Manila
EN BANC
G.R. No. L-33125 September 30, 1971
IN THE MATTER OF THE PETITION OF ROMAN DE ASIS FOR A WRIT OF HABEAS CORPUS. ROMAN DE ASIS, petitioner,
vs.
THE HON. HONORIO ROMERO, Presiding Judge, Court of First Instance of Pampanga, Branch III; THE HON. ANTONIO G. P. FAUSTO, Assistant Provincial Fiscal of Pampanga; and THE PROVINCIAL WARDEN OF THE PROVINCE OF PAMPANGA, respondents.
Juan T. David for petitioner.
Provincial Fiscal Regidor Y. Aglipay and Asst. Provincial Fiscal Antonio G. P. Fausto for respondents.
CASTRO, J.:
In this petition for habeas corpus, the petitioner Roman de Asis prays for his release from detention through the nullification of the order for his arrest dated August 18, 1970, issued by the respondent Judge Honorio Romero of the Court of First Instance of Pampanga on the basis of an information filed by the respondent assistant provincial fiscal Antonio G. P. Fausto of Pampanga with the said court charging the petitioner with "kidnapping with serious illegal detention." .
It appears that on June 3, 1970, in the absence of the petitioner and his counsel, the respondent fiscal conducted a preliminary investigation pursuant to a complaint for kidnapping filed by one Eduardo Sumang against De Asis and two other persons. According to the respondent fiscal, a subpoena issued on, May 14, 1970 was duly served upon De Asis on May 28, 1970, as evidenced by the return of service thereof attached to the records of the instant petition, but "he refused to sign his name to acknowledge receipt of the copy of the subpoena as per return made by Pat. R. Salvador of San Simon Pampanga, thus giving him ample time and opportunity to appear." .
An information for "kidnapping with serious illegal, detention" was thereafter filed against the petitioner with the CFI of Pampanga.
On August 18, 1970, on the basis of this information, the respondent judge issued the order of arrest in question.
The central theme of the petitioner De Asis' contention is that the respondent judge issued the warrant of arrest in question without previously having personally examined under oath or affirmation the complainant and the latter's witnesses in the said case, in violation of section 1(3) of Article III of the Constitution.
After he was apprehended, De Asis filed with the lower court a petition for bail dated December 17, 1970. Hearing on this petition was postponed several times on motion of De Asis.
In the time, on December 21, 1970, De Asis was arraigned; with the aid of counsel, he entered a plea of not guilty.ℒαwρhi৷
After De Asis' arraignment, the fiscal's office of Pampanga filed with the respondent court a motion to admit an amended information dated February 1, 1971, charging De Asis and his co-accused with kidnapping with murder, in lieu of the original information for "kidnapping with serious illegal detention." This motion to amend was instituted after a preliminary investigation conducted thereon by the provincial fiscal's office of Pampanga. The lower court granted the motion with respect to De Asis' co-accused (who had not yet been arraigned at that time) in an order dated February 9, 1971, but deferred action on the motion as to De Asis, in view of the filing of the instant petition for habeas corpus on February 8, 1971 as well as De Asis' motion for reconsideration of the preliminary investigation (that led to the filing of the motion to amend information).
On March 3, 1971, a petition for provisional release was filed with this Court by De Asis, alleging illegality of (1) the warrant of arrest (in question) issued by the respondent judge against him as well as of (2) the filing of the aforesaid motion to amend information which, in the petitioner's opinion, charges an altogether different offense and for which no warrant for his arrest has as yet been issued.
On March 23, 1971, the respondent fiscal filed his opposition to this petition for provisional release on the following grounds: (1) the motion to amend information was filed because of the discovery of the body of the alleged kidnapped victim (Rafael Sumang) subsequent to the filing of the original information; and (2) the offense of "kidnapping with serious illegal detention" and the offense of murder which is to be added to the original information, are both capital offenses, the former being punishable by reclusion perpetua to death, the latter by reclusion temporal in its maximum period to death.
On April 2, 1971, we denied the petition for provisional release, "without prejudice to [De Asis] taking it up with the lower court."
In the reported decisions of this Court is a fairly excellent catalogue of dissertations on the previous position of personal freedom as part of the nation's heritage and the country's political consciousness. But although the existing legal order guarantees to every individual security against any non-due process type or form of restraint or detention, it nonetheless leaves it to and expects him to initiate the assertion of his corresponding right, in conformity with rules laid down or expounded by the institutions which the people themselves, in their sovereign capacity, have by covenant established.
One of the most important of these settled rules is that any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person of the accused must be opportunely raised before he enters his plea, otherwise the objection is deemed waived.1
De Asis could have, right after his arrest, objected to the regularity of the issuance of the warrant of arrest in question. Instead he not only filed a petition for bail with the lower court, thereby accepting the court's jurisdiction over his person, but he also pleaded, on arraignment, to the information filed against him.
As to the argument that the respondent fiscal is "bent" on filing an amended information for kidnapping with murder in lieu of the original information for "kidnapping with serious illegal detention," and that the said amended information charges an altogether different offense for which no warrant for his arrest has as yet been issued, we are persuaded that the said argument cannot be countenanced under the facts here obtaining.
In resolving De Asis' petition for habeas corpus, this Court must determine, on the basis of the relevant facts conceded after proper inquiry, whether or not the petitioner is being illegally restrained of his liberty and, if so, relieve him from the unlawful restraint.
Judging from the facts disclosed in the case at bar, the petitioner does not appear to be under an unlawful restraint of his liberty.(awÞhi( For, if he is now under detention, it is by virtue of the questioned warrant of arrest issued for his apprehension, which, even if we assume that it was defective at the time of its issuance, has been cured, as we said earlier, of its supposed infirmities by his failure to interpose the proper objection thereto at the opportune time.
The petitioner, however, stresses that it is the intention of the respondent fiscal to amend the original information in connection with which the questioned warrant of arrest was issued. But, even if this intention of the fiscal is conceded, it is not controverted that he filed in the court a quo, as the Rules of Court require, a motion to effectuate the amendment desired. Naturally, there will be a hearing on this motion, and in the course of such proceeding, in which the petitioner De Asis will be present, oral testimony and other evidence will be adduced concerning the fact of death and identity of the alleged kidnapped victim and other related circumstances. The hearing on the said motion, in our opinion, serves and fulfills the essential purpose and requirements of a full-blown preliminary investigation for the alleged crime of murder intended to be added to the original basic charge of kidnapping as an inextricable part thereof. Thus, if the court a quo finds and is convinced at the hearing on the motion to amend the information, that there is prima facie evidence of murder indispensably connected with the alleged kidnapping, then it is but natural, nay, logical, to expect that it will grant the said motion. In such event, it is clearly wishful thinking and an unavailing technicality to require the court a quo to order the release of the petitioner De Asis and then (or then and there) issue another warrant for his arrest. Upon the other hand, if the said court believes that the original information should stand as it is, then for the more reason that the petitioner should not be ordered released.
ACCORDINGLY, the prayer of the petitioner Roman de Asis that he be released and discharged from custody is hereby denied. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee and Villamor, JJ., concur.
Footnotes
1 People vs. Marquez, L-23654, March 28, 1969, 27 SCRA 808, 812 (per Barredo, J.), citing People vs. Solon, 47 Phil. 443; People vs. Magpale, 70 Phil. 176; People vs. Lambino, 103 Phil. 504; People vs. Selfaison, et al., L-14732, January 28, 1961, 1 SCRA 235; People vs. Casiano, February 16, 1961, 1 SCRA 479.
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