TRIAL IN ABSENTIA
Tolentino, and MilaAguilar, communist Party of the Philippines
BORJA V. MENDOZA
FACTS: Borja was accused of slight physical injuries in the City of
Cebu. However, he was not arraigned. That not withstanding,
respondent Judge Senining proceeded with the trial in absentia and
rendered a decision finding petitioner guilty of the crime charged. The
case was appealed to the Court o First Instance in Cebu presided by
respondent Judge Mendoza. It was alleged that the failure to arraign
him is a violation of his constitutional rights. It was also alleged that
without any notice to petitioner and without requiring him to submit
his memorandum, a decision on the appealed case was rendered The
Solicitor General commented that the decision should be annulled
because there was no arraignment.
ISSUE: Whether or Not petitioners constitutional right was violated
when he was not arraigned.
HELD: Yes. Procedural due process 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. It is also not just due process that
requires an arraignment. It is required in the Rules that an accused, for
the first time, is granted the opportunity to know the precise charge
that confronts him. It is imperative that he is thus made fully aware of
possible loss of freedom, even of his life, depending on the nature of
the crime imputed to him. At the very least then, he must be fully
informed of why the prosecuting arm of the state is mobilized against
him. Being arraigned is thus a vital aspect of the constitutional rights
guaranteed him. Also, respondent Judge Senining convicted petitioner
notwithstanding the absence of an arraignment. With the violation of
the constitutional right to be heard by himself and counsel being thus
manifest, it is correct that the Solicitor General agreed with petitioner
that the sentence imposed on him should be set aside for being null.
The absence of an arraignment can be invoked at anytime in view of
the requirements of due process to ensure a fair and impartial trial.
NOLASCO vs ENRILE
This case involves three defendants: Cynthia Nolasco, Willie
members. Nolasco and Tolentino have already been released by order
of the President, and so this case ONLY involves Aguilar.
Facts
Aguilar was charged with rebellion, but during the time of the charge
(1973-1977), the crime of rebellion was not a capital offense. P.D. No.
1834, which became effective in 1981, made rebellion a capital
offense. Sometime in 1978, Aguilar et.al were charged before Military
Commission No. 25 (MC-25) with Subversion. Aguilar remained at
large until her arrest in 1984.In the meantime, in the rebellion case,
arraignment was held in 1978 without Aguilar being present. The other
defendants refused to plead, and pleas of not guilty were entered for
them including one for Aguilar. In 1982, the trial commenced but
sometime in 1984 the SC issued a TRO enjoining the Special Military
Commission 1 from proceeding with the rebellion case. As for the
subversion case, it was initially dismissed but was subsequently
revived. A plea of not guilty has also been entered for Aguilar,
notwithstanding that she had not yet been arrested up to then. Aguilar
was arrested in 1984 together with Nolasco. Tolentino was arrested on
the same day. A Presidential Detention Action was issued against the
three. After, Information was filed against them for illegal possession
of Subversive Documents in the MeTC. That Court ordered the release
of the three defendants on the same day on a P600.00 bail for each. In
the Rebellion Case, SMC-1 ordered Aguilar held in custody while in
the Subversion Case, MC 25 also directed Aguilar's confinement
during the pendency of the trial. Aguilar also questioned the
jurisdiction of the Commission (MC 25) over her, but the Commission
upheld its jurisdiction
Issue: Whether arraignment in absentia is valid
Held: The rulings at bar in the subversion case are fully applicable,
mutatis mutandis, to the rebellion case, i.e. her arraignment in absentia
was null and void; 15 consequently, "the military commission had lost
jurisdiction to try her as of January 12, 1981 (date of effectivity of
G.O. No. 69 which phased out military commissions") and "a new
complaint or information should be filed against her before the civil
courts; 16and that "in the light of the attendant facts, particularly, that
AGUILAR was still not arraigned in the[Rebellion] case as of January
12, 1981, that [Special Military Commission No. 1 17 had lost
jurisdiction to try AGUILAR in the Rebellion case when she was
brought before the tribunal on August 16, 1984 to appear before the
ongoing trial of the other defendants. Moreover, with the lifting of
Martial Law on January17, 1981, Military Commissions were
dissolved and they could no longer try civilians.
Respondent MC 25, in its Answer invoked Section 5(c) of Presidential
Decree No. 39 to justify a plea in absentia, stating that she was
informed of the date set for trial and apprised of the content of the
charge sheet through the prescribed service. The cited provision,
allowing trial in absentia, and which presupposes arraignment in
absentia (through publication), was promulgated in 1972. It should
give way to the 1973 Constitution, effective January 17, 1973, which
provides that "after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustified. In the Constitutional provision,
"arraignment" cannot be construed as inclusive of "arraignment in
absentia." As a matter of fact, in the codification made in Presidential
Decree No. 1835, Section 5 provides:
SEC. 5. After the arraignment of an accused who is charged with
subversion, the trial may proceed notwithstanding the absence of the
accused, provided that he has been duly notified and his failure to
appear is unjustified. Judgment may be promulgated in absentia and
the penalty of confiscation of his properties in the Philippines may be
immediately executed.
The codal section replaces Section 5(c) of Presidential Decree No. 39,
and it should be borne in mind that actual arraignment is an element of
due process. Even military tribunals are bound to observe
fundamental rules of law and arraignment in absentia would be
violative of due process.
The said respondent shall refer the case against petitioner Mila Aguilar
to the proper provincial or city Fiscal, or civilian government
prosecutor, so that the corresponding Information may be filed against
her before a civil Court of competent jurisdiction. The date of the
referral shall be immediately advised to this Court.
PEOPLE VS. SALAS (Online)
Mario Abong was originally charged with homicide in the CFI Cebu
but before he could be arraigned the case was reinvestigated on motion
of the prosecution. As a result of the reinvestigation, an amended
information was filed, with no bail recommended, to which he pleaded
not guilty. Trial commenced, but while it was in progress, the prisoner,
escaped. The judge, learning later of the trickery, cancelled the illegal
bail bond and ordered Abong's rearrest. Abong, however, was gone.
Nonetheless (Bernardo Salas), the prosecution moved that the hearing
continue in accordance with the constitutional provision authorizing
trial in absentia under certain circumstances. the judge denied the
motion, however, and suspended all proceedings until the return of the
accused. The order of the trial court is before the Supreme Court on
certiorari and mandamus.
Issue: Whether Abong may be tried in absentia, in light of his escape.
Held:Section 19, Article IV of the 1973 Constitution provides that
""
The purpose of this rule is to speed up the disposition of criminal
cases, trial of which could in
the past be indefinitely deferred, and many times completely
abandoned, because of the defendant's escape.
The old case of People v. Avancea (32 OG 713) required his presence
at certain stages of the trial which as a
result, had to be discontinued as long as the defendant had not
reappeared or remained at large.
As his right tobe present at these stages was then held not waivable
even by his escape, such escape thus operated to the
fugitive's advantage, and in mockery of the authorities, insofar as the
trial could not proceed as long as he had
not been recaptured. The doctrine laid down in that case has been
modified by Section 19, which now allows
trial in absentia,
Now, the prisoner cannot by simply escaping thwart his continued
prosecution and possibly eventual conviction provided only that: a) he
has been arraigned; b) he has been duly notified of the trial; and c) his
failure to appear is unjustified. Thus, the right to be present at one's
trial may now be waived except only at that stage where the
prosecution intends to present witnesses who will identify the accused.
Under Section 19, the defendant's escape will be considered a waiver
of this right and the inability of the court to notify him of the
subsequent hearings will not prevent it from continuing with his trial.
He will be deemed to have received due notice. The same fact of his
escape will make his failure to appear unjustified because he has, by
escaping, placed himself beyond the pale, and protection, of the law.
Doctrine:
their escape should have been considered a waiver of their right to be
present at their trial, and the inability of the court to notify them of the
subsequent hearings did not prevent it from continuing with their
trial. They were to be deemed to have received notice. The same fact
of their escape made their failure to appear unjustified because they
have, by escaping, placed themselves beyond the pale and protection
of the law.
PEOPLE v. JUDGE PRIETO
Facts: Respondent Judge ordered the arrest of Dario Gamayon for his
continuous failure to appear in Court every time his criminal case was
called for trial, and forfeiture of Gamayons bond, giving the
bondsmen thirty days from notice to produce the body of the accused
and show cause why judgment should not be rendered against them for
the amount of their undertaking.
On motion for reconsideration, the respondent Judge set aside his
order. Apparently, he was misled by his misreading of the
constitutional provision, now added to the present fundamental law.
He failed to take into account that the constitutional right to bail
would be rendered nugatory if, by the mere fact that the trial could
proceed in the absence of the accused, the undertaking in a bail bond
and the Rules of Court provision could be ignored.
The government instituted this certiorari proceeding claiming that
respondent Judge was not justified in reconsidering a previous valid
and correct order just because of the innovation in the Constitution as
to the trial being held in the absence of an accused.
Issue: Was Judge Prieto correct in reversing his original order given
the circumstance that the trial is done in absentia?
Held: No. The Supreme Court held that respondent Judge's previous
order ought to have remained undisturbed.
There was a deliberate failure of respondent Judge to respect what is
so clearly provided in the Rules of Court. It is quite categorical. As set
forth above: "If the defendant fails to appear as required, the bond is
declared forfeited . . . ." The very caption of such section reads:
"Forfeiture of bail."
Bail "is the security required and given for the release of a person who
is in the custody of the law, that he will appear before any court in
which his appearance may be required as stipulated in the bail bond or
recognizance."
Clearly, the innovation introduced by the present Constitution goes no
further than to enable a judge to continue with the trial even if the
accused is not present under the conditions therein specified. It does
not give him the right to jump bail. Where, as in this case, it is
undisputed that [Gamayon] had gone abroad, the usual procedure
provided by the Rules of Court to determine the liability of his
bondsmen should be followed.
GIMENEZ V. NAZARENO
1. On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando
Cargando, Rogelio Baguio and private respondent Teodoro de la Vega
Jr., were charged with the crime of murder.
2. On August 22, 1973 all the above-named. accused were arraigned and
each of them pleaded not guilty to the crime charged. Following the
arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the
hearing of the case for September 18, 1973 at 1:00 o'clock in the
afternoon.
3. Before the scheduled date of the first hearing the private respondent
escaped from his detention center and on the said date, failed to appear
in court. This prompted the fiscals handling the case (the petitioners
herein) to file a motion with the lower court to proceed with the hearing of
the case against all the accused praying that private respondent de la
Vega, Jr. be tried in absentia invoking the application of Section 19,
Article IV of the 1973 Constitution which provides:
SEC. 19. In all criminal prosecution, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and
his failure to appear is unjustified. (Emphasis supplied.) *
4. After due trial, or on November 6,1973, the lower court rendered a
decision dismissing the case against the five accused while holding in
abeyance the proceedings against the private respondent.
5. Hence, the petitioners filed a Motion for Reconsideration
Issue:
whether or not under Section 19, Article IV of the 1973 Constitution, an
accused who has been duly tried in absentia retains his right to present
evidence on his own behalf and to confront and cross-examine
witnesses who testified against him
Held:
To capsulize the foregoing discussion, suffice it to say that where the
accused appears at the arraignment and pleads not guilty to the crime
charged, jurisdiction is acquired by the court over his person and this
continues until the termination of the case, notwithstanding his escape
from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973 Constitution
aforecited a "trial in absentia"may be had when the following requisites
are present: (1) that there has been an arraignment; (2) that the accused
has been notified; and (3) that he fails to appear and his failure to do so
is unjustified.
In this case, all the above conditions were attendant calling for a trial in
absentia.
The lower court in accordance with the aforestated provisions of the 1973
Constitution, correctly proceeded with the reception of the evidence of
the prosecution and the other accused in the absence of private
respondent, but it erred when it suspended the proceedings as to the
private respondent and rendered a decision as to the other accused only.
Upon the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the
time until the accused who who escape from custody finally decides to
appear in court to present his evidence and moss e the witnesses against
him. To allow the delay of proceedings for this purpose is to render
ineffective the constitutional provision on trial in absentia.
The contention of the respondent judge that the right of the accused to be
presumed innocent will be violated if a judgment is rendered as to him is
untenable. He is still presumed innocent. A judgment of conviction must
still be based upon the evidence presented in court. Such evidence must
prove him guilty beyond reasonable doubt. Also, there can be no violation
of due process since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in absentia retains
his rights to cross-examine and to present evidence on his behalf. By his
failure to appear during the trial of which he had notice, he virtually
waived these rights
CARREDO V. PEOPLE-Malicious mischief, done
RIGHT TO SECURE WITNESSES AND PRODUCTION OF
EVIDENCE
PERFECTA, PRIMITIVO and QUIRINO CAVILI
vs.
HON. TEODORO N. FLORENDO, CLARITA, ULPIANO,
ESTRELL, and PLACIDA
CAVILI, ET AL.
(G.R. No. 73039 October 9, 1987)
FACTS:
Private respondents filed Civil Case No. 6880 against herein
petitioners for which summons was issued to them. Summons was not
served to Primitivo and Quirino, but only to Perfecta. Atty. Jose P.
Alamino filed a motion for extension to answer in behalf of the
defendants, manifesting the representation of his client Perfecta Cavili
that she will inform her brothers Primitivo and Quirino about the case.
After failing to file an answer within the time allowed, they were
declared in default, and judgment by default soon followed.
However, an order for new trial was issued upon order of Atty. Jose P.
Alamillo, on grounds of lack of jurisdiction and, with a meritorious
defense that the properties sought to be partitioned have already been
the subject of a written partition agreement between the direct heirs of
the parties.
When the case was re-raffled, Judge Cipriano Vamenta set aside the
order for new trial and reinstated the judgment by default. The
Supreme Court reversed the said decision and ordered new trial upon
petition for certiorari filed by respondents. Respondent judge Florendo
disqualified petitioner Perfecta as a witness upon a motion for her
disqualification filed by private respondents, alleging that Perfecta has
lost her standing in court and she cannot be allowed to participate in
all premise the even as a witness. Petitioners filed this petition for
certiorari before the Supreme Court.
ISSUE: Whether Perfecta should be disqualified to appear as witness.
RULING: No. She should be qualified to appear as witness. Section
18, Rule 130 of the Revised Rules of Court states who are qualified to
be witnesses. It provides: Section 18. Witnesses; their qualifications.
Except as provided in the next succeeding section, all persons who,
having organs of sense, can perceive, and perceiving, can make known
their perception to others, may be witnesses. Neither parties nor other
persons interested in the outcome of a case shall be excluded; nor
those who have been convicted of crime; nor any person on account of
his opinion on matters of religious belief. There is no provision of the
Rules disqualifying parties declared in default from taking the witness
stand for non-disqualified parties. The law does not provide default as
an exception. The specific enumeration of disqualified witnesses
(under Sections 19 and 20 of Rule 130 and Section 15 of Rule
132)excludes the operation of causes of disability other than those
mentioned in the Rules. As a general rule, where there are express
exceptions these comprise the only limitations on the operation of a
statute and no other exception will be implied.
Rule 18, Section 2, likewise, does not support respondents contention.
Under this rule, a party declared in default shall not be entitled to
notice of subsequent proceedings nor to take part in the trial. A party in
default loses his right to present his defense, control the proceedings,
and examine or cross-examine witnesses.
There is nothing in the rule, however, which contemplates a
disqualification to be a witness or an opponent in a case. Default does
not make him an incompetent. As opposed to a party litigant, a witness
is merely a beholder, a spectator or onlooker, called upon to testify to
what he has seen, heard, or observed. As such, he takes no active part
in the contest of rights between the parties. A party in default may thus
be cited as a witness by his co-defendants who have the standing and
the right to present evidence which the former may provide. To reject
Perfects Cavili's presentation of testimonial evidence would be to treat
Primitivo and Quirino, as if they too were in default.

The petition is hereby GRANTED. The order of the respondent court
disqualifying Perfecta Cavili dela Cruz as a witness in Civil Case No.
6880 is hereby SET ASIDE.
FAJARDO V. GARCIA
CRIME: MURDER
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.
Prosecution disclosed that at the time of the arrest of petitioners on the
evening of September 11, 1972, all of them were suffering from
wounds on different parts of their bodies.
Next day, at the detention cell in Subic, 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 ( medical certs
were given afterwards)
At the trial: during the reception of the evidence for the defense on
March 19, 1974, petitioner Oscar Fajardo testified.
Then when the 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 US. 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 US.
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.
ISSUE:
May an accused compel the trial court to issue subpoena to a Physician
who is already working in the United States to testify on his treatment
of the accused? Would the failure of said witness to appear and testify
for the accused violates his right to subpoena witnesses and the
production of evidence in his favor?
HELD:
No. Such witness is beyond the jurisdiction of the Philippine Courts.
Further, his right to subpoena witnesses and the production of evidence
will not be violated since the hospital could produce said records and
another physician could testify on the contents thereof.
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
serve written interrogatories to his doctor who treated their injuries
who already left 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.
PEOPLE VS. AGBAYANI
Eden Agbayani filed a complaint against her father Eduardo
Agbayani for raping her in their rented room. After the arraignment of
the case, however, Eden and her sister Fedelina Agbayani presented a
sworn statement stating that the matter was just a result of a family
misunderstanding and that they wanted to forego the case. The court
then held Eden in direct contempt of court, reasoning that her
intentional falsehood was offensive to its dignity and a blatant
disrespect to the Court. Eden then retracted her statement claiming
that she signed the statement since her mother coerced her in doing so.
Subsequently Eduardo Agbayani was released from jail and continued
to live with his family.
Athisarraignmenton22December1994,appellant,was
assistedbyAttys.SamuelBaldadoandEdwindelaCruzascounselde
oficio,enteredapleaofnotguilty.Onthesucceedingdatesoftrial,
appellantwasrepresentedbyAtty.ArturoTemanilofthePublic
AttorneysOffice.
 However a few days after his fathers release, Eden Agbayani RULING:
was awakened from her sleep by hands caressing her breast and
vagina. She turned to discover that it was her father who was then Itistruethatthetranscriptofthestenographicnotesofthe
molesting her. Frightened, she asked, Tay bakit niyo po ginagawa sa proceedingsof22December1994andtheorderissuedbythetrial
akin ito, gayong kalalabas mo lang sa kulungan? and threatened to kill courtaftertheconclusionofsaidproceedingsonlystatethatthecourt
her. The accused then proceeded to undress her. Thereafter he appointeddeoficiocounselwiththeconsentofthesaidaccused.They
undressed himself and succeeded in having carnal knowledge with the donotcategoricallydisclosethatthetrialinformedappellantofhis
complainant who could only cry helplessly. The complainant righttocounselofhisownchoice.However,thisdoesnotmeanthat
thereafter felt blood dripping from her vagina and felt pain. thetrialcourtfailedtoinformappellantofsuchright.
Eden told the incident to her sister Fedelina. They then sought It is settled that the failure of the record to disclose
the help of the prosecutor who helped them with the case and the case affirmatively that the trial judge advised the accused of his right to
against their father was re-opened. counsel is not sufficient ground to reverse conviction. The reason
being that the trial court must be presumed to have complied with the
A motion for a new trial was filed before the court by the new procedure prescribed by law for the hearing and trial of cases, and that
counsel of the accused assailing the irregularities prejudicial to the such a presumption can only be overcome by an affirmative procedure
substantial rights of the accused invoking the failure of the court to prescribed by law for the hearing and trial of cases, and that such a
inform the accused of his right to choose his own counsel. He further presumption can only be overcome by an affirmative showing to the
alleged that his counsel de oficio was never prepared during all the contrary. Thus it has also been held that unless the contrary appears in
scheduled hearings; worse, even waived the presence of appellant after the record, or that it is positively proved that the trial court failed to
the third witness for the prosecution was presented. He also averred inform that accused of his right to counsel, it will be presumed that the
that the trial court uses its inherent power of contempt to intimidate accused was informed by the court of such right.
private complainant. The accused further contended that (1)thelower
courtfailedtoapprisehimofhisrighttohavecounselofhisown Sec 19 of the Rules of Court provides that after a plea of not
choice;and(2)thelowercourtdidnotgivehimtheopportunityto guilty, the accused is entitled to two (2) days to prepare for trial unless
preparefortrial,despitethemandatedperiodoftwodaysprescribedin the court for good cause grants him further time. It must be pointed out
Section9ofRule116oftheRulesofCourt. that the right must be expressly demanded. Only when so demanded
does denial thereof constitute reversible error and a ground for new
The trial court gave full credence to the testimony of EDEN, trial. Further, such right may be waived, expressly or impliedly. In the
who appeared, during her entire testimonies on January 20 and May 4, instant case, appellant did not ask for time to prepare for trial, hence,
1995, coherent, candid and responsive. he effectively waived such right. It is untenable to believe that the
counsel who represented the appellant was not prepared during the
ISSUE: trial as records showed he was able to cross-examine the complainant
Whether or not the failure of the record to disclose affirmatively and there was no ground to claim he is incompetent to represent the
that the trial judge advised the accused of the right to have counsel is appellant in court. The SC thereby affirmed the decision of the lower
sufficient ground to reverse the judgment of conviction and to send the court finding him guilty beyond reasonable doubt.
case back for a new trial.