it be noted also in this connection that section 17 of Rule 109 regulates
the taking of persons arrested to the court or judge, not 1 the filing of complaint.

In view of these circumstances; in view of the fact that neither the judges of first instance
nor the municipal judges of Manila are authorized to conduct preliminary hearings other than
for the purpose of determining the amount of bail (section 2474 of the Revised
Administrative Code), the result of applying section 17 of Rule 109 to Manila would be
virtually to eliminate preliminary investigation in this city of persons arrested without a
warrant. The decision creates a vacuum, a situation which this Court on another occasion
refused to countenance in the forceful language above quoted in Hashim vs. Boncan et. al.
Thtre, the Court continued:

To sustain, the theory ot repeal is to wipe out these advantages. Not only this. If
neither section 11 nor section 13 of Rule 108 is applicable to the preliminary
investigation conducted by the City Fiscal, as we have above shown, and if
existing legislation thereon is to be deemed repealed, then the matter would be
left uncovered by rule or law. There would thus be a void crying for urgent
reform. There would be no such void if the old and tried procedure is kept in
being, untouched by the new Rules. Withal, our own knowledge of the history of
this portion of the Rules here involved does not warrant an interpretation hot
contemplated when we drafted and deliberated upon these Rules. And while,
perhaps, the language could have been clearer and the arrangement made more
logical, consideration of expediency and the avowed purpose of preliminary
investigation point to the already trodden path hereinabove indicated."

The resolution has interpreted article 125 of the Revised Penal Code with meticulous
adherence, at best, to its letter, and in open disregard, at worst, of its spirit and of the
pernicious results that follow from such interpretation. The construction which the majority
give to the term "judicial authority" makes it impossible for the city fiscal to perform his
assigned duties with the consequence that, for lack of time, malefactors will have to be
turned loose before proper investigation is conducted, or prosecution filed on insufficient
evidence, in many cases.

Nevertheless, I am not pleading, in this case, for a departure from the letter of the law. I
merely submit that the city fiscal, as was emphasized in my dissent from the decision, is a
judicial officer or judicial authority both in the popular and the legal sense of the term, and
that it is unjust, unwarranted by any rule of interpretation, absolutely disastrous to the
administration of criminal law, to identify the city fiscal with the police, forcing him to file an
information or release the prisoner within the six hours intended for the arresting officer
alone. I do not contend that the term "judicial authority" be expanded beyond its literal and
legal meaning, although if necessary this might be done to carry out the obvious purpose of
the law, but I take exception to the unjustified restriction and limitation placed on the
meaning of "judicial authority" which not only does violence to the letter and spirit of article
125 of the Revised Penal Code but leads to an extremely anomalous, not to say impossible,
situation. We do not have to look outside for the meaning of "judicial authority," as a simple
reading of article 125 of the Revised Penal Code and section 2474 of the Revised
Administrative Code yields the clear intent of the legislature. This intent, as manifested in
laws that have been amended by section 2465 and section 2474 of the Revised
Administrative Code, crystalized in a system and a practice that have received "the imprint of
judicial approval" in various decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261; U. S. vs.
Ocampo, 18 Phil. 122; U. S. vs. Grant and Kennedy, 18 Phil. 122; U. S. vs. Carlos, 21 Phil.
553; Hashim vs. Boncan, ante; Espiritu vs. De la Rosa, ante.)

The resolution, as a solution to the quandary in which it places the city fiscal, would have
him go to Congress. But, as I trust I have shown, the laws on the subject need no
supplementation and implementation. They have no gaps to be filled or ambiguities to be
cleared. The loopholes exist only as a direct result of this Court's new ruling. Section 2474 of
the Revised Administrative Code and its predecessors have operated smoothly, without a
hitch for nearly half a century. Not even when the arresting officer had 24 hours to take
arrested persons to a judicial authority was it ever imagined, much less asserted, that the
city fiscal had to borrow his time from the police.

The resolution in laying down the rule that the city fiscal has no power to issue warrant of
arrest or "an order or commitment of release by a written warrant containing the ground on
which it is based," thinks it is necessary to advert, "in justice to the city fiscal," that this
official does not pretend to possess such authority, since it is only in the dissenting opinion, it
says, where the claim is made.

At the outset I deny that I attributed to the city fiscal power to issue warrant of arrest; and I
did not say in an unqualified manner that he has power to issue commitment. On the first
point, what I said was an implicit acknowledgment of the opposite. Let me quote from the
second paragraph of page 2 of my dissenting opinion what I did say:

"The city fiscal is not any 1he less a judicial officer simply because he can not
issue warrant of arrest. The power to issue warrant of arrest is not an essential
ingredient of a judicial office."
On the power to commit prisoners, the same paragraph of my opinion shows what I said.

"As to the power to commit a detained person to prison, if that be necessary, the
majority are not exactly right when they affirm that the city fiscal is not clothed
with it. I shall come to this later."

And taking the matter up again on page 11, I said:

"Section 2460 of the Revised Administrative Code authorizes the chief of police of
the City of Manila 'to take good and sufficient bail for the appearance before the
city court of any person arrested for violation of any city ordinance,' while in cases
of violation of any penal law, according to the same article, the fiscal of the city
may, and does, recommend and fix the bail to be required of the person arrested.
Power to fix bail necessarily implies power to recommend or order the detention
of the prisoner if bond is not given. This in its working is no more nor less than
the power to commit an accused to prison pending investigation of his case,
power which the majority erroneously say is not possessed by the city fiscal."

There is nothing in this statement any outright affirmation that the city fiscal has power to
issue commitment papers. There is, on the contrary, an implied admission that the power, as
it is ordinarily exercised by a judge or court, does not exist. I merely submitted as my
personal opinion and interpretation of section 2460 of the Revised Administrative Code,
regardless of what the city fiscal thinks, that it confers upon the latter official a power which,
performed in conjunction with the power of the chief of police, amounts in its practical
operation to a power to commit a man to prison. And I said this in answer to the sweeping
assertion (which apparently was made in the decision in complete oblivion of section 2460,
supra), that to give the city fiscal unlimited time might result in injustice, since, the decision
says,

"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."

I intended to emphasize by citing section 2460 of the Revised Administrative Code, that a
prisoner could secure his release, pending investigation of his case, in the same manner and
with the same facilities that he could if the complaint or information, had been filed with a
court. In citing and stating my interpretation of section 2460 of the Revised Administrative
Code, I wished to show what I considered an erroneous ruling that

"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."

The majority come back with the assertion that the provisions of section 2460 of the Revised
Administrative Code [1]

"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."

I disagree again. I do not believe that a' provision is rendered nugatory by the mere fact that
it is foreign to the subject of the main provision or to the title or caption of the section, if
otherwise the language is clear. The title or caption is important only in determining the
meaning of laws which are ambiguous and uncertain. The provision of section 2460 of the
Revised Administrative Code quoted in the resolution does not suffer from such infirmity.

In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso relates
to the chief of police, conferring on him power of the same nature as does the enacting
clause, with the only difference that, in cases of violations of a municipal ordinance the chief
of police acts independently, on his own responsibility, while in cases of violations of a penal
law, he acts with. the advice of the city fiscal and the latter fixes the amount of bail. The
intervention of the city fiscal was only inserted, in my opinion, in view of the gravity of the
latter class of cases.

As to the other reason given in the resolution why, it says, continued detention of a prisoner
beyond six hours is not authorized—namely, that the authority granted to the city fiscal to
recommend the granting of bail by the chief of police and to fix the amount of bail to be
required of the person arrested, is only incidental—my comment is that, whether the "power
to take bail or release prisoners belongs to the city fiscal or the chief of police, is
inconsequential. To my mind, the important point is that the accused, as the resolution
admits, may be released on bond. From this power, irrespective of who possess it, is implied
the power to keep the prisoner under detention if he does not file a bond.

When the resolution concludes that if no bond 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 empowered to fix and
recommend the bail to the chief of police has authority to release person arrested in violation
of penal law," I can not follow. In a nutshell, the majority's reasoning, as I understand it, is
that the law authorizes the city fiscal to recommend and fix the bail "in order that the chief
of police may release the latter (prisoner) on bail," but that if the prisoner does not put up a
bond he has to be set at large just the same. The filing of bail is not a meaningless gesture
which may be taken advantage of by an accused at pleasure with the same effect. The
privilege to put up a bond extended to an accused must be the price or condition of his
temporary release. The law does not have to say in so many words that if he does not put a
bond he would be kept in confinement in order that we may be warranted in reaching this
result.

The resolution says that "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."

I have reflected closely on the meaning of this statement to be sure that I did not
misunderstand it. Unless I still fail to grasp the idea, I think the statement is self-annulling
and self-contradictory. The filing of bail can not relieve the arresting officer from the
necessity of taking the prisoner to the city fiscal for the simple reason that such bail, in cases
of violations of penal laws, can be filed only on recommendation of, and its amount can be
fixed by, the city fiscal. In other words, the prisoners necessarily has to be taken to the city
fiscal before any bond can be executed. And it would be underestimating the intelligence of
an accused to expect him to file a bond within six hours from the time of his arrest if he is
aware that, if at the end of those hours the city fiscal had not preferred any charges against
him and no order of commitment had been issued by the proper judge, he (accused) had to
be released. In the face of the latter theory, no prisoner would, even if he could, perfect a
bond within six hours knowing that if he did not, he would be a free man, at least
temporarily, within what remains of six hours, while if he did, the bond would enable the city
fiscal to take his time to file a case against him in court.

The gravamen of the court's argument seems to be that a commitment by a court or judge is
essential to validate detention beyond the time specified in the Revised Penal

Code. I do not share this opinion. Neither such commitment by a judge nor a formal
complaint is required by the constitution in order that a person may lawfully be kept, in jail
pending investigation of his case. An opportunity to file a bond in a reasonable amount
satisfies the constitutional demands. Nor does the bail have to be fixed or granted by a
court. Sheriffs and police officers have been authorized by statutory enactments in other
jurisdictions to take bail. At least one court has gone so far as to uphold, "independently of
statute, a practice of long standing on the part of the sheriff to take bail in criminal cases of
prisoners committed for not filing bail, and release them from confinement." (Dickinson vs.
Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of the Revised Administrative
Code, the chief of police of Manila, as already shown, is allowed to take bail by himself in
cases of violations of a municipal ordinance and with the intervention of the city fiscal in
other cases. Under this provision and this practice, a detention prisoner arrested without
warrant is not deprived of any privilege or benefit guaranteed by the constitution. The lack of
a formal complaint does not in the least prejudice him or deprive him of any benefit enjoyed
by his counterparts in the provinces. On its legal aspect, let it be observed that all the
proceeding conducted by the city fiscal is a preliminary and summary inquiry which is purely
a matter of statutory regulation. Preliminary investigation by the prosecuting attorney when
authorized by law is due process no less than one conducted by a judge. It may be
suppressed entirely, and if it may be suppressed, it may be entrusted to any officer, provided
only the constitutional right to give bail is carefully safeguarded. As this Court has said in
Hashim vs. Eoncan, supra, and U. S. vs. Ocampo, supra:

"The piosecutins? attorney for the city of Manila is presumed to be as competent

to conduct a preliminary investigation as the average person designated by law to
condpct a 'preliminary examination' under the provisions of General Orders No.
58. He is a sworn officer of the court, and the law imposes upon him the duty of
making such investigations. For such purpose the legislature may designate whom
it pleases within the judicial department."

The resolution has taken pain to cite and explain in detail what it says are the laws on
arrests in the Philippines, and takes me to task for quoting from 6 Corpus Juris Secundum,
599-600 and citing the decisions of this Court. We are told in effect that the excerpts from
my dissenting opinion, quoted on page 16 of the resolution, are without any foundation
because, it is said,,
 "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 resolution assumes that those excerpts are predicated on what I call the common law
rule, on Corpus Juris Secundum, and on decisions of the Supreme Court.

I commend a reading of my dissenting opinion. It will be seen that I did not base on those
laws, rules or decisions my statements, "The entire six hours might be consumed by the
police in their investigation alone;" "Even if the city fiscal be given the chance to start his
assigned task at the beginning of the six hour 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 on hand to testify," and "The police is not authorized to
round up witnesses and take them along with the prisoner to the city fiscal." It will be seen
that far from using as my premise those laws, rules and decisions, which I said contain in
brief outlines the powers of police officers to make arrests, I said clearly on page 12 of my
dissenting opinion:

"I do not think the foregoing paragraph is relevant to the instant case. We are not
dealing with the authority of the police officer to make arrest without warrant.
There is no question raised against the legality of the prisoner's arrest. Our
problem concerns the time and period within which the city fiscal may make his
investigation, and the scope of his power."

It was the majority decision which brought the question of the authority of the police to
make arrests into the discussion. I only met the decision on its own territory though I
regarded that territory as outside the legitimate circle of the present dispute. I cited Corpus
Juris Secundum and decisions of this Court, which I said are derived from common law, to
refute the statement,

"a fortiori, a police officer has no authority to arrest and detain a person charged
with an ofTense 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."

I especially wanted to express my disagreement with the thesis in the decision that

"A peace officer has no powar 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."

It was my humble opinion that the rules I cited and the rules on which the decisions of this
Court are predicated, were general provisions of law applicable to varying and changed
circumstances, and I wanted to deny the insinuation that there were, or there might be,
arrests without warrant "expressly authorized by law"; so I countered that "I have not come
across any law naming specific offenses for committing which the offenders shall be arrested
without court orders." This is my concept of express provisions authorizing arrests without a
warrant.

Section 6 of Rule 109, section 2463 of the Revised Administrative Code, and the Provisional
Law on the subject of arrest, cited in the resolution in an attempt to show the error of my
citations, can not be a source of comfort to the majority. Rather, I should think, they
reenforce my position, for I believe that the rules and decisions I cited and the rules and
laws called to our attention as the real thing, are in substantial agreement. My mistake was
in not citing, myself, Rule 109, section, 6, of the Rules of Court, section 2463 of the Revised
Administrative Code, and the Provisional Law. I might have found and cited them had I
thought the miatter worthy of more than a passing notice.

Now that the resolution has gone into this subject at length, I shall devote a few more lines
to it at the peril of tiring the reader on what I believe an impertinent topic.

My citation from Corpus Juris and my comment that "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," has met with derision. I am informed that my
quotation is "not a general principle of law or common law rule implanted in the Philippines";
that "it is a summary of the ruling of several states courts based on statutory exceptions of
the general rule."

I do not think I was wide off the mark when I said that the common law rule has been
transplanted to this country along with the present form of government and that the rules
and decisions I have quoted spring from the common law. And the majority are not closer to
the mark when they affirm that my quotation from Corpus Juris Secundum, and section 2463
of the Revised Administrative Code are purely statutory creation.

There was common law before there were statutes. Common law in England and in the U. S.
preceded statutes and constitutions. Statutes and constitutions in matters of arrest came
afterward, restating, affirming, clarifying, restricting or modifying the common law.

"The English common law has been adopted as the basis of jurisprudence in all
the states of the Union with the exception of Louisiana 'where the civil law
prevails in civil matters.' (11 Am. Jur., 157.) And

"in England, under the common law, sheriffs, justices of the peace, coroners,
constables and watchmen were entrusted with special powers as conservators of
the peace, with authority to arrest felons and persons reasonably suspected of
being felons. Whenever a charge of felony was brought to their notice, supported
by reasonable grounds of suspicion, they were required to apprehend the
offenders, or at least to raise hue and cry, under penalty of being indicted for
neglect of duty."

See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous cases
therein cited. It is a footnote appended to the statement of a common law principle which

is of the same tenor as that just noted. Treatises on arrest not infrequently start with a
statement of the common law rule and speak of statutes and constitutions in the sense I
have mentioned. Moran's Commentaries on the Rules of Court mention the common law (Vol.
2, p. 577) in connection with the power to make arrest without a warrant.

The doctrine taken from 5 C. J., 395-396 that "the right to make arrest without a warrant is
usually regulated by express statute, and, except as authorized by such statutes, an arrest
without a warrant is illegal"—is hot at war with the proposition that the authority of peace
officers to make arrest originated at common law and that constitutions and statutes merely
restated and denned that authority with greater precision, naming the officers who may
make arrest, the grades of offenses for, and the circumstances under, which arrest may be
effected, etc. Arrests made by officers not designated or under circumstances not coming
within the terms of the statute or constitution are illegal.

Even then, broad constitutional or statutory inhibition against search and seizure of property
or persons without a warrant has exceptions, as can be inferred from the two sentences
preceding the above sentence quoted in the resolution. These exceptions are cases where
the public security has demanded the search and seizure.

"Well established exceptions to this rule have been long recognized in cases of
felony, and of breaches of the peace committed in the presence of the party
making the arrest." (5 C. J., 395.)

Arrests under such circumstances are authorized in spite of statutes and constitutions. The
power to make such arrest is deeply rooted in the unwritten or common law, which "includes
those principles, usages and rules of action applicable to the government and security of
person and property which do not rest for their authority on any express or positive
declaration of the will of the legislature." Although acting at his perifcvthe powers to arrest
on "probable cause of suspicion" even by a private person are "principles of the common law,
essential to the welfare of society, and not intended to be altered or impaired by the
Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)

I have remarked that there is no fundamental difference between my citations, on the one
hand, and section 6 of Rule 109 and section 2463 of the Revised Administrative Code, cited
by the majority of the Court, on the other hand. There is only a difference in phraseology.
The very case of U. S. vs. Fortaleza relied upon in the resolution speaks of barrio lieutenants'
power to make arrest as not inferior to that usually conferred on peace officers known to
American and English law as constables.

The resolution quotes this from 5 C. J., 404:

"It is a general rule, although there are statutory exceptions and variations, that a
peace officer has no right to make an arrest without a warrant upon mere
information of a third person."

This is only a part of the sentence. The omitted portion is more important from my point of
view and contradicts the point stressed by the majority. The complete sentence is

"It is a general rule, although there are exceptions and variations, that a peace
officer has no right to make an arrest without a warrant, upon mere information
of a third person or mere information of a third person or mere suspicion that a
misdemeanor has been committed, that right being limited to arrests for offenses
of the grade of felony, as elsewhere shown."

It will be noticed that the quoted portion relates to arrest for misdemeanor. For further proof,
I invite attention to the title of the Section on page 401, paragraph (a), which leads: "For
Misdeameanor—aa. In General." Let it be noted that the power to arrest for misdemeanor is
different from, and more restricted than, the power to arrest for felony, as is further
demonstrated by the last clause of the full sentence above quoted. This clause refers us back
to section 30, p. 399, which says:
 "At common law, (here again common law is mentioned), and subject to the
provisions of any applicatory statute, a peace officer may arrest, without a
warrant, one whom he has reasonable or probable grounds to suspect of having
ocommitted a felony, even though the person suspected is innocent, and,
generally, although no felony has in fact been committed by any one, although,
under some statutes, a felony must have been actually committed, in which case
an officer may arrest, without a warrant, any person he has reasonable cause for
believing to be the person who committed it."

As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised Administrative
Code, like the authorities I have cited, do not limit the power of a police officer to make
arrest to those cases where he saw with his own eyes or heard with his own ears the
commission of an offense. Section 6 of Rule 109 and section 2463 of the Revised
Administrative Code are transcribed in full in the resolution, and I just suggest a careful
reading thereof. Section 2463 of the Revised Administrative Code empowers police officers

"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,"

and section 6 of Rule 109 authorizes a peace officer or a private person to make arrest when

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

Rule 28 of the Provisional Law itself empowers judicial and administrative authorities "to
detain, or cause to be detained person whom there is reasonable ground to believe guilty oi
some offense" or "when the authority or agent has reason to believe that unlawful act,
amounting to a crime had been committed."

To make arrest on suspicion or on information is not new; it is an everyday practice

absolutely necessary in the interest of public security and firmly enshrined in the
jurisprudence of all civilized societies. The power to arrest on suspicion or on reasonable
ground to believe that a crime has been committed is authority to arrest on information.

Information coming from reliable sources may be, and it often is, the basis of reasonable
ground to believe that a crime has been committed or of reasonable ground of suspicion that
a person is guilty thereof. Suspicion, reasonable ground and information are intertwined
within the same concept.

"The necessary elements of the grounds of suspicion are that the officer acts upon
the belief of the person's guilt, based either upon facts or circumstances within
the officers own knowledge, or upon information imparted by a reliable and
credible third person provided there are no circumstances known to the officer
sufficient to materially impeach the information received. It is not every idle and
unreasonable charge which will justify an arrest. An arrest without a warrant is
illegal when it is made upon mere suspicion or belief, unsupported by facts,
circumstances, or credible information calculated to produce such suspicion or
belief."

Failure to take these principles into account lias led to the belief that:
 "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
committad, 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." (Pp. 16-17 of the Resolution.)

Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised Administrative
Code, as well as the authorities I have quoted, show the fallacy of the idea that the arresting
officer knows, or should know, all the facts about the offense for the perpetration, or
supposed perpetration, of which he has made the arrest. The resolution fails to realize that in
the great majority of cases an officer makes arrest on information or suspicion; that
"suspicion implies a belief or opinion as to the guilt based upon facts or circumstances which
DO NOT AMOUNT TO PROOF;" and that information and suspicion by their nature require
verification and examination of the informers and other persons and circumstances. While an
officer may not act on unsubstantial appearances and unreasonable stories to justify an
arrest without a warrant, obviously in the interest of security, an officer, who has to act on
the spot and cannot afford to lose time, has to make arrest without satisfying himself beyond
question that a crime has been committed or that the person suspected is guilty of such
crime. A police officer can seldom make arrest with personal knowledge of the offense and of
the identity of the person arrested sufficient in itself to convict. To require him to make an
arrest only when the evidence he himself can furnish proves beyond reasonable doubt the
guilt of the accused, would "endanger the safety of society." It would cripple the forces of the
law to the point of enabling criminals, against whom there is only moral conviction or prima
facie proof of guilt, to escape. Yet persons arrested on suspicion, on insufficient evidence or
information are not necessarily innocent so that the prosecuting attorney should release
them. Further and closer investigation not infrequently confirm the / suspicion or
information.

The majority of arrests are not as simple as a police officer catching a thief slipping his hand
into another's pocket or snatching someone else's bag, or surprising a merchant selling
above the ceiling price, or seizing a person carrying concealed weapons. Cases of frequent
occurrence which confront the police and the prosecution in a populous and crime-ridden city
ara a great deal more complicated. They are cases in which the needed evidence can only be
supplied by witnesses, witnesses whom the arresting officer or private persons has not the
authority or the time to round up and take to the city fiscal for examination within what
remains, if any, of six hours. Let me give two examples.
 1. A murder with robbery is reported to the police. An alarm is broadcasted giving a
description of the murderer. Later a police officer is told that the wanted man is in a
store. He proceeds to the store and, besides believing in the good faith of his
informant, detects in the man's physical appearance some resemblance to the
description given in the alarm. All this occurs at the holy hours of night.

Should the officer refrain from making an arrest because he is not certain beyond reasonable
doubt of the identity of the suspected murderer? Should the city fiscal order the release of
the prisoner because of insufficiency of evidence and because the six hours are expiring, or
should he prefer formal charges (if that can be done at midnight) on the strength of evidence
which, as likely as not, may be due to a mistaken identity? Should not the prosecuting
attorney be given, as the law clearly intends, adequate time to summon those who
witnessed the crime and who can tell whether the prisoner was the fugitive?, allowing the
prisoner to give bail, if he can.

2. A police officer is attracted by screams from a house where a robbery has been
committed. The officer rushes to the place, finds a man slain, is told that the murderers
have fled. The officer runs in the direction indicated and finds men with arms who, from
appearances, seem to be the perpetrators of the crime. The people who saw the
criminals run off are not sure those are the men they saw.

The night was dark, for criminals like to ply their trade under cover of darkness.

The officer does not, under these circumstances, have to seek an arrest warrant or wait for
one before detaining the suspected persons. To prevent their escape he brings them to the
police station. On the other hand, would the fiscal be justified in filing an information against
such persons on the sole testimony of the police officer? Is it. not

his duty to wait for more proofs on their probable connection with the crime? Should the city
fiscal file an information on insufficient evidence, or should he, as the only alternative, order
the release of the prisoners? Does either course subserve the interest of justice and the
interest of the public? If the arrested persons are innocent, as they may be, is their interest
best served by hasty filing of information against them, or would they rather have a more
thorough investigation of the case?

Cases like these with varying details can be multiplied ad infinitum. They form the bulk of
underworld activities with which the forces of law have to cope and with which the general
public is vitally concerned. The public would not be secure in their homes and in the pursuit
of their occupations if this Court, through unreasoning worship of formalism, throws down a
method, practice and procedure that have been used here and elsewhere from time
immemorial to the end of service and in the interest of public security. The public is not
much interested in such minor offenses as pick-pocketing, fist fights and misdemeanors or
violations of municipal ordinances for which arrests can be made by police officers only when
committed in their presence or within their hearing.

The decision of this Court leaves the city fiscal no alternative between releasing prisoners for
insufficiency of evidence due to lack of time to secure more, and filing information against
persons who may be innocent of the crime charged. The latter course, to which the city fiscal
is driven to play safe, defeats directly the very aims of preliminary investigation. The oft-
repeated purpose of a preliminary investigation is to secure tlie innocent against hasty,
malicious and oppressive prosecution and to protect him from open and public accusation of
crime, and from the trouble, expense, anxiety of a public trial, and also to protect the State
from useless and expensive prosecutions. (Hashim vs. Boncan, No. 47777, January 13,
1941; 40 Off. Gaz., 13th Supp. p. 13; U. S. vs. Mendez, 4 Phil.; 124; U. S. vs. Grant and
Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666; People vs. Colon, 47 Phil. 443.) Even
more deplorable would be the acquittal of guilty accused due to lack of proofs which the
prosecution, if it had been afforded sufficient time, could have gathered.

The foregoing gees, too, for the concurring opinion. There is only one moi'e point to which
we wish to address ourselves briefly. The concurring opinion contains this passage:

"Dentro de las C horas hay tiempo mas que suficiente para meter en cuenta a
toda la canalla * * * Pero; por Dios que no se violen ni pisoteen las garantias
constitucionales por miedo a los gangsters!"

No one can disagree with this thought—as an abstract proposition. The only trouble is that
the opinion does not cite any concrete constitutional provision or guaranty that is infringed
by our dissent. I take the suggestion in the resolution—that "it would be proper for the
interested parties to take the case to Congress, since it can not be done by judicial
legislation"—to be a tacit recognition that the matter is purely one of statute and that no
constitutional impediment is in the way of changing the law and enlarging the power of the
city fiscal in the premises. And let it be said that the objection in the concurring opinion to
this suggestion is rested, not on constitutional grounds but on the supposition that the law is
good enough to be left alone. All of which tempts us to paraphrase the famous apostrophe of
that equally famous woman in French history, and exclaim, "Oh Constitution! what grievous
mistakes are committed in thy name!"

The concurring opinion is in error when it sees shadows of fear of gangster in our dissent.
Society no less than a natural person has the right to protect itself, and the arrest and
punishment of transgressors of its laws is one of its legitimate means of self-protection and
self-preservation. As far as the insinuation of fear may reflect on those who are duty bound
to have a part in such arrest

and punishment, the application of criminal laws without quarters to the end which they are
intended to serve, is not in strict logic a sign of apprehension. Such course, rather than
tolerance, leniency or indifference towards crimes and appeasement of lawless and other
elements and groups who wield the power of physical and verbal retaliations, calls for exactly
the opposite quality of fright.

[1] 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.

[1] There shall be a chief of police who * * * may take good and suflicient 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 violations 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; * * *.

PADILLA, J.:

I concur.

Motion denied.

Source: Supreme Court E-Library | Date created: February 24, 2015

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