RIGHTS OF THE ACCUSED

PP v. Crisologo (Right to counsel, right to be informed, right to be heard)

FACTS:
On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal
Court of Magsaysay, Davao del Sur against the accused Zosimo Crisologo alias "Amang," a deaf-
mute, for robbery and homicide
On 12 December 1977, arraignment was set. The accused was allegedly informed of the charge
against him through sign language by Special Policeman Alejandro Munoz a childhood
acquaintance. Mr. Munoz subsequently entered a plea of guilty on behalf of the accused.
Upon objection of counsel, however, this plea was disregarded and arraignment was
rescheduled until such time as the Court could avail of the services of an expert in the sign
language from the school of the deaf and dumb.
After five years from the date of filing of the information, another order for a deaf and dumb
expert was made. Apparently no sign language expert or representative ever arrived.
On 6 April 1983, the accused through a counsel de oficio waived the reading of the information
and pleaded not guilty. Trial proceeded without any evidence being presented on his part.
Finally, on 10 February 1986, without the services of an expert in sign language ever being
utilized at any stage of the proceedings, the accused was found guilty beyond reasonable
doubt of robbery with homicide and sentenced to die by electrocution. Executive clemency
was recommended, however, in view of the accused's infirmity and his nearly ten-year
detention as a suspect.

RULING

The absence of a qualified interpreter in sign language and of any other means, whether in writing or
otherwise, to inform the accused of the charges against him denied the accused his fundamental right to
due process of law. 1 The accuracy and fairness of the factual process by which the guilt or innocence of
the accused was determined was not safeguarded. The accused could not be said to have enjoyed the
right to be heard by himself and counsel, and to be informed of the nature and cause of the
accusation against him 2 in the proceedings where his life and liberty were at stake.

Terry v. State: ... The Constitution of this state expressly provides that an accused has a right to be heard
by himself and counsel, also, to demand the nature and cause of the accusation; against him, and,
further to be confronted by the witnesses, who are to testify against him. In constructing this
constitutional provision it needs no discussion in deciding that all this must be done in a manner by
which the accused can know, the nature and the cause of the accusation he is called upon to answer,
and all necessary means must be provided, and the law so contemplates, that the accused must not
only be confronted by the witnesses against him, but he must be accorded all necessary means to
know and understand the testimony given by said witnesses, and must be placed in a condition where
he can make his plea rebut such testimony, and give his own version of the transaction upon which the
accusation is based.

The basic constitutional infirmity alone in the conduct of the case against the accused is, in our candid
assessment, fatal to the judgment of conviction meted out against him.
Also, the circumstantial evidence against the accused is not enough to convict him beyond reasonable
doubt. (that they were drinking together and went home together. The single blood stain in his shirt
after the accused claimed he witnessed a fight, the watch and flashlight of the victim found in the house
of the accuseds father, the medical examiners report that the 15 stab wounds could have been made
by several assailants with different weapons, presence of slippers and eyeglasses on crime scene)

The testimony of the police who arrested and investigated him was inconsistent. The police claimed that
Crisologo made gestures admitting his guilt. He later on claimed that he may have misinterpreted such
gestures. . He also acknowledged his failure to notify the accused of his right to counsel before
interrogation and investigation due to difficulty in conveying the matter by sign language.
Earlier plea of guilty cannot be also considered because of investigator's own admission that the
accused was never informed of his right to counsel.

Tubb v. People (Right to be informed)

Facts:
Tubb talked Quasha into investing in the rattan business. Quasha delivered the sum of
P6,000.00
Quasha subsequently did not hear from Tubb again. Tubb no longer resides in Quezon and no
longer stays in his office.
They had a chance meeting in the Manila Hotel where Quasha demanded the return of the
money. Tubb merely said that there is no use in explaining the situation and that he would pay
him back.
Tubb still did not pay and Quasha wrote him a letter threatening to file criminal charges
Trial court found Tubb guilty of estafa under Art. 315 1B ( misappropriation, necessitates
demand)
Upon appeal, CA convicted him of estafa under Art. 315 2A (There is here, therefore, a perfect
case of swindling by means of false pretenses, where formal demand is not necessary)
ISSUE:
WON a person charged in the information with estafa as defined in Article 315, paragraph 1 (b) of the
Revised Penal Code may be convicted of estafa as defined in Article 315, paragraph 2 (a) of the same
code.

RULING: In this case, NO

This offense is, however, entirely different and distinct from that described in paragraph 1 (b) quoted
above. Moreover, some of the essential elements of the offense defined in said paragraph 2 (a) are
not alleged in the information herein. For instance, there is no averment therein of any "false pretenses
or fraudulent acts executed prior to or simultaneously with the commission of the fraud," which
distinguishes said offense from that referred to in paragraph 1 (b), the main characteristic of which is
"unfaithfulness or abuse of confidence", and this is the essence of the crime charged in said information.
The allegations thereof are such as not to permit petitioner's conviction for estafa under said
paragraph 2 (a), without violating his constitutional right to be informed of the nature and cause of
the accusation against him.

Note: accused was still convicted, but under estafa 315 1B again. Demand made in Manila Hotel was
sufficient.
PP v. Presiding Judge (Right to be present during trial)

FACTS:
Rodolfo Valdez was charged with murder, but was out on bail
After his arraignment, Rodolfo Valdez, Jr., thru his counsel, manifested orally in open court that
he was waiving his right to be present during the trial.
The prosecuting fiscal moved that respondent Rodolfo Valdez, Jr. be compelled to appear and
be present at the trial so that he could be Identified by prosecution witnesses
Respondent judge in his Order, sustained the position of private respondent who cited the
majority opinion in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al., 63
SCRA 546, and held that "he cannot be validly compelled to appear and be present during the
trial of this case."

ISSUE: WON respondent Rodolfo Valdez, Jr.. despite waiver of his right to be present, can be compelled
by the trial court to be present during the trial

RULING: YES

Dissenting opinion of J. Castro in Benigno Aquino v. Military Commission: "the accused may waive his
presence in the criminal proceedings except at the stages where Identification of his person by the
prosecution witnesses is necessary.

Stated differently, the 1973 Constitution now unqualifiedly permits trial in absentia even of capital
offenses, provided that after arraignment he may be compelled to appear for the purpose of
Identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court
after his arraignment that he is the person named as the defendant in the case on trial.

Reason: 1. he may in his defense say that he was never Identified as the person charged in the
information and, therefore, is entitled to an acquittal.

2. it is possible that a witness may not know the name of the culprit but can Identify him if he sees him
again, in which case the latter's presence in court is necessary.

Borja v. Mendoza (right to be informed, right to be heard, lack of arraignment)

FACTS:
Manuel Borja was convicted of slight physical injuries at the trial court of respondent Judge
Romulo R. Senining even without arraignment and him being present in the trial.
Decision appealed to CFI Cebu City(Judge Mendoza) that without any notice to petitioner and
without requiring him to submit his memorandum, a decision on the appealed case was
rendered.
RULING: Due process and constitutional rights violated

Constitution requires that the accused be arraigned so that he may be informed as to why he was
indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is
shown beyond reasonable doubt with full opportunity to disprove the evidence against him.
8 An arraignment thus becomes indispensable as the means "for bringing the accused into court and
notifying him of the cause he is required to meet..

Demand by the accused not necessary to enforce right to arraignment

That upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon
the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This
duty is an affirmative one which the court, on its own motion, must perform, unless waived.

No such duty, however, is laid on the court with regard to the rights of the accused which he may be
entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of
which he himself must demand.

Rules of Court requires arraignment

As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the
first time, is granted the opportunity to know the precise charge that confronts him.

What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the
crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital
aspect of the constitutional rights guaranteed him. It is not useless formality, much less an Idle
ceremony.

On being convicted without ever being present:

Abriol v. Homeres :"It is the constitutional right of the accused to be heard in his defense before
sentence is pronounced on him. such "constitutional right is inviolate." There is no doubt that it could
be waived, but here there was no such waiver, whether express or implied.

PP v. Holgado: In criminal cases there can be no fair hearing unless the accused be given an opportunity
to be heard by counsel. The right to be heard would be of little avail if it does not include the right to
be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the
law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his innocence." (records clearly show that
petitioner was not arraigned at all and was not represented by counsel throughout the whole
proceedings in the respondent City Court)

PP v. Santos real (right to counsel in a police line-up)

FACTS:
Accused was charged with murder, ambush of two people riding a jeep. They were then called
for a lineup where Bautista(one of those shot at in the jeep) and Bohol (a police traffic aide)
identified him in a line-up.

RULING:

Appellant Santos makes two (2) additional arguments. Firstly, he complains that he was not afforded his
right to counsel int he course of the police line-up, at the police station where he was identified by the
prosecution witnesses. This argument, of course, assumes that during the police line-up, accused was
under custodial investigation, a stage which, per the appellant, began the instant the police suspected
Santos then had no lawyer present nor was one provided, his counsel argues, Santos's identification was
"tainted" and inadmissible. The argument is creative, but has no legal basis. In Gamboa v. Cruz, 10 the
Court said that there is "no real need to afford a suspect the service of counsel at police line-up," 11 a
declaration reiterated in People v. Loveria. 12 The customary practice is, of course, that it is the witness
who is investigaged or interrogated in the course of a police line-up and who gives a statement to the
police, rather than the accused who is not questioned at all at that stage. The Court is aware of the
caveat in Gamboa. 13 But there is nothing in the record of this case which shows that in the course of
the line-up, the police investigators sought to extract any admission or confession from appellant
Santos. The investigators did not in fact interrogate appellant Santos during the line-up and he remained
silent after he had been identified by Bautista and Bohol.

Appellant Santos's second contention is that there had been "improper suggestiveness" in the course of
the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that
Bautista and Bohol were induced by the police investigators to point to appellant Santos as one of the
gunmen. The record does not show that the police investigators had coached Bautista.

We are not convinced, however, that the phrase "iyan po" constituted an "improper suggestion,"
certainly not in the context of a situation where, as here, appellant Santos was identified successively by
Bautista and Bohol from a group of person. We consider that the phrase "iyan po" is too cryptic. What
that Court warned against in People v. Acosta, 15 i.e., against an identification process that was
"pointedly suggestive, or generated confidence when there was none, activated visual imagination, and
all told, subverted [a person's] reliablity as [an] eye-witness [..]," has not been successfully shown in the
case at bar.

PP v. Hernandez (rights under custodial investigation; waiver of such rights; extrajudicial confession)

FACTS:
Felicisimo Hernandez and Carlos Imperial, who are both beauticians, were placed under
surveillance until they were arrested on July 20, 1984. Marked money of P20.00 in two ten peso
(P10.00) bills 1 were found in the possession of Hernandez while marijuana leaves contained in
a matchbox 2 were in the possession of Rizaldy Angcaya, an informer, who allegedly purchased
the same from Hernandez.
Upon investigation by the police, both of them admitted in their sworn statements having sold
marijuana to Rizaldy Angcay.
Both were convicted in the trial court based on the extrajudicial confession. Informer was never
presented in court.

ISSUE: WON the extrajudicial confession is admissible

RULING: No

Under the foregoing provisions a person under custodial investigation is entitled to the following rights:
(a) the right to remain silent: (b) the right to counsel; and (c) the right to be informed of these rights. An
examination of the extrajudicial confession of appellant 6 shows that he was informed of his
constitutional right to be silent and of his right to be assisted by counsel during the said investigation. He
was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative.
However, this waiver was made without the assistance of counsel.

The clear rule this Court has set is that the right to counsel may be waived but the waiver shall not be
valid unless made with the assistance of counsel. Any statement obtained in violation of this
procedure, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

PP v. Luvendino (reenactment, uncounseled waiver of right to counsel; extrajudicial confession)

FACTS:
Rowena Capcap was found raped and brutally killed on Jan. 17, 1983. Her body was found in a
grassy lot near her home.
On February 10, 1983, Panfilo Capcap, father of the victim, was awakened by the police and
brought to the lot where they found the body.
A police officer told him they had arrested Ernesto Luvendino, alias "Joey". The accused was
then demonstrating how they brought the girl to the vacant lot. While Luvendino was re-
enacting the events that transpired in the evening of January 17, pictures were taken by a
photographer brought by the police officers. As the re-enactment was going on, Capcap said he
heard the accused said that he and his companion boxed her in the stomach, dragged her to the
lot and raped her there. The accused allegedly admitted he and Cesar Borca had strangled
Rowena and he likewise admitted he had abused her.
Luavendino executed an extrajudicial statement, which also set out a separately signed waiver
of his rights, at the police department (without presence of counsel)
He was later brought to the office of Provincial Fiscal Mateo, where he subscribed to or signed
once more the same document, this time under oath. When Luvendino subscribed under oath
to his extrajudicial confession in the presence of the Provincial Fiscal, his mother and Atty.
Eustacio Flores were also present.

ISSUE: Is the reenactment admissible as evidence? Is the extrajudicial confession admissible?

RULING: No, Yes

Reenactment, not admissible as evidence

We note that the re-enactment was apparently staged promptly upon apprehension of Luvendino and
even prior to his formal investigation at the police station. 10 The decision of the trial court found that
the accused was informed of his constitutional rights "before he was investigated by Sgt. Galang in the
police headquarters" and cited the "Salaysay" 11 of appellant Luvendino. 12 The decision itself,
however, states that the re-enactment took place before Luvendino was brought to the police station.
Thus, it is not clear from the record that before the re-enactment was staged by Luvendino, he had
been informed of his constitutional rights including, specifically, his right to counsel and that he had
waived such right before proceeding with the demonstration. Under these circumstances, we must
decline to uphold the admissibility of evidence relating to that re-enactment.

Extrajudicial confession, uncounseled but admissible

Luvendino may be deemed to have in effect ratified, before the Fiscal and with the aid of counsel, the
extrajudicial confession and waiver of the right to counsel which he had earlier signed without the
presence of counsel in the police station.
In the morning of February 10, 1983. At that office, he was at first aided by a lawyer from the CLAO. He
did not sign the statement for he wanted to talk to his mother. He was returned to the police station
where his mother saw him in the afternoon. In the headquarters, they requested that they be allowed
to engage a lawyer of their choice and their request was granted. The mother called for Atty. Flores who
arrived when the accused was already back in the Office of the Fiscal. In the presence of Atty. Flores and
his mother, the accused was investigated by the fiscal after which, also in the presence of his mother
and assisted by Atty. Flores, the accused signed Exhibit "

The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect was
initially a judge-made one and was first announced on 26 April 1983 in Morales v. Enrile 22 and
reiterated on 20 March 1985 in People v. Galit

While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that
doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in
Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983,
the date of promulgation of Morales. (note: his was done on Feb. 10,1983)

PP v. Nabaluna: Uncounseled waiver of right to counsel was held valid for the reason that at the time
such waiver was made, there was no rule or doctrine or guideline requiring the waiver of the right to
counsel should itself be made only in the presence and with the assistance of counsel.

In Magtoto v. Manguera: Section 20, Article IV of the 1973 Constitution, was to be given prospective
effect only.

Applying Nabaluna to the case at bar, we believe and so hold that appellant Luvendino validly waived
his right to counsel so far as his extrajudicial confession was concerned, although he was not assisted
by counsel when he initially signed his confession at the police headquarters (disregarding for present
purposes only, the subsequent events in the office of the Provincial Fiscal). At the time the extrajudicial
confession and waiver were first executed (i.e., 10 February 1983), there was no rule of doctrine
prescribing that waiver of the right to counsel may be validly made only with the assistance of
counsel. It is scarcely necessary to add that we are here referring only to extrajudicial confessions and
waivers which were made voluntarily and intelligently.

On alleged deprivation of due process because of mental reservations of his counsel:

Atty. Sardillo had appeared in at least two (2) previous hearings and had cross-examined prosecution
witness Cemitara before he (Sardillo) offered in open court to withdraw as defense counsel on 14
November 1983. The trial court could scarcely be faulted for declining Atty. Sardillo's offer to withdraw,
considering that such offer had been made without the conformity or permission of Luvendino. Atty.
Sardillo himself did not insist on withdrawing as defense counsel. If appellant Luvendino in truth had
entertained substantial doubts as to the sincerity or capability or impartiality of his lawyer, he could
have easily terminated the services of that counsel and retained a new one or sought from the trial
court the appointment of counsel de officio. Instead, Luvendino continued to retain the services of
Atty. Sardillo until the trial court rendered its decision.

Romero concurring, separate opinion:

Republic Act No. 7438 is already in place. It provides that Any extrajudicial confession made by a person
arrested, detained or under custodial investigation shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the
parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession
shall be inadmissible as evidence in any proceedings.

It can be applied retroactively because it is beneficial to the accused. However, the uncounseled
extrajudicial confession was later on ratified by his sworn statement in the fiscals office and with
counsel.

Cruz, concurring and dissenting: Right to counsel has been present even before the 1973 Constitution.
And even before the doctrine in PP v. Nabaluna and Magtoto v. Manguera. The present ponencia says
that the Magtoto decision "has been reiterated many times and it is much too late in the day to consider
re-examining the doctrine laid down." I regret I have to disagree. It is never too late to re-examine any
decision of this Court and amend or even reverse it whenever warranted regardless of the number of
times it has been reiterated. Rectifying error is better than persisting in it.

Calderon-Bargas v. RTC Pasig (right to speedy trial)

FACTS:
Respondent Raul, Locsin was the editor and publisher of the newspaper, Business Day. Other
respondents, Leticia Locsin and Salvador Lacson, were the managing editor and columnist,
respectively, of said newspaper. On 7 April 1987, Salvador Lacson published in Business Day an
article entitled "Insurance Monopoly", which allegedly contained defamatory statements
against petitioner Bennett LL. Thelmo, and maliciously tried to make it appear that Thelmo was
a grafter and bribe-giver.
On 10 April 1987, Thelmo filed an affidavit-complaint with the Office of the Provincial
Prosecutor
On 23 May 1988, the corresponding informations were filed and assigned to respondent trial
court.
Salvador filed a motion to quash on the ground of prescription. Prosecution was asked to
comment but failed to do so.
on 03 January 1991, respondent court issued an order granting the motion to quash the
informations, on the ground of prescription
MFR was filed and granted and the three informations were reinstated (3 May 1991)
Respondents filed MFR again based on the right to speedy trial. Court granted the motion and
such order is now assailed.

RULING

In the criminal cases at bench, it is clear that the prosecution failed to prosecute them for an
unreasonable length of time.
Clearly, the prosecution failed to file comment on the accused's motion to quash, despite the admitted
service of a copy thereof on the then trial fiscal handling the case (Fiscal Simon, Jr.), and despite order of
respondent court directing comment on said motion to quash.

When the respondent court issued the order of 03 January1991, granting accused's motion to quash,
more than two (2) years had lapsed, without public prosecutor having filed any comment despite, we
repeat, several extensions of time granted to the prosecution, within which to file comment . And such
non-filing of the comment, on the part of the prosecution for more than two (2) years, is undoubtedly
an unreasonable failure or delay.

Under Section 1(h), Rule 115, Revised Rules on Criminal Procedure, one of the rights of the accused is
the right "to have a speedy, impartial and public trial." A denial of this right entitles the accused to a
dismissal of the case, upon filing the appropriate motion to dismiss and the dismissal operates as an
acquittal.

There are only two occasions when double jeopardy will attach even if the motion to dismiss the case is
made by the accused himself. The first is when the ground is insufficiency of the evidence of the
prosecution, and the second is when the proceedings have been unreasonably prolonged in violation
of the right to a speedy trial.

In Bermisa vs. Court of Appeals, 13 it was held that the right to a speedy trial is denied the accused
"where through the vacillation and procrastination of prosecuting officers, the accused is forced to wait
many months or years for trial.

However, the motion to quash the informations was not strictly the proper remedy, because a denial
of the right to speedy trial is not one of the grounds (Sec. 3 Rule 117 of the Revised Rules on Criminal
Procedure) upon which a motion to quash a complaint or information may be grounded. The denial of
the accused's right to speedy trial as a consequence of the prosecution's failure to prosecute for over
two (2) years gave rise to a motion to dismiss. The cases were properly dismissable on this score."

On prescription of the offense: In Francisco v. Court of Appeals, this Court held that the filing of a
complaint in the fiscal's office interrupts the period of prescription.

Offense has not yet prescribed when filed but the case must be dismissed.

Jaca v. Blanco (double jeopardy)

FACTS:
Romeo Jaca was accused before the Court of First Instance of Iloilo of triple homicide through
reckless imprudence. After arraignment the case was called for trial at 8:06 in the morning of
February 3, 1949, and counsel for the accused entered his appearance.
The accused was present. But as nobody appeared for the prosecution, the court then and
there dismissed the case without prejudice.
Four minutes later counsel for the private prosecution arrived, followed a little later by the City
Fiscal together with the witnesses for the prosecution, and explained to the court that their
tardiness was due to the fact that the chauffeur of the jeep in which they were riding was
detained by a policeman for driving on the wrong side of the street.
 Satisfied with the explanation, the respondent judge set aside the order of dismissal and reset
the case for trial on the following morning, February 4, 1949.
Accused filed MFR for the reversal of the dismissal order claiming double jeopardy-denied

RULING
We at the dismissal contemplated in the abovequoted section of the rule(section 9 of the Rule 113) is
definite or unconditional dismissal which terminates the case, and not a dismissal without prejudice
as in the present case.

In the absence of any statutory provision to the contrary, we find no reason why the court may not, in
the interest of justice, dismiss a criminal case provisionally, i.e., without prejudice to reinstating it before
the order becomes final or to the subsequent filing of a new information for the same offense.

Under the circumstances we find no violation of any constitutional right of the accused by the
respondent judge in reconsidering his previous order of dismissal a few minutes after it was dictated
and in reinstating the case against accused. The accused had been neither previously convicted nor
acquitted, nor had the case against him been definitely dismissed since the dismissal was without
prejudice. Had the respondent judge refused to vacate the order of dismissal under the circumstances,
we think he would have committed a grave miscarriage of justice.

Beltran v. Samson and Jose (right not to be a witness against himself)

FACTS:
Accused was investigated for falsification (no information yet filed)
Fiscal asked the court to compel the accused to appear before him to take dictation in the
accuseds own handwriting from the fiscal for the purpose of determining whether he falsified
certain documents.
Court granted the petitioned and issued the assailed order

RULING
Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion
of the fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But
this power must be exercised without prejudice to the constitutional rights of persons cited to appear.

Nor shall be compelled in any criminal case to be a witness against himself." (Jones Law pa kai before nis
1935 Constitution)

As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing
of evidence.

Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to
giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word
of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.

Furthermore, in the case before us, writing is something more than moving the body, or the hands, or
the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and
attention; and in the case at bar writing means that the petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except
that it is more serious, we believe the present case is similar to that of producing documents or
chattels in one's possession.

We say that, for the purposes of the constitutional privilege, there is a similarity between one who is
compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.

And we say that the present case is more serious than that of compelling the production of documents
or chattels, because here the witness is compelled to write and create, by means of the act of writing,
evidence which does not exist, and which may identify him as the falsifier.

It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's
handwriting is not granted, the crime would go unpunished. Considering the circumstance that the
petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal
to obtained genuine specimens of his handwriting. But even supposing it is impossible to obtain
specimen or specimens without resorting to the means complained herein, that is no reason for
trampling upon a personal right guaranteed by the constitution. It might be true that in some cases
criminals may succeed in evading the hand of justice, but such cases are accidental and do not
constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of
innocent persons.

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived by
any one entitled to invoke it.

As compared to Villaflor v.Summers: The said reason of the case there consisted in that it was the case
of the examination of the body by physicians, which could be and doubtless was interpreted by this
court, as being no compulsion of the petitioner therein to furnish evidence by means of testimonial act.
In reality she was not compelled to execute any positive act, much less a testimonial act; she was only
enjoined from something preventing the examination; all of which is very different from what is
required of the petitioner of the present case, where it is sought to compel him to perform a positive,
testimonial act, to write and give a specimen of his handwriting for the purpose of comparison. Besides,
in the case of Villamor vs. Summers, it was sought to exhibit something already in existence, while in the
case at bar, the question deals with something not yet in existence, and it is precisely sought to compel
the petitioner to make, prepare, or produce by this means, evidence not yet in existence; in short, to
create this evidence which may seriously incriminate him.