514 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. Garcia

sent the working force. (Philippine Association of Free

Labor Unions [PAFLU] vs. Bureau of Labor, 69 SCRA 132).
Where parties do not disagree as to what unit of a
company should be included in the certification election,
the inclusion of the units in question the election should be
enforced. (Philippine Labor Alliance Council vs. California
Employees’ Labor Union, 71 SCRA 214).
Employees have the constitutional right to choose which
labor organization to join. (Federacion Obrera de la
Industria Tabaquera y Otras Trabajadores de Filipinas vs.
Noriel, 72 SCRA 24).
——o0o——

No. L-38675. July 2, 1980.*

OSCAR FAJARDO, CESAR FAJARDO and RODRIGO
DOLIENTE, petitioners, vs. HON. HIMERIO B. GARCIA,
as Presiding Judge of the Circuit Court of Olongapo City,
respondent.

Certiorari; Purpose of a petition for certiorari.—This is a

certiorari petition. It is undoubted, to quote from Panaligan vs.
Adolfo, that the availability of this remedy is conditioned on a
showing of “a capricious, arbitrary and whimsical exercise of
power, the very antithesis of the judicial prerogative in
accordance with centuries of both civil law and common law
traditions.” If is from that perspective that the success or failure
of petitioners must depend. It is not to be forgotten, though, that
the Constitution accords a high respect to the rights of an accused
person conformably to the presumption of innocence.
Same; Criminal Procedure; Constitutional Law; The
constitutional guarantee to an accused to compulsory process to
secure the production of evidence in his behalf was not violated by
the trial judge who refused to grant the request of the accused for
leave to

_______________

* SECOND DIVISION
 515

VOL. 98, JULY 2, 1980 515

Fajardo vs. Garcia

serve written interrogatories on the doctor who treated their

injuries who already left for abroad. That the said medical
testimony on the injuries they sustained was vital to their defense
can still be adduced thru other witnesses and hospital records.—
This Court, after careful consideration of the matter, however, is
of the thinking that it would be premature, at the very least, to
conclude that such a fatal infirmity has infected the proceeding.
The fact that the petitioners were treated in the hospital by a
doctor in question could be testified to by other witnesses
including the nurses who must have been present. It cannot be
assumed that there would be an insuperable objection to the
presentation of the medical certificate as to the wounds alleged to
have been inflicted, as they could very well show traces of such
maltreatment. Even the length of their stay in the hospital could
be verified by its records. On this point, an excerpt from People
vs. Montejo may furnish guidance: “Respondent Judge certainly
has not been shown to be remiss in the fulfillment of his judicial
duties. On the contrary, the petition would impute not only abuse
of discretion, but grave abuse thereof, when precisely he was
manifesting fealty to the well-settled doctrine that a trial judge
should display receptivity to offers of evidence as well as to
searching questions with the end in view of having the truth come
out. It would appear then that the provincial fiscal who filed this
petition was motivated more by the apprehension and misgiving
that with further information and data furnished the Court, an
acquittal would be likely. That of itself is no argument for a
petition of this character. Precisely, the constitutional rights
granted an accused are intended to assure a full and unimpeded
opportunity for him to meet what in the end could be a baseless
accusation. Moreover, at the stage of the trial reached, there was
an element of prematurity to this proceeding. At any rate, the
presumption to be indulged is that a trial judge can fairly weigh
and appraise the evidence submitted by the respective parties.
Petitions of this character certainly deserve no encouragement
from this Tribunal.”
Barredo, J., concurring:
Appeal; The petitioners may raise the issue of the denial of
their petition to serve written interrogatories abroad in their
appeal.—I concur, on the assumption that petitioners may raise
as a constitutional issue the denial in question in their appeal, if
necessary.
 516

516 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. Garcia

Aquino, J., concurring:

Certiorari; Pleading and Practice; Criminal Procedure; The
denial of the request to serve interrogatories was not an error of
jurisdiction.—I concur. The lower court’s error is not allowing the
interrogatories was not an error of jurisdiction. The three medical
certificates should be admitted in evidence as part of the
testimony of the three accused.

PETITION for review of the order of Circuit Criminal

Court of Olongapo City. H. B. Garcia, J. Certiorari.
The facts are stated in the opinion of the Court.
FERNANDO, C.J.:
The basic assumption of petitioners in this certiorari
proceeding is the expanded concept in the present
Constitution, which, in addition to granting an accused, as
provided for in the 1935 Charter, the right to have
compulsory process to secure the “attendance” of witnesses
of his choice,1 includes his right to compulsory process to
secure “the production of evidence in his behalf.”2 It is their
contention that medical testimony from a doctor who could
testify on the wounds inflicted on them during the incident
in question would be crucial to their defense. Unfortunately
for them, however, the doctor had left the Philippines and
was then residing in the United States. Since under the
circumstances, compulsory attendance would not be
feasible, their counsel, relying on the con-

_______________

1 Article III, Section 1, par. 17 of the 1935 Constitution provides: In all

criminal prosecutions the accused shall be presumed to be innocent until
the contrary is proved, and shall enjoy the right * * * to have compulsory
process to secure the attendance of witnesses in his behalf.”
2  According to Article IV, Section 19 of the present Con stitution
insofar as pertinent reads: “In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved, and shall enjoy the
right *  *  * to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf.”

517

VOL. 98, JULY 2, 1980 517

Fajardo vs. Garcia
stitutional provision, sought from respondent Judge
Himerio B. Garcia to send written interrogatories on the
aforesaid doctor in his residence in the United States. A
motion to that effect was duly filed, but it was denied by
respondent Judge. The Solicitor General3 was required to
comment. It is his submission that the constitutional
guarantee could not be stretched to include the right to
serve interrogatories on a witness living abroad. According
to the comment: “1. Service of written interrogatories is not
a compulsory or coercive process. It is merely the delivery
to a proposed deponent of a set or series of questions, the
answers to which will constitute his deposition. 2. Service
of written interrogatories by itself, does not obtain for the
person utilizing them the twofold objectives specified in the
constitutional guarantee which are; a) to secure the
attendance of witnesses and b) to secure the production of
evidence in behalf of the accused. It merely apprises the
proposed deponent of the questions which he is requested
to answer. He may decline to give the deposition, which
ultimately will be submitted as his testimony. Clearly,
therefore, service of written interrogatories is completely
different or worlds apart from the compulsory process that
is established in the constitution and accorded as an
inviolate right of the accused.4
This Court, in view of the importance raised, resolved to
consider such comment as answer and thereafter to set the
case for hearing. Such a hearing was held; the parties were
then given leave to submit simultaneously memoranda in
amplification of their oral arguments. With the filing
thereof, the case was deemed submitted for decision.
The facts are undisputed. To an information charging
petitioners, Oscar Fajardo, Cesar Fajardo and Rodrigo
Doliente, with the crime of murder, a plea of not guilty was
entered. After which, the case was set for trial. The
evidence for the prosecution disclosed that at the time of
the arrest of petitioners on the evening of September 11,
1972, all of them were suffer-

_______________

3  Solicitor General Estelito P. Mendoza was assisted by the then

Assistant Solicitor General Hugo E. Gutierrez, Jr., now a Justice of the
Court of Appeals and Solicitor Antonio L. Villamor.
4 Comment, 5-6.

518

518 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. Garcia
  ing from wounds on different parts of their bodies. The
next day, the father of the accused Oscar Fajardo and
Cesar Fajardo sent for a doctor, Dr. Herminio Academia by
name, to examine and thereafter treat such wounds.
Accordingly, that was done at the detention cell in Subic,
Zambales. The corresponding medical certificates were
then issued by such doctor. At the trial, during the
reception of the evidence for the defense on March 19,
1974, petitioner Oscar Fajardo testified. Reference was
made by him to such medical certificate. When respondent
Judge asked counsel for the defense where Dr. Herminio
Academia was, the answer was that said doctor had left the
country for abroad and was then residing in the United
States. It was after the direct examination of petitioner
Oscar Fajardo that respondent Judge was asked for leave
to serve written interrogatories on Dr. Herminio Academia
at his place of residence in the United States. It was argued
that his testimony on the examination and treatment of the
wounds on the bodies of all of the accused would be crucial
for the defense, the offense charged being of a very serious
character. Respondent Judge asked that a motion to that
effect be filed. That was done, but in May of 1974, such
motion was denied. Hence this petition for certiorari.
This is a certiorari petition. It is undoubted, to quote
from Panaligan v. Adolfo,5 that the availability of this
remedy is conditioned on a showing of “a capricious,
arbitrary and whimsical exercise of power, the very
antithesis of the judicial prerogative in accordance with
centuries of both civil law and common law traditions.”6 It
is from that perspective that the

_______________

5 L-24100, September 30, 1975, 67 SCRA 176.

6  Ibid., 180. Since then, such a doctrine has been adhered to in the
following cases: Sanchez v. Zosa, L-27043, Nov. 28, 1975, 68 SCRA 171;
Manalo v. Mariano, L-33850, Jan. 22, 1976, 69 SCRA 80; Rañeses v.
Teves, L-26354, March 4, 1976, 70 SCRA 4: Baluyot v. Paño, L-42088,
May 7, 1976, 71 SCRA 86; De Laureano v. Adil, L- 43345, July 29, 1976,
72 SCRA 148; Abuan v. Valera, L-42452, Aug. 16, 1976, 72 SCRA 301;
Conchingyan, Jr. v. Cloribel, L-27070-71, April 22, 1977, 76 SCRA 361;
People v. Vallarta, L-32728, June 30, 1977, 77 SCRA 476; Ilacad v. Court
of Appeals, L-24435, Aug. 26,

519

VOL. 98, JULY 2, 1980 519

Fajardo vs. Garcia
success or failure of petitioners must depend. It is not to be
forgotten, though, that the Constitution accords a high
respect to the rights of an accused person conformably to
the presumption of innocence. As was pointed out at the
outset, it was further bolstered by the expanded concept of
securing not only the attendance but likewise the
production of evidence in his behalf. There is thus the need
for the utmost caution on the part of the trial judge lest, in
the exercise of his discretion, what the Constitution allows
may be disregarded. His judgment on the matter should be
guided by due recognition of the high estate accorded these
constitutional rights. Certainly, if the denial thereof would
lead to the defense of the petitioners being rendered
nugatory, then a case for grave abuse of discretion has been
shown.
This Court, after careful consideration of the matter,
however, is of the thinking that it would be premature, at
the very least, to conclude that such a fatal infirmity has
infected the proceeding. The fact that the petitioners were
treated in the hospital by a doctor in question could be
testified to by other witnesses, including the nurses who
must have been present. It cannot be assumed that there
would be an insuperable objection to the presentation of
the medical certificate as to the wounds alleged to have
been inflicted, as they could very well show traces of such
maltreatment. Even the length of their stay in the hospital
could be verified by its records. On this point, an excerpt
from People v. Montejo7 may furnish guidance:
“Respondent Judge certainly has not been shown to be
remiss in the fulfillment of his judicial duties. On the
contrary, the petition would impute not only abuse of
discretion, but grave abuse thereof, when precisely he was
manifesting fealty to the well-settled doctrine that a trial
judge should

_______________

1977, 78 SCRA 301; Bernabe v. Nicolas, L-38843, Aug. 26, 1977, 78

SCRA 341; Suria v. Juntereal, L-38695, July 1, 1978, 84 SCRA 5; Aratuc
v. Commission on Elections, L-49705-09, Feb. 8, 1979, 88 SCRA 251;
Santos v. Court of Appeals, L-42679, May 25, 1979, 90 SCRA 223;
Enriquez v. Rivera, L-48948, June 19, 1979, 90 SCRA 641; Commodity
Financing Co., Inc. v. Jimenez, L-31384, June 29, 1979, 91 SCRA 57.
7 L-28699, April 29, 1975, 63 SCRA 488.

520

520 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. Garcia
display receptivity to offers of evidence as well as to
searching questions with the end in view of having the
truth come out. It would appear then that the provincial
fiscal who filed this petition was motivated more by the
apprehension and misgiving that with further information
and data furnished the Court, an acquittal would be likely.
That of itself is no argument for a petition of this character.
Precisely, the constitutional rights granted an accused are
intended to assure a full and unimpeded opportunity for
him to meet what in the end could be a baseless accusation.
Moreover, at the stage of the trial reached, there was an
element of prematurity to this proceeding. At any rate, the
presumption to be indulged is that a trial judge can fairly
weigh and appraise the evidence submitted by the
respective parties. Petitions of this character certainly
deserve no encouragement from this Tribunal.”8 Nor must
it be forgotten that, according to the facts, the prosecution
was not oblivious to the demands of fairness when the
evidence offered by it disclosed that petitioners at the time
of their arrest were suffering from wounds inflicted on
various parts of their bodies.
In the light of what has been stated, it becomes obvious
why as of now, there is no need to make a definite
pronouncement on the scope of the expanded concept of the
constitutional right to secure not only the attendance of
witnesses but the production of evidence. All that the
decision stands for is that the standard required for the
grant of certiorari has not been met.
WHEREFORE, this petition for certiorari is dismissed.
No pronouncement as to costs.

Concepcion Jr., Abad Santos and De Castro, JJ.,

concur.
Barredo, J., I concur, on the assumption that
petitioners may raise as a constitutional issue the denial in
question in their appeal, if necessary.
Aquino, J., see concurrence below.
Aquino, J., I concur. The lower court’s error is not
allowing the interrogatories was not an error of
jurisdiction. The

_______________

8 Ibid., 491.

521

VOL. 98, JULY 2, 1980 521

Fajardo vs. Garcia
 three medical certificates should be admitted in evidence as
part of the testimony of the three accused.

Petition dismissed.

Notes.—The rulings of a trial judge on admission of

evidence may also be reviewed by the appellate court in a
petition for certiorari where the trial judge committed a
patent mistake. (Philippine National Railways vs. Court of
First Instance of Albay, 83 SCRA 569).
After arraignment, trial may proceed notwithstanding
the absence of the accused provided he has been duly
notified and his failure to appear is justified. (Borja vs.
Mendoza, 77 SCRA 422).
The right to confront the witnesses may be waived by
the accused expressly or by implication. (People vs. De la
Cruz, 56 SCRA 84).
Motions for new trial based on subsequent retraction by
a witness are not favorably considered, yet when aside from
the testimonies of retracting witnesses there is no evidence
to support the judgment of conviction, a new trial may be
granted. (People vs. Lao Wan Sing, 46 SCRA 298).
The right to confrontation intends to secure in the
accused the right to be tried, so far as facts provable by
witnesses are concerned, by only such witnesses as meet
him face to face at the trial, who give their testimony in his
presence, and give to the accused an opportunity to cross
examination. (People vs. Lavarias, 23 SCRA 1301).
Defendants cannot complain that they were denied the
time and freedom to prepare for their defense where they
were all represented with counsels who all did their best to
defend them during the several months of trial, and given
the opportunity to present witnesses in their own defense.
(People vs. Lava, 28 SCRA 72).
The absence of a preliminary investigation does not
impair the validity of a criminal information or otherwise
render it defective, nor affect the jurisdiction of the court
over the case. (Zacarias vs. Cruz, 30 SCRA 728).

© Copyright 2020 Central Book Supply, Inc. All rights reserved.