PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

[No. 32025. September 23, 1929]

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON,

Judge of the Second Judicial District, and FRANCISCO
JOSE, Provincial Fiscal of Isabela, respondents.

1. CRIMINAL PROCEDURE; COMPULSORY APPEARANCE

OF WITNESSES AT FlSCAL'S INVESTIGATIONS;
REFUSAL OF WlTNESS TO WRITE FROM DICTATION.
·The fiscal under section 1687 of the Administrative Code,
and the competent judge, at the request 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. The petitioner, in refusing to write down
what the fiscal had to dictate to him for the purpose of
verifying his handwriting and determining whether he had
written certain documents alleged to have been falsified,
seeks protection·his constitutional privilege.

2. ID.; RIGHTS OF DEFENDANT; TEXT OF

CONSTITUTIONAL PROVISION.·This right was
promulgated, both in the Organic Law of the Philippines of
July 1, 1902 and in paragraph 3, section 3 of the Jones Law,
which provides (in Spanish); "Ni se le obligará (defendant) a
declarar en contra suya, en ningún proceso criminal," and
recognized in our Criminal Procedure (General Orders, No.
58) in section 15 (No. 4) and section 56. The English text of
the Jones Law reads as follows: "Nor shall he be compelled
in any criminal case to be a witness against himself," thus,
the prohibition is not restricted to not compelling him to
testify, but extends to not compelling him to be a witness.

3. ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE.

·"The rights intended to be protected by the constitutional
provision that no man accused of crime shall be compelled
to be a witness against himself is so sacred, and the
pressure toward their relaxation so great when the
suspicion of guilt is strong and the evidence obscure,

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 1 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

571

VOL. 53, SEPTEMBER 23, 1929 571

Beltran vs. Samson and Jose

that it is the duty of courts liberally to construe the

prohibition in favor of personal rights, and to refuse to
permit any steps tending toward their invasion. 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." (28 R.
C. L., par. 20, page 434, and notes.)

4. ID. ; ID. ; CASES INAPPLICABLE.·There have been cases

where it was lawful to compel the accused to write in open
court while he was under cross-examination (Bradford vs.
People, 43 Pacific Reporter, 1013), and to make him write
his name with his consent during the trial of his case
(Sprouse vs. Com., 81 Va., 374, 378); but in the first case,
the defendant, in testifying as witness in his own behalf
waived his constitutional privilege not to be compelled to act
as witness; and in the second, he also waived said privilege
because he acted voluntarily.

5. ID. ; ID. ; PREPARATION AND CREATION OF

EVIDENCE BY TESTIMONIAL ACT.·This constitutional
prohibition embraces the compulsory preparation and
creation by a witness of self-incriminatory evidence by
means of a testimonial act. "For though the disclosure thus
sought" (the production of documents and chattels) "be not
oral in form, and though the documents or chattels be
already in existence and not desired to be first written and
created by a testimonial act or utterance of the person in
response to the process, still no line can be drawn short of
any process which treats him as a witness; because in virtue
of it he would be at any time liable to make oath to the
identity or authenticity or origin of the articles produced." (4
Wigmore on Evidence 864', 865, latest edition.) In the case
before us, writing is something more than moving the body,
or hand, or fingers; writing is not a purely mechanical act; it
requires the application of intelligence and attention;

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 2 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

writing means for the petitioner here to furnish, through a

testimonial act, evidence against himself.

6. ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE,

REASON FOR EXISTENCE OF.·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. The petitioner is a municipal treasurer, and
it should not be difficult for the fiscal to obtain a genuine
specimen of his handwriting by some other means. But even
supposing that it is impossible to secure such specimen
without resorting to the means herein complained of by the
petitioner, that is no reason for trampling upon a

572

572 PHILIPPINE REPORTS ANNOTATED

Beltran vs. Samson and Jose

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.

7. ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-

SUMMERS CASE AND CASE AT BAR.·The difference
between this case and that of Villaflor vs. Summers (41
Phil., 62), is that in the latter the object was to have the
petitioner's body examined by physicians, without being
compelled to perform a positive act, but only an omission,
that is, not to prevent the examination, which could be, and
was, interpreted by this court as being no compulsion of the
petitioner to furnish evidence by means of a testimonial act;
all of which is entirely different from the case at bar, where
it is sought to make the petitioner perform a positive
testimonial act, silent, indeed, but effective, namely, to write
and give a sample of his handwriting for comparison.

ORIGINAL ACTION in the Supreme Court. Prohibition.

The facts are stated in the opinion of the court.
Gregorio P. Formoso and Vicente Formoso for petitioner.

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 3 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

The respondents in their own behalf.

ROMUALDEZ, J.:

This is a petition for a writ of prohibition, wherein the

petitioner complains that the respondent judge ordered
him to appear before the provincial fiscal to take dictation
in his own handwriting from the latter.
The order was given upon petition of said fiscal for the
purpose of comparing the petitioner's handwriting and
determining whether or not it is he who wrote certain
documents supposed to be falsified.
There is no question as to the facts alleged in the
complaint filed in these proceedings; but the respondents
contend that the petitioner is not entitled to the remedy
applied for, inasmuch as the order prayed for by the
provincial fiscal and later granted by the court below, and
against which the instant action was brought, is based on
the provisions of section 1687 of the Administrative Code
and on the doctrine laid down in the cases of People vs. Ba-

573

VOL. 53, SEPTEMBER 23, 1929 573

Beltran vs. Samson and Jose

dilla (48 Phil., 718); United States vs. Tan Teng (23 Phil.,
145); United States vs. Ong Siu Hong (36 Phil., 735), cited
by counsel for the respondents, and in the case of Villaflor
vs. Summers (41 Phil., 62) cited by the judge in the order in
question.
Of course, the fiscal under section 1687 of the Adminis-
trative 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.
And the petitioner, in refusing to perform what the fiscal
demanded, seeks refuge in the constitutional provision
contained in the Jones Law and incorporated in General
Orders, No. 58.
Therefore, the question raised is to be decided by
examining whether the constitutional provision invoked by
the petitioner prohibits compulsion to execute what is
enjoined upon him by the order against which these

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 4 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

proceedings were taken.

Said provision is found in paragraph 3, section 3 of the
Jones Law which (in Spanish) reads: "Ni se le obligará a
declarar en contra suya en ningún proceso criminal" and
has been incorporated in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4) and section 56.
As to the extent of this privilege, it should be noted first
of all, that the English text of the Jones Law, which is the
original one, reads as follows: "Nor shall he be compelled in
any criminal case to be a witness against himself."
This text is not limited to declaración but says "to be a
witness." Moreover, as we are concerned with a principle
contained both in the Federal constitution and in the
constitutions of several states of the United States, but
expressed differently, we should take it that these various
phrasings have a common conception.
"In the interpretation of the principle, nothing turns
upon the variations of wording in the constitutional
clauses; this much is conceded (ante, par. 2252). It is
therefore

574

574 PHILIPPINE REPORTS ANNOTATED

Beltran vs. Samson and Jose

immaterial that the witness is protected by one

Constitution from 'testifying,' or by another from
'furnishing evidence,' or by another from 'giving evidence,'
or by still another from 'being a witness.' These various
phrasings have a common conception, in respect to the
form of the protected disclosure. What is that conception?"
(4 Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to
testimony, but extends to all giving or furnishing of
evidence.

"The rights intended to be protected by the constitutional provision

that no man accused of crime shall be compelled to be a witness
against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that it is the duty of courts liberally to construe the
prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-
established doctrine that the constitutional inhibition is directed not

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 5 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

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 f act which the accused has a right to
hold secret." (28 R. C. L., paragraph 20, page 434 and notes.) (Italics
ours.)

The question, then, is reduced to a determination of

whether the writing from the fiscal's dictation by the
petitioner for the purpose of comparing the latter's
handwriting and determining whether he wrote certain
documents supposed to be falsified, constitutes evidence
against himself within the scope and meaning of the
constitutional provision under examination.
Whenever a defendant, at the trial of his case, testifying
in his own behalf, denies that a certain writing or signature
is in his own hand, he may on cross-examination be
compelled to write in open court in order that the jury may
be able to compare his handwriting with the one in
question.

575

VOL. 53, SEPTEMBER 23, 1929 575

Beltran vs. Samson and Jose

It was so held in the case of Bradford vs. People (43 Pacific

Reporter, 1013) inasmuch as the defendant, in offering
himself as witness in his own behalf, waived his personal
privileges.
Of like character is the case of Sprouse vs. Com. (81 Va.,
374, 378), where the judge asked the defendant to write his
name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one
now before us. We are not concerned here with a defendant,
f or it does not appear that any information was filed
against the petitioner for the supposed falsification, and
still less is it a question of a defendant on trial testifying
and under cross-examination. This is only an investigation
prior to the information and with a view to filing it. And let
it further be noted that in the case of Sprouse vs. Com., the
defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting
or the form of writing of the defendant was obtained before
the criminal action was instituted against him. We refer to
the case of People vs. Molineux (61 Northeastern Reporter,

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 6 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

286).
Neither may it be applied to the instant case, because
there, as in the aforesaid case of Sprouse vs. Com., the
defendant voluntarily offered to write, to furnish a
specimen of his handwriting.
We cite this case particularly because the court there
gives prominence to the defendant's right to decline to
write, and to the fact that he voluntarily wrote. The
following appears in the body of said decision referred to
(page 307 of the volume cited) :

"The defendant had the legal right to refuse to write for Kinsley. He
preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded
from the case." (Italics ours.) For this reason it was held in the case
of First National Bank vs. Robert (41 Mich., 709; 3. N. W., 199),
that the

576

576 PHILIPPINE REPORTS ANNOTATED

Beltran vs. Samson and Jose

defendant could not be compelled to write his name, the doctrine

being stated as f ollows:
"The defendant being sworn in his own behalf denied the
indorsement.
"He was then cross-examined and questioned in regard to his
having signed papers not in the case, and was asked in particular
whether he would not produce signatures made prior to the note in
suit, and whether he would not write his name there in court. The
judge excluded all these inquiries, on objection, and it is of these
rulings that complaint is made. The object of the questions was to
bring into the case extrinsic signatures, for the purpose of
comparison by the jury, and we think the judge was correct in ruling
against it."

It is true that the eminent Professor Wigmore, in his work

cited (volume 4, page 878), says:
"Measuring or photographing the party is not within the
privilege. Nor is the removal or replacement of his garments
or shoes. Nor is the requirement that the party move his
body to enable the foregoing things to be done. Requiring
him to make specimens of handwriting is no more than
requiring him to move his body * * *" but he cites no case in

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 7 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

support of his last assertion on specimens of handwriting.

We note that in the same paragraph 2265, where said
author treats of "Bodily Exhibition," and under proposition
"1. A great variety of concrete illustrations have been ruled
upon," he cites many cases, among them that of People vs.
Molineux (61 N. E., 286) which, as we have seen, has no
application to the case at bar because there the defendant
voluntarily gave specimens of his handwriting, while here
the petitioner ref uses to do so and has even instituted
these prohibition proceedings that he may not be compelled
to do so.
Furthermore, in the case before us, writing is something
more than moving the body, or the hand, 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

577

VOL. 53, SEPTEMBER 23, 1929 577

Beltran vs. Samson and Jose

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. And as to such production of
documents or chattels, which to our mind is not so serious
as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864):

"* * * 2264. Production or Inspection of Documents and Chattels.·1.

It follows that the production of documents or chattels by a person
(whether ordinary witness or party-witness) in response to a
subpoena, or to a motion to order production, or to other form of
process treating him as a witness (i. e. as a person appearing before
the tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the privilege;
and this is universally conceded." (And he cites the case of People
vs. Gardner, 144 N. Y., 119; 38 N. E., 1003.)

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

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 8 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

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. And for
this reason the same eminent author, Professor Wigmore,
explaining the matter of the production of documents and
chattels, in the passage cited, adds:

"For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and not
desired to be first written and created by a testimonial act or
utterance of the person in response to the process, still no line can
be drawn short of any process which treats him as a witness;
because in virtue of

578

578 PHILIPPINE REPORTS ANNOTATED

Beltran vs. Samson and Jose

it he would be at any time liable to make oath to the identity or

authenticity or origin of the articles produced." (Ibid., pp. 864-865.)
(Italics ours.)

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 obtain
genuine specimens of his handwriting. But even supposing
it is impossible to obtain a specimen or specimens without
resorting to the means complained of 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.
With respect to the judgments rendered by this court
and cited on behalf of the respondents, it should be
remembered that in the case of People vs. Badilla (48 Phil.,

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 9 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

718), it does not appear that the defendants and other

witnesses were questioned by the fiscal against their will,
and if they did not refuse to answer, they must be
understood to have waived their constitutional privilege, as
they could certainly do.

"The privilege not to give self-incriminating evidence, while

absolute when claimed, may be waived by any one entitled to invoke
it." (28 R. C. L., paragraph 29, page 442, and cases noted.)

The same holds good in the case of United States vs. Tan
Teng (23 Phil., 145), where the defendant did not oppose
the extraction from his body of the substance later used as
evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was
plainly stated that the court preferred to rest its decision
on the reason of the case rather than on blind adherence

579

VOL. 53, SEPTEMBER 23, 1929 579

Beltran vs. Samson and Jose

to tradition. The said reason of the case there consisted in

that it was a 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 a 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 in 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 Villaflor 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.
Similar considerations suggest themselves to us with
regard to the case of United States vs. Ong Siu Hong (36
Phil., 735), wherein the defendant was not compelled to

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 10 of 11
PHILIPPINE REPORTS ANNOTATED VOLUME 053 7/4/22, 10:33 PM

perform any testimonial act, but to take out of his mouth

the morphine he had there. It was not compelling him to
testify or to be a witness or to furnish, much less make,
prepare, or create through a testimonial act, evidence for
his own condemnation.
Wherefore, we find the present action well taken, and it
is ordered that the respondents and those under their
orders desist and abstain absolutely and forever from
compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for
comparison.
Without express pronouncement as to costs. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and

Villa-Real, JJ., concur.

Writ granted.

580

580 PHILIPPINE REPORTS ANNOTATED

People vs. Montil

© Copyright 2022 Central Book Supply, Inc. All rights reserved.

https://central.com.ph/sfsreader/session/00000181c9a4fbc52ba66310000d00d40059004a/p/ARY553/?username=Guest Page 11 of 11