EN BANC
[ G.R. No. 134530, December 04, 2000 ]PEOPLE v. ROBERTO SAMONTAÑEZ Y DELA VEGA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO SAMONTAÑEZ Y DELA VEGA, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. ROBERTO SAMONTAÑEZ Y DELA VEGA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO SAMONTAÑEZ Y DELA VEGA, ACCUSED-APPELLANT.
D E C I S I O N
DE LEON, JR., J.:
Before us on automatic review is the Decision[1] of the Regional Trial Court, Branch 14, of Nasugbu, Batangas dated May 15, 1998 in Criminal Case No. 1032 convicting the appellant, Roberto V. Samontañez, of the crime of rape with
homicide and sentencing him to suffer the supreme penalty of death.
In the early morning of November 25, 1995, Corazon delas Alas saw her daughter, eighteen (18) year-old Lolita delas Alas, off to school from their residence in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. That was the last time Corazon had seen her alive because at 8:00 o'clock in the evening of the same day Lolita's lifeless and naked body was found in the middle of a sugar cane plantation in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. Lolita was apparently raped before the attacker ended her life.
Nobody witnessed the actual commission of the grisly crime. However, police investigation reveals that Roberto Samontañez was seen at around 6:30 o'clock in the evening on November 25, 1995 while he was in the act of coming out of the sugar cane plantation of Perino Desacola in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas near the place where the dead body of Lolita delas Alas was later found. It also appears that earlier, at around 5:30 o'clock in the afternoon, Roberto passed by the house of Melecio Mendoza in Sitio Bulanggutan, Barangay Bunducan and he headed eastward to the direction of the sugar cane plantation of Desacola. Thirty (30) minutes later, Lolita was also spotted, and she was likewise heading eastward to her house in Sitio Ilaya. At around 7:00 o'clock in the evening, Roberto returned heading westward and he passed through the same path along the cane field.
On November 28, 1995, Roberto was fetched by the police authorities of Nasugbu, Batangas from his workplace at Hermogenes Trading in Barangay Galicia III, Mendez, Cavite. During the investigation at the Nasugbu Police Headquarters in Nasugbu, Batangas, Roberto admitted to the police that the other personal belongings of Lolita delas Alas were inside his bag that was left at his workplace in Mendez, Cavite. A follow-up investigation conducted by the Nasugbu police authorities at Hermogenes Trading in Mendez, Cavite led to the recovery of the said personal belongings of the victim.
On January 11, 1996, Roberto Samontañez was formally charged in court with the crime of rape with homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended, in an Information that reads:
Upon being arraigned on February 1, 1996, accused Roberto Samontañez, assisted by counsel de oficio, entered the plea of "Not guilty" to the Information in this case.
Pre-trial was scheduled and terminated on March 14, 1996. Before trial on the merits could ensue the accused, through counsel, manifested his intention of changing his earlier plea of not guilty to that of guilty. Accordingly, the trial court ordered that the accused be re-arraigned in Tagalog, a dialect which he understood, and the said accused then pleaded guilty to the charge of rape with homicide as stated in the instant information. After being satisfied that the accused entered a voluntary and informed plea by asking some questions, the trial court required the prosecution to adduce evidence to prove the guilt of the accused and the precise degree of his culpability pursuant to Article 116, Section 3 of the 1985 Rules of Criminal Procedure.[3]
The evidence of the prosecution shows that on November 26, 1995, the victim, Lolita delas Alas alias Betia, left their house in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas at around 6:00 o'clock in the morning to attend her classes at Kim Harold Computer School in Poblacion, Nasugbu, Batangas. She was expected to return home at 5:00 o'clock in the afternoon of the same day. Having failed to come home on time, the victim's mother, Corazon delas Alas, decided to meet Lolita in Barangay Pantalan which was her usual route in going home from school. Upon her arrival in Barangay Pantalan however, Corazon was informed that Lolita had already passed by, and that by then she must have reached their home. Corazon returned to Sitio Ilaya but found that Lolita was not yet home. Filled with apprehension, Corazon sought the assistance of her neighbors, Renato Bauyon and Dalmacio Salao, to locate her daughter's whereabouts. At 8:00 o'clock in the evening Corazon fainted upon being informed by Bauyon and Salao that the dead body of Lolita was found in the sugar cane plantation of Perino Desacola. The body of her dead daughter was already inside the house when she regained consciousness.[4]
Corazon gave her sworn statement[5] to the police on December 8, 1995 in connection with the rape-slay case of her daughter Lolita delas Alas. She knew accused-appellant Roberto Samontañez for the reason that he was a resident of Sitio Balanggutan, Barangay Bunducan, Nasugbu, Batangas. The death of her daughter was very painful to Corazon and that she spent about P40,000.00 in connection with her wake and funeral.[6]
It appears that on November 26, 1995, Carlito Samontañez, who is a first cousin of both the accused-appellant and the victim, was on his way home after gathering fodder for his animals when, at a distance of twenty (20) arms length, he chanced upon Roberto at around 6:30 o'clock in the evening while the latter was coming out of the sugar cane plantation of Perino Desacola in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. Carlito and Roberto were coming from opposite directions. However, when they came close to two (2) arms length with each other, Carlito observed that Roberto, who was naked from waist up with his T-shirt placed on his shoulder, was perspiring, somewhat surprised and looked pale ("medyo po namumutla"). Carlito greeted Roberto and asked him where he just came from, but the latter did not answer and left hurriedly. Carlito dismissed his cousin's reaction, thinking that he (Roberto) may have been merely drunk.[7]
After reaching his house, Carlito joined in the search for Lolita upon learning that she was missing. At 8:00 o'clock in the evening, the victim was found dead in the sugar cane plantation of Perino Desacola in Sitio Ilaya. Lolita was lying on her stomach, naked and a black T-shirt was tied around her neck.[8]
Another prosecution witness, Melecio Mendoza, who is an uncle of Roberto Samontañez by affinity, saw Roberto walking eastward to Sitio Ilaya in Barangay Bunducan at about 5:30 o'clock in the afternoon on November 26, 1995. Melecio also saw Lolita at around 6:00 o'clock in the evening of the same day walking home to Sitio Ilaya. Subsequently, at 7:00 o'clock in the evening, Melecio again saw Roberto passed by his house, this time heading westward to Sitio Balanggutan in Barangay Bunducan. Roberto was naked from waist up with his T-shirt placed on his shoulder.[9]
Melecio joined in the search for Lolita after having been requested by Renato Bauyon. Lolita was totally naked and already dead when they found her in the sugar cane plantation of Perino Desacola in Sitio Ilaya which was approximately one hundred (100) meters away from his house in Sitio Balanggutan.[10]
Acting on the report that a dead woman was found in Barangay Bunducan, Nasugbu, Batangas, SPO2 Buenaventura Masikat and other police officers of Nasugbu, Batangas, together with Dra. Estela Hizon, proceeded to the crime scene in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas where the victim, Lolita delas Alas, was found dead and lying on her stomach totally naked with a black T-shirt tied around her neck. A panty was stuffed in her anal area. Her hands were stretched upward and her bra was half removed.[11]
Dra. Estela Hizon, M.D., Municipal Health Officer of Nasugbu, Batangas, conducted a post-mortem examination on the cadaver of Lolita delas Alas which was already in a state of rigor mortis. Her findings are contained in her post mortem certification[12] dated November 26, 1995, thus:
Dra. Hizon also prepared an anatomical sketch of the human body[13] showing the location of the injuries indicated in her post-mortem report and another anatomical sketch showing the hymenal lacerations[14] in the vaginal canal of the victim. She explained that the contusion on the left eye, the contused wounds on the upper and lower lips with swelling and blackish discoloration as well as the multiple contusions at the anterior aspect of the chest of the victim may have been caused by fist blows. The horizontal skin depressions around the victim's neck was caused by ligature possibly with the use of a piece of cloth or a rope. The protruding tongue of the victim may have been caused by constriction around her neck. The multiple fresh lacerations of the hymen may have been caused by forcible penetration of the victim's vaginal canal. There was watery bloodied fluid coming out of the victim's vagina. Finally, the cause of death of the victim was asphyxia by strangulation.[15]
Meanwhile, SPO2 Masikat found two (2) short pants and one (1) piece of slipper that belonged to Lolita delas Alas.[16] On the other hand, SPO2 Dionisio Calara took pictures[17] of the deceased victim and the scene of the crime on the same evening. On November 27, 1995, police officers Masikat and Calara returned to the crime scene and found the black bag of the victim containing a lotion, a pair of maong pants and a pair of shoes.[18] They also found the brown bag of the victim which contained her Kim Harold identification card, coin purse, hair pin, powder kit and powder puff.[19] In addition, they prepared a sketch of the scene of the crime[20] and its vicinity. Thereafter, SPO2 Masikat conducted interviews of the persons in the vicinity among whom were the prosecution witnesses, Carlito Samontañez and Melecio Mendoza. During the interview, SPO2 Masikat learned, among others, that the suspect, Roberto Samontañez, could possibly be located at Hermogenes Trading in Barangay Galicia III, Mendez, Cavite where he worked.[21]
On November 28, 1995, SPO2 Masikat, together with police officers Ramos, Malinay, Ocoma, Lejano and Ilao, all of the Nasugbu, Batangas police found Roberto Samontañez at the Hermogenes Trading in Barangay Galicia III, Mendez, Cavite. After talking to his employer, they invited Roberto to the Nasugbu Police Headquarters. During the interrogation at the police headquarters, Roberto informed SPO2 Masikat and SPO2 Calara that some of the personal belongings of Lolita delas Alas were inside his bag that was left at his workplace in Mendez, Cavite.[22]
On December 4, 1995 SPO2 Masikat and his group returned to Hermogenes Trading in Barangay Galicia III, Mendez, Cavite and inquired from Mr. Nelson Hermogenes about the bag of Roberto. Accordingly, Mr. Hermogenes produced a black bag purportedly belonging to Roberto containing an Omax wrist watch, a Joop cologne and a pawnshop receipt for a gold ring that was subsequently redeemed by SPO2 Masikat for P500.00. The three (3) articles were positively identified during the trial of the case by Corazon delas Alas as belonging to her daughter, Lolita delas Alas. The police also found a fan knife (balisong) and a Barangay Clearance inside the black bag of Roberto Samontañez.[23]
The prosecution rested its case on November 30, 1997. During the scheduled hearings on January 14 and 29, 1998 for the presentation of evidence of the defense, the accused took the witness stand and reiterated his previous plea of guilty to the crime charged in the information. Thereafter, the trial court rendered a decision, the dispositive portion of which reads:
In his Brief, appellant Roberto Samontañez assails the validity of his plea of guilty to the charge in the information in this case for having been improvidently made. On the other hand, the People belie the claim of the appellant by citing portions of the transcript of the stenographic notes of the hearing during the appellant's re-arraignment on March 14, 1996 and that of the scheduled hearings on January 14 and 29, 1998 to show that he voluntarily entered the plea of guilty to the crime of rape with homicide as charged in the information and with full knowledge of the consequences of his plea of guilty. It averred that the guilt of the appellant was also established beyond reasonable doubt by independent evidence adduced by the prosecution during the trial of the instant case.
The record shows that the trial court relied on a) the appellant's plea of guilty to the crime of rape with homicide as charged in the information and b) the evidence adduced by the prosecution during the trial of the instant case.
Section 3 Rule 116 of the Revised Rules on Criminal Procedure specifically mandates the course that trial courts should follow in case where the accused pleads guilty to a capital offense, as follows:
Based on the aforecited rule, three (3) things are enjoined of the trial court after a plea of guilty to a capital offense is entered by the accused: 1. The trial court must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea; 2. The trial court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability through the requisite quantum of evidence; and 3. The trial court must ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires.[25] It must be emphasized that the said procedure is mandatory and any judge who fails to observe it commits grave abuse of discretion.[26]
The rationale behind the rule is that the courts must proceed with more care where the possible punishment is in its severest form, namely death, for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty. The primordial purpose is to avoid improvident pleas of guilty on the part of an accused where grave crimes are involved since by admitting his guilt before the court, he would forfeit his life and liberty without having fully understood the meaning, significance and consequence of his plea.[27]
The Court notes the trial court's efforts to ensure the propriety of appellant's plea of guilty to the crime of rape with homicide as evidenced by its lengthy inquiries to the appellant in separate hearings, the transcript of which were reproduced in its assailed Decision. Hence, during the scheduled hearing on March 14, 1996, the following proceedings transpired, to wit:
During the scheduled hearing on January 14, 1998 for the presentation of evidence of the defense, the following proceedings were duly recorded, to wit:
Also, on January 29, 1998, the following verbal exchange were recorded, thus:
Nevertheless, We are not convinced that such lengthy inquiries conducted by the trial court during the re-arraignment of the appellant as well as during the subsequent hearings for the presentation of evidence of both the prosecution and the defense sufficiently established voluntariness and full comprehension of the appellant of his plea of guilty to the crime charged in the Information. It may be noted that the appellant earlier entered the plea of "Not guilty" to the Information in this case during his arraignment on February 1, 1996. Subsequently, the appellant manifested, through his counsel de officio, his intention to change his previous plea to that of a plea of guilty to the crime charged in the Information. After having entered the plea of guilty on re-arraignment, the trial court proceeded to propound questions on the appellant during which affirmative responses were elicited from the appellant apparently to show that his subsequent plea of guilty was his own voluntary decision. The trial court per its Decision under review, however, failed to dwell on a significant development that transpired during the scheduled hearing on November 13, 1997 when the appellant revealed in open court, through counsel, that his subsequent plea of guilty was prompted by "pressure" from a certain policeman so that he (appellant) agreed to admit the commission of the offense charged. The pertinent portion of the transcript is quoted hereunder, to wit:
The trial court perfunctorily brushed aside the aforesaid disclosure from the appellant that he was pressured by a policeman to change his earlier plea of not guilty to that of guilty to the charge in the information. It did not propound any clarificatory questions about the matter on the same occasion such as the identity of the concerned policeman, the nature of the pressure and the circumstances under which the alleged pressure was applied on the appellant. Although further inquiries were undertaken by the trial court in the subsequent hearings on January 14 and 29, 1998, the questions addressed to the appellant were primarily aimed at eliciting affirmative responses or confirmations of his plea of guilty. The statement of the appellant that he was pressured by a certain policeman apparently escaped the memory or concern of the trial court as it did not crop up in its inquiry during those subsequent hearings. Left unventilated, the appellant's allegation of pressure generates doubt on the voluntariness of his plea of guilty to a capital offense.
Certain other considerations pose nagging doubts on the clarity of appellant's grasp of the true meaning, full significance and consequences of his plea of guilty. The trial court failed to mention and explain clearly to the appellant the elements of the crime of rape with homicide as charged in the Information.[32] As a result, appellant was not properly accorded his fundamental right to be informed of the precise nature of the accusation against him, which is an integral aspect of the due process clause under the Constitution.
Notably, the appellant who reached grade IV only stated that he did not know the consequences of his plea of guilty during the hearing on February 14, 1996 and again, during the hearing on January 14, 1998. While the trial court informed the appellant that his plea of guilty meant that he admitted liability for the crime of rape with homicide, as charged in the information, which carries the penalty of death, it failed to emphasize that his said plea of guilty would not, under any circumstance, affect or reduce the death penalty, the imposition of which is mandatory under Section 11 of Republic Act No. 7659.[33] In which event, the appellant must be made to understand in plain and simple language the precise meaning of the term "mandatory".[34] Additionally, the trial court failed to apprise the appellant of the civil liability (e.g. indemnity, moral damages and exemplary damages) arising from the crime of rape with homicide which shall be imposed on him as perpetrator of the crime.[35] Despite appellant's apparent willingness to accept the penalty for his crime, it is not farfetched to say that appellant was actually led to believe that the penalty for his crime may still be reduced upon his plea of guilty thereto especially when the trial court informed the appellant, through counsel, that he should adduce evidence.
Also, the trial court should have probed deeper to the extent of securing every material detail of the crime in its lengthy inquiries to the appellant subsequent to his re-arraignment. Questions tending to elicit corroborative responses to the testimonies of the prosecution witnesses should have been asked of the appellant. Although there is no definite and concrete rule as to how a trial judge may go about the matter of a proper "searching inquiry", it would be well for the trial court, for instance, to require the appellant to fully narrate the incident that spawned the charges against him, or by making him re-enact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance in order to determine, once and for all, his liability for the crime.[36] As it is, the Decision of the trial court is devoid of any factual finding relative to the actual commission of the crime of rape with homicide by the appellant. In the final analysis, it is the quality rather than the number of questions propounded during the inquiry that serves the task of ascertaining the voluntariness and full comprehension by the accused of the consequences of his plea of guilty to a capital offense.
Lastly, the trial court lamentably considered pieces of evidence that are inadmissible in evidence for being the proverbial "fruit of a poisonous tree". The facts show that the appellant Roberto Samontañez was actually arrested by police authorities of Nasugbu, Batangas on November 28, 1995 at his workplace in Barangay Galicia III, Mendez, Cavite. It does not appear from the record that the appellant was apprised of his constitutional rights during the police custodial investigation which are enshrined in Article III, Section 12(1) of the 1987 Constitution.[37] It also does not appear that he was assisted by counsel during the said custodial investigation. In the absence of a valid waiver, any confession obtained from the appellant during the police custodial investigation relative to the crime, including any other evidence secured by virtue of the said confession is inadmissible in evidence even if the same was not objected to during the trial by the counsel of the appellant. Thus, the personal belongings of the victim namely: Omax wristwatch, gold ring and Joop cologne were recovered and found inside the bag of the appellant when the police authorities returned to the appellant's place of work at the Hermogenes Trading in Barangay Galicia III, Mendez, Cavite after they illegally obtained a confession from the appellant. In the case of People vs. Alicando,[38] the Court had opportunity to reiterate the rule that evidence gathered by virtue of an illegally obtained confession is inadmissible, thus:
The only other evidence of the prosecution are the testimonies of Carlito Samontañez and Melecio Mendoza, both of which merely seek to establish the presence of the appellant near the vicinity of the crime scene on or about the time when the crime took place. Ultimately, the conviction of the appellant for the crime charged in the case at bar rested primarily on his plea of guilty which appeared to have been improvidently made and hence, contrary to the letter and spirit of Section 3, Rule 116 of the Revised Rules of Court, supra.
WHEREFORE, the Decision of the Regional Trial Court, Branch 14, of Nasugbu, Batangas dated May 15, 1998 in Criminal Case No. 1032 convicting the appellant, Roberto V. Samontañez, of the crime of rape with homicide and sentencing him to suffer the supreme penalty of death is hereby ANNULLED and SET ASIDE; and the case is remanded to the court of origin for the proper arraignment and trial of the accused until terminated.
SO ORDERED.
Davide, C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
[1] Penned by Judge Antonio A. De Sagun. Rollo, pp. 27-61.
[2] Rollo, pp. 1-2.
[3] TSN dated March 14, 1996, pp. 2-7.
[4] TSN dated June 10, 1997, pp. 2-5; Exhibit "S".
[5] Exhibit "S".
[6] TSN dated June 10, 1997, pp. 9-10.
[7] TSN dated March 14, 1996, pp. 9-13; Exhibit "A".
[8] Id., pp. 14-15.
[9] TSN dated June 26, 1996, pp. 4-8; 10-11.
[10] Id., pp. 8-9.
[11] TSN dated July 11, 1996, p. 5.
[12] Exhibit "B".
[13] Exhibit "C".
[14] Exhibit "D".
[15] TSN dated March 27, 1996, pp. 6-10.
[16] Exhibits "Q", "R", "H".
[17] Exhibits "F" to "F-4".
[18] Exhibits "K" to "K-3".
[19] Exhibits "L" to "L-3"; Exhibits "M", "M-1"
[20] Exhibit "J".
[21] TSN dated July 11, 1996, p. 13.
[22] Id., pp. 13-14.
[23] Exhibits "N" to "P-3".
[24] Rollo, p. 61.
[25] People vs. Camay, 152 SCRA 401, 403 (1987); People vs. Derilo 271 SRCA 633, 651 (1997); People vs. Sevilleno, 305 SCRA 519, 528 (1999); People vs. Bello, G.R. Nos. 130411-14, October 13, 1999.
[26] People vs. Dayot 187 SCRA 637, 641 (1990).
[27] People vs. Albert, 251 SCRA 136, 145-146 (1995) citing 14 Am. Jur., Criminal Law, Sec. 271, p. 951; People vs. Gonzaga, 127 SCRA 158, 163 (1984); People vs. Havana 199 SCRA 805, 811 (1991).
[28] TSN dated March 14, 1996, pp. 2-7.
[29] TSN dated January 14, 1998, pp. 2-5.
[30] Minutes dated January 29, 1998. Original records, pp. 164-165.
[31] Minutes dated November 13, 1997. Original records, pp. 152-153.
[32] People vs. Sevilleno supra, p. 528.
[33] People vs. De Luna, 174 SCRA 204, 212 (1989); People vs. Sevilleno, supra, pp. 528-529; People vs. Bello, supra, G.R. Nos. 130411-14.
[34] People vs. Alicando, 251 SCRA 293, 308 (1995).
[35] Ibid.
[36] People vs. Estomaca, 256 SCRA 429, 437 (1996) citing People vs. Dayot, supra.
[37] Article III Section 12 paragraph (1) provides:
[38] Supra, pp. 314-315.
In the early morning of November 25, 1995, Corazon delas Alas saw her daughter, eighteen (18) year-old Lolita delas Alas, off to school from their residence in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. That was the last time Corazon had seen her alive because at 8:00 o'clock in the evening of the same day Lolita's lifeless and naked body was found in the middle of a sugar cane plantation in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. Lolita was apparently raped before the attacker ended her life.
Nobody witnessed the actual commission of the grisly crime. However, police investigation reveals that Roberto Samontañez was seen at around 6:30 o'clock in the evening on November 25, 1995 while he was in the act of coming out of the sugar cane plantation of Perino Desacola in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas near the place where the dead body of Lolita delas Alas was later found. It also appears that earlier, at around 5:30 o'clock in the afternoon, Roberto passed by the house of Melecio Mendoza in Sitio Bulanggutan, Barangay Bunducan and he headed eastward to the direction of the sugar cane plantation of Desacola. Thirty (30) minutes later, Lolita was also spotted, and she was likewise heading eastward to her house in Sitio Ilaya. At around 7:00 o'clock in the evening, Roberto returned heading westward and he passed through the same path along the cane field.
On November 28, 1995, Roberto was fetched by the police authorities of Nasugbu, Batangas from his workplace at Hermogenes Trading in Barangay Galicia III, Mendez, Cavite. During the investigation at the Nasugbu Police Headquarters in Nasugbu, Batangas, Roberto admitted to the police that the other personal belongings of Lolita delas Alas were inside his bag that was left at his workplace in Mendez, Cavite. A follow-up investigation conducted by the Nasugbu police authorities at Hermogenes Trading in Mendez, Cavite led to the recovery of the said personal belongings of the victim.
On January 11, 1996, Roberto Samontañez was formally charged in court with the crime of rape with homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended, in an Information that reads:
That on or about the 26th day of November, 1995, at about 6:30 o'clock in the evening, at Sitio Ilaya, Brgy. Bunducan, Municipality of Nasugbu, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of Lolita delas Alas y Andino against her will and consent and by reason or on occasion of the said rape accused with intent to kill, wilfully, unlawfully and feloniously strangled the said Lolita delas Alas y Andino with the use of the latter's T-shirt which directly caused her instantaneous death. Further, the personal properties of Lolita delas Alas y Andino consisting of a gold ring and a wrist watch in an undetermined amount were taken by the accused.
Contrary to law.[2]
Upon being arraigned on February 1, 1996, accused Roberto Samontañez, assisted by counsel de oficio, entered the plea of "Not guilty" to the Information in this case.
Pre-trial was scheduled and terminated on March 14, 1996. Before trial on the merits could ensue the accused, through counsel, manifested his intention of changing his earlier plea of not guilty to that of guilty. Accordingly, the trial court ordered that the accused be re-arraigned in Tagalog, a dialect which he understood, and the said accused then pleaded guilty to the charge of rape with homicide as stated in the instant information. After being satisfied that the accused entered a voluntary and informed plea by asking some questions, the trial court required the prosecution to adduce evidence to prove the guilt of the accused and the precise degree of his culpability pursuant to Article 116, Section 3 of the 1985 Rules of Criminal Procedure.[3]
The evidence of the prosecution shows that on November 26, 1995, the victim, Lolita delas Alas alias Betia, left their house in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas at around 6:00 o'clock in the morning to attend her classes at Kim Harold Computer School in Poblacion, Nasugbu, Batangas. She was expected to return home at 5:00 o'clock in the afternoon of the same day. Having failed to come home on time, the victim's mother, Corazon delas Alas, decided to meet Lolita in Barangay Pantalan which was her usual route in going home from school. Upon her arrival in Barangay Pantalan however, Corazon was informed that Lolita had already passed by, and that by then she must have reached their home. Corazon returned to Sitio Ilaya but found that Lolita was not yet home. Filled with apprehension, Corazon sought the assistance of her neighbors, Renato Bauyon and Dalmacio Salao, to locate her daughter's whereabouts. At 8:00 o'clock in the evening Corazon fainted upon being informed by Bauyon and Salao that the dead body of Lolita was found in the sugar cane plantation of Perino Desacola. The body of her dead daughter was already inside the house when she regained consciousness.[4]
Corazon gave her sworn statement[5] to the police on December 8, 1995 in connection with the rape-slay case of her daughter Lolita delas Alas. She knew accused-appellant Roberto Samontañez for the reason that he was a resident of Sitio Balanggutan, Barangay Bunducan, Nasugbu, Batangas. The death of her daughter was very painful to Corazon and that she spent about P40,000.00 in connection with her wake and funeral.[6]
It appears that on November 26, 1995, Carlito Samontañez, who is a first cousin of both the accused-appellant and the victim, was on his way home after gathering fodder for his animals when, at a distance of twenty (20) arms length, he chanced upon Roberto at around 6:30 o'clock in the evening while the latter was coming out of the sugar cane plantation of Perino Desacola in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas. Carlito and Roberto were coming from opposite directions. However, when they came close to two (2) arms length with each other, Carlito observed that Roberto, who was naked from waist up with his T-shirt placed on his shoulder, was perspiring, somewhat surprised and looked pale ("medyo po namumutla"). Carlito greeted Roberto and asked him where he just came from, but the latter did not answer and left hurriedly. Carlito dismissed his cousin's reaction, thinking that he (Roberto) may have been merely drunk.[7]
After reaching his house, Carlito joined in the search for Lolita upon learning that she was missing. At 8:00 o'clock in the evening, the victim was found dead in the sugar cane plantation of Perino Desacola in Sitio Ilaya. Lolita was lying on her stomach, naked and a black T-shirt was tied around her neck.[8]
Another prosecution witness, Melecio Mendoza, who is an uncle of Roberto Samontañez by affinity, saw Roberto walking eastward to Sitio Ilaya in Barangay Bunducan at about 5:30 o'clock in the afternoon on November 26, 1995. Melecio also saw Lolita at around 6:00 o'clock in the evening of the same day walking home to Sitio Ilaya. Subsequently, at 7:00 o'clock in the evening, Melecio again saw Roberto passed by his house, this time heading westward to Sitio Balanggutan in Barangay Bunducan. Roberto was naked from waist up with his T-shirt placed on his shoulder.[9]
Melecio joined in the search for Lolita after having been requested by Renato Bauyon. Lolita was totally naked and already dead when they found her in the sugar cane plantation of Perino Desacola in Sitio Ilaya which was approximately one hundred (100) meters away from his house in Sitio Balanggutan.[10]
Acting on the report that a dead woman was found in Barangay Bunducan, Nasugbu, Batangas, SPO2 Buenaventura Masikat and other police officers of Nasugbu, Batangas, together with Dra. Estela Hizon, proceeded to the crime scene in Sitio Ilaya, Barangay Bunducan, Nasugbu, Batangas where the victim, Lolita delas Alas, was found dead and lying on her stomach totally naked with a black T-shirt tied around her neck. A panty was stuffed in her anal area. Her hands were stretched upward and her bra was half removed.[11]
Dra. Estela Hizon, M.D., Municipal Health Officer of Nasugbu, Batangas, conducted a post-mortem examination on the cadaver of Lolita delas Alas which was already in a state of rigor mortis. Her findings are contained in her post mortem certification[12] dated November 26, 1995, thus:
- Contusion around the left eye.
- Contused wounds at the upper and lower lips.
- Presence of mark of strangulation around the neck.
- Multiple contusions at the anterior aspect of the chest.
- Multiple laceration of the hymen.
Cause of death: Asphyxia by Strangulation.
Dra. Hizon also prepared an anatomical sketch of the human body[13] showing the location of the injuries indicated in her post-mortem report and another anatomical sketch showing the hymenal lacerations[14] in the vaginal canal of the victim. She explained that the contusion on the left eye, the contused wounds on the upper and lower lips with swelling and blackish discoloration as well as the multiple contusions at the anterior aspect of the chest of the victim may have been caused by fist blows. The horizontal skin depressions around the victim's neck was caused by ligature possibly with the use of a piece of cloth or a rope. The protruding tongue of the victim may have been caused by constriction around her neck. The multiple fresh lacerations of the hymen may have been caused by forcible penetration of the victim's vaginal canal. There was watery bloodied fluid coming out of the victim's vagina. Finally, the cause of death of the victim was asphyxia by strangulation.[15]
Meanwhile, SPO2 Masikat found two (2) short pants and one (1) piece of slipper that belonged to Lolita delas Alas.[16] On the other hand, SPO2 Dionisio Calara took pictures[17] of the deceased victim and the scene of the crime on the same evening. On November 27, 1995, police officers Masikat and Calara returned to the crime scene and found the black bag of the victim containing a lotion, a pair of maong pants and a pair of shoes.[18] They also found the brown bag of the victim which contained her Kim Harold identification card, coin purse, hair pin, powder kit and powder puff.[19] In addition, they prepared a sketch of the scene of the crime[20] and its vicinity. Thereafter, SPO2 Masikat conducted interviews of the persons in the vicinity among whom were the prosecution witnesses, Carlito Samontañez and Melecio Mendoza. During the interview, SPO2 Masikat learned, among others, that the suspect, Roberto Samontañez, could possibly be located at Hermogenes Trading in Barangay Galicia III, Mendez, Cavite where he worked.[21]
On November 28, 1995, SPO2 Masikat, together with police officers Ramos, Malinay, Ocoma, Lejano and Ilao, all of the Nasugbu, Batangas police found Roberto Samontañez at the Hermogenes Trading in Barangay Galicia III, Mendez, Cavite. After talking to his employer, they invited Roberto to the Nasugbu Police Headquarters. During the interrogation at the police headquarters, Roberto informed SPO2 Masikat and SPO2 Calara that some of the personal belongings of Lolita delas Alas were inside his bag that was left at his workplace in Mendez, Cavite.[22]
On December 4, 1995 SPO2 Masikat and his group returned to Hermogenes Trading in Barangay Galicia III, Mendez, Cavite and inquired from Mr. Nelson Hermogenes about the bag of Roberto. Accordingly, Mr. Hermogenes produced a black bag purportedly belonging to Roberto containing an Omax wrist watch, a Joop cologne and a pawnshop receipt for a gold ring that was subsequently redeemed by SPO2 Masikat for P500.00. The three (3) articles were positively identified during the trial of the case by Corazon delas Alas as belonging to her daughter, Lolita delas Alas. The police also found a fan knife (balisong) and a Barangay Clearance inside the black bag of Roberto Samontañez.[23]
The prosecution rested its case on November 30, 1997. During the scheduled hearings on January 14 and 29, 1998 for the presentation of evidence of the defense, the accused took the witness stand and reiterated his previous plea of guilty to the crime charged in the information. Thereafter, the trial court rendered a decision, the dispositive portion of which reads:
WHEREFORE, foregoing premises considered, accused Roberto Samontañez is found guilty beyond reasonable doubt as principal, of the crime of Rape with Homicide as thus penalized and is hereby sentenced to DEATH, together with the accessory penalties provided for in Article 40 of the same code. The accused is further condemned to pay to the heirs of the victim the amount of P40,000.00 by way of compensatory or actual damages; P50,000.00 as civil indemnity for her death; and P100,000.00 as and for moral damages, The accused should pay costs.
SO ORDERED.[24]
In his Brief, appellant Roberto Samontañez assails the validity of his plea of guilty to the charge in the information in this case for having been improvidently made. On the other hand, the People belie the claim of the appellant by citing portions of the transcript of the stenographic notes of the hearing during the appellant's re-arraignment on March 14, 1996 and that of the scheduled hearings on January 14 and 29, 1998 to show that he voluntarily entered the plea of guilty to the crime of rape with homicide as charged in the information and with full knowledge of the consequences of his plea of guilty. It averred that the guilt of the appellant was also established beyond reasonable doubt by independent evidence adduced by the prosecution during the trial of the instant case.
The record shows that the trial court relied on a) the appellant's plea of guilty to the crime of rape with homicide as charged in the information and b) the evidence adduced by the prosecution during the trial of the instant case.
Section 3 Rule 116 of the Revised Rules on Criminal Procedure specifically mandates the course that trial courts should follow in case where the accused pleads guilty to a capital offense, as follows:
SEC. 3. Plea of guilty to capital offense; reception of evidence.- When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf.
Based on the aforecited rule, three (3) things are enjoined of the trial court after a plea of guilty to a capital offense is entered by the accused: 1. The trial court must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea; 2. The trial court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability through the requisite quantum of evidence; and 3. The trial court must ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires.[25] It must be emphasized that the said procedure is mandatory and any judge who fails to observe it commits grave abuse of discretion.[26]
The rationale behind the rule is that the courts must proceed with more care where the possible punishment is in its severest form, namely death, for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty. The primordial purpose is to avoid improvident pleas of guilty on the part of an accused where grave crimes are involved since by admitting his guilt before the court, he would forfeit his life and liberty without having fully understood the meaning, significance and consequence of his plea.[27]
The Court notes the trial court's efforts to ensure the propriety of appellant's plea of guilty to the crime of rape with homicide as evidenced by its lengthy inquiries to the appellant in separate hearings, the transcript of which were reproduced in its assailed Decision. Hence, during the scheduled hearing on March 14, 1996, the following proceedings transpired, to wit:
(After reading the Information in Pilipino.)
Your honor, the accused entered a Plea of Not Guilty.
During the scheduled hearing on January 14, 1998 for the presentation of evidence of the defense, the following proceedings were duly recorded, to wit:
Atty. Exchaure: The witness, your honor, is the accused himself. Although he pleaded guilty to the crime imputed against him, he will explain to the Honorable Court the reasons and circumstances, if any, why he pleaded guilty when he was re-arraigned. Court: Proceed. Atty. Exchaure: Q: Mr. Witness, is it not a fact that when you were re-arraigned, you pleaded guilty to the charge against you? A: Yes, sir. Q: And in fact, you were asked by the Honorable Court if your having pleaded guilty is of your own voluntary act? A: Yes, sir. Q: Now, up to the present time, do you confirm the fact that you pleaded guilty to the charge against you? A: Yes, sir. Q: At the time you pleaded guilty, nobody forced or coerced you to plead guilty? A: Yes, sir. Court: Q: And even now, nobody is threatening you? A: Nobody, sir. Atty. Exchaure: Q: Are you aware of the consequences of your having pleaded guilty? A: No, sir. Court: Q: Why do you say you don't know the consequences? A: I don't know what will happen to me, sir. Q: Don't you understand that by pleading guilty, the Court will just penalize you for the crime that you admitted? A: Yes, sir. Q: And in fact, the charge to which you pleaded guilty calls for the supreme penalty of death? A: Yes, sir. Q: And still you insist on or maintain your plea of guilty made before and you are confirming the same this morning? A: Yes, sir. Atty. Exchaure: Q: And you are willing to accept whatever will be the penalty will be imposed by the Honorable Court for having pleaded guilty, which you still maintain up to now? A: Yes. Sir. Court: Are you remorseful for the crime imputed to you and which you admitted to have committed? A: Yes, sir. Q: You just pray to God that in the final day of reckoning, God will still forgive you? A: Yes, sir.[29]
Also, on January 29, 1998, the following verbal exchange were recorded, thus:
Nevertheless, We are not convinced that such lengthy inquiries conducted by the trial court during the re-arraignment of the appellant as well as during the subsequent hearings for the presentation of evidence of both the prosecution and the defense sufficiently established voluntariness and full comprehension of the appellant of his plea of guilty to the crime charged in the Information. It may be noted that the appellant earlier entered the plea of "Not guilty" to the Information in this case during his arraignment on February 1, 1996. Subsequently, the appellant manifested, through his counsel de officio, his intention to change his previous plea to that of a plea of guilty to the crime charged in the Information. After having entered the plea of guilty on re-arraignment, the trial court proceeded to propound questions on the appellant during which affirmative responses were elicited from the appellant apparently to show that his subsequent plea of guilty was his own voluntary decision. The trial court per its Decision under review, however, failed to dwell on a significant development that transpired during the scheduled hearing on November 13, 1997 when the appellant revealed in open court, through counsel, that his subsequent plea of guilty was prompted by "pressure" from a certain policeman so that he (appellant) agreed to admit the commission of the offense charged. The pertinent portion of the transcript is quoted hereunder, to wit:
Court: The prosecution having rested, the Court wants to hear from the defense what it has to offer. Atty. Exchaure: I am now in dilemma, your honor, considering that the accused has already pleaded guilty to the charge against him and the accused intimated to me this morning that he is changing his plea of guilty because according to him when he testified before this Honorable Court admitted and pleaded guilty (sic), he was under pressure by a certain policeman to admit the commission of the offense. Court: Well, that is your point, you have to present your evidence. Atty. Exchaure: In that case, your honor, considering the recent development on the intention of the accused, may I be allowed to confer first with the accused and ask the Honorable Court to have this case to move for continuance to give us time to present the accused himself at the next schedule hearing. Court: Granted. Prosecutor Marajas: I just manifest for the record that the accused is a detention prisoner if what the defense counsel stated were true and correct that Mr. Roberto Samontañez was just pressured, the more he should present the. . . Court: Precisely, that's why he is asking for postponement.[31]
The trial court perfunctorily brushed aside the aforesaid disclosure from the appellant that he was pressured by a policeman to change his earlier plea of not guilty to that of guilty to the charge in the information. It did not propound any clarificatory questions about the matter on the same occasion such as the identity of the concerned policeman, the nature of the pressure and the circumstances under which the alleged pressure was applied on the appellant. Although further inquiries were undertaken by the trial court in the subsequent hearings on January 14 and 29, 1998, the questions addressed to the appellant were primarily aimed at eliciting affirmative responses or confirmations of his plea of guilty. The statement of the appellant that he was pressured by a certain policeman apparently escaped the memory or concern of the trial court as it did not crop up in its inquiry during those subsequent hearings. Left unventilated, the appellant's allegation of pressure generates doubt on the voluntariness of his plea of guilty to a capital offense.
Certain other considerations pose nagging doubts on the clarity of appellant's grasp of the true meaning, full significance and consequences of his plea of guilty. The trial court failed to mention and explain clearly to the appellant the elements of the crime of rape with homicide as charged in the Information.[32] As a result, appellant was not properly accorded his fundamental right to be informed of the precise nature of the accusation against him, which is an integral aspect of the due process clause under the Constitution.
Notably, the appellant who reached grade IV only stated that he did not know the consequences of his plea of guilty during the hearing on February 14, 1996 and again, during the hearing on January 14, 1998. While the trial court informed the appellant that his plea of guilty meant that he admitted liability for the crime of rape with homicide, as charged in the information, which carries the penalty of death, it failed to emphasize that his said plea of guilty would not, under any circumstance, affect or reduce the death penalty, the imposition of which is mandatory under Section 11 of Republic Act No. 7659.[33] In which event, the appellant must be made to understand in plain and simple language the precise meaning of the term "mandatory".[34] Additionally, the trial court failed to apprise the appellant of the civil liability (e.g. indemnity, moral damages and exemplary damages) arising from the crime of rape with homicide which shall be imposed on him as perpetrator of the crime.[35] Despite appellant's apparent willingness to accept the penalty for his crime, it is not farfetched to say that appellant was actually led to believe that the penalty for his crime may still be reduced upon his plea of guilty thereto especially when the trial court informed the appellant, through counsel, that he should adduce evidence.
Also, the trial court should have probed deeper to the extent of securing every material detail of the crime in its lengthy inquiries to the appellant subsequent to his re-arraignment. Questions tending to elicit corroborative responses to the testimonies of the prosecution witnesses should have been asked of the appellant. Although there is no definite and concrete rule as to how a trial judge may go about the matter of a proper "searching inquiry", it would be well for the trial court, for instance, to require the appellant to fully narrate the incident that spawned the charges against him, or by making him re-enact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance in order to determine, once and for all, his liability for the crime.[36] As it is, the Decision of the trial court is devoid of any factual finding relative to the actual commission of the crime of rape with homicide by the appellant. In the final analysis, it is the quality rather than the number of questions propounded during the inquiry that serves the task of ascertaining the voluntariness and full comprehension by the accused of the consequences of his plea of guilty to a capital offense.
Lastly, the trial court lamentably considered pieces of evidence that are inadmissible in evidence for being the proverbial "fruit of a poisonous tree". The facts show that the appellant Roberto Samontañez was actually arrested by police authorities of Nasugbu, Batangas on November 28, 1995 at his workplace in Barangay Galicia III, Mendez, Cavite. It does not appear from the record that the appellant was apprised of his constitutional rights during the police custodial investigation which are enshrined in Article III, Section 12(1) of the 1987 Constitution.[37] It also does not appear that he was assisted by counsel during the said custodial investigation. In the absence of a valid waiver, any confession obtained from the appellant during the police custodial investigation relative to the crime, including any other evidence secured by virtue of the said confession is inadmissible in evidence even if the same was not objected to during the trial by the counsel of the appellant. Thus, the personal belongings of the victim namely: Omax wristwatch, gold ring and Joop cologne were recovered and found inside the bag of the appellant when the police authorities returned to the appellant's place of work at the Hermogenes Trading in Barangay Galicia III, Mendez, Cavite after they illegally obtained a confession from the appellant. In the case of People vs. Alicando,[38] the Court had opportunity to reiterate the rule that evidence gathered by virtue of an illegally obtained confession is inadmissible, thus:
We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States. According to this rule, once the primary source ( the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained.
The only other evidence of the prosecution are the testimonies of Carlito Samontañez and Melecio Mendoza, both of which merely seek to establish the presence of the appellant near the vicinity of the crime scene on or about the time when the crime took place. Ultimately, the conviction of the appellant for the crime charged in the case at bar rested primarily on his plea of guilty which appeared to have been improvidently made and hence, contrary to the letter and spirit of Section 3, Rule 116 of the Revised Rules of Court, supra.
WHEREFORE, the Decision of the Regional Trial Court, Branch 14, of Nasugbu, Batangas dated May 15, 1998 in Criminal Case No. 1032 convicting the appellant, Roberto V. Samontañez, of the crime of rape with homicide and sentencing him to suffer the supreme penalty of death is hereby ANNULLED and SET ASIDE; and the case is remanded to the court of origin for the proper arraignment and trial of the accused until terminated.
SO ORDERED.
Davide, C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
[1] Penned by Judge Antonio A. De Sagun. Rollo, pp. 27-61.
[2] Rollo, pp. 1-2.
[3] TSN dated March 14, 1996, pp. 2-7.
[4] TSN dated June 10, 1997, pp. 2-5; Exhibit "S".
[5] Exhibit "S".
[6] TSN dated June 10, 1997, pp. 9-10.
[7] TSN dated March 14, 1996, pp. 9-13; Exhibit "A".
[8] Id., pp. 14-15.
[9] TSN dated June 26, 1996, pp. 4-8; 10-11.
[10] Id., pp. 8-9.
[11] TSN dated July 11, 1996, p. 5.
[12] Exhibit "B".
[13] Exhibit "C".
[14] Exhibit "D".
[15] TSN dated March 27, 1996, pp. 6-10.
[16] Exhibits "Q", "R", "H".
[17] Exhibits "F" to "F-4".
[18] Exhibits "K" to "K-3".
[19] Exhibits "L" to "L-3"; Exhibits "M", "M-1"
[20] Exhibit "J".
[21] TSN dated July 11, 1996, p. 13.
[22] Id., pp. 13-14.
[23] Exhibits "N" to "P-3".
[24] Rollo, p. 61.
[25] People vs. Camay, 152 SCRA 401, 403 (1987); People vs. Derilo 271 SRCA 633, 651 (1997); People vs. Sevilleno, 305 SCRA 519, 528 (1999); People vs. Bello, G.R. Nos. 130411-14, October 13, 1999.
[26] People vs. Dayot 187 SCRA 637, 641 (1990).
[27] People vs. Albert, 251 SCRA 136, 145-146 (1995) citing 14 Am. Jur., Criminal Law, Sec. 271, p. 951; People vs. Gonzaga, 127 SCRA 158, 163 (1984); People vs. Havana 199 SCRA 805, 811 (1991).
[28] TSN dated March 14, 1996, pp. 2-7.
[29] TSN dated January 14, 1998, pp. 2-5.
[30] Minutes dated January 29, 1998. Original records, pp. 164-165.
[31] Minutes dated November 13, 1997. Original records, pp. 152-153.
[32] People vs. Sevilleno supra, p. 528.
[33] People vs. De Luna, 174 SCRA 204, 212 (1989); People vs. Sevilleno, supra, pp. 528-529; People vs. Bello, supra, G.R. Nos. 130411-14.
[34] People vs. Alicando, 251 SCRA 293, 308 (1995).
[35] Ibid.
[36] People vs. Estomaca, 256 SCRA 429, 437 (1996) citing People vs. Dayot, supra.
[37] Article III Section 12 paragraph (1) provides:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
x x x
[38] Supra, pp. 314-315.